Minimum Pupillage Award ‘Limits Flow Of Talent To The Bar’

Keep the minimum wage for trainee solicitors, but scrap it for pupil barristers, argues OccupyTheInns

The thorny issue of the minimum wage for pupils and trainees has been raising its troublesome head recently. Firstly one unfortunate BPTC graduate found his claim that the minimum pupillage award is racist dismissed unceremoniously. And then came this nonsense about trainee solicitors getting paid a mere £2.60 an hour. Reading these news stories, one thought kept flashing through my head: “Why, oh why, can’t the legal profession show some common sense about all of this?”

Common sense, that old-fashioned virtue we so often forget, dictates that trainee solicitors do not earn the same sums as trainee plumbers. For starters, legal training costs a damn sight more than plumber training, and secondly being a solicitor requires a fairly robust intelligence that must be rewarded in a fair society. Pay them the existing minimum wage at least. If you can, pay them more.

As so very often, the Bar is a special case. No, the minimum pupillage award is not racist. It can, however, limit the flow of talent into chambers…

I regard being a barrister as somewhat like being an actor. It is risky, unpredictable and capable of generating the most exhilarating highs alongside dark, crushing lows that can break all but the most determined. We barristers walk a lonely, irregular path to which the usual rules often do not apply.

In an ideal world we would be funded properly to do this through pupillage, as I have argued in the past. But this world is far from ideal. That is why I believe that I am now, after much thought, in favour of removing the restriction preventing unfunded pupillages.

Already I hear the cries: “What about diversity?” As happens so often, those jumping upon the “diversity” bandwagon miss the point.

Let me approach the issue from a different angle. Is there a problem with diversity in Hollywood or the Barclays Premier League? I know a barrister appearing at some godforsaken magistrates court on a rainy Monday morning may not fit the star billing of Wesley Snipes, but the principle is the same.

The mindset of your average barrister, or high achiever in any walk of life, is different. We are willing to go further than most and work harder if necessary. We are willing, in other words, to take part-time evening work to cover our living expenses while we toil unfunded during the day. We are willing, most of all, to take a chance.

Sadly, external restrictions prevent many Bar graduates from taking that chance, forcing us instead to rely on the whims of chambers’ interview panels and human resources staff responsible for sifting our application forms. It is a reliance that I do not foresee changing in the period in which I hunt for that elusive pupillage.

This makes me sad because it means the Bar is missing out on talent – not me personally, although I do consider myself to possess the necessary skill-set, but many good people from a range of different backgrounds. Without talent what does the legal profession, and especially the Bar, have?

OccupyTheInns graduated from the BPTC last summer, and was called to the Bar in July 2011. There’s more from OccupyTheInns here.

10 Responses to “Minimum Pupillage Award ‘Limits Flow Of Talent To The Bar’”

  1. Jonny Cotton

    I disagree with how this post frames the issue of pupillage funding, and its overall approach to how the bar operates.

    First, the legal services market expands and contracts in sync with the rest of the economy. In bad economic times, some areas of law may be quieter (e.g. construction and planning) – other areas may be busier (e.g. employment). Simply removing the minimum pupillage award is not going to lead to a flood of new pupillages – that frames the situation in reverse to reality: an expanding legal sector will be the driver for increased pupillages.

    Secondly, chambers are businesses. This means that they will naturally want to prevent a flood of new lawyers who are willing to work for almost nothing. Such a flood seems to be a desired consequence of those supporting unfunded pupillages. But it is wrong headed: if you were a newly qualified barrister, the last thing you want (after completing your unfunded pupillage) is to find that there is no work available.

    Third, the logic of unfunded pupillages is to push the problems created by an excess of BPTC graduates futher down the system. Instead of there being a glut of called but non-practising barristers, there will be a glut of practising but out of work barristers. I thought there was an emerging consensus that the problem of too many applicants should be resolved earlier in the system, by making the BPTC harder to join (although, as private buisnesses the law schools will always have a powerful financial incentive to have as many students as possible, so this problem is unlikley to go away).

    In an ideal world, everyone who was capable of being a barrister should be able to practise as one. However, I do not think that more pupillages can be created by simply restructuring the internal mechanics of how pupillage currently operates. What is needed is a booming legal services sector. With the Legal Aid, Sentencing and Punishment of Offenders Bill edging toward the statute, at least one chunk of that sector is hanging by a thread.

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  2. Good luck with that

    Completely agree with DanHLawReporter. You suggest that the access problem could be overcome by unfunded pupils taking on evening work- I suggest you should go and speak to some current pupils and ask them if there is any way in hell they could do enough evening work to support themselves while still putting the effort in needed to fulfill their obligations as a pupil. Imagine doing a sixty-hour minimum week as a pupil, during which you will need to be constantly alert and thinking at your best, and then working another forty hours for £8 an hour as a waiter to support yourself.

