*/
A well-drafted and regularly reviewed constitution should help to minimise the scope for disputes. Scott Leonard and Clare Kelly discuss the key issues to cover
A chambers constitution might be best thought of as a hybrid of a set of club rules and a pre-nuptial agreement: a detailed document setting out the rights and obligations of members to each other in good times and bad, in sickness and in health, for richer and for poorer. However, the unique nature of each set and their approach to internal governance means that no two constitutions are the same. In this article, we consider certain key issues which a well-drafted constitution should address.
Most sets still operate as unincorporated associations (even where they also use a service company). Unincorporated associations do not have separate legal personality and are governed by common law. There is no default code which applies to them and it is therefore essential that a chambers has a written constitution setting out the rights and obligations of members. A written constitution is also required to comply with the obligation in the Code of Conduct to take reasonable steps to ensure that chambers is administered competently and efficiently. Constitutions should be reviewed regularly to ensure they remain fit for purpose, particularly when there are changes in the law or regulatory regime.
The constitution will set out the rules for convening and holding meetings of members, the management committee and other sub-committees. These provisions vary widely between sets, with some having detailed and prescriptive rules and others preferring to confer discretion on the head of chambers or management committee for calling and running meetings. Whatever approach is taken, it is a good idea to build in a mechanism for taking decisions in an emergency. An AGM should be held annually in order to approve accounts and hold elections.
In most sets, the management committee or tenancy committee will be responsible for considering new applications and will then make a recommendation for approval by members at a chambers’ meeting. It is important that new members sign a document agreeing to be bound by the constitution and that a copy of this is retained. While most members will be individuals, constitutions may also provide for barristers to provide their services through a regulated entity.
The constitution should specify the notice period for resigning as a member and will also need to cover the procedure for expelling members. Once again, approaches to expulsion vary widely between sets, although it is common for the process to involve the head of chambers or management committee making a recommendation for expulsion which is then ratified at a chambers’ meeting (with an enhanced majority of members required to approve the expulsion).
Whatever the circumstances of departure, the financial obligations of a departing member need to be set out clearly. They should remain liable to meet their financial obligations throughout their notice period, regardless of when they leave. The constitution should also require departing members to transfer any lease or other contract or asset that they hold for the benefit of chambers to other nominated members.
Over time, as sets have become more attuned to their duties towards staff and other members, a power to suspend members has become more common. This can be a positive addition as it allows time for a full and proper investigation of the issues and avoids what might otherwise be a rushed decision to expel. It can also be nuanced. A suspension need not involve a blanket refusal to provide work but may be limited to restrictions on the member concerned attending chambers’ premises or client events, for example.
The financial obligations of members are crucial and need to be clearly set out in the constitution. This is a fertile area for disputes, particularly with former members. Many chambers charge a fixed monthly amount, with members also required to contribute a percentage of their fees received. The process for reviewing and varying the contribution levels should be covered and may include an ability to raise a one-off levy to meet unanticipated expenses. It is also increasingly common for sets to create a sinking fund, for example to discharge dilapidations liabilities or other significant one-off expenses.
Concessions are commonly made for junior members and for periods of parental leave, absence due to ill-health and sabbaticals. Some chambers cap the maximum contribution levels for high earners.
Increasingly, chambers are putting in place arrangements designed to minimise the risk of members defaulting on their financial obligations. These include setting up central fee accounts and direct debits. The constitution should also set out the consequences of members failing to pay. These are likely to include an ability to charge interest on overdue amounts and a right of set-off for chambers. Persistent breaches could ultimately lead to expulsion.
As most chambers are unincorporated associations, assets and contracts need to be held by the head of chambers, or one or more other members of chambers, on trust for all members. It is unreasonable to expect these individuals to assume personal liability for chambers’ liabilities without robust contractual protection in place, and it is therefore important that the constitution contains appropriate indemnities.
Indemnities can be dealt with in the constitution or a separate deed of indemnity. Liability can be joint and several or, more commonly, several, with each member liable for their pro rata proportion of the relevant liability. Liability can be divided equally between members or calculated based on income over a specified period, commonly between 12 and 36 months. Generally, liability under the indemnities will end when a member leaves chambers. However, it is common to provide that members will continue to be liable if chambers is dissolved within a period (commonly 12 months) following their departure.
