December 2012 The Barrister

Is Direct Access about to take off at last?

The provision of legal services in the UK continues to evolve at an increasing rate. There have been many new initiatives bandied around from ProcureCos to ABSs and LDPs. For many, ProcureCos have proven to be a complete red herring and very few chambers that have gone down that route can show significant commercial or financial gains. LDPs are unlikely to interest many sets, save for those at the publicly funded Bar, who may as a last step align themselves with a law firm(s) in a bid to stave off chambers collapsing. It is likely to be a last step, as members would then find their independence in jeopardy, something that many hold to be sacrosanct and a key factor in their initially wanting to practise at the Bar.

From the numerous discussions we have with chambers up and down the country it has become clear that, for many, there are two significant areas that will be defining the future spectrum of the Bar: direct access and international client instructions. This article focuses on direct access. Direct access - which allows individuals and companies to instruct barristers directly without the need for the middleman (the solicitor) - has been on offer since 2004, when a change in the law made this possible. Since then around 7,500 barristers have been on the training course to receive instructions, as required by the regulatory bodies.

It is also the case that direct access is on the increase. Five years ago, it was reckoned that chambers received less than 1 per cent of their instructions directly. A recent survey of the Bar by Smith & Williamson, a top 10 tax, accounting, business services, investment management and financial services firm which offers services to the Bar, noted an increase, but it still found that most sets haven’t had more than 10 per cent of their revenue coming from direct access clients. The one that stands out is Monckton Chambers, which reportedly receives about threefifths of its revenues from direct access clients.

The puzzle is why this figure is not higher overall. The demand is, or should be, there: as high street solicitors are diminishing in number, the general public are having to look directly to the Bar for personal legal representation. The same problem affects many smaller businesses.

The need is there on the supply side, too: direct access is a necessary response to the incursions solicitors are making into advocacy work since it gives barristers the ability to generate their own work without having to play second fiddle to law firms. Law firms are certainly worried. That is why many more are taking on, or training, solicitoradvocates. However, in the interests of ‘access to justice’, many commentators believe that solicitor-advocates have not since proven to be a credible alternative to advocacy at the Bar.

Direct access offers an ideal, potential win-win. Businesses and the general public have the opportunity to get the best legal advice they can afford, without having to pay ‘twice’ by first instructing solicitors. Barristers get paid up-front. The Bar Council has also facilitated the scope for direct access, with the introduction of BarCo, which allows chambers to hold onto client money. But we are nowhere near the ‘Big Bang’ that direct access seemed to herald: the shake-up of the profession that promised to revolutionise the way the Bar has been instructed for hundreds of years.

Why not? Three factors have stopped direct access taking off. First, chambers and individual barristers just haven’t had the budgets or the skills to create massmarket demand for their services. Second, there hasn’t - as yet - been an easy and simple way for potential clients to find the right barrister. And, third, ignorance: many people are not aware that they can hire barristers directly.

The wonder of technology

So the market out there needs barristers, and barristers need the market – but how can the two be brought together? The answer could be an innovative business, myBARRISTER, which I roadtested recently.

myBARRISTER is an online matchmaking service between clients and barristers. It is a portal on which barristers can present their skills to the world, and where the world, in turn, can find the exact legal expert they need. The business is the brainchild of Ronald DeKoven, formerly senior partner at Shearman & Sterling in New York, who then practised at South Square and who now has his own chambers at Lincoln’s Inn. One of the world’s foremost litigators, he’s put together a team of professionals including ex-senior executives of chambers and leading marketing and branding experts.

They are putting money where their mouth is. They plan to invest substantially in marketing and promoting the site to both businesses and consumer clients, through both conventional means and online. They are using leading communications agencies to design, plan and implement their marketing campaign. It is an online tool, so naturally the emphasis is on online marketing. (In the US, an astonishing 70 per cent of all attorney appointments by the general public were initiated online.)

But the real investment is in the proprietary search software (months in development) that matches clients’ needs with the skills of barristers. Visitors to the site review barristers’ profiles and select from a short-list, before making direct contact and instructing their chosen barrister. Once the client makes direct contact, myBARRISTER plays no further role and takes no commission or fee.

I was given the chance to do some simulated searches of the database, which is currently populated with pretend barrister profiles. I first searched for a barrister who specialised in property and who could help with a boundary issue in London. I was presented with a list of seven local barristers with the right profiles. I made a shortlist of three, and then filled out and sent off a contact form to each ofthem. In the real world, these barristers – and their clerks if they wished - would have instantly received full details of this client’s enquiry in their email inbox.

A second search for a commercial property expert in Bristol with experience of planning issues was equally productive.

The business is being launched in the first quarter of 2013, and gradually, so that the flow of work can be concentrated among a limited number of barristers. The first phase will have a capped membership of 150 barristers in the southwest, and the myBARRISTER team is currently approaching chambers and barristers in the region to begin the signing-up process.

Will it work? Since it is free for users, the revenues will come from the barristers who subscribe to have their details accessible. I have not been told how much that annual subscription will be exactly, but the Chief Executive of myBarrister said it wouldn’t be much more than a “year’s worth of coffees at a high street outlet” (astute and mathematically inclined readers should be able to work that out). The annual subscription is also tax-deductible as it is an allowable business expense. He believes that it is a sound investment: one or two instructions will recoup the subscription after which it is all honey in the pot.

The focus will be on putting myBARRISTER in the path of people and businesses as they search for legal help. This will also include myBARRISTER launching the world’s first direct access smartphone and tablet app which will help clients find exactly the right barrister to assist them.

Leading figures from across the Bar have commented this is one of the more innovative platforms they have seen. Time will tell whether this team has found a solution to the direct access issue, and can generate a consistent and high volume of new clients. But all the indicators are promising.

Aritcle by Guy Hewetson, Partner Hewetson Shah LLP for The Barrister Magazine, Issue 55.

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