Practice and Procedure

Two should become one

PUBLISHED February 7, 2012

Fusing solicitors and counsel into a single profession will lead to a more promising future for all, argues Julian Young

There seems to be an interesting debate starting on the subject of fusion between the two main legal professions: solicitors and counsel. The Bar and the solicitor advocates are now almost at each others? throats. At long last, and to its credit, the Law Society has decided to set up an organisation, within the Law Society, to support solicitor advocates ? much as the Inns of Court do for counsel. This will ensure the best practices are confirmed and give guidance, support and assistance to solicitor advocates. It is a role that the Bar Council could have undertaken more than ten years ago but they decided it was a step too far.

The Bar Council was invited to assist but was openly critical of solicitor advocates and withdrew from any suggestion of cooperation. Now barristers face real and ever-increasing competition from solicitor advocates. And solicitor advocates will increase in numbers, experience and confidence. So, is this duplication of time, effort and money in training really necessary?

I noted a recent insult from the Bar Standards Board (BSB) towards solicitors, something the Bar Council and the BSB itself never retracted. The Bar seems to see solicitors as being little more than ?superfluous intermediaries?. I suppose that this is the Bar?s attempt to foist direct access to a barrister onto an unsuspecting public.

Direct access for the Bar has far-reaching consequences, for the Bar itself and the public. And it cannot be delivered overnight in any meaningful way that will ensure public confidence. It means that barristers will have to deal with client accounts, contact with witnesses, clients and experts; organising letters and general office admin. This will take time to learn and master; it can also be highly labour intensive and add to the costs of running a practice. It means proper and expensive PII to protect the public. Does the Bar seriously want all of that?

If the Bar really wants direct access, surely they can, or should, become solicitors, pass various examinations about the need for proper accounts, office administration, dealing with the Legal Services Commission, compensation funds, late-night attendance at police stations and so on ? again all for service to and protection of the public. These are issues with which solicitors have dealt for many years and about which solicitors are experienced.

If solicitor advocates and barristers undertake the same work, why not amalgamate the professions in due course? This would save money and improve standards for both types of advocates, if there is indeed a real (rather than perceived) problem with the standards and skills of solicitor advocates. Fusion is not a panacea to the problems but it seems that the future lies in a joint profession. The alternative is an ABS consisting of solicitors and counsel working in partnership, but the day of the ABS has only just arrived and we don?t yet know whether this is viable as a business structure.

Fusion also gives better and fairer chances for young trainee barristers, solicitors and solicitor advocates. Finding a training contract for a solicitor is not easy. Barrister pupillage followed by no tenancy is unfair for young barristers; in fact to find a pupillage is a dream for many ? indeed the majority. So, perhaps it is time to scrap the archaic and obligatory practice of dining in Inns, and spend the time teaching barristers basic legal and office administration to better equip them for life in the modern legal world.

I have bright young pre-pupillage barristers working with (I emphasise that word) me, dealing with criminal, prison law and appeal work, but their basic knowledge of the work practices of an office and of solicitors is woeful. I blame the BSB and the Bar Council for the content of the training courses which seem to perpetuate the myth that proper administration is beneath the dignity of a barrister. Most barristers without pupillage end up working for solicitors in any event; the BSB and Bar Council know this. A pre-pupillage barrister who knows something about administration will fare better when applying to work in the office of a solicitor.

It also seems no time is spent on the Bar training courses discussing, let alone teaching, the subtleties of completing legal aid forms. In criminal work that is vital and in any other area of work where legal aid is available. Perfect advocacy and not completing legal aid forms rightly results in an unhappy solicitor and no money for the barrister.

I feel for those law graduates and others who have been sold the dream of qualification and practice at the Bar (and, to a lesser extent, as a solicitor) and have run up huge debts. It is the responsibility of the Bar Council and Law Society to address this colossal waste of money and energy. They know the realities of the legal world and they are failing to warn, at the earliest stage, of what is happening. Is this merely a pursuit of money by the law schools?

Moving on, nowadays, few qualified lawyers will go into legal aid work; it will be years before the effects of this are fully felt. The public will suffer if the two professions do not get around the table, bury hatchets, stop insulting solicitor advocates and prepare the next generation of the profession(s) for the rigours of the 21st century.

Of course, ending separate professions might see the end of many problems.

Julian Young is senior partner at Julian Young & Co

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