The relationship between barrister and clerk has long outgrown its traditional master-and-servant image as the reputation of clerks has evolved. Legal Business goes behind closed doors into the elusive world of clerking.
It’s a typically busy morning for the senior clerk at a well-known civil set of chambers. Piles of paperwork cover the desk and the phone flashes red with multiple client voicemails. He has yet to tackle the diaries of 50-plus barristers, and his caffeine levels are running abnormally low. The door to his office, covered in portraits of ancient Queen’s Counsel, swings open and there stands the head of chambers, a veteran in the field of civil law and the regular recipient of multi-million pound briefs, with a dejected look on his face.
‘Is everything all right?’ the clerk asks tentatively.
‘I haven’t heard from anybody in two or three days,’ responds the panicked head.
The clerk thinks carefully before replying. His boss is having one of those days. ‘You mean you haven’t worked in two or three days?’
‘Yes,’ the barrister gasps. ‘What’s the matter? Doesn’t anybody like me anymore?’
Such is the world of the barrister’s clerk. It’s a role which has evolved tremendously from the days of a grace and favour relationship to one that ensures clients are happy and the chambers they work for are top of their game. Nowadays tales of ego-massaging prominent barristers, like the example above, are few and far between and today’s senior clerks are keen to point out the advancement of this stressful job.
Those working at the best City chambers are part of global businesses now, taking on the most lucrative international work. Having the skilled counsel, working alongside a commercially aware and experienced set of clerks, is a prerequisite for any modern set.
Quietly confidant
In 1962, Robert Megarry’s Lawyer and Litigant in England described the clerk as a ‘theatrical agent, a business manager, an accountant, and a trainer’. The clerk still plays all those roles, but those interviewed agree that the clerk is above all else a confidant.
‘We still have the one-to-one relationship with the barrister where you take them on young and nurture them through pupillage into becoming a tenant, then help them build a career, working through different problems if they arise,’ says David Barnes, chief executive and director of clerking at 39 Essex Street. ‘It’s very much a bond of trust between the barrister and the clerk. I sell trust – internally to my members and externally to my clients.’
Indeed, as is often the case with the Bar, everything is rooted in tradition. Against a backdrop of substantial growth in staff numbers throughout commercially-focused UK chambers, the clerk has remained a key fixture. University of Westminster law and sociology lecturer Professor John Flood, in his 2007 paper ‘He’s Fucking Marvellous!: The Fall and Rise of Barristers’ Clerks’, argued that the Bar was the ‘priesthood’ of the legal profession, with the clerks remaining in the shadows to take care of their interests.
‘Somebody has to do the dirty work for the [barristers],’ Flood tells Legal Business. ‘I don’t mean that in a disparaging way but someone has to take care of all this other stuff.’
For David Grief, senior clerk and head of administration at Essex Court Chambers who began his career as a junior clerk at Gray’s Inn Chambers in 1971, this has always been the case.
‘It is a very unique, special relationship,’ he says. ‘One member used to say to me there were three people in his life: his wife, his mother-in-law, and his clerk, and not necessarily in that order. It’s quite difficult for anyone outside the profession to understand that.
‘It is important to remember what makes the members of chambers tick. With certain relationships, some are prepared to share more than others. It’s just the way barristers are.’
Declan Redmond, senior clerk and chief executive of Wilberforce Chambers, says this is particularly true in today’s modern Bar: ‘There’s so much more to the job now. If a barrister decides that a clerk is just a clerk, they’re a bit of a fool to be honest. It’s much more of a team effort. Barristers just want to concentrate on the law. That will never change.’
As for the work that clerks carry out today, the scene for many has a very different setting to decades ago when diarising and paperwork were the main responsibilities. The barristers’ clerk is now head of business development as they are now more frequently required to help foster new client relationships.
