Crossing the floor
12 January 1998
Matheu Swallow talks audience rights with Julian Wilson, the barrister backing the growth of city advocates.
Next week the results on the review of the rights of audience are due for publication by the Lord Chancellor's Department (LCD).
While the large majority of bar members have vociferously opposed challenges to their status, one lone voice in the wilderness favours change.
Julian Wilson began his career as a barrister only last year, after crossing the metaphorical floor from a successful career in international commercial litigation at Herbert Smith to join 11 King's Bench Walk.
Wilson agrees with the proposals in the Lord Chancellor's consultation paper on rights of audience. They are "like a train I have been waiting for for a very long time", he says.
If the proposals do become law, City firms will be best equipped to take advantage.
But, Wilson says, he does not believe that the commercial bar is under any threat. "There will always be a specialist referral advocacy profession," he comments.
Before the City firms can offer a really competitive service, they must take a few hard decisions, says Wilson.
"They must decide whether or not they ought to provide a one-stop service, a fused service, where the solicitor who manages the case is also the advocate, or if the Bar should be replicated in-house by having an in-house advocacy unit," he says.
The one-stop shop is the most likely option, although critics of this approach argue that using a second independent case leader - the specialist advocate - will provide a higher degree of analysis and offer a more objective view.
However, Wilson is on the side of the one-stop shop, saying it should provide "a more effective service, of a higher standard, at less cost".
If this premise is accepted, there are a number of difficult structural and economic questions for law firms to confront.
Wilson says: "When 75 per cent of the work of the big City firms is sub-contracted to Queen's Counsel and very senior juniors, one challenge is how more junior advocates gain necessary, repetitive experience of advocacy practice."
The economics provide more potential hazards because, despite the resources available, Wilson says, "good lawyers are scarce commodities and advocacy is a very time-intensive process".
So to take them away from their existing cases and give them advocacy opportunities is not an easy task. According to Wilson, it is only at the Bar that advocates can really find the time needed to fully concentrate on their legal briefs.
"Mixed-doubles" - where firms such as Clifford Chance, Linklaters and Herbert Smith provide juniors to QCs, in larger cases is not viable, Wilson says. "The advocate has to get his own hind-leg experience and there is no substitute for that," he says.
The LCD consultation paper on audience rights also floats the possibility of giving barristers the right to conduct litigation.
Wilson says he does not believe the Bar will embrace the idea because, the resources required to do general litigation and case management would require barristers going into partnership with one another, taking away the single competitive advantage they have over solicitors.
Barristers in the same chambers would no longer be able to act on both sides of the same case, because it would produce a conflict of interest.
In the future, Wilson predicts, there will be a lot more cross-fertilisation between the Bar and the solicitors' profession and adds that this can only be a good thing.
"I think the Bar has a lot to gain from more established practitioners coming in at a later level, when they haven't got those financial disadvantages and where they bring with them maturity.
"At the same time it offers opportunities to barristers with case management strengths to go into law firms, so I think cross-filtration will be to the benefit of the profession and the public."
But the opening up of the profession will not mean Wilson reverts back to his life as a solicitor. "I thoroughly enjoy my new role," he says. "There are great advantages to being at the Bar: independence, no boss, no partners, no capital contributions, no restrictive covenants. You just have your own targets. These are great benefits, almost privileges, to be able to practice independently. I would never say never, but I am very happy to be out of the large firm culture."