Is the bar’s appeal to the best graduates destroying the magic circle?

In America the top legal talent joins law firms — but not always in Britain

London’s elite law firms are being fatally weakened in their battle with top US rivals by the attraction of the bar to the best British law graduates, an influential legal blogger has claimed in an article causing a stir this week.

While the leading New York firms are populated with the very best legal minds, the equivalent outfits on this side of the pond miss out on such geniuses because most choose to become commercial barristers not solicitors.

Add in sterling’s weakness against the dollar, which is allowing American firms to bulk up their presence in London while paying huge salaries, and the magic circle quartet of Allen & Overy, Clifford Chance, Linklaters and Freshfields is “doomed”.

That’s basically the thesis of Mark Brandon, a law firm strategy consultant and long-time legal journalist, whose blog was republished on respected law website Legal Business yesterday after a self-published version caught the attention of industry leaders.

Referring to the bar as “an antediluvian system which seems to suit primarily those people who benefit most from it: barristers”, Brandon argues:

Yes, you can go on as much as you like about how special the English court system is, how respected around the world it is, and so on, but the net effect of taking many of the most talented legal brains out of the intake valves of law firms and sticking them as guns-for-hire in antiquated premises clustered where the centre of the English legal universe used to be has been to deprive the UK’s law firms of the cream of the legal talent pool, not to mention revenue.

Moving on from images of cream in pools, Brandon also notes several other factors at play. These include magic circle firms’ unsuccessful attempts to conquer the US (which he attributes to their lower profitability) and the huge size of the US litigation industry relative to the UK.

Put it all together and you’re left with “a toxic cocktail for UK law”. Drink that in your cream-free pool!

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42 Comments

LL and P

It depends on what one considers to be the best graduates. If it is just about grades, then of course there is merit in the comments made here in the article. The commercial bar takes a disproportionate chunk of the best academic performers. However if other things are taken into account, one can then question whether the 2.1 grad from Warwick who becomes a partner at Clifford Chance is necessarily less able than the BA BCL (Oxon) grad at Fountain Court. In the US, as there is no distinct bar, often the best grads go to the top firms in New York on graduation or after a clerkship.

However I will note that as competition has become more and more fierce for a training contract, the academics required for a place such as Slaughters is not really inferior to what you find anywhere at the bar.

(7)(1)
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Not Amused

The idea that the 12,000 self employed barristers would all get TCs at top firms is, I think, flawed.

Nor is the MC in any risk of being ‘destroyed’. If this chap wants to avoid doing any actual work and instead have a career making silly statements about the legal industry then he’ll need to go down the tried and tested route of just saying “the robots are coming” every year …

(47)(2)
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A member of the senior branch of the profession speaks...

I don’t think it is being suggested by the Doomsday blogger that the drain on the Magic Circle amounts to all members of the Bar, but taking as a more realistic point of comparison the Magic Circle v the leading 6 or even 10 sets at the Bar shows why his argument is over the top. Those sets need maybe 35-40 new tenants a year, which leaves plenty of lawyers with first class degrees, further burnished with BCLs etc, in the available talent pool.

(13)(0)
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Anonymous

Literally only an idiot, and only an idiot with no experience in the relevant businesses, could think these things.

Utter, utter garbage.

(26)(1)
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Anonymous

Well, even considering MC firms, if I had a choice between the ‘pleasure’ of working for prestigious Slaughter and May for £70k and doing similar hours for almost double as much £££ at Latham Watkins, I’d go to Latham and not look back.

Unless there’s a highstreet bank which would give you a mortgage over your firm’s ‘prestige’, in which case I’d love to hear about it.

(25)(2)
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Anonymous

If only MC firms had the courage to get rid of underperforming, old guard partners; kiss goodbye to their armies of PSLs and paralegal managers (many of whom are not actually needed); stop spending atrocitious amounts of money on pointless CSR & corporate ‘feel good’ projects; perhaps find more affordable premises; and reduce their trainee intakes – then, they’d be in position to pay people more and retain talent. But hey! “Nobody likes change, let’s just carry on” – said most partners at KWM a year ago.

