In-house lawyers’ guide to the Bar

The effective selection and deployment of external legal services is becoming an increasingly important skill for in-house lawyers.  At the same time, the growth of competition in a liberalised market is making it harder to maintain an understanding the variety of options available.

One such option is the Bar, however in-house lawyers often seem to find themselves unsure about how to go about engaging a barrister. To help shed some light on this, here are some FAQs:

1. How can I instruct a barrister through "Direct Access"?

There is no such thing as "Direct Access". There are no barriers at all to in-house lawyers instructing barristers directly provided the in-house lawyer is actually a qualified lawyer (or the instructions have the authority of such a lawyer from within the organisation). Indeed, because of the bar’s simpler regulatory regime, the engagement process is much quicker and simpler than for solicitors.

2. When should I consider using a barrister?

a) Barristers are ideal advisers during the early stages of a potential dispute. They can apply courtroom insight to come up with a "roadmap" for a piece of litigation, starting from the endgame and working backwards. This approach often brings out key questions at an early stage, before embarking on a potentially long and costly dispute. This can either facilitate early settlement or, if the dispute proceeds, set it off on the correct path from day one with a view to being in the strongest possible position at trial.

b) On non-contentious matters, barristers are generally more useful for breaking things than creating them.  For example, a solicitor is generally better able to draft a new joint venture agreement or set of T&Cs. However, their advocacy-based approach means barristers are excellent people to review drafts and identify weaknesses, either in relation to specific risks or concerns or generally.

3. Should I always go to a barrister for litigation?

No. Barristers are independent self-employed practitioners who focus on advice, drafting and advocacy.  They are not geared up for volume information gathering, factual investigations or litigation management.  A case with these requirements would necessitate the involvement of a firm of solicitors (unless the in-house team could to deal with them).

4. Are barristers expensive?

Barristers are generally cheaper than solicitors of a similar level of experience.  This is simply because of their lower cost model. Barristers more often than not work to fixed fees rather than hourly billing.  Bear in mind that the majority of their work comes from solicitors, who are experienced, sophisticated and demanding buyers of their services. Being independent and self-employed, barristers don’t have hourly billing targets, their prevailing incentive invariably being to get through each job as swiftly as possible so they can do the next one.  Additionally, unlike solicitors the engagements and relationships are managed by clerks, who are incentivised to generate more business by making sure clients come back again. This means ensuring work is done to budget, on time, by the right person and that the client experience throughout is a good one.

5. Which barrister should I use?

There is a vast range of choice of expertise (both legal and industry), experience, geography, price range and personality.  For example, you could find barristers of differing levels of experience to do the same task for either £500 or £5000. Both would be competent, but the higher price brings more experience, extra layers of risk-prevention and the increased possibility of additional value through experience-based creative thinking. This sort of flexibility makes for an excellent solution to meet the varying requirements of in-house lawyers, reflecting the different levels of value or risk they might attach to a situation in the context of their business.

Unfortunately, the wide array of choice makes selection very difficult.  There are hundreds of sets of chambers, with limited branding to point buyers in the right direction.  Even then, as with law firms, some top brands have some lower quality lawyers while some of the lesser-known ones harbour some hidden gems.

6. So where do I start?

An obvious starting point is to seek recommendations from within your networks.  Beyond this, there are legal directories which although generally reliable as guides to the strength of sets of chambers in specific fields, their information regarding individuals is inevitably less precise. There are many excellent barristers not mentioned simply because they don’t put in the time or effort to get themselves listed.

Barristers' clerks have a vital role to play in recommendations.  It is their job to ensure you have the right person to meet your requirements. They should also be able to provide impartial recommendations to other chambers if they have no suitable solution in their own.

It is advisable to establish relationships with clerks in the sets that cover the areas where you are likely to have a requirement.

7. Will I upset law firms with whom I have an existing relationship?

It ought not to. Both solicitors and barristers should have your best interests in mind – which of course aligns with their own best interests of keeping you as a valued client – in which case they should be entirely open as to the best person to meet the requirements of a particular set of circumstances. In reality, there is limited overlap between the work of solicitors and barristers, so if either makes contrived attempts to hang on to work which could be carried out more effectively elsewhere, it may be time to consider the sustainability of the relationship.

Ever-increasing buying power is enabling in-house lawyers like never before to drive effectiveness in their external advisers.  This presents a great opportunity for them to buy smarter and for the Bar to demonstrate its adaptability and value.