Bar's rights and wrongs of audience
29 October 1996
Currently, the rights of audience of corporate barristers limit them to appearances before county courts, magistrates' courts and industrial tribunals.
This is simply an anachronism. Our private practice colleagues, together with litigants in person, enjoy rights up to and including the House of Lords. In contrast, US advocates employed by US corporations have identical rights of audience to their independently practising colleagues to appear before district courts, circuit court of appeals and on to the Supreme Court, the highest US appellate court.
Like all anachronisms, and of course the English Bar is full of them, the effect of this mandatory rule produces many peculiarities.
Queen's Counsel (there are many within Bacfi), who have practised court advocacy at all levels before moving from private practice into the commercial world, will immediately be prohibited from using their skills.
Through experience these would be more sharply honed than those of second six-month pupils, but the former are the ones restricted from appearing in the High Court and above.
The Bar Council permits pupils who will in time enjoy full advocacy rights to serve their second six-month pupillages within the employed Bar, despite restrictions placed upon their pupil masters in terms of their limited advocacy rights. They can even serve three months of pupillage with a firm of solicitors - although if they return as qualified barristers, they cannot offer their services without describing themselves as "non-practising".
One of the rather vague terms to find its derivation in the Courts and Legal Services Act 1990 is that rights of audience are granted only when, among other things, the rules of conduct which apply to them are appropriate and in the interests of the proper and efficient administration of justice. It is often thought that extending rights of audience to the employed Bar might trigger conflict between in-house counsel's duties to a company and those to the court.
If this were a problem then the current position, which permits employed barristers to present their employers' cases to lower courts and industrial tribunals, would be sanctioning an ongoing maladministration of justice. In reality, corporate counsel are just as concerned as private practice counsel about maintaining ethical standards.
This issue needs to be addressed critically because there is an enormous number of disillusioned would-be barristers currently at the Inns of Court School of Law who have applied through the new clearing system (Pach) for pupillage only to find that there are 700 places for 1,800 applicants.
The Inns of Court School of Law produces 1,000 or so successful examinees a year, but the excess comes from newly "released" second and third six-month pupils hunting the same pupillages.
The problem is set to worsen because of the franchising of the Bar Vocational Course to a number of educational institutions around the country. This will multiply the number of candidates for the same number of pupillages.
There is a need to absorb these barristers within the employed Bar, but it is a serious disincentive to would-be barristers to be restricted in the rights of audience available.
Now it is accepted that barristers joining solicitors' firms need not disbar, extending audience rights is one extra small step towards "equality of opportunity" - the duty imposed on the Lord Chancellor's Advisory Committee by the Courts and Legal Services Act 1990.