Is the Bar a profession in decline?

A recent Bar Council report entitled Snapshot about women barristers’ experience today led to lurid headlines. 

“Shocking levels of rampant sexism,” screamed The Independent, while The Times claimed, “sexist comments were rife.” These claims were a complete distortion, as anyone who bothered to read the report would have spotted immediately. They do not represent current experiences at all; rather, they are anecdotes from a few individuals about the distant past.

But, underlying the report’s findings, there lurks a more troubling question which remains unanswered: is the Bar a profession in decline?

As the summary of the report’s findings notes, reports of recent sexual harassment were rare. Views on pupillage were generally positive. Some women grumbled about being “pushed” into family law and sex crime. Some complained about balancing family life and a career at the Bar. 

Generally, participants felt that the BSB’s Equality Rules supported fairer treatment, and that benefitted women. However, the report commented on the high attrition rate of women in self-employed practice, many of whom drop out after starting a family. So women make up a third of barristers in private practice, compared to nearly half (46 per cent) at the employed Bar. 

But the Bar’s “sole trader” model of private practice is not only archaic, it is also highly precarious. I am not surprised that both men and women barristers are attracted by the job security and regular cash flow which employment offers. When people have mortgages to pay and families to raise, they have to be guided by their heads, not their hearts. 

Few members of the public realize that cash flow is so bad at the Bar: that many barristers survive only by using bank overdrafts, to borrow against what is laughably called aged debt. After a few years at the Bar, I joined a professional women’s networking group. One of its members had recently divorced her husband, a successful civil practitioner. Why? He was owed £300,000, and had a working overdraft of £100,000. Back then, those were huge sums. Constant worry over money had broken up their marriage. 

Family barristers can make very little money. I can recall my bank relationship manager telling me that she had advised one barrister, whose annual turnover was £40,000, to pack it in. To make matters worse, thanks to a statement of accounting practice, barristers are now taxed on their aged debt. So they pay tax on money they haven’t been paid yet. Banks don’t lend to pay tax bills, however. So one year, a legal aid firm of solicitors, whom I shall not name, was forced to “borrow” its outstanding tax direct from the Legal Aid Agency (i.e. get an advance on fees earned, but as yet unpaid). 

Legal aid practitioners have effectively subsidised the legal aid system, via their personal borrowings. Doctors and nurses supplying services to the NHS are not expected to do this. I do not understand why the legal professions put up with such an inequitable arrangement. Now many are paying the price by going out of business. 

This is a depressing scenario, but it is gender-blind. I have no doubt that the Bar will contract substantially, and that it will be the high net worth practitioners – chiefly commercial/Chancery specialists – who will survive.  Other niche areas, such as IP, tax and admiralty, will no doubt also continue. 

Back to the Snapshot report. It has serious methodological limitations, which it acknowledges. Its sample was tiny: only 12 women completed a questionnaire, and 73 attended a total of eight focus groups.  Of the participants, 11 per cent did family, 14 per cent did Chancery/ commercial and 42 per cent did crime.

The problems with this type of research are well known: self-selected attendees; the risk that attendees will be influenced by what they hear (including from the moderator), and the fact that telling participants the nature of the research could influence responses.

Moreover, what you get is not some overall statistical picture, rather a series of anonymous comments and anecdotes. This may be interesting from a sociological perspective, but it has a fragmented feel to it.

It’s interesting that, despite saying the aim was to look at women’s experience now, the report does give some instances of older women who are clearly speaking of the past. Where women with families were concerned, the dominant message is that combining the unpredictable nature of self-employed work with the routines dictated by family life is difficult, unless a woman could afford full-time childcare, or had a househusband.

Criminal work is said to be increasingly unsustainable. Defence solicitors do less as they are paid less, the CPS is no longer resourced or able to do what needs to be done, and the burden falls on the Bar. Though one participant complained of being given sex cases to do, she acknowledged that the money wasn’t bad. (In fact, 40 per cent of criminal cases are now sex cases, a practitioner has told me: it is a growth area).

The report makes seven recommendations. Unfortunately, it is difficult to see them having much impact, given the wider market pressures on the Bar, except possibly for the last one.

They are: mentoring, coaching, senior female role models, marketing networks, support networks, the Bar Nursery, and a better gender balance on chambers committees. I am sure they are well-intentioned, but they sound quite old-fashioned.

Reading between the lines, it seems that the authors of the report have little understanding of how chambers have to operate these days. Increasingly, chambers are branding themselves, and many employ chief executives or practice directors who have no legal or clerking background.

Their primary goal is to market chambers, and make sure that everyone in the chambers is performing to par. “Practice development” is the watchword. Significant effort is put into getting mentions in directories like the Legal 500.  This requires a certain amount of teamwork.

As for networking, I have lost count of the number of marketing and networking events and seminars I have attended, some women-only, though I confess I have never found the latter particularly productive. I have even attended training events where you are taught how to network (these are excruciating), and to personality assessment classes, where your clerks and you get to find out your personality types (as if you didn’t know them already!).

The Chairman of the Bar, who wrote the Foreword to the Report, makes a bad point when he says: “The Legal Aid cuts are a threat to all members of our profession, but they perhaps have the most significant impact on those who are primary carers….when income cannot cover the costs of childcare we are potentially creating ‘no go’ areas of practice for women.”  But isn’t the answer that women should be aiming for better-paid areas of practice anyway, especially if they wish to combine family and a career? That is the only solution that makes economic sense.

There is no shortage of high-flying female role models: names like Felicity Gerry QC, Dinah Rose QC, and the Joint Head of Brick Court, Helen Davies QC, spring to mind. Mrs Justice Rose has just taken over a heavyweight action in the Chancery Division involving British Airways from Peter Smith J., having joined the Bench after a career in the Government Legal Service. As I write this article, The Guardian announced that over half the judiciary aged under 40 is female. So the picture is not all doom and gloom. 

My advice, for what it is worth, to anyone still rash enough to contemplate a career at the Bar is to aim for a commercial set or some other specialist and well-remunerated civil area, and to allow yourself to be groomed for stardom.  

Barbara Hewson is a barrister. Her views here are personal.

Previously…

24 Jul 15: Bar Council report reveals scope of sexism in the profession

12 Feb 15: Top judge urges culture change in legal profession

Crystal Ball: where next for the Bar?