Open this mutual exclusion zone
7 April 1995
On 23 June the results of the qualified lawyers transfer test were published, giving the names of those already qualified lawyers who have successfully met the Law Society's requirements in passing further tests to become solicitors.
Those from foreign jurisdictions will then gain an additional qualification, whereas the barristers qualified in England might well be thinking of voluntarily disbarring themselves, retaining only the newly acquired status of solicitor.
Prior to 1990, the rules of the Bar Code of Conduct required barristers voluntarily to disbar before joining the Roll of Solicitors. Since 1990 the relevant rule has apparently disappeared but this change has not been communicated and it seems many still disbar themselves under the misapprehension it is a positive requirement.
In February this year, the Bar Council was asked to clarify the position and the response from the chief executive was that advice from leading counsel was being obtained. So far, that advice is not forthcoming.
On 10 June at the Bar AGM a resolution was promoted whereby the Bar Council was asked to reconsider the status of barristers employed by firms of solicitors for a number of reasons. For example, as barristers employed by firms of solicitors we wish to have the same rights of audience as our employers and barristers employed by firms of solicitors should have the ability to retain their barrister status - albeit while holding the qualification of and working as a solicitor.
The resolution was lumped together with rather more radical resolutions proposing fusion of the two professions. Unsurprisingly it received a poor reception from members of the independent Bar. The resolutions were defeated in a vote of members present. There was no surprise in its defeat. The agenda for the Bar AGM was posted in chambers but was not available to members of the employed Bar, so the latter was relatively under-represented.
The concerns of the independent Bar about the potential for the loss of its independence are understandable and it must be stressed that there is no intention to demolish it. The intention is merely to seek the ability to move from room to room.
A member of the Bar who wished to move to a firm of solicitors should be able to make a smooth transition, in recognition of the fact that this would not compromise their ability or integrity and neither would it disadvantage the lay client. Then the employed barrister should be able to earn a living, not being required to disbar, even upon gaining a second qualification as solicitor. At that point the barrister's status could become vestigial or dormant, but not extinct. This would entitle limited rights of audience to the same extent as the barrister's employer; full rights only becoming available again on a return to the Bar.
While working as a solicitor, the barrister's conduct would be governed by the Law Society's rules, again guaranteeing protection of the lay client's interests. There is no reason why the Bar Code of Conduct could not adopt complementary regulations in this respect.
For years specialist practitioners, such as those in shipping, taxation and planning have acted in the best interests of clients by advising on the strategy and conduct of a matter and then have consulted an independent Bar member.
It is clearly in the client's benefit to have a practitioner with sufficient skill to handle research, strategy and advice and, in certain cases, advocacy. But they should also have the integrity, skill and appreciation of the matter's complexities to acknowledge the strategic importance of the input of another professional.
Charles Elly, president of the Law Society, is sufficiently enlightened to appreciate the way in which a solicitor advocate might work in a complementary fashion to members of the independent Bar. So it is disappointing that Peter Goldsmith, chair of the Bar, cannot similarly envisage a situation whereby the members of the employed Bar who work in firms of solicitors might operate in the same manner as their employers. If Goldsmith's concerns are to protect the independent Bar, I would remind him the Bar Council is representative of all subscribing barristers and as such should take all interests into account. Many members of the employed Bar pay their subscriptions to the council on that basis. There are many legitimate reasons why barristers may wish to pursue a career with firms of solicitors. These should be respected.
There are more than 20,000 solicitors who have the ability to gain the status of solicitor advocate whereas the number of barristers employed by firms of solicitors is a fraction of that number. A chartered accountant, on obtaining the qualification of a solicitor, does not lose their professional status as a chartered accountant. It is difficult to see any reason why a barrister may not be treated by their professional body with the same courtesy.
At present, we are given the pejorative title of "non-practising barristers" yet we remain barristers in a legal practice, legitimately operating as legal practitioners. In assuming barristers employed by firms of solicitors ipso facto seek fusion and challenge the reason for the differentiation between the professions, the Bar Council is failing even to listen to our argument. Rough justice indeed.