Junior barristers get creative

‘Necessity is the mother of invention’ – so the old saying goes, and in the current legal services market the junior criminal bar has the opportunity to discover its meaning.

Called to the bar in 2011, it was during the winter of 2014 while still at my previous set of chambers that I determined that the goal of a building a conventional criminal practice was no longer an attainable one. As debt (not the kind that buys you a house) was going consistently up, so the chances of meaningful career progression were going down.

In particular, junior briefs – so important to the junior criminal bar, providing the opportunity to obtain a sizeable fee and learn from an experienced advocate – had become extremely rare. Higher up the food chain, the amount of work for more senior juniors acting alone had also markedly decreased.

At this point, I began a six-month secondment at the Serious Fraud Office. Although I had a strong interest in the work, I was very concerned about the effect that taking six months out of court might have on my advocacy. Going on secondment was a decision driven by necessity.

These matters will be familiar to much of the junior criminal bar. Indeed, they formed the basis of a productive and thought-provoking discussion, held in London several months ago, between a roomful of

secondees and various circuit leaders and benchers from the Inns of Court. This eventually led to my being invited to speak at the ‘surviving at the modern bar’ session at the annual Bar Conference.

What has emerged is the awareness that, for the junior publicly funded bar, secondments have become the norm, and arguably the equivalent of junior briefs. The dramatic increase in the numbers of secondees at the SFO (and other institutions, usually conducting disclosure work) over the last few years is evidence of how much junior criminal practice has changed. Our challenge is how to develop a sustainable practice as advocates while taking a long period off our feet.

My own experience with the SFO has been professionally rewarding – much of my work has gone some way beyond disclosure, and working alongside investigators and more senior lawyers has allowed me to widen my skill-set and build a much more developed understanding of economic crime.

Practically speaking, during the initial six months I was able to take the occasional day away from the SFO to attend court, to help chambers and maintain the standard of my advocacy. As anyone who is self-employed will know, the effect on cashflow of having a regular client who pays on time is nothing short of transformative.

My position now is what I had hoped for at the start of my secondment and may represent the future, or at least a future, for the junior criminal bar. On completion of the secondment, I didn’t sever ties with the SFO (for ‘SFO’ here one could substitute, for example, the Financial Conduct Authority or Nursing & Midwifery Council); I was able to maintain my involvement with them while returning to chambers and prioritising ‘normal’ work. The cashflow effect has continued. This financial stability has meant that I am able to continue to build my criminal practice without the financial pressure there was before. It feels like a position of strength, even if it is not what I had planned.

Generalists v specialists

It may be that, to survive, the junior publicly funded bar must embrace a form of generalism. There is a certain stigma attached to being a generalist (‘jack of all trades, master of none’), particularly in a profession which, rightly, prides itself on being specialists – at a basic level as specialists in advocacy, and then as specialists within particular areas of law.

The main practical disadvantage to being a generalist is the difficulty in competing with recognised specialists in some areas of practice. And there is an obvious skills difficulty: advocates improve through the amount, and complexity, of their work. The rate of improvement in criminal advocacy will obviously drop off as barristers spend months on ‘desk job’ secondments (of course, some secondments, such as those with the Nursing & Midwifery Council, are advocacy-based) or, more generally, pursuing other types of work which do not involve oral argument.

Practicalities aside, there is also a positive case for generalism: that it allows us to think more freely and creatively, outside the silo of our academic and professional training. Some philosophers, notably Oxford’s Theodore Zeldin, draw attention to the value in having a wider, more nuanced, understanding of the world. Are there not real benefits to be had in adapting our minds to different approaches to being a lawyer?

It may be that the legal services market in England and Wales will come to resemble that of Northern Ireland, with barristers remaining specialists in advocacy, but as generalist advocates who accept a relatively wide range of instructions. The scramble by criminal barristers to develop a regulatory/disciplinary practice – also a product, largely, of necessity – shows that generalisation is already well under way.

Of course, if the junior criminal bar’s fears are realised and the goal of becoming a specialist criminal trial advocate is no longer realistic, then the consequences of a decline in the rate of improvement in criminal advocacy will be much less significant for us. By that stage, we will have grown and developed in new ways more suited to the market, with our livelihoods much less dependent on our ability to persuade a jury.

Opportunities to develop new streams of work can arise long into one’s practice. Flexibility and the willingness to leave one’s comfort zone do not stop being important. To succeed in this market, a much greater level of flexibility is required. A move into generalism does not preclude one from specialising later, and it may be that one of the work streams being developed now could, in the future, become far more significant to one’s practice.

The cuts and reforms to legal aid are brutal and difficult to bear, and I do not seek to excuse the approach taken by successive governments (that of the current lord chancellor remains to be seen, but the early signs are encouraging). The pain, however, will not be felt equally across the profession – the process will be Darwinian. Those junior criminal barristers who pursue their vocation now by supplementing it through other types of work may yet find that future opportunities as criminal advocates, after a period of natural selection, are better than they had imagined.

The challenge for those in publicly funded work is to identify new opportunities, new streams of work, and new ways of working – not simply to survive, but to thrive. Secondments, if chosen and conducted well, represent a solid platform for the junior publicly funded bar to build for the future, and a glimpse of how that future might look: driven by necessity, but not without opportunity.

Sam Roake is a barrister at Charter Chambers and tweets at @samroake. The views expressed here are his alone, and not those of the SFO