2 years ago things were a lot different: for family law; for me. The ‘Secret courts’ were all the talk – now we have open justice, perhaps soon to be open reporting. The Baby P scandal had yet to break – now we have social work and CAFCASS collapse as a result of the fallout.

Some things were ever thus: proposals to slash legal aid for family practitioners were afoot, there were hotspots of CAFCASS delay and the bar had not really found its way to the blogosphere (perish the thought of embracing technology).

At home, I was just pregnant (or just about to be).  And working in London. And whilst my short period of maternity leave was perfect opportunity for blogging about the job I was taking a pause from, the return to work in Bristol coupled with the ever increasing mobility and ever increasing volume levels of a 15 month old present an ever increasing challenge to making time in my life for the blog (both this one and the Family Law Week blog).

To those who poo-pooed the idea and to my nameless but very learned friend who suggested it was downright unprofessional and demeaning for a member of the bar to be involved with such trash as a blog, 3000 hits a month respectfully submit that you were wrong and that there is something of value in between Heat Magazine (to which you compared this blog) and a legal looseleaf. Clever is good. Clever and interesting is better. And successful is good. But successful and happy is better.

But enough of bitching about the past (although I do feel better for having got that off my chest), what is the future for Pink Tape? Well, I’m always happy to hear suggestions for the direction of the blog, you may like to comment on this post. But in general terms: here’s to another two years at least. It may not go on for ever, but I think I have a clue who may be inheriting the Pink Tape mantle when I hang up my keyboard and blog my last…as you can see from the picture he is earnestly in training already.

In the immortal words of Schwarzenneger: ‘Ail be back’…

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They tell you at bar school not to worry if you don’t make it to practise at the bar, that being a qualified barrister will equip you with numerous ‘key transferable skills’ useful in some ‘other’ life. Leaving aside for one moment the obvious self-serving nature of such a remark coming from an industry which charges outrageously over-inflated fees to far more students than can ever hope to succeed, what are my key skills and to where do they transfer on civvy street?

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For one thing I’m a terrible people manager. I tried it once and oscillated from nice-but-ignored-by-cheerful-subordinates to shouty-and-ignored-by-sullen-subordinates. Far better to manage oneself, to be a self sufficient unit of one. Delegate nothing: control everything. So team work and staff management is out then.

I don’t like to be managed much either. I manage my own time, slope off early when I feel like it, skip lunch, work late choose the shape of my own day to fit my needs. I feel the weight of responsibility to get the work done on time and to a high standard but I achieve it by defining my own working pattern. Not  good at clocking on and off then. But a finisher, not a putter-off.

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Bureaucracy and administration are anathema to us. So no local authorities or bodies heavily regulated by statutory form filling or budgetary constraint thank you very much.

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Ah yes – I am fierce and determined and vocal on behalf of my clients. A most irritating work colleague no doubt who everyone wishes would shut up. If forced into an office environment I would almost certainly within weeks be campaigning for better coffee machines or about the inconvenient location of the water dispenser, a trade union rep or general agitator.

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But what about that ability and willingness to take on the task no matter how repellant the client or the cause is? That moral abdication that lawyers are so famed for? That MUST equip me for something surely? Perhaps I would be good in a call centre barking self righteously and without sympathy at the customer about some point of contention, a fearless advocate of my employer’s rigid and incomprehensible company policy – a sort of articulate and utterly impenetrable ‘computer says no’ lady. But I fear that call centre staff do not universally make good advocates and perhaps the reverse is also true (I do not think I can add anything further to my submissions on behalf of [insert name of corporate entity here] your customership). Or else as a bailiff, in brave and dogged pursuit of funds rightfully owing (too puny and sluggish I fear and frankly too chicken).

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What’s more I don’t think of myself as amoral, I think many of us (geeklawyer excepted obviously) are passionate  and profoundly moral. About justice and the justice system we are a part of. Yes it’s that old hat you put on your OLPAS form about wanting to help alleviate injustice, to give something back, give a voice to the silenced etc etc. But it’s true and it is that (fortified by the cab rank rule) which enables us to ignore the apparent repugnance of a particular client or get past the moral ‘wrongness’ of a particularly nasty argument we are asked to make – the belief in the system and the small part played in a mechanism for overall good (even if sometimes we feel that the system is not in perfect working order). And it’s hard to get passionate about your profit driven, target crazed boss (although getting passionate with them is one way to the top so I’m told).