    That of course is completely aside from the patently obvious fact that there would be no more tenancies for all these unfunded pupils to take. There are a plenty of sets that still openly make their pupils compete against each other for tenancy. How does increasing the number of pupillages help that situation? And how well do you think you’ll fare against the other pupils when you’re falling asleep in the middle of the day?

    Anyway, if money were the real limiting factor then the big commercial sets, or even the more well-off sets in all fields, would take more pupils wouldn’t they?

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  3. Simon Myerson

    Complete tosh.

    Why would it be right to prefer those who have private means? They would certainly take less of a chance than someone without. More pupils would plainly make training much more expensive – a cost to Chambers in addition to the pupillage award. It would not assist in assuring that professional assessment was delayed until everyone had got going – those who needed money and were unremunerated would have to take other jobs – a professional and ethical difficulty and inimical to fair competition – whereas those with money could afford to go the extra mile. Chambers could, alternatively, simply wait to see who gave up first. That would in turn depend on who the clerks liked and who had friends who were solicitors. None of this would promote competition. It would, however, directly promote quite the reverse

    What this proposal does – fairly obviously – is to promote the idea that failing at the Bar should cost even more than it already does. That, in turn privileges the privileged. Diversity is the straw man here – easy to set up and popular (it is thought) to knock down. This is actually about fairness, to which we are supposed to be professionally committed and which, in my view, is an absolutely essential quality for a barrister.

    The ability to miss a (the) critical point suggests weakness of analysis. Failing to even grapple with that idea suggests a lack of courage and a willingness to hope the reader misses the point. That’s not the necessary skill set and, if this is really the product of a lot of thought, then it raises serious questions.

    I know this is brutal but really – you do rather invite it. What you consistently fail to think about it that the issue is not susceptible to simple solutions but requires nuance. We have to strike a balance between the profession and its aspirants. That balance will never be exact and will always leave people feeling unhappy. But the fact of unhappiness is not proof of a bad system. It is how systems, the Almighty and the adult world all operate.

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  4. Morus

    “We are willing to go further than most and work harder if necessary. We are willing, in other words, to take part-time evening work to cover our living expenses while we toil unfunded during the day. We are willing, most of all, to take a chance.”

    I worked full-time through my first 2 (FT) degrees, my (FT) GDL and my (FT) BPTC. I know 80-110 hour weeks as well as anyone, but the idea of trying to combine pupillage (when you are seeking tenancy and doing work for actual clients) with paid PT work outside chambers strikes me as foolhardy in the extreme.

    Also, there is the small matter of the Bar Code of Conduct para 801 which states that “A barrister who is a pupil must … (b) (b) apply himself full time to his pupillage save that a pupil may with the permission of his pupil-supervisor or head of chambers take part time work which does not in their opinion materially interfere with his pupillage”. You might be allowed to give the occasional undergraduate lecture at university, or write a legal column once in a while (I’m thinking Daniel Sokol’s excellent piece in the Guardian today), but taking on 25 hours as a waiter or tutoring every evening? I don’t see how any head of chambers could accept that it wouldn’t materially interfere with pupillage, even if you were prepared to do it.

    You propose this as a solution to the problem of talent apparently overlooked. You might be right that there are exceptional candidates who never get the pupillage they deserve, but I think you’d struggle to convince anyone that this injustice, or the subsequent impoverishment of the general calibre of the junior bar, is of greater concern than lack of access to those from less-affluent backgrounds (in spite of the remarkable progress made in recent years).

    “…forcing us instead to rely on the whims of chambers’ interview panels and human resources staff responsible for sifting our application forms.”
    I don’t think you can credibly argue that this process is whimsical, whilst arguing for a return to the days of truly capricious recruitment based on familial background and old school tie.

    For every candidate wealthy enough to do pupillage unfunded (after paying BPTC fees) who misses out because of the strictures of a meritocratic assessment process, there would be many, many more who would lose out for less justifiable reasons (lack of family wealth for example) if the number of paying pupillages was any further reduced. Someone must always lose out where there is scarcity. I’d rather the criteria for choosing who that must be were based on merit, rather than ability to self-fund.

