Evolution of Provision of Legal Services by Barristers

This week, the President-Elect of the Law Council of Australia, South Australian lawyer Morry Bailes, urged the profession to "embrace change to remain relevant", recognising that diversity, technology and the pressure to do ‘more for less’ are resulting in rapid changes in the Australian legal profession. Although focussing mostly on the solicitors branch of the profession, he acknowledged that:

"Barristers at the bar bring independence which can serve a client well if there is to be a critical analysis of the conduct of a case. They can also be cheaper, given firm overheads".

And as Australian Bar Association President Will Alstergen QC demonstrates, there are many good reasons to brief the bar (early, and often). It is in this context that a recent study by the UK Bar Standards Board (BSB) provides important insights into how the delivery of legal services is evolving at the Bar.

Key findings

Published on 30 May 2017, the research report "Provision of Legal Services by Barristers" provides important insights into the challenges in providing wider access to justice, maintaining confidential and ethical business practices, assuring cost effective service delivery and better client experience. 

The report shows that there are opportunities for innovation in the way that legal services are
delivered, which could contribute to increasing access to justice and improving the quality of service provided. Innovation can also enable new and flexible ways of working to support inclusive working practices to encourage equality and diversity at the Bar. 

The vast majority of barristers are self-employed, known as the ‘independent Bar’, and run their own practice. This traditional model means that barristers are considered self-employed, but share office space and support services (e.g. chambers). Each barrister pays a fee, which goes towards the costs of the overheads as well as towards clerking services. In this sense, they are represented as a collective, but are also independent.

The research finds that the traditional chambers structure strongly prevails. There are isolated examples of approaches to delivery deemed ‘new and innovative’ that significantly differ from the traditional structure, but these represent isolated examples rather than widespread ‘new delivery models’. 

Attributes of new or alternative organisations delivering legal services by barristers include:

  • more likely to offer fixed fees and/or payment plans;

  • a more agile and flexible governance structure; and

  • greater use of technology in support of delivery.

However, these attributes are not unique to new/innovative organisations and could be (and indeed have been) adopted by traditional structures.

Drivers for change in the sector (true also for Australia) include:

  • unmet client need for legal services;
  • a need to respond to the threat of competition in the market; and
  • changing client expectations (for example greater demand for legal professionals to be more accessible and the offer of a fixed fee payment structure).

Whilst these are strong drivers of change for the market, they do not necessarily equate to a felt need or desire for a new approach to the delivery of legal services by barristers. This was demonstrated by survey data showing the majority of respondents do not anticipate any significant change to their approach to delivery in the short or medium term.

Increasing use of technologies

The survey highlighted how technology is making it easier and cheaper for barristers to meet and share information with clients and other legal practitioners.  

Qualitative evidence suggests there is potential to move towards more virtual means of working to support delivery of legal services in the next five years, via new types of technology as they emerge. Survey data showed that the use of technology such as online document storage/transfer and virtual meetings is expected to continue.

Around 80 per cent of respondents said it is extremely or quite likely they will hold virtual meetings.

Nearly three-quarters of respondents expected to use online document management and nearly 80 per cent expected to use secure document transfer platforms.

Increasing use of technology/cloud systems also increases the threat of cybercrime and its impact on the Bar and consumers. This also has implications financially – barristers must pay for initial investment into software etc. as well as for its upkeep. The threat of cybercrime may require different insurance or increasing current costs.

There is also a risk for the barrister-client relationship, as greater use of technology risks creating a disconnection with the consumer. As public access work (in Australia usually referred to as direct access and/or legal aid work) is projected to increase however, the number of direct relationships between barrister and consumer (i.e. without a professional client such as a solicitor to bridge the gap) will also rise.

Outsourcing

The main benefit of outsourcing is perceived to be more seamless delivery and the ability to offer longer service hours for clients.

A higher proportion of non-chambers respondents expect to outsource paralegal activities than members of chambers (24 per cent compared with 11 per cent of respondents).

Around 15 per cent of non-chambers respondents say they will outsource practice management, compared with 5 per cent of members of chambers.

However qualitative evidence found outsourcing is viewed as a significant risk for confidentiality and information security; as well as raising concerns about limited control over quality assurance and adherence to regulations. 

Marketing

The Report confirmed that the Bar still appears to rely on word of mouth and/or an online presence for marketing legal services provided by the Bar, although this is mostly aimed at professional clients.

Furthermore, not all marketing materials contain information about fees or complaints procedures, which could improve client knowledge and understanding at the start of their case. According to survey data, less than half of chambers provide information within marketing materials for consumers about their fee structures. In my view that is likely to accord with the experience across the Australian Bars.

Fees

Examples of innovation include services offering flexible payment plans and fixed fees.

Interestingly, the Report identified that the expected increase in use of fixed fees (partly underpinned by an expected increase in public access work) presents a risk of under or over selling: qualitative evidence suggests it is not always straightforward to calculate fixed fees accurately.

Getting this wrong could have a negative impact for barristers and consumers. Respondents said that the main risk to the barrister is that of undervaluing the work; furthermore, clients may find it difficult to assess accurately whether they get value for money due to limited knowledge of the legal work taking place.

 

16 June 2017

Dominique Hogan-Doran SC
Sydney, Australia

Dominique Hogan-Doran SC is a member of the International Bar Association Bar Issues Commission's Regulation Subcommittee, and the Australian Bar Association representative on the Law Council of Australia's Future of the Australian Legal Profession Committee.