Guest blog: The Bar is dead, long live the Bar.

6 October 2016

Absolute Barrister continue to innovate with the go-live of their new legal cloud  AB Portal 2.0. But why? What is the future of the Bar? Expanding on their CMA response, barrister and Absolute Barrister's founder, Simon Gittins, shares his optimistic view of the future of Barrister legal services. 

Simon Gittins, Absolute Barrister

This isn't the first draft. As the editor of this blog will tell you, since originally promised, we humbly considered the merits of appending a question mark to the title. Can the Bar reinvent itself? Must it? Should it? Can we say the future of the Bar is bright? Does it depend on anything? After a proper analysis: the future of the Bar is very bright indeed. 

That is not the view of the BSB. The view from the draft and then final "Strategic Review" is that "barristers may find themselves squeezed out of the market". The report says the reasons are three-fold: declining case load; a surfeit of barristers; and increasing competition from regulated and unregulated providers. Toss in a scoop of lack of innovation too. That view however is too narrow for the Bar, and here's why. 

Declining Case Load           

If you've got your head down working on an individual case in what is still largely a referral profession, it is not always easy to appreciate that there is a terrific market for legal services here, both locally and globally. With just over 4.8% of global GDP the UK helps itself to a whopping 7% global share of the legal services market. Give or take, it's £30bn a year, growing at 6%. So why the gloom? No really, why? 

When you break it down, there is a ton of legal expertise at the Bar. 'Advocacy' is the answer you must give if you want pupillage but the public, nay, most consumers that make up the individuals and small business in the £12bn market that the Competition & Markets Authority recently studied, probably don't know or care for you to explain what you mean by advocacy. The often used analogy of GPs and consultants and 'barristers are specialists' may have its limitations but for those looking for legal services, who normally settle on the first or second person they get in touch with, it's a much more apt and memorable distinction when the Bar tries - and it must - to distinguish itself. And let's look at the work we do:advocacydoesn't define the boundaries of our case work (and therefore market) any more than litigation defines a firm of solicitors. 

Although the Bar makes up approximately one sixth of the total of barristers and solicitors combined, in that £12bn market looked at by the CMA, the Bar is almost totally irrelevant. Solicitors have nearly 70%. So running the numbers you'd expect the Bar to have about 14% of the market. It doesn't. 10%? Not even close. The answer is, in fact, just 2%. And given that the legal services market is growing by about 6% a year, the entire market for the Bar could be grown from scratch three times over, each year. Squeezed out of the market? No. Ignored currently - maybe, but not squeezed out. That figure of 2% is hardly close to where the Bar should find itself, and if we flip back to the medical world for a minute, we can perhaps see why. 

Too many of us?

According to a report by the BBC, for a seven-year period to 2013, whilst the number of GPs increased by 4% the number of consultants has increased by a whopping 27% over the same period: a little over thirty percent specialise. (For more stats - click here to read 'Law: why not try free economics?') Whilst we think the market is for advice and representation in court, what the market is really looking for is expert legal services. Again, you might find the word 'expert' too limiting to describe the Bar, but if the Bar makes itself a destination for those who want to pursue a career in legal excellence then there are few other legal brands that could compete with it. 

But the Bar isn't just a brand is it? No of course not. But if the Bar is not clear about what distinguishes it, it will not get the air time it needs to present a developed argument - certainly not in the face of a single regulator and increased unregulated services. 

Unregulated Floodgates

Yes, we probably all feel the same way about becoming a professional McKenzie friend, probably the same way we do about an edict from the BSB that if we sub-contract photocopying we are on the hook. It can come as no surprise then that the LSB has signposted its intentions of becoming a single regulator to regulate 'some' activities and hinted at maybe even eventually one day reducing the titles available to those practising law to just one. "I am a lawyer". 

Whilst 'some' activities will be regulated, some will be (or become) - by necessity - unregulated. Taken together with the interim report by the CMA which states that unregulated providers don't prove to be a greater risk than the dominant regulated sector, we can and must expect more unregulated legal services. 

There is a slight nuance here though. The CMA states that regulated providers hold a very large share of the overall market, but that regulated shareis by their own analysis really just one dominant regulated provider. Will the Bar get a chance to pit its regulated services against others in the face of deregulation -"what about us, 'we're regulated too?".No. It's too late. With a full government review into the market next year, I am afraid those who don't believe the writing is on the wall with respect to an increase in unregulated services may find themselves on the wrong side of history. Time to panic? 

"The Bar is dead, long live the Bar?". 

No, it's not time to panic and here's why. Anyone in any market will tell you that one goal, in an established market, is for the expertise to drift down to larger mass market. You see even if - which won't happen - the entire legal market becomes unregulated, who would you use if you had a choice? An expert. A barrister, right? The consumer will seek out expertise and the Bar is best placed to offer that expertise - so long as it doesn't cost too much.

We cost too much

This week we offered criminal defence cheaper than that of the recoverable amount sought from the individual by the government and we paid the barrister more than the legal aid rate. Even the judge was exasperated at the contributions sought and recommended direct access. One exasperated barrister reported at the Bar Council annual conference last year that at the end of a lengthy trial his costs were forty times cheaper using direct access (see here). And it's not just us, barristers and judges, the government commissioned MOJ report (that they sat on for nearly a year - see here) said barristers can even be cheaper than unregulated services. 

Winning on both expertise and cost, the Bar has no squeeze to fear here from unregulated providers. 

Conclusion

So the market is here on our doorstep and it's a big one. If we are willing to market ourselves as specialists, experts, and innovate even just a little, the future for the Bar, for barristers, is very bright indeed. Long live the Bar.