Semper Reformanda - Can Professionalism Survive the Demands 
of the Modern Marketplace?
Master Beringer
Semper reformanda, as you will know, is shorthand for ‘ecclesia semper reformanda est’ – the church must always be reforming.  This maxim was the backbone of the Lutheran reformation and even came to be embraced by reformers within the Catholic Church.  It was the conviction that the Church must continually re-examine itself in order to maintain its purity of doctrine and practice.
The same applies to the law. The law and the practice of law survive because they evolve.  I hope this evening to arrive at a conclusion which shows that the core tenets of professionalism need to take account of the demands of the marketplace in order to survive and that, far from being threatened by that marketplace, professionalism will be enhanced if it opens itself to the changes and demands which that marketplace brings.
In arriving at this conclusion, I hope to draw together three main strands of argument. The first is that it is important to embrace and pre-empt reform. If regulatory reform is something that happens to you, it is rarely a constructive or immediately useful experience. If, however, reform is something that you participate in and shape and is therefore something that you do to yourself, it is normally productive and regenerative. Simple resistance to reform is rarely wise because it is rarely successful.
My second strand of argument is that it is vital to be clear about the distinction between the interests of the law (which should be paramount) and the interests of lawyers. We too often claim to be protecting justice and the law when we are protecting ourselves.
The third strand is that professionalism and profitability are interdependent. 30 years in the business of law have taught me that you need to be profitable to be professional but that, perhaps strangely, you will not achieve sustainable profitability if your main goal is simply profit. That is why commercial success is not a threat to professionalism.
As you know, this lecture is the fourth in a series and I will seek to draw on the comments of the three highly distinguished speakers who preceded me.  Lord Neuberger magisterially opened the series by analysing the factors which drive change but which can also destabilise the profession – these range from increased commercialisation to the perceived supremacy of the consumer.  His starting point and end point was that trustworthiness is at the heart of professionalism.  He was followed by the iconoclastic but sharply focussed Master Webb who drew on a unique career profile at the employed and the self-employed Bar and concluded forcefully that professionalism is found in all areas of legal practice and that it is quite wrong to draw a hierarchy of professionalism in which the self employed bar sits at the head and others follow behind.  He also pointed out that professionalism and integrity exist in some abundance outside the legal profession and we should not overlook that fact. We then heard Dame Hazel Genn combine scholarly insight with a passionate commitment to the rule of law. She persuasively demonstrated that access to justice is a social good whose value should not be overlooked.
I therefore follow magisterial insight, constructive iconoclasm and passionate scholarship and I am, naturally, grateful to Master Reader for putting me in this unenviable position.

We live in an era where many contemporary commentators see a crisis in which the law is being commoditised, stripped of the qualities which should distinguish it, deprived of the funding it deserves and slowly sacrificed to the goals of commercialisation and consumerism. I rather strongly disagree with that view.
Let us look at the modern marketplace and its demands.  We are in a crisis in many respects.  Let me quote from a letter from the Lord Chancellor:  “This country is certainly in a worse state than you and I have ever known it – and I see no signs of improvement”.  That was not, however, the current Lord Chancellor.  That was Lord Eldon who became Lord Chancellor in 1801.  Crisis is therefore not new and is rarely fatal. Eldon was the protégé of the man whose picture is on the wall here, Lord Thurlow, and he was Lord Chancellor for so long that he became known to his contemporaries as Lord Endless. He was known for his natural antipathy to reform. I mention him because that was a period when Napoleon had done a similar degree of damage to the UK economy as has arguably been inflicted recently by our banks.  But the aftermath of that 19th century economic crisis was a period of significant reform. Medicine, the Arts, local government and the church all saw significant reform. The law lagged behind in the early 19th century partly because of Eldon’s resistance to reform. The lesson from earlier periods of crisis is that they reveal opportunities for change and progress.  Eldon in his working lifetime saw the abolition of the slave trade and the Great Reform Act.  What might emerge from our contemporary crisis to match that? Whatever the opportunities, I think it is important that the law is at the forefront of change and is not to be found lurking at the rear.
