Preparing for the new order in court

The Government's plans to extend rights of audience to solicitors is set to spark a long-awaited revolution in the legal profession, says Mark Humphries

IN June, the Lord Chancellor's Department (LCD) published a White Paper containing the government's proposals on rights of audience before the higher courts.

The central theme of the proposals is that all solicitors and barristers are to have rights of audience before all courts immediately upon qualification, provided that they have complied with any additional training requirements imposed by the Law Society or the Bar Council.

The White Paper also invites comments on whether the Bar Council should be given the power to grant barristers the right to conduct litigation – a right which at present is the exclusive preserve of solicitors.

These are radical proposals made necessary by the failure of the Lord Chancellor's Advisory Committee on Legal Education and Conduct (Aclec) to achieve the objective of the Courts and Legal Services Act 1990, to widen the choice of litigation and advocacy services.

Despite the enactment of the legislation in 1991, the first solicitor-advocates with rights of audience in the higher courts appeared only in 1994. The levels of competence, experience and training required to achieve the qualification have been kept so high that today only 624 out of more than 70,000 solicitors have the right to appear in the higher courts.

The government intends to abolish Aclec and replace it with a legal services consultative panel, one of whose main tasks will be to ensure that the Law Society does not impose unacceptably high training requirements on solicitors who wish to exercise their rights of audience.

In the light of these proposals, it is difficult to see why new entrants to the legal profession would wish to train as barristers. As solicitors they will have full rights of audience, direct access to clients, the right to conduct litigation, the security of a salaried position and all the support services and the fringe benefits offered by law firms. Barristers will have the same rights of audience but no job security, currently no right to conduct litigation, no access to clients unless granted through the medium of a solicitor and none of the support services and the perks enjoyed by their solicitor counterparts.

The government has also made it clear that civil legal aid in most monetary disputes will be replaced by conditional fee agreements.

If a solicitor takes a case on terms that he will not be paid if he does not win or obtain a satisfactory settlement, it is unlikely he will be prepared to finance a barrister's fees as disbursements.

The current generation of practising barristers will not be threatened by the government's proposals, but there is little prospect of the junior bar regenerating. Within a generation the vast majority of lawyers will start life as solicitors, although some may later emerge from private practice as sole practitioners providing specialist, high-quality advocacy services on a referral basis.

The government also proposes that employed lawyers, whether solicitors or barristers, will have the same rights of audience as their colleagues in private practice. This clearly makes sound economic sense. Sometimes the best lawyer to represent a client will be the one employed by the client, who will know the client's business and its objectives better than a private practitioner.

The legislation needed to achieve these objectives is likely to be passed next year. By the millennium there will be fewer barristers in practice, but far more solicitor-advocates.