Why the indirect route is the way to go
3 November 1997
27 May 2013
19 April 2013
24 February 2014
14 October 2013
25 March 2013
Just the thought of direct access is enough to make most barristers shudder.
Ordinary members of the public puffing away in our waiting rooms wholly unsupervised by solicitors. Adverts for chambers in the local rag. Maybe even chaps in wigs chasing ambulances down the street. And worst of all, endless phones calls from clients who just can't seem to grasp the issues in their case...
Only joking. Of course, we love the clients - with or without an instructing solicitor. But part of the attraction of the job is that it allows you to devote yourself to their real problems free of any distractions. All of this would go with direct access.
Not only would we be at the mercy of the client but we would have to arrange the premises and staff needed to deal with the public. And valuable time would be wasted preparing the nuts and bolts of the case - the witness statements, the bundles, the interlocutory applications. All of this would push our fees up dramatically.
We could, of course, sub-contract the preparation work out of chambers immediately after being retained. Perhaps to a favoured firm of litigation solicitors which is also, already, charging to cover the costs of consumer-friendly premises, secretaries, receptionists - the list goes on.
But then what would be the point of having direct access? The client would still end up having to employ a solicitor and barrister but would simply pay more for the privilege.
Ah yes, you say, but the client would have chosen the barrister himself. But why is this assumed to be such a good thing?
You would not try to pick the right consultant for your chronic illness. Yet barristers are specialists - just like consultants - and getting more so by the day.
The mind boggles at the prospect of how direct access might work.
Litigants with court dates looming, desperately trawling through the numbers in the phone book only to find that Bloggs is too inexperienced for such a case or that Smith does not do crime.
And then there would be those who would fall for the puff in the advert - or only want the best. I wouldn't want to be George Carman QC's clerk (or should that be "agent"?) if direct access is introduced.
Faced with these compelling arguments, those for change often try to shift the goalposts. Why not have barristers in the same buildings as solicitors - in multi-disciplinary practices? This would save the duplication of cost. But MDPs carry with them a host of problems which their supporters have not thought through.
Most importantly, the choice available in the present "marketplace" for advocates is lost to the consumer. The solicitor has a vested interest in getting the client to use the firm's in-house advocate. There is no shopping around for a particular expertise or a better price.
MDPs and direct access would also put counsel's loyalties under inevitable pressure. At present we have clear and overriding ethical duties. We must not mislead the court while serving our client's best interests. These are vital in the preservation of the justice system. While we are sole practitioners, hired case by case, this system is easy to maintain.
But where the financial interests of the firm, and perhaps of a regular and major clients, are at stake the pressure to win at all costs becomes greater. This is precisely what happens in the US where firms have in-house advocates.
Thankfully there may be no reason to worry. Only the most crazed populist politician would force us to open our doors to the public. If it became optional, most barristers' chambers would politely decline.
In other common law systems, such as Canada and Australia, where the two sides of the profession are "fused", the trial lawyers have still chosen to take cases from other lawyers. Even in the US there is a corps of appellate lawyers which does this. Starting out, as we do, with a long-established "split" profession it is difficult to see anything different happening here. So don't bother to hold the ambulance.