"There is a well-known clerking phrase 'when a barrister is busy it’s because they are brilliant, when they are quiet it’s because their clerk isn’t doing enough'..."
You might have assumed that the title of this post is something to do with Fifty Shades of Grey, or one of the many other questionable publications advertised at train stations. However, thankfully this is instead all about the curious relationship betwixt barrister and clerk.
It is an extremely complex symbiotic partnership that transcends the normal employee and employer relationship. It is shrouded in mystery to all but the few who actually see it up close. I have in the past tried to explain it to friends, family and to random blokes in the pub by referring to the class sketch from the Frost Report. It’s not a perfect analogy, but there is a definite class and status theme which runs, like a floppy faithful hound, through the barrister/clerk double act.
The clerk is traditionally a working-class geezer with the gift of the gab - the phrase 'barrow boy' is often, cruelly, used to describe clerks. The barrister in contrast is university-educated, sometimes from a privileged family background and generally with the common sense of a goldfish.
The barrister will look down on the clerk for his lack of education, refinement and his inability to pronounce aitches. The clerk in turn will look up to the barrister as both employer and in recognition of the higher social status as a professional. The barrister, however, looks up to the clerk because of his higher income* and the fact that his or her clerk owns a small place in the country called Casa Shirl which sits in 200 acres and has a private lake and a folly which is modelled on a 12th-century French monastery, while he or she crams into two rooms near Euston station.
The clerk looks down on the barrister for his lack of understanding of simple practicalities such that as leaving your brief - which contain extremely sensitive information relating to Dave 'Psycho' Smith - on a train is not only a breach of data protection rules, it is also likely to mean a lack of kneecaps in the none-too-distant future.
One of the senior clerks I worked for early in my career summed up the relationship succinctly - “they pay us to tell them what to do, they ignore what we tell them and then when it comes on top we sort out the mess”. This is perhaps a little harsh; sometimes barristers do listen to the advice of their clerks, but usually when they do, and it pays off, they tend to pass it off as their own genius. There is a well-known clerking phrase “when a barrister is busy it’s because they are brilliant, when they are quiet it’s because their clerk isn’t doing enough”.
These last few statements seem to point to a strained relationship; almost like an old married couple whose sole reason to remain a couple appears to be their enjoyment of the high level of animosity which passes between them. The odd thing is that this animosity towards each other is hidden beneath a veneer of seemingly mutual respect.
I am a traditionalist and I like to refer to my barristers by their surnames, Mr this and Miss that. In turn, I expect my barristers to refer to me by my first name. This may seem a little odd to the outsider; however, it provides a framework for both parties to take their place in the class sketch line up. I look up to him and so I refer to him formally, he looks down on me and so refers to me informally. It must look like the sort of arrangement that features in television costume dramas involving a rich family, their servants and the stately home they all live in. For clerks, it does provide a wonderful outlet for the pent-up frustration that clerks often feel.
Clerk: "Well, Mr Ponsonby-Smythe, you may well be right, it probably would be a good idea to apologise to your instructing solicitor about the fact that you turned up late and with the wrong brief for the conference this afternoon."
If you substitute John for Mr Ponsonby-Smythe, the sentence takes on a completely different feel and doesn’t quite convey the amount of sarcasm which is drizzled heavily on the original version.
This seemingly archaic use of title serves a more important purpose. The clerk acts as the gateway to the barrister and therefore needs to be accessible to clients. The barrister needs to retain a theatrical mystique to inspire respect from clients. The solicitor gets to speak to friendly cheeky chappy Bob or Trev or Dave rather than someone who finds jokes in Latin side-splittingly hilarious. The client gets the barrister he expects, Mr Ponsonby-Smythe, complete with pocket watch, pinstripe trousers and masonic handshake rather than a Mike Reid sound-a-like.
It is worth noting that some barristers jog in to conference and say “call me John”, but it always reminds me of an overenthusiastic English supply teacher who was drafted in at short notice after Miss Jones was caught inebriated and in a compromising position with one of the sixth formers at the school disco. I have never required the services of a barrister, but I would prefer a Ponsonby-Smythe to an overly chummy “call me John” type.
The clerk acts as the conduit for communication between barrister and solicitor. This often requires the clerk to translate what is being said and filter out such minor slights that could possibly cause offence.
Ponsonby-Smythe: "When is Johnson going to send me the bloody brief on this fraud trial, doesn’t he realise how busy I am. I simply won’t be able to prepare it in time for the conference unless it is here tomorrow. He is always late with his briefs - tell him to jolly well buck his ideas up or I may have to take my services elsewhere."
Clerk: "Hello Bill. Mr. Ponsonby-Smythe is keen to get stuck in preparing for the conference next week. Is there any chance of getting the brief to me tomorrow? He knows how important the client is to you and really wants to dazzle him with his grasp of the case."
Bill Johnson: "No problem Trev, they will be with you tomorrow. Is he actually going to turn up on time then? That pilchard has been late for the last three cases I had him on. If he doesn’t pull his socks up I will find someone else to brief."
Clerk: "The brief will be here tomorrow Mr Ponsonby-Smythe. Mr Johnson asked if you could arrive a little early for the conference he is keen to go over a few things before you see the client."
So just where does the solicitor sit in the whole class sketch scenario? The answer is that both the clerk and barrister look down on the solicitor because, well, he or she isn’t a barrister. They both look up to the solicitor because without their work they would both be in trouble. I think that the barrister is Cleese, the solicitor Barker and the clerk Corbett, but in this particular scene the clerk knows his place - it is somewhere above both of them.
It must appear oddly dysfunctional and swathed in bizarre Dickensian practices which have no place in the modern post-Clementi brave new world of legal services. But here is the funny thing - it works. Barristers and clerks complement each other perfectly; each brings something the other lacks. It’s not puppeteer and marionette, it’s not shark and remora fish, it’s certainly not master and servant. It’s more like a comedy double act.
I just haven’t worked out who the straight man is.
The author is a barristers' clerk at a specialist family law chambers. Click here to follow @notabarrister on Twitter and click here to visit the notabarrister blog.
*The income reference is not as relevant now, as there are very few - if any - 10% clerks left. (Clerks would originally receive 10% of their barristers' earnings as their income - very successful clerks would often earn more than most of their barristers.)
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