I Want it All

Ah Christmas. My daughter is grown up now (mostly) but I remember when she was much younger and the conversations we would have in the run up to Christmas about choice - which of the many presents she had mentioned did she actually want. Inevitably, at some point, she would say, "But I want then all!".

I was reminded of this when reading the words of Lord Justice Gross, as reported in Legal Futures (link here), I quote:

"I am anxious to ensure that a conflict between shareholder value or business interest on the one hand and professional ethics should always be resolved in favour of the latter – and the point is worth making because the pressures to the contrary can arise in subtle form through small, imperceptible steps..."

I appreciate his concerns. In another part of his speech, he says:

“Money is in short supply; that is a reality. There are many priorities and supplicants for public funds. That too is understood. However, reducing cost – in the sense of tightening the legal aid budget – must, over time, impact on the willingness of the best and brightest to practise at the publicly funded Bar. What will this do to the quality of our justice system over time, in areas such as crime and family?”

This seems to be axiomatically true. It does, however, also smack a little of wanting it all. The Bar - the Justice system - should be well funded, firms and sets should be careful in cutting costs and outside investors should not have influence over the firms they invest in.

That doesn't sound quite right to me. Why would an investor provide a large slice of capital to a firm but have no control over its direction? Why shouldn't firms cut costs sensibly? Perhaps most importantly - why should external investors in a law firm have any lower ethical standard than the lawyers who currently invest (in one way or another) in the firm? It is possible, surely, that an additional external oversight might actually work to keep some firms on the straight and narrow.

We can't have it all. In times of economic difficulty, criminal justice will be asked to cut costs. Law firms and chambers should work to ensure that their systems are as efficient as possible and so make the best use of the money available. Firms should look to external investment expertise - and accept the requirements placed on them by the investors in terms of reporting and control systems. Who knows, we might end up in an ethically, as well as financially, stronger position...

New E&D Rules - is it complicated

I wrote earlier about the new Rules from the Bar Standards Board with regard to Equality & Diversity. I was approached by a Senior Clerk yesterday and asked if it was all that difficult to comply with the new new Rules. I decided not to mention that the new Rules were now in force and so it might be a little late to start worrying - and instead ran through the work involved...

Your chambers will need to have:

A new Equality Policy
This will need to be fully compliant with the new Rules and that includes sections on parental leave, returning to work, fair access to work, flexible working, etc

That sounds OK - but the general guidance from the BSB suggests that  this should be a single document rather than a collection and so someone will need to combine what exists, get it into a single format and ensure that it complies with the Rules, including some of the suggested wording in the Guidance.

You will need to tell chambers about the new policy - but I will deal with communication and training later. At this stage I will just mention the new duty that exists under the Rules for every member of chambers to ensure compliance - not just the Head of Chambers. That i.s likely to require a couple of meetings with all members, and update in writing and then a way of making sure that everyone has seen and understands the new policy.

Sometimes it can be easier to start from scratch than to try to amend an old policy - but either way I think there are probably a couple of days' work in there.

Action Plan
New to this set of Rules is the Action Plan. The Rules require a detailed plan that says how the policy will be implemented, who will perform each task, when they will perform it, and how the managers of chambers will know that each task has been completed.

This will take a while. Every statement in the Policy needs to be backed up here with a statement of who, when, what, and how.

So maybe another couple of days doing this.

Processes and Procedures
Your action plan will lead on to a requirement for new procedures and processes so that the tasks and requirements of the Action Plan are implemented automatically and become part of the operational life of chambers.

I have dismissed in two paragraphs a huge amount of work. Your E&D Policy will say that, for example, all members will have fair access to work. Your Action Plan will then probably address that point by detailing a member or group of members to define 'fair access to work'; the senior clerk (probably) to making sure that fair access is given; the same senior clerk to making sure that the record keeping in chambers is capable of reporting; and then someone will be detailed to produce a periodic report for the management committee to prove that the Policy is being adhered to. So far so good. Your chambers will then need a procedure to ensure that there is a systematic way of recording how work comes into chambers, who does the work and how (or whether) that work is allocated. Another procedure will be required to report to the clerks day to day so that if any patterns are emerging, they have time to do something about it. Ideally there will be some sort of process to automatically collect the statistics, but if not then there will need to be a procedure to gather and analyse them, say, monthly. Finally there will need to be a standardised report than can be completed. The management committee will then need to have a procedure to make sure that comments from their report are fed back into the systems above.