One of the questions after Hazel Genn’s lecture touched on guilds.  I was interested in this because a guild historically served several purposes.  It acted as a quality stamp which signalled high standards.  It also, however, acted as a form of cartel which protected the interests of its members.  One of the features of the many debates which have taken place over proposals for reform in the law has been the tendency for protagonists to confuse lawyers and the law.  I have seen this most clearly in some European jurisdictions which argue strongly in favour of restrictions on entry to the profession and fixed fees in certain areas believing that these things protect the law. In my view they are the arguments of people who wish to be in a guild. But I see it here too in arguments over legal aid funding and arguments over the structures through which legal services may be delivered in the futire.
It is incumbent on lawyers above all others to avoid this temptation of confusing their own interests as a group with the interests of the justice system. 
One of the central drivers behind recent reform was the view that the interests of the consumer are paramount. We, as a profession, seem have a natural antipathy to the analysis of legal services in terms of the interests of consumers.  We spend too much time objecting rather preciously to references to ‘consumers’ and we tend to follow this by denigrating Tesco law. Tesco law is the invention of those who wish simply to oppose change. There is, in my view, nothing wrong with law delivered simply and cost effectively to the public.  But more importantly, we have been diverted from the real question.   It is generally assumed by the government that the consumer of legal services is, in its finest incarnation, a little old lady and that the law must be delivered in a way that protects her.  So it must.  But a consumer in this context is also a hardened criminal.  More problematically, a consumer of legal services can also be a multinational corporation or even a bank.  These are also consumers of legal services whose interests should be considered.
But there is a further point which follows on from Hazel Genn’s description of the law as a public good.  In a country with a clear balance of powers, the ultimate consumer of legal services is the constitution itself.  If the consumer analysis begins and ends at the micro level it misses the point.  The modern marketplace consumes legal services at all the levels I have described- from the little old lady to the constitution itself.  We have just had a comprehensive spending review which apparently prioritised health and education but, so far as I can tell, made no serious analysis of the constitution as a priority consumer of legal services.  That is probably nobody’s fault but our own because we tend to focus on areas of expenditure which affect lawyers rather than the law and we dismiss the consumer analysis.  But if we apply that analysis thoroughly, it will show us that our marketplace is a wide one that has a constitutional impact as well as an impact on individuals. The analysis will show us that the justice system has not kept pace with the growth of the executive arm of government in our lifetimes. I am talking here about the level of investment necessary to modernise our court systems and procedures and the level of investment necessary to ensure that legal services are provided in a sophisticated but accessible manner. These are different points to complaints that the legal aid fund no longer supports certain legal practitioners. Our response has tended to relate to the funding of lawyers rather than the interests of the law.
Let me return to the relationship between commercial success and professionalism.  When I was involved with the review of legal aid, we considered the question of quality.  How would one evaluate the quality of those providing legal services at the state’s expense?  It is possible to evaluate legal knowledge or advocacy skills as they reside in individuals.  The real question, however, is how are such skills and attributes embedded in a truly sustainable way.  It seems to me that the answer is in two parts:  first, you need a profession which is sufficiently astute commercially to fund the systems, training and support necessary to guarantee quality.  Secondly, I think that one is driven inexorably towards a profession that is based more heavily on entities than on individuals.
I say this because I think any evaluation of quality results in an evaluation of things like training, mentoring and development of individuals, efficient knowledge management and retrieval, clear service levels, clearly articulated values, and the ability to offer young lawyers broad professional experience.  It seems to me highly probable that these things, which I call the essential proxies for quality, are more likely to exist in well resourced groupings which can afford to invest in them, be they partnerships, corporate entities or other similar associations.  I appreciate that this flies in the face of the preference at the Bar for self-employed individuals.  I fear that this preference may set the interests of the lawyer over those of the law.
