Challenging times

As I write this article, the Bar Standards Board ('BSB') is reviewing the responses to its Second Consultation Paper on Legal Disciplinary Practices ('LDPs') and Barrister-Only Partnerships ('BOPs'). Its conclusions could well result in historic changes to the way barristers practise. The Board will have to consider whether to lift the ban on partnership in Rule 205 of the Code of Conduct and, if they do, what the future is for the cab-rank rule.

It cannot be pretended that there is a consensus at the Bar on partnership, but on one issue there has been virtual unanimity '“ namely that the cab-rank rule should remain the hallmark of the self-employed barrister. It also seems clear that the BSB will not take on the regulation of entities (as opposed to individuals) or of those who handle clients' money.

Last year, in response to the BSB's First Consultation Paper, a Bar Council working group agreed that it would be appropriate to amend the Code so that barristers could be employed as managers of an LDP, where the partnership was primarily of solicitors. This time the working group has agreed that, as the BSB proposes, barristers should be able to be managers of LDPs regulated by the SRA. However, it has warned that there must be safeguards to ensure that this relaxation does not allow BOPs, to which it is opposed. One such safeguard would be not allowing the proportion of barristers in an LDP to exceed one third.

The opposition to BOPs is founded on the belief that BOPs, if widespread, would reduce client choice and restrict, not expand, access to justice. In addition, there are many who think that, in the privately funded sector at any rate, barristers would be unlikely to enter such partnerships for fear of engendering conflicts of interest which would prevent them acting against each other in cases where previously it had been possible for members of the same chambers to do so.

As regards the cab-rank rule, the Bar's working group could not accept that barristers doing advocacy as managers of LDPs should not be subject to the rule just because it was not applicable to solicitor-advocates.

It must have been the privately funded sector that the BSB had in mind when it suggested that the self-employed Bar had been largely unaffected by the successive advent of employed barristers and solicitors' extended rights of audience. There is no hiding the fact that those at the self-employed Bar feel under threat from the increasing amount of work being done in house both by the Crown Prosecution Service and by Higher Court advocates, who understandably see the advocates' graduated fee scheme as more appealing than that for litigators. This is already having an effect on entrants to the profession as signs emerge of pupillage vacancies drying up this coming autumn.

This will not have come as a surprise to the former DPP, Sir Ken Macdonald, whose vision was of a future in which barristers travelled 'backwards and forwards' between the employed and self-employed Bar. Opinions will differ on how realistic this is: will barristers really wish to forsake the security of employment after, for example, five years for the uncertainty of a new start in chambers?

The 60th anniversary of the Legal Aid and Advice Act 1949 sees the Legal Services Commission ('LSC') planning a celebration. It is a nice question whether there is any cause. Even before recession showed signs of turning into depression, legal aid spending had been capped at £2bn until 2011. In real terms this means a cut in expenditure of 3.5 per cent per annum.

Meanwhile, a steering group continues to work with the LSC to find a scheme for Very High Cost Criminal Cases which rewards efficient and expeditious practitioners, but remains within the existing budget. The

Ministry of Justice has recognised that a consensual solution is essential, and it is welcome that they have not simply tried to impose a solution on an unwilling profession at the close of the consultation period. This lesson has been ignored as regards the latest proposals for cuts in legal aid fees for family cases.

In February the Family Bar was confronted with the first round of cuts totalling about £13m over two years (some 13 per cent across the board). In the aftermath of the Baby P tragedy, ministers have tried to pretend that this involves putting an extra £4m a year into public law cases, while suppressing the fact that £6m has been taken out, leaving a net cut of £2m in public law cases and a further £4m in private law ones.

A survey by the King's Institute for Policy Research in October 2008 showed that more than 80 per cent of barristers were intending to change their practices, even before the latest proposals for cuts involving further reductions estimated at 20 to 30 per cent. The NSPCC shares the Bar's fears that making this work uneconomic will put vulnerable families at severe risk. It will also endanger our efforts to increase diversity, as the cuts imperil the ability of women barristers returning from maternity leave to afford childcare.

There is no doubt that the publicly funded Bar faces both a bleak future and hard choices. No longer is it possible to dismiss this as crying wolf.