‘Years ago, a clerk would just look after individual members of chambers,’ recalls Redmond. ‘You weren’t allowed to do marketing. The way a barrister got work was by reputation alone. Then the rules changed and we could do advertising. That’s where a clerk’s job has changed most in terms of being able to go out and market individual chambers on a worldwide scale. It used to be popping in to see people you knew in the City. Now, we travel everywhere. The job itself is much more pressurised than it used to be. Chambers is more business-like so you have to keep on top of regulation. You’re representing your barrister so you can’t fall foul of the law.’
‘My job is to develop those relationships with local firms abroad,’ adds Barnes. ‘One of the key facets of a clerk’s role is to garner work and develop relationships for those at the Bar. A lot was about maintaining relationships going back in time. But now we look at new and emerging markets. It’s a lot more onerous. Equally, the commercial world and law firms have become more global – and the Bar has had to as well.’
‘In the context of business of the modern Bar, clerks play an increasingly important role in marketing,’ notes Darren Burrows, the senior clerk at One Essex Court. ‘That has changed the job considerably over the last five or ten years. The clerk’s ability to promote the barristers and understand in a business context what’s required, and to make the best of the barrister’s skills, has become an important aspect of understanding what trends there are in the market, and what position chambers has to be in to take advantage of that. There’s more of an appreciation now of how barristers and their clerks interact.’
Such is the enhanced role of the clerk that in some instances it needs two senior clerks. Quadrant Chambers recently took on a second senior clerk, Simon Slattery, to work alongside current clerk head Gary Ventura to build on the chambers’ existing Asia contacts.
Good old days
The new breed outlined above makes a stark contrast to the perception of clerks 20 years ago. Typically clerks took a percentage of barristers’ fees and many played up to the traditional barrow-boy image before pressure from instructing law firms led to a change in attitude. A feature in the May 1996 issue of Legal Business canvassed solicitors on how they felt about clerks at the country’s leading commercial sets. The views were largely scathing, with some described as ‘unhelpful, inflexible and ignorant of even the most basic concepts of client service’. Complaints of double-booking barristers, lack of commitment and bad etiquette were primary points of concern. At the time, only a minority were depicted as excellent, forward-thinking people who made substantial contributions to their chambers’ successes.
One lawyer to voice his disdain was Wragge & Co’s then head of litigation, Quentin Poole. He said: ‘It’s basic stuff isn’t it? Very, very basic… all it involves is treating customers in the way everyone else in the land treats them. But, for some reason, barristers and clerks have some preserve which involves doing other things.’
Now senior partner at the firm, Poole paints a very different picture.
‘Since 1996, the position has completely transformed as barristers and clerks and chambers have emphatically moved into the 21st century,’ he says. ‘It is now possible to negotiate sensible arrangements with barristers’ clerks and the best ones are very good at it. We consistently have arrangements which include agreed early rates and caps on fees for particular pieces of work. The message that our litigators would give you is if you manage the relationship with the clerks properly, then they will look after the relationship with the barristers and you’ll end up in a sensible place.’
He adds that the firm now has standard terms of business agreed with all of the main sets of chambers it deals with and there has been quite a lot of input from the City of London Law Society and the Bar Council in progressing that position.
Poole singles out former solicitor Carolyn McCombe of 4 Pump Court as an ‘outstanding role model’ in sorting out arrangements that apply across chambers, and working with barristers to ensure everything works consistently.
John Reynolds, head of litigation at White & Case’s City office, has plenty of experience with clerks, having previously worked in the London offices of Herbert Smith and McDermott Will & Emery. He favours One Essex Court, going all the way back to when he was a junior solicitor. The transformation of the role’s once tarnished image has been enough to revive a trade that many in the Bar once believed was set to become obsolete, as some sets during the 1990s drafted in chief executives and marketing professionals in place of traditional clerks.
Reynolds reflects on the perception of clerks now compared to what was reported back then. ‘If the people at One Essex Court were the benchmark, then everyone else has upped their game,’ he says. ‘The experience compared to 17 years ago has got better. The way in which barristers and solicitors deal with each other is very different. For example, the rule used to be that you would go to their chambers rather than them coming to you. The Bar culture has changed and clerking has changed as part of that. On the whole, the Bar, not just clerks, has realised that client expectations are much higher than they ever were. And they’ve responded to it.’