(19)(3)
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Anonymous

It’s certainly true that the best legal minds in the UK go to the bar and in the US go to law firms. And clearly the existence of the bar means that some revenue goes to barristers rather than law firms.

So the existence of the bar may well be bad for law firms. It’s a leap from this to say that it only benefits barristers though.

The argument usually goes that barristers are cheaper to clients to associates, and that it doesn’t make sense to retain on staff expensive specialists when you can contract the right person for the job as and when they are needed.

Barristers ‘antiquated premises’ are quite fit for purpose and substantially cheaper than the swish City office that a law firm must maintain for credibility.

The author doesn’t address the argument, compelling to my mind, that barristers represent economic efficiency of the system overall. Economic efficiency isn’t good for law firms, but the purpose of our justice system shouldn’t be to maximise law firms’ profits!

(12)(5)
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Anonymous

That is not “certainly true” at all. Plenty of barristers are dumb and plenty of solicitors are incredibly intelligent.

Just stop with the fetishisation of wigs and crumbling buildings.

(15)(12)
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Anonymous

“Plenty of barristers are dumb and plenty of solicitors are incredibly intelligent.”

I did not say anything that contradicts this statement, which I agree with.

I said that the best legal minds go to the bar and in the States they go to law firms. Perhaps I should have said, “the very best legal minds” – the kind of people who top their year at the best law schools in the respective countries just have different destinations. For example, I doubt that you can find may solicitors who finished in the top 5 in their year in law at Oxford or Cambridge. Those types go to the bar in this country.

(7)(4)
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Anonymous

Your comment is premised on a homogeneity of destination amongst the best students. The difficulty of such a premise is highlighted by the idea that such a homogeneity prevails even in the more concrete pool of students at two universities who happen to finish with the highest exam scores.

I would only accept this premise if shown an empirical study which corroborates the assertion that such a homogeneity exists.

Otherwise, it seems there must be an intuitive objection to the idea that a homogeneity of destination can exist in such circumstances. Say that, to give your idea a chance of success, you are arguing that 80% (rather than your implied 100%) of the top 5 finishers at those two universities go on to practice as barristers. That means that you think that of a pool of 10 intelligent fresh graduates, only 2 in any given year do not become practicing barristers at the English bar. I would think that impossible: many must (surely) go on to be academics, or switch to another profession (banking a clear possibility), or go to practice abroad (as indeed many high achievers in those exams hail from abroad), or indeed become a solicitor (because of the different work type, or because of the early-career stability, or because increasingly there is as much, if not more, money in being a solicitor).

Your assertions are exactly that – assertions. I suppose people will decide for themselves whether they agree – but judging by other comments here, the idea that the best talent doesn’t go to law firms is receiving pretty short shrift.

(4)(4)
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Anonymous

Yes, of course my comments are assertions, just like every other comment on this, as well as the original argument.

But no, my analysis isn’t predicated upon 80% of the best law students per year going to the bar (though I wouldn’t be surprised if this were the case). The article on which I was commenting is talking about the drain of the best minds from English law firms to the English bar. What is relevant is the destination of those of the best students who go on to practice law in England. Far more of these go to the bar than to law firms. No, I can’t be bothered to dig out statistics on this, but it is my strong impression from my own experience with commercial barristers and MC lawyers.

Apart from anything else, if you have a very good first in law from Oxbridge and are decently presentable in person, you are probably going to get a pupillage at a good set if you want it. And given that commercial barristers at the best sets generally earn more than solicitors at the best firms, do work that is interesting to those who enjoy academic law, and have a more flexible working environment, it is not surprising that a pupillage is more attractive than a TC to those with the luxury of choice.

(6)(1)
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BCL Grad

This is only anecdotal, but I knew scores of people headed for the Bar on the BCL and only one looking to be a solicitor. That person ultimately cross-qualified and went to the Bar…!

(4)(1)
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A member of the senior branch of the profession speaks...

