Bar to progress

It has been heralded as the biggest shakeup in the Faculty of Advocates for a generation. An institution which had until recently been in the news, if at all, for holding out against the planned Scottish Legal Complaints Commission, or the occasional high-profile disciplinary case, suddenly finds itself portrayed as launching into the modern world. But what exactly has changed and what will it mean for those instructing counsel?

The key to the changes lies in the “stable” system through which Faculty Services Ltd (FSL), the company through which the Faculty has provided administrative support to practising advocates since the early 1970s, operates its clerking services. Coincidentally, in the current political climate, all the talk is of “devolution” as most of the former groupings of advocates seek a level of autonomy to provide a more distinctive service.

Westwater Stable, the first to devolve, achieved that status in March. Compass Chambers and Axiom Advocates – the variety of names being adopted is an indicator of the new freedoms, as is the departure from the convention of naming the stable after the senior clerk – have since launched as sets focusing on particular practice areas. All the other stables are understood also to have embarked on the process, bar one: the Mackinnon Stable, a criminal practice, which has chosen instead to relocate to Glasgow. FSL is currently installing the necessary IT links to support the move.

Death of the generalist

Previously, as part of a collective enterprise, there was little incentive on individual stables to market their services – only two had their own website – and little opportunity for individual advocates to advertise their skills and experience through their stable. Instructing solicitors might find a helpful clerk able to point them towards the most suitable counsel, but for those less familiar with the system it was not what one would call user-friendly. “We have had somewhat inward looking approach until now”, agrees Paul Cullen QC, one of the leading members of Axiom Advocates.

“Twenty five years ago when I was admitted to Faculty, advocates were omnicompetent”, he adds. “Some did a mix of civil and criminal work quite happily. With that way of thinking it didn’t matter how stables were organised. That sort of idea has long gone among solicitors and is no longer tenable for advocates either. You have to be able to add value to cases; you can’t flit around different types of work. It’s an enormous change in thinking.”

Pressure for change had been building for some time, but achieving it was a different matter. “Everything had to go through Faculty, which was too big and unwieldy”, says Peter Gray QC of Compass Chambers. “With over 400 individuals, ideas got lost in committees until their time was past and you could never get anything done. By having a degree of autonomy we are able to introduce initiatives to improve the service given to solicitors without having to seek the approval of Faculty as a whole – a problem which delayed progress considerably prior to devolution.”

Cause and effect

Much of the media coverage has presented the Faculty as responding to the breakaway Oracle Chambers, established by advocates John Campbell QC and John Carruthers. Frustrated by what they saw as the inefficiencies of operating through FSL, the two Johns opted to set up an English-style chambers wholly outwith the FSL structure, formally opening for business last month after serving their considerable notice period with FSL.

FSL chairman Susan O’Brien QC (also of Compass Chambers) insists that change was well underway by the time Oracle hit the headlines last September. Elected in July 2005, O’Brien recognised that the way clerking services were provided did not lend itself to effective marketing of advocates’ services even within current rules, and by May last year she had prepared an options paper for her board.

“All this happened well before Oracle announced its existence and it’s not actually correct to say that Faculty Services made these changes in response to Oracle. But the people who have gone into Oracle are responding to the same outside forces as I was responding to, so it can be seen that we’re all reacting to a changed world in different ways.”

Most others concede that the Oracle announcement at least gave an added impetus to the reform process. Whatever the precise sequence, a Faculty general meeting on 28 October gave the green light, and the devolution process was underway.

Public profiles

Under devolution, individual stables are able to devise and apply their own criteria for admission – having at Susan O’Brien’s insistence undergone training on proper practice concerning discrimination, diversity and the like. No blackballing here. (For those with future plans to go to the bar, stables will be as keen to sign up the best devils as to attract the current leading players.) Clerks, while still employed by FSL, can be offered incentives to be more proactive in marketing the stable and its members.

“We hope that much higher service standards will be established by devolved stables”, says O’Brien. “They will be able to articulate their own service standards and to enforce them. We hope that that will make it easier for solicitors to select advocates intelligently and we hope that they will have a speedier and more efficient response both by phone and by email, because on the whole more staff are going to be involved rather than fewer.”

Websites will provide more detail of individual advocates’ experience, and particular cases in which they have appeared. Another benefit Peter Gray predicts is more transparency in fees: Compass will aim for consistency in fee charging at different levels. All stables nowadays offer to discuss fees in advance of taking instructions.

To specialise or not

A division is emerging into those stables that have chosen to target particular areas of work, and those whose members between them cover pretty well everything. Simon Di Rollo QC, director of the mixed practice Ferguson Stable, doubts that there is sufficient business to justify specialist stables, preferring not to restrict his stable’s ability to adapt to future changes. Likewise Westwater Stable makes a virtue of being multi-disciplinary; and with the exception of those which handle predominantly criminal work (Black, Connarty and Mackinnon Stables), most emphasise the range of expertise available. “The experience of the membership covers the whole breadth and scope of professional practice” appears on the Hastie Stable web page, for example.

