While the Bar debates, the other branch of our profession is equipping itself for the future. The larger civil litigation firms are convinced there is "market demand for one-stop shopping".
A small but increasing number of solicitors throughout the country are qualifying as solicitor advocates (in June 1995 some 264 had qualified, by 21 August it was 312, with a further 200 applications pending) and exercising their extended rights of audience in the higher courts – in Birmingham, where I practise, a few solicitor advocates have begun to operate freelance. In Scotland, we are told that solicitor advocates are beginning to cut heavily into Bar work in the criminal courts, including dealing with serious cases. The Law Society campaign for extended rights of audience for employed solicitors continues unabated, and will surely succeed eventually.
Then came the Green Paper on legal aid, with the outcry from both branches of our profession, matched only by the almost daily headlines that suggest we all earn thousands
of pounds per legal aid case.
I believe that an independent Bar will survive, but that it will shrink considerably unless we too equip ourselves for the future. Take the example of criminal work, if the block contracting and fixed budget proposals are implemented, even reluctant solicitors may be financially compelled to appear in the Crown Court. The new system whereby cases are transferred from magistrates court to a fixed Crown Court date will assist, and a simple alteration in Crown Court listing systems could achieve 'block-listing' of Plea and Directions Hearings (PDH) by firm, in the larger court centres. How long before solicitors would be obliged to justify the expense of instructing counsel for a PDH, or a short uncomplicated trial?
My suggestion is that the Bar must now accept that the "one-stop shopping" lobby will at the end of the day prevail for the bulk of public and privately funded work. We must either accept the probability of a smaller, probably very senior Bar of "trial lawyers" or consider direct access and partnership – including partnership with, and the ability to employ, solicitors – so we have the ability to compete in this new age.
Rachel Brand is a barrister practising at Coleridge Chambers, Birmingham.
THE SCOTTISH EXPERIENCE
Scottish lawyers often alternate between praising their legal system and vociferously criticising its more outmoded aspects. One of the most significant pieces of legislation is the Requirements of Writing Act 1995, which, this month, brought execution methods more into line with those in England.
But not all legal practice lessons are being passed one way from south to north. Barristers in England are following the progress of Scottish colleagues for signs of how the future of their profession may develop.
Although the development of advocacy in Scotland differs from that in England, with solicitors historically appearing regularly in court, the two professions do run on similar lines.
Solicitor advocates in Scotland are further down the path than in England, and experience in the north suggests civil litigation will follow criminal litigation with more work kept in-house by firms. Some firms have even farmed out the work to another firm rather than instruct an advocate.
Perhaps another nail in the coffin for the Faculty of Advocates is the lack of specialists in Scotland. In comparison with the English Bar, it is the Scottish solicitors who specialise, rather than the advocates.
And sounding an ominous note for barristers in England, one Scottish commercial litigation solicitor advocate said: "I see no reason why I, or those at other firms in a similar position, will not shortly be doing up to 75 per cent of our advocacy in-house."