Indemnities should extend to both contractual liabilities and any other liabilities that a member may incur as a result of performing a function on behalf of chambers.
Dissolution is important but rarely covered in detail in constitutions. Like writing a will, it perhaps feels too much like tempting fate, but it is far better to have clarity in advance than attempt to deal with this issue at the time, when chambers may need to move quickly and reaching a consensus may be difficult. An enhanced majority of members is usually required to pass a resolution to dissolve chambers. The provisions will also need to include a mechanism for winding up the affairs of chambers (as there are no default provisions to fall back on), a requirement for the preparation and approval of dissolution accounts, and will need to specify how liabilities or surplus assets are to be divided between members.
As with many businesses, the constitutional arrangements of a chambers are often considered low priority and neglected. It is only when an issue arises that the constitution is considered in detail and by that time it can be too late. A well-drafted constitution which is regularly reviewed to reflect the changing legal and regulatory landscape should help to minimise the scope for disputes between members and provide clear mechanisms for dealing with issues as they arise.
This article is based on a seminar delivered to Legal Practice Management Association members in January 2025: lpma.org.uk Find out more about the Bar Council’s work to support barristers and chambers professionals with the effective management of chambers through the Chambers Management Panel.
Scott Leonard is a partner at Bates Wells who regularly advises barristers chambers on a wide range of issues, including their constitutional arrangements.
Clare Kelly is the Chambers Director at 5 Pump Court, and a member of the Executive Committee of the Legal Practice Management Association.
A chambers constitution might be best thought of as a hybrid of a set of club rules and a pre-nuptial agreement: a detailed document setting out the rights and obligations of members to each other in good times and bad, in sickness and in health, for richer and for poorer. However, the unique nature of each set and their approach to internal governance means that no two constitutions are the same. In this article, we consider certain key issues which a well-drafted constitution should address.
Most sets still operate as unincorporated associations (even where they also use a service company). Unincorporated associations do not have separate legal personality and are governed by common law. There is no default code which applies to them and it is therefore essential that a chambers has a written constitution setting out the rights and obligations of members. A written constitution is also required to comply with the obligation in the Code of Conduct to take reasonable steps to ensure that chambers is administered competently and efficiently. Constitutions should be reviewed regularly to ensure they remain fit for purpose, particularly when there are changes in the law or regulatory regime.
The constitution will set out the rules for convening and holding meetings of members, the management committee and other sub-committees. These provisions vary widely between sets, with some having detailed and prescriptive rules and others preferring to confer discretion on the head of chambers or management committee for calling and running meetings. Whatever approach is taken, it is a good idea to build in a mechanism for taking decisions in an emergency. An AGM should be held annually in order to approve accounts and hold elections.
In most sets, the management committee or tenancy committee will be responsible for considering new applications and will then make a recommendation for approval by members at a chambers’ meeting. It is important that new members sign a document agreeing to be bound by the constitution and that a copy of this is retained. While most members will be individuals, constitutions may also provide for barristers to provide their services through a regulated entity.
The constitution should specify the notice period for resigning as a member and will also need to cover the procedure for expelling members. Once again, approaches to expulsion vary widely between sets, although it is common for the process to involve the head of chambers or management committee making a recommendation for expulsion which is then ratified at a chambers’ meeting (with an enhanced majority of members required to approve the expulsion).
Whatever the circumstances of departure, the financial obligations of a departing member need to be set out clearly. They should remain liable to meet their financial obligations throughout their notice period, regardless of when they leave. The constitution should also require departing members to transfer any lease or other contract or asset that they hold for the benefit of chambers to other nominated members.
Over time, as sets have become more attuned to their duties towards staff and other members, a power to suspend members has become more common. This can be a positive addition as it allows time for a full and proper investigation of the issues and avoids what might otherwise be a rushed decision to expel. It can also be nuanced. A suspension need not involve a blanket refusal to provide work but may be limited to restrictions on the member concerned attending chambers’ premises or client events, for example.