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In fact we are unique in being used to having a frequent outlet to vent our opinions (a mark of a good advocate is that he identifies with the client whilst being able to also identify the weaknesses in his position) or at least an opinion, yet we can also hide behind the cloak of our instructions or pass the buck of responsibility to the judge or the client. It is liberating  to say unpleasant things without consequence. We get to spout off a lot but it is always someone else who takes responsibility for our words - my client or yours (unless you say something way off mark and get sacked, struck off, imprisoned etc!). Is this therapeutic; does this make us well adjusted or would we cease to function in a socially acceptable way if relieved of this release valve for all our hot air? Perhaps we are all just would be manic or angry people, kept normal by a daily release of spleen through advocacy?

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I’ve heard barristers often described as dysfunctional or autistic – a tag which is scientifically inaccurate (and probably insulting to autistic people) but which is an indicator I think of the fact that we are a group of brainiacs with social deficiencies and low emotional intelligence or empathy. I think the extremes are less apparent for family lawyers, if you don’t have some degree of emotional intelligence you can’t be an effective advocate for often emotional issues, but the general point is a good one. We work anti-social hours, neglect our families, have to close off or heavily manage our own emotions in order to remain objective enough to do a good job for the client, and we irritate the hell out of our partners and families by quoting the law, making points of principal or pointing out inconsistencies in our spouses arguments during tiffs. We correct the spelling and grammar mistakes on the anniversary card from our spouses for chrissakes. We are ornery and stubborn and pernickety and generally impossible to live with. We also number rather too many alcoholics, drug addicts and philanderers to be entirely wholesome, but I’m not admitting to any such vices myself. However, that notwithstanding if I’m honest – I wouldn’t employ me. And I wouldn’t marry me either.

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People skills. That’s it. We have people skills. We soothe and manipulate (sorry gently guide) our clients towards a sensible path, we advise them in a way that is not too hard emotionally to manage. We sympathise with their upset and where necessary sit firmly upon them to minimise the inevitable heartache which will be caused by continuing adherence to a ridiculous position that is doomed to failure. We gently probe with a mix of direct questions and insignificant chit chat to tease out the information we need to make our case. Perhaps an interrogator for MI5? Or a relate counsellor (did I suggest that in the same breath?). Perhaps not, I think too often we would see the writing on the wall and gush: You (to the wife): he’s a bastard, he won’t change. Move on. You (to the husband): you idiot. you really messed it up. What did you expect? Released from the bind of one sole client and opposing positions I might just tell it to them rather too straight.

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And as I look back over this list of our most compelling characteristics as a profession I am drawn to the inevitable conclusion that there are only two alternative choices of career should push finally come to shove: taxi driver or judge. Perhaps for everybody’s sake I should stay where I am.

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As far as therapeutic rants go I had a good bash at it, but it was not terribly satisfying. Every whinge resulted in one of a limited number of responses centreing on the assertion that no less money was being spent on advocacy overall under the new proposals (although the LSC representative on our table candidly admitted being completely unable to understand or explain the figures which formed the basis of the calculations – like the rest of us there then), that he was just here to put the proposals to us and to find out from us how we would like to divide the ‘limited advocacy cake’, that he would feed back our concerns. It was about as therapeutic as banging my head against a wall but with less observable result. Our LSC facilitator wrote notes on his feedback sheet, over-condensing and over-summarising and selecting the easy bits of our heated debate into bite sized morsels of one or two words that will be utterly meaningless even if they are not completely ignored by whoever is tasked with compiling or digesting them.

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As far as it goes, if this was intended to be an exercise in attempting to get the bar and solicitors to fight like children over the last slice of birthday cake we all behaved very well, pointing out that the fat kid under the table had been allowed to take a whole big slice all to himself and the LSC had not even noticed or tried to get it back off him (exorbitant experts fees which the LSC acknowledge are a big source of overspend but inexplicably do not form part of the current proposals could be redistributed into advocacy). All the solicitors on my table agreed that the fees proposed to be paid for advocacy were an insult and simply inadequate (as one rightly pointed out in some cases less than £10 p/h for prep). They all also agreed that they could not and would not want to do all advocacy in house.

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Unsurprisingly Mr Facilitator confirmed that the feedback on the proposals had been universally negative and views very strongly felt. In particular the ‘one size fits all’ approach had been much criticised.

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Well, I’ve said my piece. I told the man from the LSC I’ll be off if this carries on. The blithe response was that that was okay, because the LSC didn’t really much mind if some family barristers gave up practising as they were pretty confident that some of us would still be too desperate to do it (I paraphrase, but not much). I protested the folly of this line of thinking along with others on my table but I might as well have been talking to a piece of actual cake (looks nice, no good at making decisions). I don’t have the energy to rehearse the reasons why the interests of justice are not served by this – I expended a good deal of energy on articulating it this afternoon only to see it reduced to a scrawled ‘barristers will leave’ on the feedback sheet. What a pile of CAKE.

