Wednesday, June 20, 2007

The Reincarnation of Barristers' Clerks -- Part 1

When I first started this blog two years ago I mentioned in my first post that I had written a study of barristers' clerks. (The book is available for download here.) I have recently started a new research project which is to re-study them. The gap between the two studies is a long one, so one imagines that all kinds of changes will have occurred and that the entire scene will be quite different.

When I did my first study there were no mobile phones, faxes were rare, computers very rare, and email nonexistent. Clerks maintained large paper diaries for their barristers and someone had to be close to a (landline) phone. I don't know if the Blackberry had even been imagined: it was easier to expect to be beamed up by Scotty. Now it all exists, but are clerks any different?

First, let me sketch a clerk. The barrister's clerk must belong to one of the strangest and least known occupational groups in the world. They have been around for over two hundred years from what historical data exist. Their main task is to act as the interface between the barrister and the external world. Think of it as bridging the sacred and the profane. The law, following Mary Douglas, is pure and sacrosanct. It therefore requires a priesthood to celebrate it and to proselytize it to the world. In law, we can theoretically say this is the barrister, an individual who is immersed in the law and remote from the quotidian concerns of the client. Clients are managed by solicitors who engage barristers as advocates when a trial is likely.

The world beyond the law is profane and the law and its interpretation must be protected from it. The priesthood is guarded by the barrister's clerk. He, and most are he, arranges the barrister's diary, negotiates the fees, and, most importantly, counsels the barrister on career choices. These could be what area of law to specialize in, when to take silk, or when to take a holiday. (One barrister recalled telling her clerk she was to be married. The clerk told that the middle of December would be a good time for the ceremony.) The clerk is manager, promoter, administrator, and shrink.

Any job role analysis would have a fit trying to establish the "dimensions" of this one. There is no formal training for the job. The usual route is by apprenticeship. A young clerk starts by running around doing photocopying, pulling cases off the internet, taking bundles of paper to court. This makes the job a social one in that young clerks mix together in courts and in the Inns of Court, so that they also learn from each other by exchanging information and gossiping.

With experience clerks take on more responsibility and take on the fixing of fees and diary management. Fixing fees is as much an art as science. There are notional hourly rates; there is the value of the case; there is the amount to be saved to the client if the case succeeds; and there is the clerk's gut feeling as to what the case is worth. The clerk doesn't have to know anything about the law, although some do.

Here it's worth mentioning that the English legal profession is similar to the American one in that its configuration is made up of two hemispheres: the corporate and the individual, reflecting the clients and their types of business. Within the English bar the two sides are the privately funded and the publicly funded, which crudely correspond to the US version.

Until a few years ago, up to 50% of the bar's earnings came from legal aid. With the legal aid bill in the UK running at £2.5 billion a year, it's still pretty substantial. For clerks the distinction is vital. Fixing private fees, especially corporate, is a much simpler process than dealing the bureaucratic nightmare of publicly funded fees with their graduated fees, Very High Criminal Case fees, and soon the Carter revisions to legal aid fees.

Two instances demonstrate the differences: in one set of chambers I observed which does a considerable amount of publicly funded work, there were 3 people working full-time attending to fees. In the other, a "Magic Circle" set of chambers, the clerk admitted that he would not know how to set and handle publicly funded fees. To him it was another, remote world, but he did say that the difference could be expressed thus: "Their barristers earn in a day what mine earn in an hour."

1 comment:

Informed¦Insider said...

LSC Case Plans may seem intimidating but it's no big deal. Magic Cirle firms are doing them anyway for their big private cases. They just call it project management.

Most clerks wouldn't want to leave a "magic circle" set, but for those that do: "... barristers’ clerks are very employable. They are also the chambers’ most valuable employees. That many clerks have not yet grasped just how transferable their negotiating, organisational and customer relationship management skills are, is fortunate for the Bar". As someone once said at