This article was written by Katie Walsh, Legal Affairs Editor with The Australian Financial Review (10 August 2017).

Companies are increasingly circumventing lawyers to seek direct advice from a barrister in a squeeze on legal costs, according to a survey showing at least half of the New South Wales bar's clients use barristers exclusively or most of the time and direct briefing is up almost a third in three years.

The research, polling 71 in house counsel, was commissioned by the NSW Barrister's Clerks Association in a bid to work out what clients want as the centuries old profession battles the structural threats facing the legal profession broadly.

"As in house legal teams grow and become more sophisticated, they're getting more confident in briefing barristers directly and they're having to do more with less," said consultant Sue-Ella Prodonovich, who designed and conducted the survey.

Half of the respondents spent $200,000 or more on barristers in the last year and nearly a third increased their use in that time. Among the 17 per cent who directly brief barristers "all the time" was one large corporate that had cut law firms entirely; another 33 per cent use them most of the time. But a quarter had never directly briefed and another quarter only did so some of the time.

Around 45 per cent of those surveyed were in house lawyers from the ASX top 50; others were from large government agencies, regulators and various companies. While some were offered as survey subjects by the clerks, Ms Prodonovich rejected any suggestion of selection bias, as others were independently added to the mix, including from a peer-rated list of leading general counsel.

Ms Prodonovich said some areas like construction, property, employment and tax attracted a particular appetite for direct advice.

"There are cost savings, and some said they don't get the duplication they get when they work with lawyers."

A reader might charge $100 an hour, less than half that of a law firm graduate. But she admitted there were some frustrations expressed by clients around the "antiquated approaches" barristers can have. There was an opportunity for barristers to modernise and better promote their services and possible savings, she said.

Since August last year, NSW barristers have had the option to tick a box to note they accept direct briefings. Since then, less than a quarter have done so.

In Victoria, of 2044 members just 40 come up as available for "direct access", three of them silk.

Early strategies

The shift is not a pure cost cutting move: it seeks better outcomes and strategic options.

Meriton general counsel Joseph Callaghan said he often briefs barristers directly and was privileged to have "so many pre-eminent counsel available to provide advice... usually on very short notice".

"If the legal issue is one that will ultimately be decided by a judge, early and direct access to the advocate responsible for making the final argument in court — if it gets that far — ensures the most useful advice when it comes to making informed strategic decisions from the outset," he said.

The New South Wales Bar Association and the Association of Corporate Counsel are working closely together to promote early, direct briefing said New South Wales Bar Association president Arthur Moses, SC.

"It saves time and money and is particularly suited to urgent applications, dispute resolution and legal advice on complex matters," he said.

He said the association was focusing on "new and better" ways to promote the bar, including search facilities for arbitrators and mediators; and was undertaking similar work on market insights.

Australian Bar Association president Will Alstergren said it was in everyone's best interests — including the courts — to have barristers briefed "more effectively and earlier in litigation".

"This serves to clarify the issues in dispute, the causes of action and assist the management of the entire dispute resolution process, empowering clients to make informed decisions, and potentially reduce overall legal fees," he said.

"The ABA is actively promoting direct and early briefing of barristers by corporate counsel."

'Horses for Courses'

Law Council of Australia president Fiona McLeod, SC, said there was a long history of barristers providing early strategic advice where corporations are looking at litigation or the risk of litigation, which seemed to have "dropped off a little".

"There's obviously a very strong taste for having that advice as early as possible, and to do it in a way that is quick and efficient. Barristers know the courts and the likely outcomes; it's good risk management."

Ms McLeod – herself a practising barrister at Owen Dixon Chambers West, in Melbourne, and the immediate past president of the Australian Bar Association — said it was not a matter of competing with solicitors for work.

"I don't see any threat or challenge in what the bar is seeking to do, which is to remind corporate counsel they are available for those direct briefs, and to remind them solicitors should always be engaged where necessary."

"It's a matter of horses for courses."

Barristers who spoke with The Australian Financial Review said the rules created complications when providing direct advice, because there were strict requirements around maintaining independence. Generally, they preferred direct briefing in advice or preliminary guidance for a matter that might proceed to litigation, and cautioned against using it in conducting litigation, when having a team of solicitors in support was beneficial and sometimes critical.

NSW Barristers' Clerks Association president Angela Noakes, who is clerk of Ground Floor Wentworth Chambers, said the trend was driven by the specialisation and speed without the costs sometimes associated with firms.

"The buying power of corporate counsel is growing," she said.

"Increasingly they want a portfolio of providers rather than a 'one stop shop'. They want options as to how to approach legal issues."

Chambers moving with the times were investing in technology and focusing on diversity, service delivery and client needs, she said.

Beyond Trolleys

Greenway Chambers senior clerk Tobias O'Hehir admits he still pushes the odd trolley to Phillip Street, in Sydney's court district. But his role has shifted dramatically since he first started at other chambers eight years' ago: it is more managerial, working on the practice mix of barristers, raising their profiles and focusing on client relationships.

"There's so much change in the legal industry; it's changing every single day," he says.

"Artificial intelligence is really going to have an impact, but the one thing it can't do is the custom work and that is really what barristers do.

"But they can't continue doing business the way they've always done for the past 300 years, they really need to modernise."

Opened just 18 months ago, Greenway Chambers looks more like a modern law firm: they have breakout rooms, a mediation centre, open spaces for collaboration that avoid the isolation that can plague the profession. In one way, it takes it back to what O'Hehir calls "the roots of the bar": "People have lunch together, they work together".

While only 20 percent of its barristers are women, it has adopted a diversity policy and offers six months of parental leave, runs yoga and cycling classes, and even has a Facebook page.

Unlike most chambers, there is no hierarchical "head" among its 31 barristers, who are listed alphabetically.

O'Hehir resists the view that the trend towards direct briefing should be seen as cutting the lunch of lawyers. "They would have to understand the commercial pressures that exist for everyone – in house are trying to cut costs, law firms are about cutting costs as well."

"If anything the network between solicitors and barristers should be strengthened, because if litigation is required they'll have to be engaged."

For the moment, pushing the odd trolley stacked with folders and law reports is still "part of the job" of being a clerk. But he can see that changing too, as courts increase digital capabilities. Like the traditionally heavily paper-based Land and Environment Court, which has two paper-free hearings scheduled for later this year after recently conducting one successfully.

"I think it's going to be something we see more of," he says. "Soon it will be more iPad based."