When I was a small boy, I always preferred stories from history to their fictional counterparts. One story I liked was that of King Cnut and the waves. Cnut was the dominant figure of early 11th century England and Scandinavia. He carved out a tidy empire and swept aside some ineffectual Saxon competitors to make himself King of England. The story went that his sycophantic courtiers tried to persuade Cnut that, such was his power, he could turn back the tide. The King had himself taken down to the seashore to demonstrate – empirically as we might say nowadays – that this was not so. Cnut got his feet wet; the courtiers looked silly.
You can either read this as a salutary commentary on the vanity of flattery. Or you can read it as a caution against opposing yourself to inexorable forces.
Personally, I prefer the latter. Some tides you simply can’t turn back and you have to accommodate yourself to them - or get your feet wet.
The more we learn about on-line comparison, the more I wonder if this is just such an inexorable tide.
When we first canvassed the idea of running a pilot to test whether on-line comparison – or Digital Comparison Tools (DCTs) as they’re known in the trade – could be useful to consumers in finding and comparing barristers, we made two assumptions. One was that we would be breaking new ground: there would few existing comparison websites for the Bar. The other was that such websites as existed would be unlikely to include reviews by clients.
We were, however, wrong on both counts
In fact, on-line comparison of barristers is well established. The Bar Council runs its own long-standing barrister-focused DCT in the shape of the Direct Access Portal. Clerksroom Direct and Juriosity provide a similar offering. Hundreds of barristers have already signed up to these services.
Other DCTs, which already deliver law-firm focused comparison services, have expanded their offering to include barristers: Legal Utopia and The Law Superstore fall into this category. Then there are more general players, such as Trustpilot which are multi-sectoral and keen, via our pilot, to include barristers in their comparisons of legal services.
Some DCTs provide for comparisons by price and geography alone. Others – but by no means all – provide consumer reviews or scores.
Finally, there are ad hoc reviews of individual barristers on Google and other platforms.
In short, the tide is flooding in, but it is flooding in through many different channels and rivulets. None of channels and rivulets are under Bar Standards Board control and BSB has limited influence over them.
This is bound, I think, to affect the way we think about our current pilot. Indeed, pilot is probably the wrong description. Market study might be more apt, given what we have discovered since we launched it in September 2023.
Most obviously our study is not going to answer a binary question - is on-line comparison a good thing for the Bar or not? Instead, it will help us to understand how the DCT market operates, and could operate, for the Bar.
In our dialogue with barristers, we have heard important reservations, in particular, about online client reviews, which we must certainly take seriously: that on-line reviews will discriminate against barristers from some backgrounds; that consumers may inadvertently leave reviews which breach Court orders on confidentiality; that reviews are bound to be influenced by the outcome of the case. We must evaluate these concerns.
The unspoken assumption is that, if any or all of these concerns are substantiated, we can simply turn off client reviews.
That is unlikely to be realistic. It may no longer be possible to stem the tide – consumers increasingly go on-line to find services and encounter there comparison sites of all kinds - but it may be possible to channel at least some of the water.
We shall learn from this exercise what comparisons consumers find genuinely useful and what they don’t. We shall explore how on-line comparison can support barristers’ own services and the marketing of those services. (There may be opportunities as well as risks for the profession.) We shall learn whether the concerns about on-line reviews are well founded or not.
Armed with this evidence, we can then consider how we, as the regulator, might go about influencing this market to the benefit of consumers and of the profession. For example, in light of our increased understanding of the information that DCTs make available – and do not make available – to consumers, we shall reflect on the future direction of our transparency rules.
In the light of the emerging findings, I doubt whether that will simply take the form of a decision to back or not to back on-line comparison.
More likely, the evidence will support a more nuanced view: that on-line comparison can be helpful in some circumstances, but not others. If so, we shall then have to consider how we, as the regulator, influence the right outcomes for consumers.
This work will help us decide. But whatever the BSB decides will not, I think, prevent the tide from coming in.
