A phoney war or a bitter fight to the death?
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11 March 2013
Solicitors are celebrating the promised relaxation of rights of audience restrictions. Shaun Pye assesses the threat posed to the Bar
The Lord Chancellor, Lord Irvine's consultation paper on rights of audience contains little comfort for the Bar. In one telling passage, the government claims that its reforms will not hurt the Bar before adding, just in case: "It is not the role of the government to safeguard the supply of work to barristers."
Under his proposals, solicitors will have full rights of audience on their first day of admission onto the roll. They will have to meet certain training requirements, to be drawn up by the Law Society, but it is understood the Lord Chancellor could be willing to have such requirements built into the Legal Practice Course.
On paper at least, the Bar's virtual monopoly on higher courts rights could be smashed within as little as 18 months. But what effect will the changes have in practice?
Solicitors from all quarters of the profession have welcomed the consultation paper, but perhaps the loudest celebrations of all have come from the City. Since the 1990 Courts and Legal Services Act only just over 100 solicitor-advocates, from a total of 624, have specialised in civil litigation, with the majority based in City firms. Three have taken silk. It is hardly an invasion and the hope persists in some quarters of the Bar that City solicitors simply will not want to be advocates.
The jubilation of City firms after the publication of the consultation paper suggests otherwise. Mark Humphries, solicitor-advocate at Linklaters and vice-chairman of the Solicitors' Association of Higher Court Advocates (SAHCA), says: "Linklaters is a seething pool of talent waiting to be released on the higher courts but they have been made to spend all their time trying to get flying hours in the lower courts."
Earlier this year the Law Society drew up plans to exempt commercial litigators from having to acquire "flying hours". Then Humphries said the number of solicitor-advocates might triple within the next few years. Now, after Lord Irvine's radical proposals, it seems the sky is the limit.
Linklaters has five solicitor-advocates with three more in the pipeline. Humphries says: "It is feasible that within 18 months we could have 50 or 60 litigators trained as advocates." David Mayhew, a partner with Clifford Chance, says that within five years all of its litigators (more than 150 lawyers) will have full rights of audience. Harry Anderson, head of litigation at Herbert Smith, does not put a figure on future expansion but says the firm will be "accelerating" its training programme.
Opinions differ on how the expansion will affect the Bar. Anderson believes solicitor-advocates will do the work of the juniors and leave the trial work to the big guns at the Bar. The majority of City firms appear to agree with this view.
But Humphries is more bullish: "Our senior people will take the role of the leader in trials. Before the white paper, I would have said this change would take a generation. Now, I see it happening in five to 10 years."
By and large City firms have not had separate advocacy departments - mini-Bars being referred work by other partners in the firm. But Wilde Sapte and SJ Berwin & Co do operate this system and Anderson says Herbert Smith has not ruled out the idea for for the future. Specialist advocacy units could evolve in City firms, servicing not only the firm's in-house needs but selling its skills to the wider legal market.
Of course, there are a number of firms, particularly medium-sized ones, which view the triumphalism of solicitor-advocates with caution. Kevin Perry, a commercial litigation partner with Barlow Lyde & Gilbert, says: "Our firm will not be jumping on the bandwagon at the moment but we will be monitoring it. Sometimes you can overlook the client and see it as a battle between the two professions. It may turn out that the current arrangement suits the clients best."
Certainly one client, David Stevens, general counsel with BTR, is keeping an open mind. He welcomes the removal of the archaic restrictions but adds that, while it seems logical that employing only a solicitor is cheaper than using a solicitor and a barrister, he is waiting to see how things develop.
An external observer, Professor Michael Zander at the London School of Economics, says it is hard to predict what will happen. He points out that City firms, stacked with top legal minds, still need to turn to the Bar for opinions - so why not advocacy?
If you believe the official Bar Council line, the shake-up will make little difference. As specialist advocates, barristers are not only better at advocacy than solicitors but they are cheaper, is the Bar Council's mantra. Privately, barristers are terrified that the reforms will signal the beginning of the end for the Bar. But most observers agree that, no matter how radical Lord Irvine's reforms are, it could still take many years for solicitor-advocates to make an impact.
After all, the Crown Prosecution Service is hardly in a position to take full advantage of the changes as it gears up for a massive restructuring operation which could take several years to bed down. The same goes for legal aid lawyers, who are bracing themselves for Lord Irvine's legal aid reforms, and the general high street firms, which are surely too busy struggling to survive to contemplate branching out into advocacy.
If anyone has the time, the inclination and the financial clout to take on the Bar, it is the City lawyers.
The commercial Bar should take note: it looks like it may well be in the line of fire.