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One thing that is definitely not up for discussion is whether or not the proposals will adversely affect the family bar – that much is evidently a brute fact. I am beginning to think that the effect on the family bar is not the side effect but the point of the exercise, and that the crude rationale for these reforms is that since (from the LSC’s perspective) the family bar always find a way to burn a hole in the LSC’s pocket it would be cheaper to just do away with them altogether. But at what wider cost? If the long term effect for families wouldn’t be so god awful it would almost be worth just sitting back and watching them work it out for themselves. So I will continue to do my bit to make them see sense…I will be filling in my consultation response very shortly.

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See my previous posts about the funding reforms here.

P.S. May not post much this week as it looks likely to be pretty busy…

The family justice system is already under considerable pressure (an understatement – it is already fraying at the edges if not coming apart at the seams):

• CAFCASS are underfunded and taking up to 8 months to prepare reports. They have inadequate resources to undertake their core work let alone to facilitate the newly implemented contact activities and enforcement orders.
• Court budgets are being cut. There are not enough judges to deal with cases promptly because they cannot be paid (e.g. 2 months to list an urgent contested interim residence hearing because the local court had overspent 44 judge days).
• Solicitors are demoralised as they have been absorbing cuts in their pay for years and for many this work is no longer viable and they are closing their doors to publicly funded clients.
• Public funding is more and more tightly controlled and there is already an increase in litigants in person which itself puts added strain on the system (more court time, less negotiation and consensual resolution)
• Social workers are demoralised and local authorities are fire fighting. Resource limitations mean they are often reluctant to provide support and assistance to families or the courts

The reason that the system still functions at all is that those who remain are extraordinarily committed and work really hard to find creative solutions to the difficulties in the system. We spend a considerable proprortion of our time finding the least unsatisfactory interim solutions to tide parties over until the court can actually deal with their urgent problem. It’s prejudicial and unfair to parties and damaging for children.

It is still the general view that family barristers do ok and that – by virtue of the fact that we are barristers – we are paid very highly. This is not actually the case. In any event I don’t want to complain about what we are paid – I want to let people know just how much our pay is going to be cut and what consequences will trickle through the system as a result of that and a thousand other tiny cuts.

Let me summarise the proposals contained in the consultation insofar as they are relevant for this post:

• Significant cuts to the amount spent on family cases overall
• Cuts to come from private law and financial cases only i.e. disputes between divorcing couples about finances and property and disputes between parents about children – care cases are not affected as this is too politically sensitive, therefore cuts which may otherwise have been spread across the board are being disproportionately made to these types of cases
• Real terms cuts to the amount paid for barristers’ work of approximately 50% overall and as much as 75% in more complex disputes, equating to approximate hourly rates of £27 – £35 per hour before expenses, which as a rule of thumb are likely to amount to 30% and tax. And this for working long and antisocial hours in a highly skilled profession which requires us to undertake ongoing legal research and skill updating throughout the year.
• A ‘flattening’ of the payment system so that the scheme is less responsive to complexity - hence the disproportionately high cuts of c75% in the cases that require the most time, committment and expertise
• fixed fees for interim and final hearings, which make final hearings extremely unattractive as they require far more preparation and work but do not attract significantly more money
• even lower fees per hearing where there are more than 5 interim hearings, again reducing pay in complex cases

Firstly:

Why would anyone enter into this area of the profession at great expense (5 years training and £40,000 average debts by the end of pupillage) when it is clear that the levels of pay are going to be so low? If I was coming up now I’d go into another area of law and that is what I tell anyone in training to do when I meet them.

Secondly:

How can those of us who are already at the family bar absorb a pay cut of 50%? How do we pay our mortgages, how do we make an equitable contribution to the expenses of chambers? We might be committed to publicly funded work and to ensuring that clients in need are able to obtain quality representation but we cannot do it if we cannot make it pay.

Why does it matter? You might think I am taking a protectionist attitude, singing the praises of the bar’s ‘specialness’ when in fact solicitors could simply absorb the work – and this is plainly the view of the LSC and to some extent solicitors. But if you took such a simplistic view of things you would be wrong. There is considerable overlap between the work that is and can be carried out by both solicitors and barristers in family work (and in appropriate cases legal execs). But the LSC can’t have it both ways. Although they are pretty clear in expressing their view in the consultation document that there are more family barristers than are necessary and are prepared through these proposed changes to effectively ‘cull’ the family bar – they appear not to appreciate that if there is no work or insufficient work to make practice at the junior end of the profession viable then there will come a time when there is insufficient expertise in the system as a whole to ensure that counsel can be instructed in complex cases that require them. We won’t be there. We won’t be learning and developing our skills and acquiring the expertise that only comes through experience – because there won’t be any viable way of doing so. And who then will represent the parents who desperately need a highly skilled and independent advocate?