The two that have so far enjoyed the highest profile media launches, however, are marketing themselves for particular practice areas. Axiom Advocates is focusing on commercial work and public law, while Compass Chambers offers “core strengths” in reparation and regulatory work. Both are proactively engaging with solicitors, Axiom through a programme of visits to larger firms and Compass by CPD-accredited seminars, plus efforts to secure ongoing feedback on performance.

Both in fact are smaller in number, launching with between six and eight silks and 20-odd junior members. In contrast, of the more generalist stables, Manderson currently has 38 members, Arnot 40, Ferguson 45, Hastie 48, Westwater 50 and Murray no fewer than 54. Peter Gray predicts a gradual growth for Compass but reckons there will be a ceiling at around 40 – “above that it becomes a bit too big”.

Perhaps unsurprisingly, both maintain that they have no shortage of work. Axiom’s Paul Cullen points out in addition that its areas of expertise are broadly defined – commercial work can include for example professional negligence, planning and environment, and media related work.

The wider dimension

Cullen believes also that a higher profile for specialist counsel, for example in tax law, will help win back work that has been going to England. “We have some real specialists, but we need solicitors to understand this.” Here Compass has a somewhat different tack: by developing a link with Crown Office Chambers in London, it hopes to establish itself in litigation with a cross-border element.

Peter Gray maintains that solicitors, especially those out of Edinburgh, will find it easier to identify who is practising in which areas of work, at whatever level of experience. “I will be surprised if any solicitor is not extremely positive about these changes, because of the way they will enable us to deliver a better service.”

Choose your efficiencies

The devolved stables insist that there are great advantages to remaining within FSL, which remains responsible for fee collection as well as for services such as telephones and secretarial work. FSL also rents consultation rooms from the Faculty for subscribers to use.

Susan O’Brien points out that FSL is encouraging the creation of an electronic diary system for counsel who wish to have one. “At the moment it’s at the trial stage but FSL is expecting to make online diaries available to solicitors who register for that access in a matter of months rather than years. We expect that to make it easier for solicitors who instruct counsel a lot, to find out who is available when.”

One reason for Messrs Campbell and Carruthers going it alone in Oracle was the alleged inefficiency of FSL, which employs around 90 people to service 460 or so practising advocates. John Carruthers, while welcoming the more commercial approach now being taken by his colleagues, believes the devolved setup is “the most expensive option I can think of – it’s all extra overhead and therefore another levy on their members”. O’Brien and her counterparts in the devolved sets however insist that the economics still work in their favour.

“We think the benefit of devolution is that we are maintaining the economy of scale which comes from co-operatively paying for things like buildings, where we base our staff, and the services which we buy in, leasing very expensive photocopiers and so forth.”

Oracle on the other hand claims that efficient use of IT has delivered “significantly lower” running costs in its first weeks of operating. “As we work online we can look after our own diaries”, says Carruthers. “Our administration is done using the Meridian software also used by English chambers. Meridian also employ our clerk, which is a much more economical arrangement.”

He adds: “There has been no change in the source of my work; people instruct you on the basis of your reputation, not who you are with.”

Not the English solution

While Oracle maintains there are many interested advocates watching in the wings to see whether it prospers, for the time being at least they have all chosen to remain within the FSL structure. At this early stage the devolved stables are cautious about predicting whether they are likely to move further towards an English chambers system as they find their feet. But however firmly they establish their distinct identities in the minds of the outside world, the fundamental difference will remain of the common organisation of which they are still part, as Susan O’Brien explains:

“The Scottish bar is tiny in comparison to the English bar. It’s very difficult to say that the same road will be followed. We think that the devolution system has maintained the phenomenal cost advantage to clients of shared costs in all sorts of areas. That saving is passed on to clients and it’s still there with devolution. English chambers on the other hand are self financing from start to finish; they have to pay for everything, their premises, the heat, the light, the staff, everything. That’s not true in Scotland now and it’s not true with devolution.”

Whoever proves to have the best formula in the longer term, what is at least commendable is the common aim of providing a better service to solicitors and clients. If ideas vary on how to achieve that, it only shows that the Faculty is now serious about offering the sort of choice in a customer-driven economy that solicitors’ firms have come to take for granted over the last 20 years or so.

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COUNSEL’S FEES SCHEME TO GO?

The future of the Scheme for Accounting for and Recovery of Counsel’s Fees, an agreement between the Law Society of Scotland and the Faculty of Advocates which has operated for the last 20 years and was last revised in 2002, is in doubt following an online survey carried out by the Society which revealed that 78% of more than 200 respondents believed that the Society should withdraw from the scheme. The survey was carried out in the wake of the Revised Direct Access Rules recently issued by the Faculty, which allow much wider categories of clients to instruct advocates direct rather than through a solicitor.

An open letter from the Dean of Faculty, Roy Martin QC, urging the retention of the scheme, appears on the following pages.