Lawyers beware – Ol' Red Eyes is back

Chris Fogarty reports on the likely victims of the legal cull that will be inflicted on the profession following this month's Queen's Speech.

The Government has one major problem with lawyers. Lawyers see themselves as a profession. The Government sees the law as a business.

A senior government source has told The Lawyer that for too long lawyers have been hiding behind the mask of professionalism to cover up their business inadequacies.

As a large part of lawyers' business is indirectly funded by the Government through legal aid, the paymasters are demanding value for money.

Immediately after Lord Irvine's landmark legal aid reform speech at the Law Society's Cardiff conference last year, Lord Chancellor's Department (LCD) officials began briefing the media on the wider government agenda. This will become clearer once the planned modernisation of justice bill is published later this year.

The LCD message is obvious. But senior court sources believe there are too many lawyers in England and Wales and that they are based in the wrong places. It wants to redirect legal resources away from middle-class suburbs into poor inner cities.

In effect the number of legally aided franchise firms could fall from 11,000 to around 3,000.

The LCD says block legal aid contracts with law firms will ensure a high-quality service by flushing out the cowboys in the legal profession. The Lord Chancellor, Lord Irvine, also wants to channel public legal services into Community Legal Services (CLS).

The senior government source says lawyers are too often over-utilised on issues such as benefit advice. The Government envisages advice workers in community centres, doctors surgeries and libraries offering initial legal advice, with solicitors only coming into the picture if they are really needed.

Last month Lord Irvine announced that an extra £6m was being set aside to help advice agencies win contracts for legal aid work.

But The Lawyer understands he has ruled out opening branded CLS offices in the high street because, ironically, he thinks the competition from some firms would be too strong.

This is a tacit admission at least that not all high street law firms are cowboys.

The Government has no wish to see public advice agencies competing directly with private lawyers. It is, however, determined not to give the private sector an easy ride.

The Government's lifting of rights of audience restrictions is a well thought out attack on the Bar.

The theory in Whitehall is that more and more law firms will find it cost effective and, crucially, simpler to use solicitor advocates in a new age of block contracting and conditional fees.

If this eventually makes the Bar unviable in its current form, by making it impossible for junior barristers to earn a living, then so be it.

Many observers believe that the junior Bar will disappear altogether in the next 10 years and all junior lawyers will begin their career as solicitors, before some specialist advocates join the Bar as senior advocates. Something similar to this has happened in New Zealand.

The beauty of this scenario is that while solicitors and young barristers will be engaged in a competitive blood bath during the next decade, Lord Irvine & Co can stand back from the fray, righteously claiming market forces, rather than their own policies, are destroying the junior Bar. If all goes to plan, the legal landscape will look radically different in a decade.

The number of high street solicitors will be more than halved, the junior Bar will be evaporating, and more legal queries will be answered by non-lawyers.

So how can the profession respond? There are already hints that the Law Society is moving away from the softly softly, behind the scenes, negotiating position preferred by the last Law Society president, Phillip Sycamore, to the more direct style favoured by Michael Mathews.

Mathews' speech at the Solicitors' Annual Conference in Bournemouth last month was a revelation.

Just seven short months ago he managed to offend everyone – including the waiters – when addressing solicitors at the annual Local Government Group Conference. But in Bournemouth he produced a sustained and credible defence of the legal profession in a speech that was warmly applauded.

Referring to government proposals to slash the number of firms eligible for legal aid, Mathews warned of the risk that difficult firms – whose fearless client work has made life uncomfortable for the Crown Prosecution Service, Legal Aid Board and other public authorities – would be removed from the approved firm list.

“Access to justice is a key cornerstone of democracy,” he said. “If you don't know you have rights, they are meaningless. If you cannot get independent advice and help to enforce those rights, they are worthless.”

The Bar has also increasingly come out on the attack. Following last month's House of Lords criticism of the excessive fees charged by barristers in appeal cases, the Bar Council's newly-appointed spin doctors, Shandwick, managed to get a young, black, female barrister on ITN's News at Ten, explaining how difficult it was to make a living.

Yet both the Bar Council and the Law Society have to ask themselves what battles should they fight in order to win the war.

Many solicitors, especially those in big City firms, have made it clear in the wake of the Solicitors' Indemnity Fund fiasco, that, like the Government, they believe there are too many badly run firms on the high street.

And writing in this week's Lawyer respected QC Ronald Thwaites highlights the growing intolerance for an ever-expanding junior Bar.

Will the Bar Council and Law Society think the unthinkable and sell out the weaker, more inefficient parts of the legal profession to ensure government policy does not impact on stronger, more professional firms?

Or will government legal policies ensure that the very rich and the very poor get adequate legal advice while the middle class is left to gamble on conditional fees, or scratch around for decent and affordable legal representation?

Cutting the vocal Daily Mail middle class adrift from adequate legal advice is one potentially dangerous consequence of an otherwise cleverly constructed legal policy. And as one former Labour spin supremo told The Lawyer, this government is far more worried about the Mail's reaction than that of the legal profession.