Viability of Virtual Chambers: Can We? Would We? Should We?

The official 'lockdown' commenced in NSW on 30 March 2020 with the issuing of the public health order that, inter alia, made it an offence to leave one’s home without a 'reasonable excuse'. Many workplaces, particularly larger organisations with offices in Europe and the US commenced a move to working from home in the three or so weeks leading up to the official NSW lockdown. Being self-employed meant that, if we were not in court or mediation or in a physical conference, we could make our own assessments of and decisions about the risks of physically attending chambers or working from home. Whether we were able to make that decision on such short notice depended largely on whether we were already set up to work remotely and how our instructing solicitors and clients were operating.

As others have noted in this edition, the recent COVID-19 pandemic and associated restrictions on movement have required all parts of the legal profession to move, at least in some respects, to a virtual environment. In many ways, being self-employed and in control of (and responsible for) our own workspaces and IT infrastructure put barristers in a good position to adapt to the changes to working imposed on us all. Those of us who were tech savvy (or had access to tech savvy people in the household!), did not have to wait for IT approval to load software for videoconferencing or await supervisor consideration for use of cloud-based transmission of documents. If our dining chairs were not ergonomically sound, we could either bring furniture home from chambers or go and purchase whatever we wanted. On the other hand, we had to face any IT issues by ourselves and pay upfront for subscriptions to videoconferencing programs or for engaging IT support services or for any new furniture or keyboards.

There is much discussion about whether the experiences during COVID-19 will change the way barristers work in the future. Personally, I have worked flexibly a fair bit since coming to the Bar in 2016. It was a drawcard of the Bar to have 'control'1 of one’s own diary and hours. To be perfectly frank, sometimes 'working from home' pre-COVID really meant sleeping in to catch up and refresh from a big few weeks working on back to back hearings or advices, taking the indulgence of getting my hair done on a weekday to avoid the hectic Saturdays, visiting my Nanna or spending a school holiday day time treating my niece to a day of rock climbing, trampolining or a high ropes obstacle course. A favourite pastime of mine both pre-COVID and during COVID is 'procrastibaking' which may see me requiring a larger bar jacket for the next physical appearance! For the most part, however, working from home has allowed me to get large chunks of work on advices and other chambers work done without breaking the day with a commute or having the temptation of distracting coffees or lining up the pens on arrival at chambers.

Like in many other workplaces, the concept of flexible working arrangements, part-time working or working from home at the Bar commenced as discussions about parents juggling family commitments with work commitments. Many women at the Bar have spoken positively of the productivity of working flexibly while also attending to parenting commitments, but experiencing some negativity in attitudes of other members of the Bar or chambers whose view was that 'flexible working' meant bludging at home watching re-runs of Judge Judy (which, apparently, is not considered a 0.5 CPD unit!). In an eerily premonitory feature article about working flexibly at the Bar, in addition to considering the option of working from home, last year’s Autumn edition of Bar News highlighted some of the alternatives to 'traditional' chambers structures such as room-sharing and taking time out of one’s practice to rejuvenate and explore the world outside Phillip Street. Those barristers and judges interviewed for that article shared their positive experiences of working flexibly while maintaining successful practices. That suggested there was some hope that negative views of flexible work arrangements were dissipating.

As Jane Needham SC’s article in this edition suggests, the changes to life and work during the COVID-19 pandemic may not have changed those negative perceptions of working from home as much as one might have liked or thought, with those perceptions perhaps impacting the decision of many people not to continue working from home once restrictions have lifted and physical appearances at Court resumed.

As self-employed, sole trading, independent barristers, one might think that the number and types of work arrangements are really limited only by the number of barristers and each barrister’s creativity, balanced with the commitments to Court appearances, solicitors’ and clients’ needs and, to some extent, the 'cab-rank' principle.2 There is, however, a great deal of consideration and consternation about how one will get work, whether one will be taken seriously, what everyone else will think if you work in a way that is outside the 'norm' of a room in 'prestigious' chambers on Phillip Street with musty books that one attends every day, Monday to Friday inclusive and most Saturdays and Sundays whether there is a pandemic or not! Those concerns influence junior barristers and those coming to the Bar and are reflected in the continuation of the 'traditional' chambers structure. In some respects, for the junior barrister coming to the Bar, there are similarities between the anxieties of the big firm solicitor on the path to partnership and the concerns about where and how one works to maximise success at the Bar.

In addition to those working arrangements considered in last year’s article, there is some possibility of a new chambers structure emerging from considerations of flexible working which may or may not have been accelerated by the adaptations made during the COVID-19 pandemic. Influenced by the availability of shared workspaces for short term hire in the CBD and surrounds that have been taken up by those in more traditionally 'creative' industries with freelancers like graphic designers and 'start-ups', we may see a move to individual barristers or groups of barristers working without a physical and consistent chambers structure but simply hiring physical space as and when needed. This may be one example of a 'virtual chambers' structure that would presumably rely on barristers using their own contacts to obtain work and managing their own work, rather than employing a full-time clerk.

Variations on the types of flexible arrangements barristers have already implemented, such as room sharing and working from home or accommodating barristers on sabbaticals, could be implemented alongside an increase in the use of videoconferencing or even virtual courtrooms continuing beyond the COVID-19 restrictions.