To add fuel to the fire, let me look at two important issues connected to the preference for the individualistic approach.  The first is the cab rank principle.  The objective behind the cab rank principle is sound but, as Master Webb rather pithily pointed out, it is a glorious concept whose application is often hard to discern in practice.  I think it would make sense to reformulate the rule in a way which is capable of applying to groups as well as individuals. It would seem to me to better to have a centrally organised procedure which is a mixture of pro bono principles and cab rank principles and which is designed to facilitate greater direct access to the Bar and greater availability of legal support for those who would not otherwise be represented at all. That is the need of the modern marketplace and it would make sense to respond to that need.
The second aspect of the individualist approach is conflict of interest.  The presentation of a set of barristers in chambers as unconnected individuals who can represent opposing interests seems to me to be vulnerable to close regulatory scrutiny.  In my view it would be wise to anticipate and pre-empt that scrutiny by putting in place a conflicts structure which recognises that chamber are groupings which can give rise to such conflict. I think this would be a case of leading reform rather than trying to fend it off.
What, then of professionalism itself?  I have already spoken of various proxies for quality and these are an important part of professionalism.   Alongside these proxies, there are, however, two fundamental aspects of professionalism.  One is independence and the other is integrity.  It is often felt that the modern marketplace militates against these.  This has not been my experience of the last 30 years in the commercial end of the law.
Consider independence.  I recall speaking on a panel in the early days of the Clementi review when I said there was little to fear from ABS and similar structures.  A hostile solicitor’s hand went up and I was asked to justify how it would be safe to have a Russian oligarch with a major stake in a law firm.  I asked the questioner if he thought it acceptable for the law firm to be seriously in debt to the oligarch’s bank because, as far as I was aware, this had been permissible for the whole of his and my working lifetimes and no-one had yet raised the point.  That, of course, was not a complete answer but I was trying to point out that the proposed ABS changes were not the problem. The real problem was that the questioner seemed to have an irrational fear that anyone other than a lawyer was not trustworthy.  There is, so far as I am aware, no evidence to support this view.  We have a tendency to assume that independence can only be achieved by lawyers. This view will lead us to miss the benefits which accrue in organisations which have a range of non-lawyers involved. Those organisations are quite capable of fostering independence provided simple safeguards are introduced.
What of integrity?  I cannot do any better than to return to Lord Neuberger’s reference to Lord Bingham’s words:  “A lawyer must be capable of being trusted to the ends of the earth.”  The difficulty with this is how does one relate this to everyday working life?  Talking of the importance of the rule of law did not help me much because I found it hard to relate such a lofty concept to my everyday work and I never convincingly felt that I managed to do a great deal to protect the rule of law.  I did, however, feel strongly that I owed duties to the court and this was something that governed my everyday behaviour.  In fact the strict duties owed, in my case, by a solicitor to the court are relatively limited but I interpreted the consequence of being an officer of the court as meaning that one should behave in such a way that one could account to the court for ones professional behaviour without embarrassment. I saw this as meaning that one could not knowingly mislead people even if that benefited one’s client.  I saw it as meaning that gaps could not knowingly be left unfilled if this created an unfair advantage.  This came to be illustrated in my working life by a story concerning biscuits. 
This took place in the early 1980s. I was trained by two partners who believed strongly in the principle of throwing you in at the deep end. By way of example, on one occasion one of them gathered up his things to go home in the evening and asked me to prepare a first draft of a sovereign loan agreement and send it out to a small nation state that was a client of the firm. I said that might be unwise as I had never before set eyes on a sovereign loan agreement to which his response was ‘Don’t worry dear boy, neither have they’. The biscuit episode occurred shortly after this. We were acting for a merchant bank on a flotation and I was sent on my own to a meeting at which the prospectus and the underwriting agreement were to be settled. In those days, this particular bank had liveried attendant who served tea twice a day but never gave you any food. It is fair to say that I had no material useful experience of flotations or underwriting agreements. I was dismayed to find that the company being floated was represented at the meeting by a senior partner of one of the City’s pre-eminent firms who had 30 years’ experience of such matters. He surveyed me rather critically and then beckoned me to sit next to him. He had an improbably large brief case and he reached down into and produced a large tin of assorted biscuits. Turning to me he said in a loud voice: ‘These people never give you anything to eat. The biscuits are for you and me’. He then conducted the meeting by introducing every knotty point by saying: ‘I know that Guy is going to ask me for the following assurance.’ He would then outline the assurance I ought to have asked him for and follow it with the further statement: ‘Of course he knows I can only give it to him in the following terms’. He would then outline the normal way in which the matter would be dealt with. It is important when you are being paid to be present at a meeting that you always have a role. On this occasion, I nodded and ate most of the biscuits. This encounter taught me several things. The first was that you should always be courteous and kind to those who are at a disadvantage to you. The second was that he clearly felt he had a professional duty to ensure that the outcome of the meeting was in some broad sense a proper one. Neither of these duties is written down or defined anywhere but he taught me how to behave.
