Bar Council gives lay clients opportunity to skip solicitors

Kentridge committee overcomes objections to propose direct access to barristers

In a much trumpeted move last week, the Bar Council voted unanimously in favour of significantly broadening the scope that lay clients have for instructing the bar directly. But the question remains whether such a move will have any real impact on barristers' practices and consequently see the bar stealing the work of solicitors.
The vote follows the Office of Fair Trading's (OFT) 2001 report 'Competition in the Professions'. The OFT's director general Dr John Vickers attacked current council rules on four central points: the prevention of barristers forming partnerships; restrictions on barristers having direct access; prohibitions on the advertising of 'success rates' and comparisons with other barristers; and the refusal to issue grants to barristers giving them the right to conduct litigation.
The council set up a committee, led by Sir Sydney Kentridge QC, to prepare its response to the report. The committee's consultation paper, issued last August, broadly gave short shrift to all of the OFT's proposals save on direct access. There were few differences between this and the the bar's submissions – Kentridge's final report – sent last week to the OFT following the vote of the full council.
This marks another nail in the coffin of the rule established in 1888 by the then Attorney General Sir Richard Webster QC, that in contentious matters a barrister should not act or advise without a solicitor's intervention.
This rule, of course, had already been broken down with the introduction of direct professional access in 1989, enabling professionals such as accountants and surveyors to instruct barristers directly. Then, three years ago, a raft of individuals and organisations, including some police authorities, were licensed to bypass solicitors under the BarDIRECT scheme.
Kentridge's report proposes that lay clients should be permitted to engage barristers when solicitors as intermediaries are unnecessary. Few details are provided as to the exact circumstances where a solicitor could be deemed unnecessary, but examples include: cases where the facts are straightforward; when the issue is one of law or the interpretation of a document; guilty pleas in criminal cases; and appeals where filing documents presents no difficulties and there is no further evidence to be obtained. Kentridge concluded: “Where the preparation is uncomplicated and the advocacy vital, the client might be as well or better represented by a barrister, and possibly at a lower cost.”
It is surprising that the council voted unanimously in support of this measure, given the volume of objections by respondents to the consultation. The Criminal Bar Association (CBA), the Planning and Environment Bar Association, the Technology and Construction Bar Association and the Employ-ment Bar Association all opposed it at the consultation stage. Ironically, the CBA is chaired by the former vice-chair of the Bar Council Bruce Houlder QC, and the Employment Bar Association was chaired last year by the current chair of the bar David Bean QC. Perhaps personal views were overriden by the wider need to show unanimity at the weekend vote, held at the beginning of February.
Other dissenters included the London Common Law & Commercial Bar Association, the Young Barristers Comm-ittee of the Bar Council, the South Eastern Circuit (chaired by criminal practitioner Stephen Hockman QC), the Inner Temple and, ironically, the BarDIRECT committee.
These objectors said that they were largely concerned about confusion over whether barristers will be handed the dual tasks of litigation and handling clients' money. Kentridge emphasises that neither are on the cards.
Although the objectors showed enviable concern for the ethical and practical implications of reform, given the growing competition for the bar's traditional areas of work, was the reaction somewhat overcautious? After all, what is on offer is an opportunity to turn the tables and attract work traditionally monopolised by solicitors.
But there is the rub: few barristers actually expect to receive a massive increase in work as a result of the proposed reform (see box), and Kentridge also raises a number of ongoing concerns about reforming direct access. He cites, for example, the experiences of foreign jurisdictions that have witnessed a significant increase in the number of complaints against barristers after opening up access to the bar.
In fact, Kentridge's list of concerns suggests that voting in favour was more of a peace offering to the fearsome competition regulators than a real belief that barristers are seriously going to gain much from this. Solicitors are certainly not quivering at the thought of barristers snatching their work. Indeed, two senior City litigators wished them “good luck”.