How might a 'virtual chambers' look

The mention of 'hot desking' probably makes many of us incredibly anxious. I am certainly a person who prefers my own space and the ability to spread out in that space with my own knick-knacks. It is probably the ability to return to the 'familiar' that reduces the anxieties about shifting from one’s primary workspace, the ultimate 'hot desk', the Bar table, back to the comfort of chambers! As other articles have mentioned, room-sharing is not new to the tech-savvy generation and can achieve the benefit of sharing the cost of a room. It does seem to rely on having an existing good working relationship with the other barrister you are sharing with, a practice that allows movement of briefs (easier if electronic) and probably a personal outlook that allows you to concentrate on work regardless of location. This option also seems to suit those who are briefed by firms of CBD solicitors with large offices and boardrooms where settlement conferences and other face to face meetings can be conducted. That is likely to be skewed towards particular practice areas. It is unlikely, for example, if one is briefed by a solicitor in regional NSW in a matter in the Supreme Court that you would be able to rely on your instructor having appropriate accommodation during the hearing and the expectation would be on you, the city barrister, to provide it.

As noted above, the possibilities really are endless on how we could work. What immediately came to mind when 'virtual chambers' was mentioned was a kind of 'Barrister brief share'/ 'Uber barrister' arrangement. Where your 'brief partner' would be hovering waiting for a brief and solicitors or direct access clients could seek their barrister out for a hearing or advice.3 Clearly, there is work to be done on this concept, but I shall take credit for this 'start up' and please send royalties my way!

More likely, what may be desirable for barristers in the future is continuing the shared resources of clerks and physical meeting rooms, but moving away from each barrister having their own room. Presumably, this would create chambers comprised of greater numbers of barristers where, if all were physically present in chambers, there would not be room for each member. The sharing of costs among greater numbers would make the arrangement cheaper than the $400,000 room arrangement many traditional chambers structures employ which would offset the inconvenience in the (probably) unlikely event of everyone turning up on the one day and not having a physical room each.

There have, however, been examples of where the traditional chambers structure has been beneficial during the COVID-19 pandemic. Individual barristers working in individual rooms is safer than working in shared spaces from the perspective of stopping transmission of the virus and ensuring high standards of hygiene. I suspect that the individual working environment of barristers with advice practices explains why many continued to physically attend chambers while many others in the community and at the Bar were working from home or appearing in court remotely.

Further, a chambers structure meant there was strength in numbers for chambers to negotiate with landlords for rent abatement during the pandemic. There have, however, been unfortunate disparities between chambers as to whether landlords were willing to provide any rent abatement. Where junior barristers are not actively involved in the control of their chambers (as licensees in annexes, for example) there is likely to be a great deal of stress if they perceive that their heads of chambers or the Board is not doing enough to advocate for assistance. I am lucky enough to be an 'annexure'4 in the Lockhart Chambers building with a floor that passed on rent abatements given by the landlord and a supportive Head of Chambers. Friends in other annexes and in chambers situated in larger commercial premises have not been as fortunate. Arguably, working from 'virtual chambers' with flexible physical locations in shared workspaces might have alleviated the pressures of ongoing costs of operating chambers during a downturn in work.

A move to 'virtual chambers' would presumably see a lot more people working remotely more of the time with barristers only coming in to attend the physical space for conferences or court hearings. Justice Bell has commented already in this edition on the negative connotations of being 'remote' and the concern that we not allow the move to minimising physical presence in chambers or the courtroom to result in a 'depersonalisation'. The collegiality among members of the Bar comes, at least in part, from a physical presence in chambers, but also at events and CPDs at the Bar Association. That we see our opponents and the judges we appear before in the lift, in the street, in the coffee shop or at an event in the common room should really make it less likely that we would act discourteously or outrageously when plying our trade. There is certainly a danger that a move to 'remoteness' in presence, that becomes a 'remoteness' of feeling may well lead to 'keyboard warriors' in wigs.

The concerns about losing the collegiate atmosphere of the Bar by working remotely are well-founded and real. My chambers were creative in taking our Friday afternoon drinks 'virtual' using Zoom. It was nice to see some friendly faces in the somewhat more relaxed environment of home or a home office. We discussed the artworks of our colleagues and met each other’s spouses, children and pets. I tried to console my disappointment with missing out on the glitz and glamour of the Bench and Bar dinner by dressing up for the virtual drinks on the Friday that was to have been the Bench and Bar, but it really wasn’t the same! One wonders, however, whether those virtual meetings for drinks could have been as successful if we did not already have an established camaraderie from the years (and in some cases, decades) of friendships forged in chambers.

The benefits, particularly for the junior bar, in having collegiate relationships with senior barristers to discuss approaches to hearings, take on devilling work, meet instructing solicitors and even just listen to each other’s 'war stories' are immense. Personally, my friendships with other barristers have always helped me to manage life at the Bar. Whether it is the call to a silk friend to gauge whether I am right to think an opponent’s behaviour in a mediation was completely outrageous5 or popping in to a senior junior’s room to ask for help on pleadings or the low-down on a particular judge’s approach to a particular list, fellow barristers have generously given their time to help guide me in the right direction. This is one of the Bar’s greatest strengths.

Even though I found the Bar’s formal Mentoring Programme to be particularly useful and I highly recommend that to the current readers for their second year at the Bar, the less formal meetings with barristers have made me feel welcomed into the Bar and embraced by the collegiate atmosphere even though, when doing chambers work, it would be possible to go days working entirely alone.

Whatever creative and innovative ways we decide to work, we must ensure that whether our door is physical or virtual we continue the tradition of the 'open door' to our colleagues in the interests of our professional development as well as pastoral care.