Remember, this is a new set of Rules. It is not enough to say that the documents and procedures are there. The Rules will be audited by looking for evidence that statistics are gathered and that they are discussed and acted upon.

The same sets of steps will be required for each statement in the Policy and each line in the Action Plan.

Depending on the quality of your existing documents, I estimate that this is 7 to 10 days' work. Each process and procedure must be documented and implemented - and then 'trained in'.

Training & Communications
The 'old days' of being compliant by having the documents in place somewhere are over. As I have already mentioned, members of chambers have a personal responsibility to ensure compliance and so they will need to know what is done in chambers. There will need to be a process to report to members and a way for them to get information.

Members of staff need to be trained on their responsibilities. A compliance audit might simply walk into the clerks room and ask one of the clerks - not the Senior Clerk - what they know about fair access to work. They need to know and there needs to be evidence that they have been told. So a set of procedures to make sure that there are regular updates and training sessions and that these sessions are recorded. Chambers only defence might be to be able to say "We do train the clerks regularly and here is the information we tell them, this is how often we tell them, and here are the attendance records showing that the clerks attended recently".

Your chambers will have a number of training sessions and an annual calendar of the activities required throughout the year

There's more...

Statistics
This is another new requirement. Every set of chambers must gather various sets of statistics - on recruitment and on the make-up of chambers, for example. Chambers must gather statistics on its members, using a formula of questions supplied, and analyse and publish these statistics on their web site by the end of December this year. If you have ever tried to get information out of busy people (particularly if, as is likely in this case, they feel that the questions are either stupid or just plain nosey)? Agreeing the detail of the questionnaire could take a month and then getting replies out of barristers could easily take another month - so without any preparation or analysis we could already be in November... Suddenly a deadline of 31st December 2012 doesn't seem so far away.

So my answer yesterday was "it's a lot of work". Of course I then said that the best way to get this done was to find a friendly consultant who could do it for him...

Chambers has to comply with the new E&D section of the Code of Conduct. So now is the time to get started.

I will happily repeat my naked plug from my previous post. Mar-aon Consulting can help in producing the new Policy, Action Plan and Procedures - and the questionnaire. Get in contact today for an informal (and free) discussion. Email Peter Blair here.

Equality & Diversity - are you ready?

It's back to work with a bump. The new Equality & Diversity Rules from the Bar Standards Board are now in force. You can ready the announcement from the BSB here, but in essence there are a number of changes and you and your chambers will need to have a new Equality Policy that conforms, and Action Plan, and processes and procedures to made sure that the new rules are being followed.

That all sounds rather simple. It is, however, imperative that every set of chambers has to ensure that their documentation is in order - and, possibly more importantly, that members and staff know about the changes. Members also need to know about their new responsibilities.

Under the old rules, it was the responsibility of the Head of Chambers to ensure that chambers was compliant. It is not the responsibility of every member of chambers. Yes - you heard that correctly. Every member of chambers, from the most junior to the most senior has a personal responsibility to make sure that their chambers understands the new rules and takes them to heart.

Not only do your documents need to be changed and added to - you have to make sure that every member of chambers and staff understand the rules and is able to speak knowledgeably about them. The BSB is likely to audit chambers' compliance by simply asking some question.

Finally - chambers will have to collect and publish statistics about its membership by the end of this year (and every three years thereafter). These statistics must conform to a standard set by the BSB and must be published to chambers' websites.

Now is about the latest point at which chambers should be addressing the changes.


The sales plug:
Mar-aon can help with the development of the documents you now need, with the planning of training, with the design of the questionnaires you need, and with the publication of the data. Just get in touch.

Not Change, but the Consideration of Change

I was at FoxWilliams this morning for the launch of the report written by Jon Robins entitled "The Big Bang Report: Opportunities and threats in the new legal services market". An electronic version is available from Byfield Consultancy here.