Anon of 17 may at 11;25 is spot on about economic efficiency; the Bar is the ultimate gig economy. All it needs to do is rebrand by arranging for instructions to be delivered through a smartphone app with a stupid name like “Pleader!” and it would be praised for its modern approach.

(0)(0)
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Anonymous

I, like many barristers, work strange hours and have peculiar working practices. I believe I am relatively good at my job, as one must be to survive at the Bar for ten years. I am the first to admit, however, that I lack the typical social skills one requires to excel in an office environment.

The Bar suits me. It is liberating that my earnings reflect my abilities, rather than what a number cruncher upstairs thinks I’m worth. I am glad that I will rise as high as my abilities take me, and not my arse kissing skills.

I would never do so well in a firm. Dumb ‘alphas’ and micro managers would have killed me off long ago. I suspect some of our finest judges and barristers would say the same thing.

(37)(2)
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Anonymous

This is an insightful comment.

I went to Cambridge, but am nowhere near as bright enough to be a commercial barrister.

My social skills are pretty good though, and I like working alongside others. I am prepared to do a bit of arse kissing to get promoted. This is why being a solicitor suits me better.

(20)(3)
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Anonymous

Your “abilities” include your social skills or lack thereof.

Intelligence covers a range of cognitive competencies and the ability to work in a team is widely recognised as a very important one. Teamwork requires far more than “arse kissing”; it requires time management, effective communication, prioritisation, delegation, and so on and so forth.

In my experience, plenty of experienced solicitors are very effective individuals who can marshal heavy workloads but also, crucially to this argument, could if necessary talk to a judge, draft pleadings, or carry out legal research if necessary.

Barristers can usually do these latter activities, but would be crushed if asked to handle the workload of a solicitor for even a few weeks.

(10)(18)
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Anonymous

Quick question: is the training at US firms (or lack thereof) generally more conducive to a successful legal career? In my experience, being (mostly) left to one’s own devices is a solid way of picking things up quickly, but I’m not sure I can apply this to working in a law firm.

(4)(1)
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Anonymous

“Universally acknowledged” – no, it’s not. At all. You get greater partner exposure, client exposure and much more responsibility in the US. In an MC, trainees barely send an email to a client, nevermind manage any section of a deal. We’ve stopped recruiting MC juniors beyond NQ level because they’re too far behind to get them up to speed. There is a broader range of “informal” training, i.e. passive learning in the form of seminars and lectures in the MC than the US, but not by a huge margin, and they are not particularly useful. You learn to be a good M&A lawyer doing M&A.

(1)(1)
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Merlin the Top Magician

Tis the woe of men that they forget the magic:-
For this one needs to be wigged and robed. First, draw around you a magic circle ringed with names of American law firms. Then light a white candle in the centre. Call out now “Bind Americans hand and foot, alicappoo, alicappoot, cast them into the darkness, coldness and sightless, make an opening in the Arizona desert and cast them all therein.” Now wrap thy magic robe around thy holy trousers and call the names of the firms you wish to bind. Then, put the white candle out and step out of the circle, leaving the magic wig behind.

(4)(0)
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Anonymous

I’m at an MC firm. Got a first in jurisprudence from Oxford. Admittedly there are fewer people like me at my firm than at the commercial bar, but there are plenty of people here with a similar profile.

(6)(0)
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Jones Day Junior Associate

Don’t be so mean. Looking at Alex’s various social media profiles it appears that Alex is a seasoned legal news professional. Alex seems like a nice guy so you should not say nasty things. He also has a nice smile, like Katie.

(1)(3)
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Mark Brandon

Actually, you’re right; in my original piece I included Slaughter and May as part of what I would call the Magic Circle, noting that The Lawyer does not, in its definition.

However, I exclude Slaughters from my analysis, given that they are not pursuing the same strategy as the other four.

