Public Access to the Bar, by which members of the public can instruct barristers direct for legal advice and representation, has just received a significant shot in the arm. The Legal Services Commission has now agreed to remove the last of the unhelpful and unworkable restrictions on what a barrister may or may not do. With a few minor exceptions, barristers can now enjoy a level playing field when competing with solicitors.
In truth, solicitors have only themselves to blame for the popularity of public access work. Some years ago, they broke the monopoly of the Bar over exclusive rights of audience in the higher courts, claiming that this monopoly discriminated against them and obliged their clients to pay twice where Counsel had to be instructed. Far better, they argued implausibly, if solicitors could offer a “cradle to grave” service, and in no time at all, they were popping up all over the place, grappling with the complexities of evidence and procedure and stretching the patience of the judiciary to breaking point.
Too little too late for some, the Bar woke up to the dangers that this erosion was causing to its independence, and more to the point, to its reputation, and so was laid the groundwork for the public access scheme. It started slowly, almost hesitantly, but after five years of trial and error, it has finally become a reality.
The big question now is whether the Bar and solicitors can work together in this brave new world, or whether the one will seek to shut out the other as competing interests vie with each other. I suspect it is only a matter of time before “fusion” of the professions becomes a reality, and then the cull will begin in earnest.
In reality, there are too many lawyers. The latest survey showed that there is one lawyer to every four hundred per head of population, a gross over supply, and already, many lawyers are struggling. Those leaving the profession are on the increase, and those hanging on are poorly rewarded and on borrowed time. Ignored almost universally by the Media, who prefer to concentrate on the “fat cats” of the profession, the vast majority of lawyers are at the lower end of the income scale, and dropping fast.
It is tempting to indulge in a bout of nostalgia when I remember how it was when I was first called to the Bar in 1974. Both branches of the profession knew their strengths and weaknesses. Good solicitors concentrated on client care, preparing their case and covering all the obvious bases. Where the case was unlikely to settle, and moved towards trial, good solicitors instructed good barristers to present their client’s case as effectively as possible, even if it meant making bricks without straw. Barristers were instructed because of their advocacy skills, and each branch worked together in the best interests of the client. It worked, and it worked well. It was black and white. Now sadly, it’s shades of grey.
I believe, perhaps naively, that there is still room for cooperation between the professions, and not simply competition. But if I am wrong, at least the hard pressed client now has a clear choice. If he needs expert legal advice, and above all, if he needs representation where advocacy skills are paramount, he should, and will, favour the barrister. This is not to say that all barristers are outstanding. On the contrary, there are duff barristers just as there are duff solicitors. But whilst the Bar in its vocational training and pupillage continues to stress the importance of advocacy, barristers will always have the edge on solicitors in this important area of litigation.