Life at the Bar · Mini-Pupillage

I’d Rather Have A Coffee Than A Pupil (El Pupil Passed Over)

I like Legal Cheek and I like Alex Aldridge who runs it. Nonetheless, it has recently gone all tabloid on the issue of funding for pupillages, and I told Alex so. This post, which will be cross-posted on Legal Cheek will, I hope explain why. The idea with which it deals – that barristers should be taxed £3 per day to ‘sponsor’ pupillages – is so off the wall that I write with some concern that I am publicising something which should be allowed to perish as it deserves. But there may be an audience for even stupid ideas, even amongst Barristers. So here we go.

The idea emanates from a tenant at 5 Pump Court. Having looked him up, it isn’t clear whether he is involved with the profession at all, or even if he has ever had a pupil. The idea is that every set of Chambers must take one pupil per 25 tenants at £25,000 pa. That will cost about £3 per day and, as the originator of the scheme observes:

At those prices, a pupil would cost less than two cups of coffee a day. I suggest prospective pupils only have to visit the pubs and wine bars around chambers to see barristers drinking heartily as to why they ‘cannot afford to pay pupils more’.

The idea has been taken up by the anonymous paralegal whose idea was to occupy the Inns of Court because he hadn’t got a pupillage. He is confident that the

proposal would, of course, also have extremely positive repercussions for the outrageous situation with regard to lack of pupillages at the Bar. Force barristers to pay a contribution towards pupils’ training and more pupillages would undoubtedly flow from the wider availability of funding.

To which I can only respond: Stone. Cold. Wrong.

There are so many problems with this idea that it’s hard to know where to begin. But, for me, the stand out point is that more money for pupillages would not mean more pupillages. It is right that, in these straightened times, a number of chambers find it hard to fund a pupillage award. And it’s hard to see how a proposal that  involves more than doubling the minimum award is going to help. But that is a symptom, not a cause, of the reduced number of pupillages. The reason for the reduction is that there isn’t the work. The reason that there isn’t the work is because solicitors are increasingly representing clients in Court. The more your chosen field involves publicly funded work, the more desperate the need for solicitors to collar the work for themselves and the less work there is for the Bar. And in crime, the CPS pay their Higher Courts Advocates a premium on top of salary, which must be recouped by not briefing barristers.

Of course, this playing field is not so much level as vertical. But that’s how it is. And when you factor in the Government’s earnest desire that no one gets public funds to ensure that they can take advantage of their legal rights (which the same Government trumpets – when it suits them – as the proud heritage of these Islands) you can see why the work available for a pupil might be restricted, and why your pupillage, if externally imposed, represents a direct threat to the livelihood of the junior tenants and, perhaps, their less gifted senior compatriots.

That is an end to the idea: it won’t work. That it is implicit in the proposer’s worldview that all barristers really have their snouts in the trough, deliberately gorging themselves on third-rate coffee in order to ensure that prospective pupils are shut out, merely makes the whole thing offensive as well as daft.

There is another objection based on fairness. The £25,000 pa figure is supposed to represent the average graduate salary. We can quibble about the figures but let’s not. The reality is that – as most of us would recognise of ourselves – pupils contribute nothing to their Chambers during their pupillage. They take up a huge amount of time because they don’t know where anything is, they don’t know where anyone is, they don’t know how to do anything, they get under the clerks’ feet and they don’t pay Chamber’s fees. (Most) Pupil supervisors (mostly) willingly put the time in because they see it as giving something back and because they enjoy the encounter with a bright mind determined to become a legal star. For which they do not get paid. And, when the pupil gets taken on, the contribution to Chambers from the earnings made as a result of the training is about 20%.

Why, therefore, a pupil should be paid as if they were contributing to Chambers is beyond me. The compulsory funding of awards rests on a consensus within the profession that unfunded awards unfairly privilege the already privileged. It is a way of ensuring diversity and fairness. It should not be measured as if the pupil were an employee because a pupil is not an employee and nor – thank the Lord – is a barrister. We are self-employed independent professionals. We accept that we have expenses to pay for running our practices. We accept we need to purchase professional liability insurance. And, in order to do so, we ensure that we are less expensive than solicitors because we keep our overheads down, we don’t have a secretary because we do our own typing, we don’t demand our own desk unless we are using it nearly all day nearly every day and we work without regard to the hours of our “working week” because we don’t have a working week – just work.

From that flows 2 things. First, we won’t take you unless you can do what we do. That is uncontroversial when we talk in terms of talent. But it also refers to opportunity. Secondly, we don’t get “taxed” by our profession unless we can be convinced that the payment is necessary. Our governing body funds itself via a practising fee and it is constantly, and correctly, challenged to demonstrate that we are getting value for our money. It is the essence of being a barrister that no one turns round to me in Starbucks and tells me that I have to use my coffee money for some cause he has arbitrarily decided is better. Especially when a lot of my colleagues don’t go to Starbucks because they are worried about their reducing incomes. And especially when the proposal is wrong.