Educating the educator
It’s not just the reputation of clerks that has evolved – the role itself has become increasingly professionalised. The Bar Council created a course designed to aid clerks in their understanding of public access rules in autumn 2011 (following changes to the General Council of the Bar’s rules in July 2004 to allow clients to instruct barristers directly), while the Institute of Barristers’ Clerks provides a BTEC course, which spans back as far as the ‘90s, in basic accounting, management and court procedures.
Barnes is a firm advocate of educating the young clerk this way and his view, like many others, suggests that such changes inevitably benefit the barrister.
‘There’s a great deal to be gained,’ he says. ‘I recognise that we’re a big business now and we need people to do the right jobs. It’s about getting the right people – we have a large staff so as to take away the pressures from the barristers so they can concentrate on their advocacy.’
Of course, some veterans of the profession believe the role can’t really be taught using a textbook and mentoring by senior clerks is far more effective. Living and breathing life at chambers is the only way to learn, they say.
‘It’s not something you sit down and teach them, it’s more about how they sit down and observe,’ says Grief. ‘There’s much more training for clerks. We want the Bar to see clerks as a profession to be taken seriously.’
However, he adds that junior clerks have a tendency to ask too many questions as opposed to being instinctive.
‘I say to my junior colleagues, if it’s a question of asking all the time, then the barrister doesn’t need a clerk. If the barrister is making the decisions, then he doesn’t need a clerk.’
It’s a tough existence being a junior clerk. The long road to seniority, with the crippling pay structure and heavy workload, echoes that of a fledgling barrister. The gap between those paid at junior and senior level is particularly noticeable. Salaries in excess of £300,000 can be earned by senior clerks at the top sets. Junior clerks, meanwhile, earn between £12,000 and £18,000. While Barnes describes it as a ‘hard slog’, Redmond feels they are ‘vastly underpaid’.
‘They work their socks off – quite often under pressure that barristers aren’t aware of,’ he says. ‘The cost of living in London is a nightmare. My only concern is that as chambers expands, so do the number of junior clerks. I was lucky enough to work my way up [but] there’s so much more competition at the junior level and chambers can keep their salaries down. The gap between them and the senior clerk is absolutely enormous.’
Big wigs
The clerk is undoubtedly central to the metamorphosis witnessed at the Bar in recent years and is no longer simply there to guide the barrister, but to enable the success of individuals and chambers. Today, the senior clerks of the main commercial chambers resemble a chief executive of a multimillion-pound company, says BabyBarista blogger and barrister Tim Kevan – bringing in new international clients; heading a substantively larger team; and ensuring the barrister continues to get work while monitoring their progress.
Even the types of people entering clerking has changed, particularly the greater inclusion of women has become a popular way for the legal profession to show they are adaptable to change. Besides McCombe at 4 Pump Court, other women to make their way up the senior clerk ranks include Kim Janes at 5RB, who has headed the clerking team there since 1991; deputy senior clerk Jackie Ginty at One Essex Court, who has been in the business since 1987; 11KBW joint senior clerk Lucy Barbet; and Deborah Anderson at Brick Court Chambers, who has been a clerk for over 25 years.
‘The makeup is very different – more elderly members of chambers would have come from a slightly more privileged background whereas now when you look at the intake of young members at the Bar, it’s much more diverse, and the atmosphere of the place is different,’ says Alex Taylor, director of clerking at Fountain Court. ‘That has come from a much greater degree of management of chambers, and of business. If you’ve got someone who has come up through the ranks from a different generation and background to perhaps some of our forefathers in clerking, then you’ve just got a different type of person at the helm. The big sets seem to be comfortable with that, thank goodness.’
As the role of the clerk becomes better appreciated and more integral to managing the business, the clerks themselves have demonstrated their ability to keep up with the rest of the profession. The last thing anyone would want is for barristers to have to look after themselves. LB
sarah.downey@legalease.co.uk