Two-tier legal system looks set to stay

You are the new policeman on the block and you want to come across as a caring and sharing regulator. What better way of kicking off on a high note than coming up with a hot ‘new’ business development opportunity for solicitors?The Solicitors Regulation Authority’s (SRA) populist proposal to open up higher courts to all solicitors is one that should, in theory, have solicitors salivating.

A broadened practice in return for zero extra cash or training is seemingly manna from heaven for the all but 3,600 solicitors who don’t hold a higher courts qualification. If solicitors can secure a deal where their practice area is extended at no extra cost, then why not? It’s a bit of a no-brainer.

By contrast, the proposals should send shivers down the spines of those at the bar, whose unique selling point stands to become distinctly less unique. But my personal view is that the bar can rest easy.

For younger lawyers the consultation understandably looks like the first step on the road towards a unified profession – or fusion by the back door.

Solicitors massively outnumber barristers and are an influential lobby. A unified profession is the system used happily by the majority of other countries around the world and the proposal would also surely be welcomed by clients, who stand to benefit from the greater simplicity and reduced cost of a unified service.

It has been ever thus, and the system hasn’t changed yet, despite fusion being brought to the top of the legal agenda on a fairly regular basis. As a lawyer in my 50s, I’ve seen this issue come up every 10 years or so, and always with the same result – no change.

The last time the issue popped up was during the debate about an enlarged Europe. It was believed that, with greater integration into the EU, in which most other member countries don’t have separate bars, the UK legal system would inevitably follow suit. Clearly that didn’t happen.

I believe the idea’s resurgence now is that it really follows a PR agenda, not a policy one. The SRA has dug up an old issue, dusted it off and is trying to make a ‘splash’ with it following the organisation’s rebranding this year. No harm in that. Indeed, full marks to the SRA for at least trying to be a radical moderniser and promoting the interests of solicitors – although I would have expected that the idea emanated from the representative side of the Law Society rather than from its regulatory side.

As an in-house lawyer myself, I spend a lot of money buying in legal services, and I recognise that it could be an advantage to have a one-stop shop, where I could have the same lawyers that give me advice also representing me in court. If I could be sure that I get the same quality in a one-stop shop as I have at present in the two-tier system, then I would certainly vote for the idea. It should also make litigation cheaper. But like many in-house lawyers, I’m sceptical of that happening.

One of the reasons that the idea has stalled in the past, I think, is that the bar has kept its end up. If not always overjoyed by the fees they are charged, in general clients are satisfied with the service that their barristers provide, not least because a good junior counsel charges less then their solicitor counterpart.

Solicitors being able to practise in the higher courts poses a number of problems for their firms. How could quality control be ensured and how can you always guarantee that your in-house advocate really is a specialist in the required area? My fear is that a weaker bar could be bad not only for barristers, but for solicitors’ clients too.

As a solicitor I would like to think that the solicitors’ profession could compete and even outperform barristers at representing their clients in court. But perhaps the reason that the proposal has gone nowhere in the last 40 years is because they can’t. And if it ain’t broke, don’t fix it.