The report makes very interesting reading - and I'm reading it very thoroughly at the moment - but there were a few points raised in the discussion which followed the launch which have got me thinking.

One of the speakers was Tony Williams, the Principal from Jomati, who made a point that I have been trying to make for a while - namely that of the "deliberate decision". It is important for firms and chambers to decide what it is that they want to do, the market they want to work with, and to examine the competition they face now and will face in the future. Not rocket science. The point is to make a deliberate decision about the future of their firm or set of chambers before the market makes one for them. The decision may be to do nothing - that their model works and that those running the firm or chambers believe that they are well placed in the market. That is fine - it is a deliberate decision.

Decision time is here for legal services, there is no more time to prevaricate. Crispin Passmore from the Legal Services Board reminded the attendees that the Bar Standards Board was meeting today (November 19th) to consider the possibility of barristers working in partnerships, which (assuming a "yes" vote) would be a major step towards Alternative Business Structures (ABSs). He also said that the LSB expected to see the first ABSs in mid 2011. This is not very far away and so I repeat - now is the time for barristers and solicitors to seriously consider their business and what they would like it to be in the future.

I'm particularly interested in how the changes to the profession will have an impact on the bar. For many sets of chambers, I think that, following thorough analysis, the view might well be that they are more in the B2B (Business to Business) market than the B2C (Business to Consumer), and so their branding and marketing is focussed on professional firms rather than on the "end users" of the justice system. Many sets are specialised or have barristers who work at the very top end of the profession and so are likely to remain in demand after the shake-up. This will not be true, sadly, for every set of criminal chambers. The  new large branded law firms which are widely expected to enter the market are likely, as part of an ABS, to try to scoop up public defence work, while the Criminal Prosecution Service are squeezing the bar from the other side. I can almost see the junior end of the junior criminal bar disappearing - working for the new ABSs before starting in independent practice later in life when they can start to work on more specialised areas of criminal law. This will have a huge impact on the bar, on the Inns of Court, on barristers and solicitors and on clients. Exactly what that impact will be - I don't know.

In times of change, the only real fault is to do nothing - or rather to accidentally do nothing. Deliberately doing nothing to change your business model after careful thought is a positive decision. Firms are already starting to try new ways of working. Look at Turcan Connell a law firm based in Edinburgh with offices in London and Guernsey. They have expanded their Private Client work to include Asset Management - they have analysed their market and are providing their clients with the services they need, whether those are legal services or not. In all but name this is an ABS. Firms in England and Wales will, I'm sure, be examining Turcan Connell's success and analysing their business model. It could simply be one of the first of such practices.

So - my learning from this morning. Your firm or set of chambers must be considering the changes in the industry now. They should be engaging with advisers to examine their market, their place in the market, their strategy, their governance and their operations - and they should be doing this very soon. The bar in particular has been remiss in failing to address the Legal Services Act soon enough. Sets of chambers cannot wait for their regulator before they start to act. By starting the process now, they will be well placed to add what regulatory changes are decided by the BSB to chamber's strategy.

Consider the change now - before the market changes around you and your firm or chambers is no longer relevant in this new market.

The cost of Legal Aid

The Ministry of Justice has just issued a consultation paper on the funding of Legal Aid in England & Wales.

It has some interesting proposals, at first glance:

• To equalise the rates paid for defence and prosecution in legal aid cases;
• Move towards single rates for police station advice
• Simply arrangements - in particular with regard to the Litigators Graduated Fees Scheme
• End payments for criminal file reviews

I have already spoken with a couple of criminal barristers about the review, and they are not happy. "Well, of course not" you would be entitled to say, since they are looking at a reduction in income. There seem to be particular concerns about equalising payments simply by reducing the higher fee to the value of the lower. Cheaper is not always better, and I know that some in the criminal bar have raised concerns about the number of miss-trials, which they suggest is through the use of less experienced, and so cheaper, counsel.

We must remember that the document from the MoJ is a consultation paper and so all interested parties will be able to have their say.

Let's hope, however, that the "slash and burn" still being visited on many solicitors is not going to be used the the government on the Bar, and that efficiency savings can be found by looking at the whole system and costs in the medium and long terms as well as just within one budget review period.