Friday, April 14, 2006

Revisiting Barristers' Clerks

My first-ever research project was a study of barristers' clerks. More often than not, when one has finished a project, one moves on to something else. Well, over 20 years later I am back where I started. The Nuffield Foundation has just awarded me a grant to restudy barristers' clerks, one of the most unusual groups within the legal profession. Here is a brief introduction to them from my research proposal:-

Barristers’ Clerks: The Law’s Middlemen was published in 1983. It examined, through the ethnographic method, a group of, largely, working class men who acted as the fulcrum of the litigation system in England and Wales. This proposal seeks to re-research barristers’ clerks in the light of changes in society, legal system, technology, and globalisation.

Barristers’ clerks, still a relatively homogeneous group, are agents who work for barristers. They negotiate barristers’ work, fees, and career trajectories. Although professional rules no longer dictate the necessity of employing a clerk, most barristers use them. Barristers are organised into chambers, a suite of offices that pools common resources, such as clerks, yet enables barristers to claim to be self-employed. The arrangement permits a flexible working environment whereby barristers, from the same chambers, may appear on opposite sides of the same case without incurring problems over conflict of interests, which normally besets solicitors. In the past 20 years barristers’ chambers, while not growing greatly in number, have expanded their memberships considerably. Some chambers have over 100 members with premises in a number of cities. Moreover, the geographical spread of barristers’ chambers is much wider than before; the profession is no longer quite so London-centred. Significantly, barristers and lawyers generally have become popular cultural icons with television programmes such as This Life, Kavanagh QC, and North Square (one which explicitly concentrated on barristers’ clerks).

In North Square, Peter McLeish, is the ringmaster, as this capsule from a review of by an Australian barrister shows:

"McLeish dominates proceedings. He's the master of the unexpected, keeping his own staff on their toes and his barristers well supplied with booze and briefs. The last episode explains a lot about the character and his motivation, but the Svengali act seems second nature. It's certainly the most swashbuckling portrayal of a barrister's clerk seen on the screen, but not a million miles from reality. Think of ex-Private First class Wintergreen, in the book `Catch 22', who did command assignments at Allied HQ, of whom even generals were afraid."

The legal profession has altered enormously in the last 25 years—especially in the increased participation of women and ethnic minorities—partly as a result of economic changes, eg, globalisation and increased competition, and partly from the stimulus of government measures. In many respects law is now more important in the lives of the citizenry than it has ever been. People are aware of the power of exercising rights over, eg, welfare, consumer problems, and human rights. New administrative tribunals have emerged and judicial review of governmental decision-making has accelerated dramatically. Also alternative dispute resolution has come of age. There are even claims that the UK has become a litigious society akin to the US.

While substantive rights have increased, it can be argued that changes to procedures in law have occurred more recently with the greatest transformation being the Woolf civil procedure reforms. Central to procedures working efficiently are the barristers’ clerks. A considerable part of their work involves liaising with others in the litigation process so that cases can be planned in an orderly fashion that maximises the utility of judges’ and lawyers’ time while minimising delay for the parties. Many high court cases are planned long in advance and lawyers are aware that their schedules are subject to the threat of change, all of which can interfere with the proper course of justice. This occurs both in the civil and criminal spheres. In Niklas Luhmann’s terms they can help establish legal certainty by stabilising the expectancy structures of those in the process.

Barristers’ clerks are an interesting group because they facilitate the course of justice, yet their circumstances would indicate that they are not trained to achieve this. Most clerks start as ‘tea boys’ or ‘gofers’ in chambers. They fetch and carry, accompany their senior clerks on listing missions, photocopy and so forth. Their early years are an apprenticeship where they absorb the mores of the barristers’ chambers, learn the structure and hierarchies of the legal profession. For example, in the original study one clerk explained how he educated young junior clerks into the mysteries of the social order:

When I call a barrister by his first name, you call him ‘Mr Smith’. When I call a barrister Mr Smith, you call him ‘Sir’. When I call him Sir, you don’t speak to him.

The Institute of Barristers’ Clerks offers a BTEC course in basic accounting, management, court procedures, etc, but essentially the skills of the clerk are craft skills that are imparted by senior clerks in a mentoring relationship. As junior clerks acquire experience they take on greater responsibilities, managing barristers’ diaries and taking care of junior barristers. After a number of years, a junior clerk will seek a position as senior clerk, either as a successor to his/her own senior clerk or with a new set of chambers. Barristers’ clerks’ earnings are considerable; the highest paid clerks in London earn in the region of £350,000 a year. £100,000 is not uncommon.

In the past ten years many chambers believed they should have more sophisticated management systems. Clerks were seen as antediluvian and amateur. Instead practice managers and administrators were brought in. These were accountants, MBAs, and ex-military officers. They were intended to modernise chambers’ administrations and make them competitive with other lawyers’ offices. Some chambers kept the senior clerk alongside the chambers’ administrator. The clerk would mentor the barrister and the administrator would manage the office side. Needless to say, this was a fraught relationship. In fact, a number of chambers decided to abandon administrators believing no benefits accrued and retain the clerk system. One other major change since the original study has been the development of technology in IT and telecommunications, all of which have allowed barristers’ clerks to manage their barristers in a more fine-tuned way.

However, two incidents that occurred recently lead me to believe that not all has changed since I wrote the book. The first was seeing a presentation by a clerk at a conference about the role of the clerk. He told me he used my book to help prepare his paper. The second was a clerk telling me that he gave my book to his juniors to help them understand their role.


Elmina Kenley said...

Good research really grateful to you for sharing such information with us.
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