I feel better now.

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12 thoughts on “I’d Rather Have A Coffee Than A Pupil (El Pupil Passed Over)

  1. i don’t agree with the proposal, either. i think that’s because i regard it as someone asked the question ‘how many beans?’ and replying ‘magenta’. it may or may not be a valid answer to something, but bears no relation to the question asked. but i’m not on quite the same page as you either, simon.

    the problem as i see it is that we are – as you point out – a profession of the self-employed, but we operate a pre-entry closed shop. ironically this used to be the case with my former profession, acting. rather counter-intuitively, the profession’s attempt to square this circle is to allow certain skillfully-chosen people free – nay paid – training. that someone could suggest this paid training should be at the rate of 25K per annum, when you won’t be earning that to start in many criminal sets, just points up the artificial nature of the whole set-up. and, with respect, the fact that they don’t quite understand what it’s like at the start of criminal practice.

    the real issue is that the way the whole bloody profession is constructed is bizarre.
    anyone can train (if they have the money) and be called. we want entry to be as level a playing field as possible. we have certain people paid far more than they are ‘worth’ to train in commercial chambers and others paid a pittance. any chambers could randomly discard 90% of their applications for pupillage unread and still have a choice of excellent people. witness the modesty of certain of my friends at your own level, simon, who say they would simply not have been looked at for pupillage these days with their degrees. let’s take it with a pinch of salt as they are clearly good enough to have taken silk, but it’s monstrously hard to get in these days. and requires monstrous wealth. or balls. probably both.

    now what is the economic logic of a group of self-employed people paying 60k to a pupil so they can come and compete with them? none, unless we realise that commercial sets are set up more like magic circle firms.

    so why recruit a pupil at all? well, for the criminal set there is a logic. you can flog your pupils’ (probably quite bright) arses round endless magistrates’ courts servicing your solicitors who pay them (occasionally, assuming they get legal aid granted and feel like it) bugger all to do pretty unchallenging work and do exactly as they and the clerks tell them. it seems the clerks believe this keeps the work at higher levels coming in – though of course you might consider solicitors will use whoever is best and/or cheapest and/or those whose telephone number they can be bothered to remember irrespective of whether x chambers covered last saturday in ultima thule mags for them for £50. and this costs chambers 6K!? because of course pupils will be earning their guarantee in second six, so it’s free to chambers. then, as you say, they start to pay the rent. sounds cheap to me. one of my decisions in recruiting pupils would be to have as many as i have supervisors for. they are never in chambers; you barely even need give them a desk and it isn’t as if you need to take any of them on if you don’t want to. and the poor buggers are begging to be bent over and rogered royally – after all, it’s the only way into a very popular profession, so worth a sacrifice.

    for commercial sets, well i don’t know; but whether it’s vanity or otherwise, i don’t believe they will hoof out a single penny without expecting some return.

    answers? not so many, alas.

    end the gravy train of legal training. something like nobody qualifying to do a bar course without a pupillage.

    end the idiocy of pupillage itself. who in their right mind would allow only 12 applications for a job (yes of course there are lots of non-olpas chambers)? and based on questions like ‘why do you want to be a barrister?’ (that is just a test to see whether you can stop yourself battering them death, isn’t it?) it’s a legal fiction: a ‘tax free grant’ in first six; a ‘training’ entirely at the mercy of a pupil supervisor (not saying most aren’t great – mine were); then some application dependent on entirely random factors to get your place that allows you to work from chambers for as long as you pay rent. no real quality control, no proper accountability. no guarantee to your clients that you have much of an idea about any of it.

    how do we do that? ah … belling the cat. but quite possibly an issue that will not face us in a few years time as the industry will have moved under our feet. what i am certain of is that we can’t sit here jealously guarding our patch (and yes of course publicly-funded work is soon going to be where only the second-rate will practise – already you look at the academic difference between those getting pupillage in commercial and criminal sets. it’s not the only measure of quality but it is one measure.) and pretending we welcome all of sufficient ability.

    in sum: sorry for the length of my submissions – but it’s a big issue; sorry for the lack of solutions – it will take far more minds with far more experience than just my own. but something’s gotta give. and it certainly will. and in the meantime i understand why people make the suggestions you have mentioned, though, like you, i don’t think they are the answer. not to this question, at least.

    1. Hi Sara!

      I posted this on your blog as well, but I’m not sure it made it onto the page.

      You are quite right and all the points you make are entirely valid. I succumbed to irritation at the original proposal and made a sweeping generalisation.

