Moving to Another Set: what are the risks?

Are you thinking of moving chambers? We look at what’s involved, and what you need to know to ensure your move is as smooth as possible.

For a barrister to switch from one set to another was once a rare thing. Not so today: more and more lateral moves are taking place between chambers, reflecting a fluidity amongst sets that is perhaps unprecedented. In practice, however, making such a move could prove tricky.

If you’re planning a lateral move because, for instance, you’ve had an offer you can’t refuse, or because there has been a change in practice area in your chambers, or you simply want to join a senior member of chambers who has mentored you, you need to weigh up the most critical issues you will probably come across before making the move.

What does the Bar Standards Board say?
With switching chambers becoming increasingly common, the Ethics Committee of the BSB has recently reviewed its informal guidance on Joining and leaving chambers, and internal disputes: obligations on chambers and barristers. This is aimed at all self-employed barristers, and addresses some of the practical issues that may arise, as well as your potential professional obligations and responsibilities (as well as those of chambers). The guidance is particularly useful if your present chambers does not have a constitution (though it’s unlikely that this is the case today).

In particular, you should look at the terms of your tenancy including those relating to terminating your membership, payments on leaving chambers, fee collection, data protection issues, and disputes. As the Ethics Committee says – you could find you have accepted some onerous terms. However, barristers are required by the regulator to ensure that the affairs of their chambers are conducted in a manner which is fair and equitable for all members of chambers, and (among other things) “a reasonable adjustments policy”.

What does your tenancy agreement/chambers’ constitution say?
You need to ensure that if you do switch sets, you prepare first and do it in accordance with any provisions by which you are bound. You may find you have to negotiate further terms or variations of terms/conditions, depending on your existing interests in your current set.

Remember that when a barrister leaves a set, it can have a major impact on chambers – particularly if their practice is lucrative to the set. It could result in a potentially dramatic and sustained loss in income for the set, and – if the barrister who left is high profile or particularly strong in their field of practice – other barristers may follow suit. It’s no surprise, then, that chambers have their own interests to protect when a member leaves.

Your set may be flexible and not insist on the strict letter of your terms and conditions being complied with, but this will of course depend on your own chambers and the circumstances prompting you to switch chambers.

Can you afford to move?
You will either have to serve a notice period (typically, three months), or agree a figure of compensation in lieu of notice. The BSB guidance helpfully explains payments on leaving chambers, and how it works out in practice. It is common to leave chambers immediately if you are to join another set – but you may have to pay your existing chambers a sum equivalent to its rent and expenses that you would have had to pay during the stated notice period. In addition, if clerks within your existing chambers are paid separately, this may be a further consideration for you.

This could, in some cases, prove expensive – with one commentator reportedly saying[1] that as some sets are demanding longer notice periods and laying down other conditions – you could face having to fork out £50,000 plus to switch sets. There’s the added issue of unpaid fees that remain to be collected from clients, solicitors and the Legal Aid Agency.

Be wary of a particular risk in relation to expenses: are you required to pay a percentage of any of your fees to your existing chambers and a further percentage of the same fees to your new chambers? You need to check the terms of the constitution, and of the set you are joining, to clarify the position. If it appears you are at risk of a ‘double charge’, you can try to negotiate a settlement with your existing set.

Fairness
Chambers should, though, have regard to what is “fair and equitable", and to any impact notice periods might have on i equality and diversity issues. Any punitive conditions would probably fall foul of what is fair and equitable. So if you consider your chambers’ constitution to be unfair – you should raise your concerns promptly so that your exit is not unfairly impeded.

New pastures
If you forge ahead, make sure you check the terms of your new tenancy, as well as those of the constitution of your new set. Make sure there are no potentially punitive or difficult conditions that could adversely impact a similar move in years to come.

So if you’re planning your move to another set, be prepared for perhaps a few negotiations and frank conversations to facilitate an efficient move. The majority of chambers are fully aware of the potential difficulties that can arise in these cases. Now that lateral moves are increasingly par for the course, it’s in their interests to pave the way smoothly for the sake of all involved.

[1] thetimesbrief.co.uk (paywall)

 

 

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