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  5. Walton

    I’m inclined to disagree with this post. As far as I can see, the only people who could afford to undertake an unfunded pupillage are those who are either independently wealthy, have savings from a previous career, or are willing and able to rack up further debt for a year in order to support themselves through pupillage. Pupillage is, after all, a demanding full-time job; I can’t imagine that many people would be able to combine it with part-time paid work. And for those of us who have already incurred student loan debts, the prospect of an extra year of earning no money would be a more-or-less insurmountable hurdle to applying for the Bar. You’d end up, in effect, excluding many people from the pool of potential applicants, while giving an advantage to the already-wealthy and to those with previous careers. I don’t think that’s a progressive measure; I think it’s a regressive one.

    I am well aware that there is a serious problem with too many BPTC graduates chasing too few pupillages, and that far too many people end up without employment post-BPTC. Indeed, I’m worried about ending up in this situation myself; I’m applying for pupillage at the moment and have a place on the BPTC for 2012-13. (Thankfully I have a large enough scholarship from my Inn that I won’t need to get into further debt, but of course many people are not so fortunate.) But I don’t really think the solution to the scarcity of pupillages is to bring back unfunded pupillages, a measure which will only advantage those with the means to fund themselves.

    As it is, it looks to me like the financial disincentives are already pretty severe. By way of background, I’m hoping to practise immigration, asylum and refugee law – an area in which there is plenty of demand for legal services, but in which the funding situation is persistently bleak, especially with the current round of cuts to legal aid. In an area of practice where the stakes are very high – in some cases literally life and death, in cases where the client is facing deportation to a country where he or she may be tortured or killed – and where one’s clients may be detained in places like Yarl’s Wood and abused for being of the wrong nationality, I’d say there’s a pretty compelling public interest in encouraging more people to go into immigration and asylum law, in the hope that fewer people will be deported, fewer lives destroyed by the UKBA and fewer families torn apart. Ditto for criminal law, family law, and other not-notoriously-well-remunerated practice areas in which basic interests of life and liberty are implicated.

    Apologies for the ramble. And I’m deliberately not proposing a policy solution, because I don’t feel competent to suggest anything; I’m conscious of the dangers of generalizing from one’s own anecdotal experience rather than relying on empirical evidence, and I don’t have enough experience (being not even qualified yet) to feel comfortable venturing an opinion on how careers at the Bar should proceed. But I don’t think your proposal is the way to go.

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  6. Walton

    I’m inclined to disagree with this post. As far as I can see, the only people who could afford to undertake an unfunded pupillage are those who are either independently wealthy, have savings from a previous career, or are willing and able to rack up further debt for a year in order to support themselves through pupillage. Pupillage is, after all, a demanding full-time job; I can’t imagine that many people would be able to combine it with part-time paid work. And for those of us who have already incurred student loan debts, the prospect of an extra year of earning no money would be a more-or-less insurmountable hurdle to applying for the Bar. You’d end up, in effect, excluding many people from the pool of potential applicants, while giving an advantage to the already-wealthy and to those with previous careers. I don’t think that’s a progressive measure; I think it’s a regressive one.

    I am well aware that there is a serious problem with too many BPTC graduates chasing too few pupillages, and that far too many people end up without employment post-BPTC. Indeed, I’m worried about ending up in this situation myself; I’m applying for pupillage at the moment and have a place on the BPTC for 2012-13. (Thankfully I have a large enough scholarship from my Inn that I won’t need to get into further debt, but of course many people are not so fortunate.) But I don’t really think the solution to the scarcity of pupillages is to bring back unfunded pupillages, a measure which will only advantage those with the means to fund themselves.

    As it is, it looks to me like the financial disincentives are already pretty severe. By way of background, I’m hoping to practise immigration, asylum and refugee law – an area in which there is plenty of demand for legal services, but in which the funding situation is persistently bleak, especially with the current round of cuts to legal aid. In an area of practice where the stakes are very high – in some cases literally life and death, in cases where the client is facing deportation to a country where he or she may be tortured or killed – and where one’s clients may be detained in places like Yarl’s Wood and abused for being of the wrong nationality, I’d say there’s a pretty compelling public interest in encouraging more people to go into immigration and asylum law, in the hope that fewer people will be deported, fewer lives destroyed by the UKBA and fewer families torn apart. Ditto for criminal law, family law, and other not-notoriously-well-remunerated practice areas in which basic interests of life and liberty are implicated.

    Apologies for the ramble. And I’m deliberately not proposing a policy solution, because I don’t feel competent to suggest anything; I’m conscious of the dangers of generalizing from one’s own anecdotal experience rather than relying on empirical evidence, and I don’t have enough experience (being not even qualified yet) to feel comfortable venturing an opinion on how careers at the Bar should proceed. But I don’t think your proposal is the way to go.

    [Apologies for the duplicate post: I removed a link in the hope that it won't go into moderation this time.]

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