      We obviously have to pay pupils, otherwise Pupillage would be restricted to the already comfortably off and, perhaps, those willing to gamble with a massive debt. But they are not being paid for what they do – even though I agree that they are usually useful (and that includes all of mine). The balance is between what pupils need to survive and what the Bar can afford and – crucially – is willing to pay. There may be an argument there for London weighting.

      1. Thanks for the comment Simon, great to get feedback. Both posts have caused a ‘stir’ (pardon the pun). I’ve transferred Twitter comments to Sara’s blog and you comment above did make the page!

        Best

        Gary
        @legalacademia

  2. Thanks for the comment Simon, great to get feedback. Both posts have caused a ‘stir’ (pardon the pun). I’ve transferred Twitter comments to Sara’s blog and you comment above did make the page!

    Best

    Gary
    @legalacademia

  3. Dear Simon,

    Thank you for your insightful blog (which was incidentally recommended to me on a mini-pupillage), I have found it very useful in gauging the thoughts of the profession.

    Whilst i’m normally the first to blow the “Nationalize-everythig-everyone should get the highest wages possible-esque” socialist trumpet, I think you make excellent points about the context and nature of the profession viz. remuneration. Barristers are largely self employed for all intents and purposes, and thus the position is different. Part of the attraction of the profession for me is that so much rests on your own abilities and decisions.

    In addition, it should be noted that many good sets (and, thus one can assume potential places for excellent candidates) pay far more than the minimum. This is not always restricted to practice area (i.e. Human Rights at Blackstone (£55K) or Crime at Exchange Chambers (£40K).Also, it does seem that many sets such as 4 New Square with a £60K award do take many non-Oxbridge applicants as well (from my estimate, at least 35% with 5 non Oxbridge QC’s and one from a Poly). Obviously most chambers don;t have these awards (and many have 100% Oxbridge tennatns), but many do.

    Perhaps then, it is a question of seeking the right chambers as a prospective pupil? I.e. if you are an excellent enough candidate then you will be reimbursed accordingly? For example, I am not at Oxbridge and I have two interviews at a £60K chambers and a £45K chambers respectively. Although this may seem cynical (i.e. one may not want to work at certain chambers and may fall in love with one offering £12K) I think that you cannot “have it all” so to speak, and that goes for any profession.

    1. Just thought i’d add that I had no intention of inferring that just because a Chambers does not offer more than minimum then means that it is poor or low quality set.

  4. Simplywondered asked “what is the economic logic of a group of self-employed people paying 60k to a pupil so they can come and compete with them? none, unless we realise that commercial sets are set up more like magic circle firms.” Perhaps I can provide an answer.

    I am in a relatively small set in which most of our work is commercial and chancery. We get some really tasty high-brow stuff but most of it is very decent quality business disputes, professional negligence, landlord and tenant (high value residential and business property rather than “bog standard” possession actions and lease renewals), commercial arbitrations and similar. Many of us started in general common law sets and developed practices that matched our particular interests. Those over ten years call can expect gross annual turnover of at least £200,000. We are by no means at the top of the tree but we like to think we know what we are doing and our customers seem happy with our efforts.

    We take only one or two pupils a year and award in excess of £50,000, of which half is a guaranteed top-up in case earnings during their second six months of pupillage do not reach half the total sum. It’s a bloody good whack for someone starting out but we pay it for good reason.

    We need to recruit new members from time to time and want to recruit the best people we possibly can. There can never be a guarantee that we will succeed in this mission but we do our best by using a rigorous series of tests and interviews and try hard to be fair to everyone. Every year some applicants with stupendous academic records don’t make it through. Those we accept are those who have impressed us more than the other applicants, that is axiomatic, but we all know our judgment is not perfect and we might have rejected someone even better than those we have accepted. Life’s like that and everyone has to live with it.

    Paying a healthy wedge to a pupil who is then recruited as a member of Chambers is not a case of paying them “so they can them come and compete with” existing members. To an extent they will compete with other junior members as those other junior members competed with those a little above them in seniority. That’s part of the job and can never be avoided. In their early years they will not compete with the vast majority of members because they do not have the experience required for the work more senior people do. Of course there is the occasional star who overtakes his or her seniors, that is also part of the job. In almost thirty years at the Bar I have never met a barrister of quality who is scared of competition. I have, however, met an awful lot who have looked on with pride and pleasure as a young star has overtaken them. I have been in that position myself many times and, I hope like any civilised person, am delighted to see younger practitioners outshine me by being better than me.

    From time to time we will pay a pupil tens of thousands only to find them attracted to another set to further their career, so be it. We know that might happen and we live in the real world, it happens to every set and always will.

    If you are looking to recruit beginners with outstanding qualifications and all the characteristics required for success at the Bar you have to offer a financial package that makes you attractive to them, it is not a one-way street.

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