Barristers and Solicitors

Some solicitors work full-time for a single client in the public or private sector. The Crown Prosecution Service employs many solicitors (and some barristers) preparing cases for trial, and the Government Legal Service and local authorities employ lawyers of both kinds in a variety of roles. Many large companies have a lawyer (usually a solicitor) heading their legal department, and major newspapers normally have an in-house lawyer to check stories for defamation before they are printed.

Barristers are generally specialists either in a broad area such as crime, commercial law or public law, or in a narrow field such as defamation, taxation, admiralty law or ecclesiatical law. Within this area they operate mainly as advisors and advocates. They provide specialised expert advice ("counsel's opinion") to solicitors, but not normally to lay clients, and commonly draft the written claims and defences ("pleadings") in civil cases going to trial. They also provide representation in court, especially in the higher courts.

Barristers in private practice are self-employed and work as individuals, though they usually work from "chambers" where a number of barristers share clerking services and office and library facilities. But some barristers, like some solicitors, are employed full-time by a single client, and their work is generally more advice than advocacy.

(b) How far is it true to say that the distinctions between the two kinds of lawyer are becoming blurred?

In the past fifteen years, a number of changes in law and practice have broken down the barriers between barristers and solicitors (and those between solicitors and other law workers), so that the former rigid distinctions have been blurred. There are very few legal jobs that are now the monopoly of one or other branch of the profession, though individual lawyers have unsurprisingly been slow to change the working habits of a lifetime.

The most obvious example of this is in relation to rights of audience - the right to represent a client in court. Solicitors have always had a right of audience in the lower courts, but since 1990 they have been able to apply for rights of audience in higher courts such as the Crown Court and the High Court. They can thus obtain the rights barristers have always enjoyed, though so far only about 1000 solicitors (out of 80 000 or so) have taken advantage of the opportunity. As an extension of this, solicitors are now eligible for appointment as Queen's Counsel and as High Court judges, though only very few have actually been appointed.

In exchange, barristers have been given the right to initiate and conduct litigation on behalf of a lay client, and (like other "suitable" people) can carry out conveyancing and seek probate of a will. The Bar Council changed its rules a few years ago to allow barristers to take instructions directly from certain lay clients such as accountants, and from lay advisers working in Law Centres and other advice agencies, and has recently announced that barristers who so choose will in future be able to provide advice (but not representation) directly to ordinary members of the public.

The increasing specialisation among solicitors has led to further blurring of the distinctions. At one time it was more or less true to say that solicitors (who worked mainly in small firms with perhaps half a dozen partners) would deal at an elementary level with almost any area of law, but this is no longer the case. As we have already noted, many individual solicitors and some complete firms now specialise as narrowly as many barristers, and this trend seems likely to continue.

It used to be the case that a barrister could not sue for his fee (which was regarded as an honorarium rather than a contractual payment) but was immune from suit in respect of his presentation of a case in court. The former restriction was removed by the Courts and Legal Services Act 1990, and the latter immunity (which had subsequently been extended to solicitor-advocates) by the Lords' decision in Hall v Simons. Barristers and solicitors are thus on the same level as each other and as other professional people.

Again, it used formerly to be the case that solicitors were spread fairly evenly across the country while barristers worked mainly in London. That distinction too is blurring to some extent: although barristers are more numerous in London than elsewhere, they can be found in all provincial Crown Court centres. On the other hand, the growth of the very large City firms has led to an increasing concentration of solicitors in the capital.

The differences that remain on paper are almost trivial. Barristers (but not solicitors) are theoretically bound by the "cab-rank rule", though in practice any barrister who wanted to refuse a case could almost certainly do so. Barristers wear wigs in court, while solicitors do not. And barristers are paid an agreed fee for the case, rather than an hourly rate like solicitors. All these things could very easily change.

Which leaves only the question why barristers and solicitors are still regarded as members of two separate professions with different qualification and training requirements. The distinctions are now so blurred that it is surely time to establish a single profession with a single membership qualification, whose members might still specialise to a greater or lesser extent as they chose.