DIRECT PUBLIC ACCESS

This year I celebrate 13 years of public access work, now known as direct public access.  It’s been an interesting voyage into the unknown, but on balance, a rewarding experience.

Before public access came along, I enjoyed, or endured, depending on your perspective, the traditional chambers setup.  I joined Chambers as a tenant, which is a pompous way of saying that I agreed to pay my dues into the Chambers ‘pot’ in return for clerking services and a desk in a small room in the cellar.  These services were payment for work secured by the clerks from solicitors, and the clerks would negotiate my fees and any disbursements in return for a slice of the action.  And I was supposed to feel grateful.  When I left London Chambers for pastures new, I was paying 25% of my net income into the Chambers ‘pot’.

When I finally plucked up the courage to break free from the Chambers stranglehold and embrace direct public access, it was a red letter day. Overnight I became a sole practitioner and the head of my own Chambers, practising as the Chambers of David Osborne.  Very exciting.

As a direct public access barrister, I dropped criminal law, it wasn’t worth the candle, what with legal aid payments reaching rock bottom and journeyman solicitors with their cash and carry practices all but freezing out the junior Bar, and instead turned my expertise to common law. Nothing too grand, after all, as a sole practitioner, I have to ration my time if I am to do justice to my clients.  I now offer advice and representation in Tort, negligence, personal injury, landlord and tenant, contract, matrimonial and family.

The obvious advantages to me of flying solo is that I am the master of my own destiny, and I am no longer paying large sums into my Chambers ‘pot’. It is also an interesting experience of dealing direct with clients, instead as before of shielding behind a solicitor.

I am obviously not alone in offering a direct public access service.  When I first started in 2004, there were barely 200 of us.  Now there are nearer 5000, and growing by the day.  The direct public access service is becoming increasingly popular with lay clients, who can make appreciable savings on legal costs without the additional costs of instructing a solicitor.  However, I am finding it repeatedly the case that lay clients labour under the misapprehension that barristers are cheap.  That may have been the case when solicitors were calling the shots, but not any more.  It is taking time to persuade clients that a good barrister, and I can think of one in particular, brings with him enviable experience and expertise, and as somebody once said, and it could have been me, if you pay peanuts, you get monkeys!

DIRECT ACCESS

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.

DIRECT ACCESS

Direct access, sometimes called public  access, is a relatively recent change in the rules governing the conduct of barristers.  It came in approximately ten years ago, a few hundred signed up, and what was a trickle has now turned into a torrent of applications. In short, those like me who are accredited to accept direct access work can deal directly with the lay client without having to go through an instructing solicitor.  It is  essentially a scheme suited to the more straightforward work, but if it is noted that 85% of all civil claims are either settled at the door of the court, or failing which, are litigated within one working day, this sort of work is meat and drink to the busy practitioner.  The need to add a solicitor, with the additional costs that entails, can no longer be justified.

The convention that a barrister cannot accept direct access work goes back to the dawn of time, or least as far back as the twelfth century and the reign of King Henry II.  The historians amongst you will remember him for his oft quoted remark: “Will nobody rid me of this meddlesome priest?” and four knights of the realm duly obliged.  And little thanks did they get in return, as they fled for their lives and Thomas à Beckett went to meet his Maker.

But before having a stab (if you’ll forgive the pun) at God’s vicar on earth, Thomas was previously the Lord High Chancellor, and was reputed to have started the Court of Chancery, named modestly after himself.  The measurement of a foot was again, modestly, the size of Thomas’s foot.  I add that as an aside, as I thought you might be interested.

The Court of Chancery would travel round the land, sitting here and there, with Thomas personally dispensing justice on the hoof so to speak.  The court became very popular, with barristers, those who addressed His Lordship from the bar, greatly in demand, so much so they could barely handle the work and the clambering clients. So along came unqualified touts soliciting work for barristers and charging a commission, and with compelling logic, they were called solicitors.

Fast forward to the reign of the blessed St. Margaret, who had little time for barristers even though she was one herself.  And as the ultimate egalitarian, she was easily persuaded that barristers were running a closed shop, which they were, as solicitors had no rights of audience in the higher courts, and for good reason, as they were wholly unqualified in the art of advocacy.  Undeterred, she brought in Lord Clash of McFern as her Lord Chancellor, a dour Scot who had no love of things English.  His brief was to end the closed shop, which he did by granting solicitors rights of audience throughout all the courts of the land.  It wasn’t thought through, and it hasn’t been a success.

Too little too late perhaps, but the Bar woke up to this sudden and dramatic erosion of their work by allowing barristers such as I, or should that be ‘me’, and does it matter, to accept instructions direct from the client at the expense of the solicitor.  The  client likes it, as he gets the expertise of the barrister without the additional and unnecessary cost of the solicitor, and the barrister enjoys a better and more productive relationship with the client instead of being kept at arm’s length as happened before.

Whether solicitors like it or not, and for the most part they don’t, direct access is here to stay.

ALL BAR NONE

At last! I am the harbinger of glad tidings! Barristers can now be instructed direct by the client in search of the best advice and advocacy available. It’s called Public Access, but as the Great Bard wrote: “A rose is a rose by any other name.”

It doesn’t matter what you call it, it means the same. Instead of having to go to a solicitor first, the client can now come direct to a barrister. It’s good for you, and it’s good for me.

