City firms call time at the bar?
18 October 1999
Last week The Lawyer reported that Hammond Suddards had become the latest firm to develop a specialist advocacy unit.
This new nationwide project, set in motion by the poaching of a barrister from commercial set Chancery House chambers in Leeds, suggests the leading law firms are on an inexorable roll toward devouring the bar lock stock and barrel.
However, the bar has reason to be confident of survival. Despite the latest signal of intent by Hammond Suddards, there is no universal accord among solicitors as to the best way of achieving their one-stop-shop litigation service goal, or even whether the goal is desirable at all.
John Hull, a partner in the commercial disputes group at Richards Butler, says that because so few cases reach court (more than 90 per cent of cases settle) the firm could not justify the cost of training advocates in-house.
Hull says: "There is a world of difference between arguing a point of law before a master or judge in chambers by reference to documented evidence and cross-examining a witness in the High Court."
Hull argues that the problem for firms like his is being able to give the advocates the necessary experience, or flying hours, in the lower courts.
But Mark Humphries, litigation partner at Linklaters and one of the most outspoken exponents of solicitor-advocates, still believes in the inevitability of solicitors devouring a healthy portion of the bar's market.
He says that his junior lawyers are now spending a lot of time conducting pro bono work to develop their advocacy skills and appear regularly in employment tribunals at London North, Stratford and Croydon.
Every lawyer in the litigation, Intellectual Property and employment departments undergoes an extensive advocacy training programme at Linklaters during their first three years post-qualification.
Humphries, who spends about eight weeks a year in court, says that a couple of years ago Linklaters' litigation department spent £2.5m on fees for counsel. This year the figure has dropped to around £1.5m.
And he predicts an "explosion" of solicitor-advocates next year. At least 30 lawyers in the firm who are currently precluded from the higher courts will quickly gain recognition when the new regulations, contained in the still to be finalised Access to Justice Act come into being.
Russell Sleigh, managing partner of Lovell White Durrant's litigation and dispute resolution practice, says the same is true of his firm. A large number of Lovell's solicitors are waiting in the wings for the regulations to change.
The vast majority of leading City firms promote the benefits of one lawyer handling a case from start to finish. However, some, like Hammond Suddards, still believe in separate advocacy units to which other departments refer work.
SJ Berwin is one example. Richard Slowe, partner in the firm's litigation department, argues that retaining the advocacy element within the firm makes communication lines far simpler. The client has two points of contact, with direct access to both the solicitor and the advocate instantly available.
However some say that outsourcing to the Bar allows solicitors and clients to pick and choose different barristers depending on the specialist nature of the case.
A lack of advocacy work is also preventing firms from setting up their own units. Sleigh says: "The reason why we're hesitating about a specialist advocacy unit, is because there simply isn't a sufficient flow of advocacy work to set it up."
The main reason for this seems to be a growing desire to seek alternatives to the courts and the massive boom in mediation.
John Heaps, national head of litigation at Eversheds, says: "There has been a massive sea change going on for people handling litigation.
"It is not just the Woolf reforms, not just client demands, but also the impatience of the profession and the attitude of young lawyers to the system they are inheriting."
Settling disputes in the courts is now often regarded as a last resort. Training entire firms in mediation has become commonplace.
Andrew Witts, a partner in the commercial litigation department at Dibb Lupton Alsop and chair of the firm's alternative dispute resolution (ADR) working party, says all business groups within the firm need advice on ADR from the start of negotiations on most deals.
Recognition of the importance of ADR has meant that Dibbs has approximately doubled its number of qualified mediators over the last year.
And Richards Butler has even changed the name of its litigation department to "the commercial disputes group" because litigation is now just one of the weapons at the lawyers' disposal.
Heap says: "We don't believe that we will supplant the bar, nor do we have the intention to do so. But we do believe that the skills that were subcontracted to the bar are ones that are important for the allround dispute manager to have within his ambit."
Heaps predicts that ultimately a firm with a litigation department as large as Eversheds - it currently employs 450 lawyers - will encompass pure trial advocates in the true sense.
Two of the goals of the firm's five-year plan launched in April bear this out. One is the establishment of the pleadings and advocacy initiative, and the other the development of mediation so that all lawyers possess the necessary skills to handle it.
Avoiding interminably long and costly visits to the courts presents opportunities for both barristers and solicitors.
And for all their desire to save money and mop up new business at the expense of the sets, solicitors are actually concerned with the preservation of the bar.
Edward Sparrow, head of the litigation department at Ashurst Morris Crisp, who nevertheless regards advocacy as a core skill that solicitors must develop, says: "If we are not careful we will choke off the training ground for the young bar. In 10 years time we will turn around and say 'why aren't there any quality silks?'"
With the recent repatriation of leading employment lawyer Suzanne McKie to the bar from Fox Williams it is clear that many still believe the bar is the best place for a true advocate.
Although some firms are making a lot of noise about their booming advocacy practices it is not yet a system in the US mould and no firms have enough advocates to rival a leading set of chambers or keep all their litigation in-house.
However, it is clear that the culture of litigation is changing, putting solicitors in the driving seat.
Although many firms do not believe in a self-contained specialist advocacy unit with the continued consumption by solicitors of the junior bar's work many feel that ultimately they will be forced into it.
But until the predicted explosion in the number of solicitor-advocates occurs, it remains a threat rather than a reality.