If anyone fancies reading the original piece, you can find it here:

http://www.motivelegal.com/magic-circle-doomed-heres/

(0)(0)
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Anonymous

I think the majority of the bar doesn’t do commercial work. There are plenty of criminal chambers, common law chambers and niche chambers….there are around 20-25 sets which do commercial work, and probably another 10ish which are specialist chancery. Chancery takes 1 or 2 a year, but closer to 1. The bigger “magic circle” sets of chambers take about 3-5ish tenants a year, the other commercial usually 1-3.
So in total you’re looking at (very roughly) 60-90 going to great/good/ok/not very good (they exist) commercial sets. Which is equivalent to about another MC firm.
About 90-95% will earn at least as much at the bar as they would in the MC. About 25% at least as much if not more than a US firm (I accept you can argue with this, it depends on the individual).
The vast majority of them will have first class degrees. The natural alternative choice is not the MC, but the US law firms. The commercial sets basically require firsts as do the US firms, whilst there are exceptions to every rule.
The MC doesn’t pretend to take the best talent in terms of intellect or anything else. They do their best to take a well rounded student, but do so through clumsy inefficient bureaucratic processes which don’t work. It’s more flexible with 2:1s. They’re just large successful British firms with a substantial international presence. They happen to also be a lot less profitable and pay associates a lot less than US firms. It is what it is. The US firms take smart people, but also look for people skills. The bar just care you are smart. If you have a first, you will interview at a lot of places….and the interviews will always consist of some sort of generic debate question alongside some feeble “ur tell me about yourself” questions. I know because I’ve been through the process for the US, the MC and the bar. *Most* people would take the US offer over the MC nowadays – imo you’re an idiot if you don’t. The bar is an entirely different proposition altogether and the sets aren’t homogeneous either; the MC sets are like mini law firms. If people were thinking just in terms of finances, and they had the US and the bar on the table, they would choose the US firms – more often than not, you can earn the same, if not more money and there’s so much more certainty in financial planning/budgeting, knowing what you’re get paid month to month, year to year, holiday time, pension etc. But they’re not thinking just about finances…they’re doing it because of a real interest usually in a very specific field of law, love of mooting/debating/advocacy, a real independence, a lack of people skills sometimes, sometimes general misanthropy….half the tenants at the top sets have either come from law firms, or would have gone into academia if not for the bar. So there’s not an issue re TCs.

(1)(1)
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A

I wanted to be a barrister but didn’t have the CV. I changed my plan and got a training contract instead. A top calibre individual may choose to become a solicitor but the process doesn’t happen the other way around.

(0)(0)
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Mark Brandon

Gosh, what a hornet’s nest I seem to have prodded here, but it does seem that taking a choice quote from a piece which was only incidentally about the Bar/legal talent has led to some misapprehensions (thanks for the buff anyway, Alex, much appreciated!).

Let me try to clarify, if I may.

Leaving aside what I would hope most barristers (and BVC students) should recognise as a compliment (even if a slightly backhanded one), my point is one of pure logic: if the Bar did not exist – as it does not in the US – then, perforce, those talented minds seeking a career in the law would end up, as they do in the US, in law firms. I am not sure how that is even arguable, never mind deserving of some of the more colourful (and ad hominem…) commentary on here, but, moving on…

The continued existence of the Bar is, anyway, not the core of my thesis.

Believe me, I have no ‘skin in the game’. Actually, if anything, I have something of a sentimental attachment to the MC, being a proud Brit, and gleefully point out to my US lawyer friends that Freshfields has been in existence longer than the United States of America, and therefore cannot be written off lightly. Unfortunately, I don’t see this is a game they can win playing how they are currently – trying to out-hire New York law firms in their own backyard.

The English Bar, meanwhile, has shown a remarkable survival instinct and, as many of the commentators here indicate, is perhaps an expression of an ‘efficient’ market, who knows. I don’t, either, think it is arguable that if the revenues going into the Bar every year didn’t go there, they would go to law firms. Again, simple logic.

We live in a global economy with two legal superpowers, the UK and the US, and US firms are winning hands down. No doubt the English Bar will continue to survive, but in 20 years, if not less, practically every London firm of any significance it services will not be headquartered here, but in the US.

I leave you to draw your own conclusions about what that will mean for the “UK” legal profession, and, further, to ponder the role of the Bar in that, I’m afraid inevitable, realignment.

(0)(0)
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