25 June 2001
Unable to adopt the simple expedient of "hanging all the lawyers", the Office of Fair Trading (OFT) report into the professions earlier this year came up with a series of recommendations, such as allowing direct access to the bar and allowing barristers to form partnerships. While these are familiar proposals, it is disappointing that they should come from such a source as the OFT.
A point missed in the reams of copy devoted to analysing the report and its implications was that one-stop shops are already an existing part of the legal landscape, with an increasing number of law firms offering advocacy services to the public. And the availability of an independent bar to which solicitors may refer specialist advocacy work, whether or not offering advocacy services themselves, actually encourages rather than discourages competition.
The OFT's proposals at best fall wide of the mark and at worst are directly contrary to the interests of the users of legal services in this country.
Given recent reforms, many solicitors' firms are undoubtedly seeking to undertake a much greater proportion of higher court advocacy work themselves. But it is simply not possible within a solicitors' firm to develop and maintain the skills required for higher court advocacy unless one is largely free from the responsibilities of client liaison, document handling, proofing witnesses and general management that an ordinary litigation solicitor has to undertake on a daily basis. The best solicitor advocates are those who operate as specialist advocates.
Only within the larger firms of solicitors is there likely to be sufficient amounts of advocacy work available to warrant the presence of specialist advocates. To compete with such larger firms, smaller to medium size firms will inevitably require the services of independent advocates acting on a referral basis. The alternatives are either not to compete in litigation work at all or to put up an inexperienced in-house solicitor advocate who will be at a considerable disadvantage against an experienced and skilled opponent, and who is unlikely to adequately serve the interests of his client.
Once barristers in independent practice form partnerships, the difference between the bar and the solicitors' profession vanishes. Barristers will be conflicted out from acting in cases where their partners or employees represent another party to the dispute. The cab rank rule, which has served the interests of lay clients well, will disappear. Add to this the requirement or expectation that barristers should accept instructions directly from lay clients and they will find themselves competing for the very work undertaken by solicitors. In order to undertake such work, the advantage of lower overheads, traditionally offered by the practising bar, also disappears. At this point, the bar as an independent referral profession simply ceases to exist.
The real answer is not to turn all barristers into solicitors but to allow greater fluidity between the two sides of the profession. Barristers who have practised as advocates over a period of time should be allowed to form partnerships with solicitors. But if such partnerships are permitted, the consequence has to be that the individual barristers who join them cease to operate as barristers in independent practice.
But if barristers as a whole are to be required to accept instructions directly from lay clients, whether as a matter of law or commercial pressure, the whole of independent practice at the bar as we know it will effectively come to an end. Contrary to what the Director General of Fair Trading is reported to have said, this is likely to lead to higher rather than lower prices, less rather than more choice, and worse rather than better services.
John Higham QC is a partner and solicitor advocate at Stephenson Harwood