Wrong answer, wrong question
3 December 1996
14 February 2014
16 September 2013
25 October 2013
27 November 2013
5 November 2013
'Mears takes up Rights of Audience Gauntlet' (The Lawyer 6 February) is the latest round in the seemingly endless Bar Wars between solicitors and barristers.
City firms are still complaining that the rules for solicitors to qualify as advocates are too restrictive and Mr Mears wants a "level playing field" with the Bar.
These attempts will be futile until the Law Society realises that the reason why its campaign has been so unsuccessful so far is because it has never debated the real issue of what should be the structure of the legal profession in the 21st century and has instead bogged itself down in a petty minded 'who does what' dispute.
The trouble is that the Law Society has never argued in favour of a fused profession - indeed it has opposed the idea. But if the Law Society truly believes that solicitors training on its own, or combined with lower court experience, is sufficient to qualify all solicitors as advocates in all courts then it should say so, should accept the logic of its position and should argue in favour of a fused profession.
The Bar cannot exist merely as a convenience for solicitors. If the Law Society wants the Bar to continue as a separate profession then it should decide what sort of Bar it wants and why. Alternatively, if the society wants a fused profession then it should say so and stop avoiding the issue.
The big City firms such as Herbert Smith have been complaining that their solicitors are unable to get the county court experience necessary to qualify (The Lawyer 6 February page 5).
Barristers, all of whom are qualified higher court advocates, are employed by Herbert Smith and other firms throughout the City but because of Bar Council rules none of them are allowed to exercise any rights of audience, not even in the county court.
We therefore have the farcical situation where solicitors' firms, and ultimately their clients, are spending thousands of pounds training and qualifying for advocacy while simultaneously employing trained and qualified advocates who never go near a court.
Perhaps, rather than continuing to waste time and money qualifying their solicitors as advocates, City firms should start asking why they are not allowed to employ barristers as advocates.
End the Bar's restrictive practices and the entire solicitor advocate problem is solved, including the farcical problem of who wears the wigs.
The whole argument for solicitors rights of audience has always started from the wrong direction.
The problem was never really the Bar's monopoly. US attorneys also have a monopoly of advocacy which nobody is seriously questioning, nor does the problem arise because we have two legal professions.
In Europe most legal professions are divided between notaries and advocates, with notaries having no rights of audience at all.
Our problems arise solely because it is necessary to go to a solicitor in order to contact a barrister.
The Law Society's response is to suggest it should be unnecessary for the client to have to go to a barrister but it does not seem to grasp the point that quite possibly it is the solicitor who is the unnecessary extra lawyer, not the barrister.
The Law Society has to face the fact that the Bar cannot survive simply as a convenient locum service for the solicitors' profession.
If all the Bar is to be is a group of lawyers who work on a referral basis then you don't need all the paraphernalia of two separate professions.
In the fused professions of New Zealand and Australia, for example, many lawyers work on a referral-only basis.
Alternatively, retain two professions but end the Bar's rule against direct access and partnership with solicitors, so enabling the two professions to evolve on continental lines with barristers dealing with court-based legal work and solicitors dealing with non-court based legal work.
We need a plan for the future based on logic not mere professional pride and self interest. Before asking for a level playing field, Mr Mears and the Law Society should decide precisely what the game is all about