The financial obligations of members are crucial and need to be clearly set out in the constitution. This is a fertile area for disputes, particularly with former members. Many chambers charge a fixed monthly amount, with members also required to contribute a percentage of their fees received. The process for reviewing and varying the contribution levels should be covered and may include an ability to raise a one-off levy to meet unanticipated expenses. It is also increasingly common for sets to create a sinking fund, for example to discharge dilapidations liabilities or other significant one-off expenses.
Concessions are commonly made for junior members and for periods of parental leave, absence due to ill-health and sabbaticals. Some chambers cap the maximum contribution levels for high earners.
Increasingly, chambers are putting in place arrangements designed to minimise the risk of members defaulting on their financial obligations. These include setting up central fee accounts and direct debits. The constitution should also set out the consequences of members failing to pay. These are likely to include an ability to charge interest on overdue amounts and a right of set-off for chambers. Persistent breaches could ultimately lead to expulsion.
As most chambers are unincorporated associations, assets and contracts need to be held by the head of chambers, or one or more other members of chambers, on trust for all members. It is unreasonable to expect these individuals to assume personal liability for chambers’ liabilities without robust contractual protection in place, and it is therefore important that the constitution contains appropriate indemnities.
Indemnities can be dealt with in the constitution or a separate deed of indemnity. Liability can be joint and several or, more commonly, several, with each member liable for their pro rata proportion of the relevant liability. Liability can be divided equally between members or calculated based on income over a specified period, commonly between 12 and 36 months. Generally, liability under the indemnities will end when a member leaves chambers. However, it is common to provide that members will continue to be liable if chambers is dissolved within a period (commonly 12 months) following their departure.
Indemnities should extend to both contractual liabilities and any other liabilities that a member may incur as a result of performing a function on behalf of chambers.
Dissolution is important but rarely covered in detail in constitutions. Like writing a will, it perhaps feels too much like tempting fate, but it is far better to have clarity in advance than attempt to deal with this issue at the time, when chambers may need to move quickly and reaching a consensus may be difficult. An enhanced majority of members is usually required to pass a resolution to dissolve chambers. The provisions will also need to include a mechanism for winding up the affairs of chambers (as there are no default provisions to fall back on), a requirement for the preparation and approval of dissolution accounts, and will need to specify how liabilities or surplus assets are to be divided between members.
As with many businesses, the constitutional arrangements of a chambers are often considered low priority and neglected. It is only when an issue arises that the constitution is considered in detail and by that time it can be too late. A well-drafted constitution which is regularly reviewed to reflect the changing legal and regulatory landscape should help to minimise the scope for disputes between members and provide clear mechanisms for dealing with issues as they arise.
This article is based on a seminar delivered to Legal Practice Management Association members in January 2025: lpma.org.uk Find out more about the Bar Council’s work to support barristers and chambers professionals with the effective management of chambers through the Chambers Management Panel.
A well-drafted and regularly reviewed constitution should help to minimise the scope for disputes. Scott Leonard and Clare Kelly discuss the key issues to cover
Chair of the Bar sets out a busy calendar for the rest of the year
By Louise Crush of Westgate Wealth Management
Examined by Marie Law, Director of Toxicology at AlphaBiolabs
Time is precious for barristers. Every moment spent chasing paperwork, organising diaries, or managing admin is time taken away from what matters most: preparation, advocacy and your clients. That’s where Eden Assistants step in
AlphaBiolabs has announced its latest Giving Back donation to RAY Ceredigion, a grassroots West Wales charity that provides play, learning and community opportunities for families across Ceredigion County
Rachel Davenport, Co-founder and Director at AlphaBiolabs, outlines why barristers, solicitors, judges, social workers and local authorities across the UK trust AlphaBiolabs for court-admissible testing
Through small but meaningful efforts, we can restore the sense of collegiality that has been so sorely eroded, says Baldip Singh
Come in with your eyes open, but don’t let fear cloud the prospect. A view from practice by John Dove
Looking to develop a specialist practice? Mariya Peykova discusses the benefits of secondments and her placement at the Information Commissioner’s Office
Anon Academic explains why he’s leaving the world of English literature for the Bar – after all, the two are not as far apart as they may first seem...
Review by Stephen Cragg KC
