Clerking cock ups part one

A clerking team may act for a Chambers with anything between two and over one hundred barristers. However good the clerks are, it is inevitable that mistakes will be made. Mistakes that clerks make tend to stick in the memory. Virtually every barrister you meet will either have a story of his or her own, or one of a colleague.

These mistakes tend to fall into two distinct categories. The first category is just a complete mess pure and simple. The second category is where the error has come about due to a failure to be sufficiently robust when dealing with a solicitor or someone else.

Fixing fees can be an area where sometimes a clerk can go disastrously wrong. There was once a clerk from a mixed set of Chambers (predominately criminal but with a little bit of general civil work) who acquired a barrister who did proper commercial work. That barrister became increasingly successful and on one occasion he provided an advice in a substantial case. (This would be about 25 years ago, and the barrister was then of over 10 years call). This was for a commercial firm of solicitors who would not normally have gone within a million miles of that particular set of Chambers. The elderly clerk to Chambers, who had no real experience of this type of work, decided that it was important not to risk upsetting this firm, and so he decided to charge a very competitive fee for the advice. The fee fixed on was one of £ 100.

Unfortunately the elderly clerk had no real clue as to what a competitive fee would have been. He was judging what you would have charged for a fee for an advice on a criminal case. He neither appreciated the complexity of the legal issues, the amount of time spent, or the value of the claim. In reality the appropriate fee ought to have been in the bracket of £ 1000-£ 1500. After he submitted the fee note, he received a telephone call from the partner concerned.

The partner no doubt had two concerns. The first was that the fee was so ridiculous it might well have been a typographical error. The second was that the fee was so absurdly low that it would almost certainly have made their position look bad. After all, since that time would assume that the barrister was judging the going rate, if the going rate was £ 100 it was going to make their own bills and charged fees disproportionate. It was also going to set a benchmark for future fees for counsel. That would cause a problem because since the barrister would almost certainly want a proper fee for the trial, the client might end up losing the right person because an expectation of absurdly low fees had already been given.

Therefore the relevant partner was swiftly on the telephone to the clerk. He asked the clerk to dig out the fee note. "That fee is utterly ridiculous for that advice" he told the clerk, in very stern terms. The clerk paused. He had tried not to upset the solicitors, and now he seemed to have managed. However he had a solution. "I agree it's ridiculous" he told the partner, " We will reduce it to £ 50".

You might think that the solicitor would have been pleased that he had a cheap source of work and that this would have made the business relationship prosper. You would have been completely wrong. The clerk does not just fix fees, he or she has to juggle diary commitments and organise listings and ensure that the barrister has the time to do the work which the barrister is given. A good clerk can be an advantage to the barrister and the solicitor. A poor clerk can end up causing a nightmare (for example organising things so that the barrister does not have time to prepare the case, causing fixtures to clash etc). A poor clerk who knows nothing about the relative value of cases will not understand the need to allow more time for work on particular cases, and is likely just to take on work for that barrister willy-nilly: if the clerk does not know which cases can properly justify higher fees, he will have no means of deciding which cases to take, no understanding of what they involve, and is therefore likely to overload the barrister including giving him or her cases which that barrister should not really be doing. Such clerk risks messing up the case which the solicitor has sent. Having concluded in this particular case that the clerk simply did not know what he was on about, the relationship could not prosper because from the solicitor's point of view, if the clerk didn't know what he was doing in commercial work, using those Chambers would be ensuring that there was an accident that was going to happen with the only question being when.