My message on professionalism to the younger members of the audience- I would not presume to advise those in the front row- is that the rule book just gives you a base line. You need to work out your own personal codes of behaviour to determine how to achieve trust. You will find plenty of role models and some negative role models also. You need however to determine how you conduct yourself in your every day dealings with other people as that will define your professionalism.
The current crisis offers a unique opportunity to re-evaluate what we do because no-one can afford to be complacent and no-one can ignore the need to improve the way in which we do things. We must fashion a response to the crisis with a disciplined regard to the three points I made at the outset.
First, we should not be merely reactive. We should embrace and pre-empt reform. The alternative is to be on the receiving end of proposals from regulators who are often starved of information and insights from the profession they regulate.  I recall in 2004  reading the Monti report by the European Commission. This was not, to avoid confusion, a report written by the captain of the European Ryder Cup team but was the work of Mario Monti, then head of the competition directorate in the European Commission. This was a report on the liberal professions which had outraged lawyers by comparing us to dentists and pharmacists.  This led most lawyers to dismiss the report as ill informed. I took the view, however, that it was pointless simply to moan about it and that  we should try to change their thinking. I arranged a meeting with the competition directorate and we duly filed in.  I opened the meeting by thanking them for seeing us and apologised for bothering them as I was sure they were lobbied by law firms all the time.  They looked puzzled by this and explained that we were the first firm that had visited them to discuss competitiveness in the legal profession and they were delighted to find someone from the real world to talk to.  I learned from this that it is enormously important to engage enthusiastically with your own future.  If you simply resist change, instead of shaping it, the outcome is bleak.  Semper reformanda must be the profession’s view of itself.  
Second, we should be clear about the interests of justice and the law as being distinct from the interests of lawyers. We should acknowledge that some of our reactions to recent structural reforms and to recent funding reforms have been too preoccupied with our own interests. We should more forcefully make the argument that the constitution as the ultimate consumer of legal services is too often overlooked in the current review of national spending priorities and that this is a dangerous position to sleepwalk into. We should not state this as an arcane constitutional point relating to separation of powers but as a logical conclusion of arguments about consumers.
Finally, we should acknowledge that integrity, independence and the broader interests of justice are more likely to flourish in an environment which is businesslike, commercially astute and profitable. I wrote a series of article about six years ago in which I argued that profitability would only be achieved on a sustainable basis by law firms if one pursued goals other than short term profitability- in essence this involved trying to motivate and fulfil the people who worked in any organisation and to articulate clear professional goals relating to matters such as client satisfaction and staff satisfaction. My main argument was that firms that followed this course would achieve sustainable profitability as a result whereas firms who made short term profit their express goal would decline over time. I called for the profession to adopt goals which reflected this and to abandon the apparent obsession with profit per partner. I was described by one journalist as insane. I was minded to write and complain but then reasoned that if he was correct I would be the last to know. I believe that in the post credit crunch world my views are now fairly mainstream although often ignored in some parts of the City. My point is simply that professionalism and commercial success are inter-dependent and it is wrong to regard one as being inimical to the other.
What, then, would be my vision for the future of the Inns and the Bar?  I see a profession which will continue to have many individual practitioners but which will also have many large and sophisticated business groupings and a profession which will have an increasing crossover with solicitors’ firms.  I see the Bar as having deliberately invested in and developed a global reputation and brand which is founded on excellence in advocacy.  I see the Inns as having invested heavily in keeping at the forefront of advocacy training and standards.  I see the Inns as the natural home for all serious advocates whatever their professional origin, be they solicitors or barristers.  I also see a simplified regulatory structure with fewer tiers than today and with the Bar and the Law Society and the BSB and the SRA working more closely together.
