Society and bar pledge to work together on contract terms

A good moment, methinks, to re-post my previous comments, originally posted beneath one of the Cobbetts stories.

Cobbetts/Halliwells/Dewey & LeBoeuf/Bar Contracts
Submitted by JudgeMental on Thu, 21/02/2013 - 14:42.
The excitement over the Cobbetts situation throws unexpected illumination upon the recent fuss caused by the Bar's adoption of new standard terms of work.

1.First, I was taught that the justification for the historical classification of the Bar's fees as unenforceable honoraria was that this was a quid pro quo for immunity from suit. However, the practicality was that our fees were often paid either late, butchered by inflation, or not paid at all, simply because of widespread dishonesty. Protestations of want of performance or lack of client funds hardly ever figured - what was commonest was just arrogant, smug, silence in response to our fee notes and reminders.

2. Some years back, the courts removed the Bar's immunity from suit. However, the Bar Council, being the Bar Council, did not take the obvious step of formally abandoning the honorarium principle and running a test case to obtain a judicial declaration that the principle was dead. Instead, it chose to keep the honorarium principle alive. Indeed, as far as I can follow the new rules, the Bar Council has retained the facility for the suicidal among us to continue to 'agree' fees as honoraria.

3. Even in the immediate post-immunity era, the Bar Council had available a set of rudimentary standard contract terms which were used in a small minority of fee agreements. My recollection is that, a few years back, it engaged in negotiations with the Law Society to modernise those terms. From the limited accounts of these negotations, my impression was that the Law Society ran rings round the Bar Council, deliberately dragging out, and then deliberately crashing, the process. The terms which have just been issued are therefore indeed substantially unilateral [though not devoid of outside influence]. Further, although I have not bothered to read them in detail - for I have used my own contract terms for ages - I am very ready to accept the notion that there is probably lots wrong with the terms. This is for the reason that the Bar Council drafted them and, after all, the Bar Council is the Bar Council. However, the reason we are at this point is, substantially, because of the antics of the Law Society, unwilling to abandon its support for those elements within the profession who believe that the Bar should work for free.

4. That challenging principle is not simply an undercurrent within the profession, but has also been validated at the highest levels. For many years, the Law Society deemed it professional misconduct to evade payment of the Bar's fees. Then, in more recent times, the code was explicitly changed. It remained misconduct to evade paying a foreign lawyer, while non-payment of a domestic lawyer attracted no sanction whatsoever.

5. Indeed, many of the comments to the [original from February] Bar contracts news item showed that the numerous non-payers feel that getting our work for free has something of the status of a 'yuman rite, innit?' This is fascinating. Why do so many of you, apparently sincerely, feel that we should be willing to deal with you on worse terms than the people who rent you your offices, who sell you copier paper or who clean your floors? What would you think of us if we advised your clients that it was acceptable to make business deals where the other party had no legal obligation to pay, even if your clients fully performed their side of the deal?

6. Now we come to the noisy collapse, and debt-free rebirth, of Cobbetts. This comes in the wake of the noisy collapse of Halliwells, Dewey & LeBoeuf, and the collapse of many, many, less illustrious practices which have slipped silently under the waves in the last few years. The lesson for the Bar is clear from those simple facts, and from the comments to this story - the only sane course is to deal with you on a contractual basis, and to insist that those contracts are honoured promptly.