Until comparatively recently, barristers and solicitors were two distinct but interrelated disciplines in the provision of legal services. In summary, solicitors were compared to general practitioners offering advice across the board in a variety of disciplines, depending on their size and the expertise of their partners and associates. Barristers were compared to consultants who gave specialist advice and, when necessary, representation in court.
It all seemed to work well enough, but the legal profession as a whole has always been distrusted as a fat cat’s club where outrageous fees come first and the interests of the client a distant second. It is strange but true that the two Prime Ministers who did the most damage to the Bar as a referral profession were both barristers, and I refer to Margaret Thatcher and Tony Blair.
The major blow to the Bar as a referral profession came with the enactment of the Courts and Legal Services Act 1990, which gave solicitors equal rights of audience in every court, whereas previously they had honed their adversarial skills in the Magistrates’ Courts. The problem as many saw it was the complete absence of advocacy teaching in the solicitors’ training, and even though those aspiring to the higher courts rights had to pass a proficiency test, it was a poor substitute to the advocacy training undertaken by barristers. Despite the best endeavours of solicitors to offer a ‘cradle to grave’ legal service, astute clients still prefer the expertise of a barrister.
However, with this change, there were many at the Bar who complained that they were not competing on a level playing field. The tradition that barristers only accept instructions from solicitors enabled solicitors to cherry pick and keep the best work for themselves, regardless of expertise, and farm out the dross to the Bar. The tail was well and truly wagging the dog.
And so it was that about ten years’ ago, direct access was born. It started slowly and tentatively, with just a handful of barristers like myself offering our services direct to the public, but it has now snowballed, and at the last count, over 5000 are now accredited.
Direct access, also known as public access, allows the lay client to come direct to a barrister without having to go first to a solicitor. This has an appreciable saving in legal fees, and as we barristers would say, the lay client gets the best possible representation. It doesn’t work in every case, in particular the more complex cases where two heads are better than one, but in the more straightforward cases, which comprise over 80% of all cases, direct access works well.
Only time will tell if this is the first step on the slippery slope to a fused profession, similar to most other legal disciplines, where barristers and solicitors become lawyers or attorneys, but for the time being, direct access is benefiting the lay client, and that must be a good thing.