Finally, where do I see all of you?  Each of the lectures in this series has concluded with questions about the oversupply of applicants for pupillages and about the prospective demise of the junior criminal bar as a training ground. I felt it only fair to try to answer the question before it is put.  My understanding is that, across the Bar as a whole, there are around 1600 students taking the BPTC.  These students are competing for around 500 pupillages, following which they will be competing for around 300 tenancies.  The question was forcefully put last time as to why this mismatch is allowed to arise.  I notice that the Inner Temple Guide to becoming a barrister sets out similar statistics quite clearly so people are evidently making an informed decision to become part of this mismatch.
The mismatch is made worse by the fact that, whatever the outcome of the legal aid cuts, the junior criminal bar will not in future provide the training ground it once did.
Looking at this objectively, what is one to make of this?  I would conclude that no-one is entitled to find a job but that it is evidently inadvisable to have a system which produces so much inevitable disappointment.  It is ironic that the drive towards diversity is so pronounced that all methods of restricting applicants have hitherto been considered unacceptable because they may infringe diversity policies.  That conclusion is clearly perverse and must be challenged and, in future a sensible proportionate limit should be imposed on the number of people competing for available places. This limit will undoubtedly still result in an oversupply of candidates to the profession but I think that the complaint is that the oversupply has gone beyond a healthy and competitive surplus.
What of the junior criminal bar?  Part of the problem lies in the effective disappearance of this potential training ground. I think that we have to consider here the difference between the interests of lawyers and the interests of the law.  It is not sustainable to argue that the provision of a training ground for junior barristers is a priority for the criminal justice system.  It is equally true that the criminal justice system needs to find a means of providing adequate representation but that is a different question. I do not think one can demand a different approach to public funding primarily to reintroduce a job market. More pragmatically, I do not think that there is going to be a reversal of that funding position in any event.
Where is this likely to lead?  I can see several possibilities. One is that the structure of the training process could be reviewed. I suspect that a more rational approach would be to find a basis for common vocational training between the Bar and the solicitors’ profession.  This is likely to provide a more stable training environment for those who subsequently wish to become specialised advocates and will also provide them with a broader skill set which may be valuable in the current economic climate. To draw a medical analogy, that may be similar to the broad training of doctors who then elect to become surgeons.
Alternatively, I see enormous possibilities for the Bar to expand its reach in the brave new regulatory world to form new entities which will effectively oversee or conduct litigation as well as providing advocacy services. You may have seen the Chairman of the Bar’s comments at the Bar annual conference to the effect that Procure Co type vehicles could provide hundreds of millions of pounds worth of work. He went on to suggest that chambers should expand their markets and welcome direct access clients. He was diplomatically at pains to point out that chambers and solicitors firms could remain broadly complementary to each other but I think this illustrates the fact that, far form being threatening to the Bar, the regulatory changes are probably more of a threat to the smaller echelons of the solicitors world and represent a real opportunity to the Bar if its membership is prepared to embrace and lead change.
None of that provides any immediate solution but I think it shows that there is an attractive future but it will be achieved not by bemoaning the loss of the junior criminal bar as it used to be but by embracing change.
I would finish on a more upbeat note by simply saying to you that the law is the most resilient of professions and that, whatever the current challenges, I am sure it will provide you with a springboard from which more things are possible than you currently imagine. I have had three different careers out of the law so far and could not have realistically predicted any of them before I started. I hope that you will similarly benefit from the opportunities offered by the law and that you will make professionalism in the broad terms that I have described it the guiding light for your careers.
I am conscious that a number of you need to get to Vespers this evening. I understand that one of the psalms set for the service involves a seraphim lamenting and crying aloud in the wilderness. I do not claim to be seraphic but I do fear that I will be lamenting in the wilderness if I go on any longer. Thank you for listening to me.