A legal system fit for the 21st century

Susan Ward says it is time to throw out outdated restrictive practices in the legal profession in order to improve the supply of affordable legal services. Susan Ward is general counsel to the banking body APACS and chair of the Bar Association for Commerce, Finance and Industry. With each fresh revelation about the enormous earnings of some lawyers, the man in the street looks on with dismay. It must seem to him that the legal profession inhabits another world – not only because of the financial rewards lawyers can enjoy, but also because he has had almost no contact with solicitors and barristers.

Proper access to civil justice still remains well outside the reach of the greater part of the community. Many people simply cannot afford to get lawyers involved.

In opposition, the Labour party promised to drag our justice system out of the 19th century and make it fit for the 21st. In government it has demonstrated its commitment to the provision of accessible and affordable legal services with bold proposals to reform legal aid and the publication in June of the consultation paper, “Rights of Audience and Rights to Conduct Litigation in England and Wales: The Way Ahead”.

The man in the street is unlikely to know a lot about the issue of rights of audience. But what he might tell you is that lawyers cost too much. What he does not realise is that the restrictions on rights of audience form a significant part of a clutch of out-dated restrictive practices at the root of his inability to get proper legal advice at a price he can afford.

While barristers in private practice retain a virtual monopoly of rights of audience in the higher courts and solicitors maintain the monopoly right to conduct litigation, there is a massive impediment holding back the development of new and cost-effective legal services.

Legal services today are oriented towards traditional, court-based litigation. But the market is crying out for a new type of legal service: service providers who give understandable advice at the right price; who can provide a one-stop shop offering other services such as accountancy and project management; and who can prevent or solve a costly problem in the most appropriate way – whether through face-to-face business discussion, mediation, arbitration or even litigation as a last resort.

Yet current professional rules and training patterns hinder the development of such new services. The public are not allowed direct access to barristers; multidisciplinary partnerships are prohibited by both sides of the legal profession; solicitors have extra hurdles to leap to obtain higher court rights of audience; and partnerships of any kind are prohibited by the Bar Council. Most importantly, barristers and solicitors are trained in the adversarial approach to dispute resolution. This is not always the right or most cost-effective solution to a problem.

It is time to introduce legal products differentiated by price and content. Once lawyers have completed their training they should be free to offer the legal services which best meet the needs of their customers. Furthermore, they should be allowed to offer their services in the way that other service providers do such as a multidisciplinary partnership.

The public should no longer be deprived of the benefits of full, free and open competition in the provision of legal services. Competition drives down price and widens consumer choice, which is precisely what the public requires.

No barrister or solicitor should be compelled to offer such new products. But, equally, any lawyer who wishes to develop legal services for the new century should not be prevented from doing so.

We need to remind ourselves that all parts of the community have the right to enjoy the advantages of our legal system. Part of that right is the right to have access to legal services.

Lawyers have a high social standing in the community but sometimes forget that they are service providers. Legal services should be tailored to meet the needs of the consumer. Those who deny that this fundamental marketing principle applies to the provision of legal services, risk widening even further the gulf which has developed between the public and the legal profession.