And it is foolish to assume that solicitors can pick up the slack – ‘juslikethat’. In many cases they already undertake their own advocacy and do a fine job of it too. But not only do many solicitors not want to undertake their own advocacy, some are unsuited to it (great solicitors are not necessarily great advocates), and most are too busy managing a case load of clients to attend all or any hearings, and in fact there are business reasons why it would not be cost effective.

Solicitors will always need to have access to a pool of independent advocates to undertake work they are unable to deal with themselves either because of other commitments or because they are not advocates. And they will always need to have access to a pool of independent specialist advocates to deal with the most difficult or sensitive of cases – some cases require people skilled in family advocacy rather than family law as a whole.

The LSC appears to think that solicitors should simply bring all their advocacy in house. But this would require the recruitment of numerous additional employees, with all the associated on-costs (tax, NI etc), and other expenses currently paid for by counsel out of their legal aid remuneration (training costs, legal library / resources, travel costs, office overheads, indemnity insurance…). And of course associated with bringing advocacy in house is the inevitable bringing in-house of risk – currently contracted out to the independent bar through their indemnity insurance. Although firms may be able to absorb a proportion of the advocacy work with existing staff they would undoubtedly need to employ specialist qualified advocates at appropriate salaries - for larger firms I should think the additional costs and risk would be unattractive, for smaller firms this would simply be untenable.

Of course the LSC view is also that there should be less, bigger solicitors firms and so in their view of the future the economies of scale would allow for the employment of specialist advocates in house. But there are many reasons why the legal aid landscape needs a diverse spread and range of solicitors able to take on family work, including a number of firms in any one geographical area. Particularly in family cases where there can be as many as half a dozen parties all requiring representation independent of one another it is essential in order to ensure access to justice that there are enough legal aid firms to take on the work. Five solicitors firms in one area (this is what is proposed by the LSC although I have no idea what an area is) is NOT ENOUGH to ensure that all parties are represented, not least because a solicitor would have a conflict if they had previously represented a family member in another family dispute. In care cases this is particularly likely.

So what do I think will happen if these cuts are implemented?

People will leave the family bar. I may well leave. I love my job, and I am committed to helping people get through their family problems. Children, parents, grandparents deserve and need skilled and committed representatives regardless of their means. I will stay if I can, but if I cannot pay my mortgage I will find something else to do. Like others, if I can find enough other work (i.e. privately paying work) to offset the cuts I will, but realistically this will be very difficult – particularly for children work specialists. There are only so many hearings that can be packed into one week.

The people who stay may not be the best. The quality of representation may well go down. The selection of advocates will be more limited. Healthy competition will be reduced.

The people who stay will be demoralised. They will stop giving that little bit extra. The drafting of case summaries, chronologies or other documents prior to heairng, the making of enquiries or telephone calls at court, the calls to our solicitors suggesting this or that, the staying at court until whatever time is necessary to finish the case, the typing up of orders for the court (a professional courtesy we don’t get paid for), the provision of thorough attendance notes for solicitors, the provision of free lectures and seminars for solicitors…More importantly the thoroughness of preparation, the level of thought that goes into finding creative solutions. I hate to suggest that anyone at the bar would get sloppy or provide anything less than an excellent service but I think in reality something has to give at some point. We are professionals but I think that the more that the world at large forgets that the more individual members of that profession are likely to forget it too.

It will probably be harder to find representation for final hearings, since they are far less well paid – everyone will want to fill their diary with interim hearings and we will be entitled to refuse to undertake the most unattractive cases (i.e. the complex ones or the ones with a lot of paperwork to read) because the cab rank rule does not apply. There will be a disincentive to bring matters to a final resolution. People will go unrepresented or will have inadequate representation and individual hearings will run longer…and cases will run longer…and the system will slow down even more…and people will get more demoralised…and more people will leave…and - you get the picture.

So who will suffer? Not just my family (although I’m surely concerned to make sure I can provide for them), but families up and down the country. And at some stage when it’s all unravelled and there has been an exodus of expertise from the family bar, the government / the LSC will realise its mistake. I don’t hold out much hope in the current economic climate that the LSC / the government will see the long term folly of its proposals, but I damn well want to make sure that they cannot say they were not told.

Please comment on this post if you have any useful contribution to make. Please respond to the consultation before 13 March 2009. If you are a lawyer please attend one of the consultation meetings and tell the LSC direct what you think. Please tell as many people as you can about the cuts. This is not just a ‘save the barrister’ campaign – it runs deeper than that.