This questionable division of labour between barristers and solicitors has its roots in the twelfth century. You remember it well, when King Henry II was on the throne, and his very best chum was Thomas à Beckett. In the way of things, being the king’s best chum meant you had first refusal when the top jobs were being handed out, so Thomas found himself appointed Lord Chancellor. Not that he knew anything about the law, a tradition embraced by many of his successors in title. Not much change there. But Thomas wasn’t content with sitting back and drawing his index linked pension and the perks of Office, on the contrary, he decided to set up and preside over the Court of Chancery. Excitement mounted to fever pitch as he travelled around the land, hearing and settling disputes, it was like an early version of the X Factor.

Problem was, he was the victim of his own success, with the Great Unwashed hammering at the doors of the Court and demanding instant justice. To make matters worse, as in any legal dispute, there were winners and losers, and the losers were less than gracious when judgment was entered against them. In a trice they were in his Lordship’s face, screaming abuse, with time honoured remarks such as: “What is your f***ing problem!?!” and “Do you want some!?!”

So to impose some semblance of order, Thomas had a rail, or bar, erected between him and these vocal protagonists, and if they wanted to address him, they had to do so behind the bar.

The success of the Court brought forth those who claimed a smattering of legal knowledge, and for a fee, would plead their clients’ cases. In doing so, they were “called to the bar” to address the court, and they became known as barristers.

Work increased to the point where these barristers were struggling to meet the demands of their many clients, so touts sprang up to solicit business, and for a commission, would introduce suitable paying clients to barristers and get them to the front of the queue. It suited both barristers and touts as well as their respective clients, and the convention grew up that barristers would thereafter use the services of these touts, or solicitors, as go-betweens to bring them work.

How the worm has turned! Until the recent advent of direct access, solicitors used this time honoured convention to their best advantage, and clutching their Higher Courts Advocacy Certificates, began offering themselves to clients in all aspects of the law, including those areas which had traditionally been the sole preserve of barristers.

But a new dawn is upon us, and with a few exceptions, barristers can now offer the client the same ‘cradle to grave’ service without the need for a solicitor. Hallelujah! The client wins all ways. He gets the best advocate for the job, and he doesn’t have to pay an ‘introduction’ fee to a solicitor.

In the best traditions of the Bar Council, the barristers’ governing body, it’s still a case of ‘one step forward, and two steps back’, but we’re getting there. So if you’re in need of sound legal advice, and above all, the services of an experienced advocate, help is but a phone call away. A new dawn indeed!

THE OXYGEN OF PUBLICITY

As a practising barrister, I have never eschewed the professional limelight, as good publicity is the oxygen of life. In my glittering career spanning many years, I have had my fair share of media attention, but with very mixed reviews. The problem as I see it is that the media have their own agenda, which doesn’t always chime with my own. They want an angle, something sensational, something to grab the eye of the beholder. I’m not suggesting a deliberate distortion, more a massaging of the facts to make for ‘good press.’

Upon mature reflection, I suspect the recipient of a full page “exposé” in the Sunday Times may well be questioning the wisdom of that particular exercise in self promotion, as this was the main thrust of the article. I skim read it, so sadly I’ve already forgotten his name, but as I remember it, this self styled legal ‘celebrity’ was a solicitor from oop north, a sort of ‘larger than life’ character with gold jewellery and sharp suits, photographed with a large cigar stuck in his mouth, a ruse no doubt by the interviewer to stop him droning on interminably about his brilliance.

Cutting to the ‘meat and potatoes’ of the article, this solicitor was telling us, at some length, about his divorce practice, the number of high profile clients he had represented, all female, and the millions he had screwed out of their undeserving husbands.

As a divorce practitioner myself, I cringe whenever I read this complete garbage. It’s true that in the recent past, a number of decisions mainly from the House of Lords have shifted the balance towards the wife, some might say unfairly, with the result that husbands have been obliged to hand over a disproportionate amount of their wealth to their departing wives. Many of the old rules have changed. Short marriages are no longer an impediment, and marital conduct is all but irrelevant. Wealth brought to the nuptial couch may still be a factor to be taken into consideration, but the days of ‘ring fencing’ are long gone.

But these significant changes are nothing to do with cigar chomping solicitors, however much they and the readers of the Sunday Times would like us to believe it. They are more to do with a gradual sea change in the approach adopted by the courts, which had historically favoured the husband as the bread winner and the main, sometimes sole, earner.

I like to think that the courts still strive to achieve fairness in the distribution of marital assets, although in my considerable experience, what is fair to one warring party is manifestly unfair to the other. As they say, when love flies out the window, so does reason, and reaching an amicable settlement is often a bridge too far. Hence the need for good advocates, cigar chomping or not.

There may be rare occasions when the husband has had enough of the bitterness and acrimony stirred up during these protracted proceedings, throws in the towel, and allows self promoting advocates to trumpet their brilliance. But my experience tells me that in high profile divorces, I am routinely pitted against able advocates representing the interests of the other party, and case law constrains me from arguing the unarguable.

Above all, the good advocate in divorce proceedings should not be there to screw the other party, but to achieve a fair result with the minimum of distress to both. Perhaps I’m just an old softie, in which case I’ll live with the disappointment, and no full page profile for me.

At least the solicitor and I share one thing in common. We both enjoy a good cigar, although I remove the band from mine before lighting up.