Ruling out direct access to better system
5 June 1997
3 November 1997
30 April 2012
5 September 1995
3 December 1996
5 December 1998
Gavin Millar's article (Viewpoint, The Lawyer, 11 March) gives the classical arguments against allowing barristers to have direct access to clients. But none of the arguments stand up to a single moment's logical analysis.
Let's remember what the rule means. It is not some minor idiosyncrasy such as wigs or "my learned friend". It says that barristers will be disbarred if they deal with clients without the involvement of a solicitor. They might do a perfectly competent, honest job, to the total satisfaction of a client, and they will still be punished by the ultimate penalty. What possible justification can there be for that?
First, it is said that barristers do not want direct access. That is a fatuous argument. You do not forbid people doing what they do not want to do. Even if there is only one barrister in the entire country who wants direct access he is entitled to it. What other barristers choose is their affair.
Second, there is the clap trap about direct access putting barristers at the mercy of client telephone calls, forcing them into expensive offices, and pushing up Barristers (moderate?) fees and so on.
All businesses have to organise themselves. There is no reason why barristers could not do the same if they were allowed to. And the arguments about expensive offices and so on do not hold water. Clients already pay for offices, receptionists and other overheads when they go to solicitors. They also pay for the solicitor, and then have to pay for the barrister in addition. Every international comparison shows that the English legal system is slower, less efficient and more expensive than those in most countries in the world, so please can we stop conning ourselves with delusions about how cheap our solicitor/barrister system is.
And then of course there is the hoary old chestnut about barristers as specialist consultants and solicitors as GPs.
It is rubbish. Solicitors are increasingly specialised - in many respects they are more so than barristers. Indeed, clients are increasingly looking for specialists in esoteric areas of law - whether experts in data protection or dangerous dogs. Such a specialist is as likely to be a solicitor as a barrister.
The suggestion that "the mind boggles at the prospect of how direct access might work" ignores the fact that direct access works perfectly well in virtually every legal profession in the rest of the world.
And how about our present system? Clients only meet their advocate on the morning of the trial, while experienced solicitors are restricted to the magistrates courts and inexperienced barristers take on armed robbery trials in the Crown Court. The blunt fact is that it is the present system that makes the mind boggle, not the alternative.
And why not have solicitors and barristers in partnership? At present, there are hundreds of barristers working in solicitors' firms. They are trained qualified advocates and yet the Bar rules do not even allow them to appear in the magistrates courts, let alone in the higher courts. How is the public benefiting when all this ability and expensive training is going to waste just because of Bar rules?
The most pernicious argument against direct access is, however, based on the Bar's self-deluding fantasy about its wonderful ethical standards. Solicitors also have ethical rules, and so do lawyers in "fused" professions. The English Bar has no monopoly on virtue and there is not one scrap of evidence to support the idea that English barristers are in any respect more honest or more ethical than lawyers who do have direct access to clients.
Allowing direct access does not make it compulsory. If the referral system is so marvellous it will survive without the help of a rule that is backed up by the threat of disbarment.
We have in this country an appallingly expensive, cumbersome and wasteful legal system, and Bar rules are to blame for many of its failings. Their application is an unnecessary and harmful restrictive practice. The sooner they are changed the better.