The number of solicitors in England and Wales has increased significantly over the last quarter of a century, with over 97,000 practising as at 2004, and the estimated increase in this figure is approximately 4% per year (Partington, 2006, p240).
Partington states that the increase in the required numbers can be attributed to a number of factors, such as economic growth, globalisation, and numerous social changes focussing on citizens rights. In today’s society, the need for legal services will only increase, as public knowledge of services grows due to advertising and media such as the Internet
- Barristers
The Oxford dictionary of Law (2006) defines barristers as ‘A legal practitioner admitted to plead at the bar’ and states their primary function is to ‘act as advocates for parties in courts or tribunals’. This definition is endorsed by Huxley-Binns and Martin (2005, p298) who state that barristers ‘provide specialised legal advice…. and conduct advocacy in the courts’. This clearly shows the two main roles that barristers perform.
Barristers have traditionally been seen as the next step up on the legal ladder from a solicitor. This does lead to a belief that barristers feel superior to their ‘lower’ legal colleagues, and barristers are often criticised for their pompousness and arrogance. Does the separation of the profession contribute to this? As such, yes, but it is more down to the historical operation of the two legal professions – and some barristers are finding it difficult to accept solicitors with higher rights of court.
Barristers can be employed or self-employed. Employed barristers work for either the Crown Prosecution Service (CPS) or directly in solicitors firms. Self employed barristers practice at the Bar and usually work at a set of chambers. The chambers allow administrative duties and expenses to be shared with other barristers.
Such chambers are relatively small, with between 15-20 barristers sharing the premises (Martin, 2005, p204). Whilst tenancy at chambers is not mandatory, it is deemed the best way for a barrister to build up a successful practice.
One key difference for a barrister is that they operate under what is known as the cab-rank rule, which in theory means they cannot turn down any case so long as it is in an area they deal with and they are free to take the case.
This is covered under section 6 (601 and 602) of the barrister’s code of ethics. This rule puts pressure on a barrister, as they have no choice on whether to take a case. For example, there could be moral grounds that they do not wish to take a case? Is this fair? To a certain extent, no. However, all barristers are aware of this rule when they enter the profession, and the benefit of this rule is it ensures access to justice.
There are exceptions to the rule, such as family law cases (section 604.b) where a barrister can reject a case. Also, if a barrister is contacted directly by a client, the cab-rank rule does not apply.
Until recently, employed barristers were unable to conduct cases in the Crown, High or appellate courts. Given the fact that employed barristers underwent the same training as self-employed barristers, this was seen to be an unnecessary restriction.
This was rectified by the Access to Justice Act 1999, which allowed employed barristers to keep their rights of audience (Martin, 2005, p205). This was seen as a step in the right direction in modernising the work of barristers, and showed that the profession could change. You could use a similar argument for the fusion of the professions, after all they both perform similar functions – is there a need to have specialised lawyers? This will be covered in more detail in the following section.
- Fusion of the Professions
It has been noted that having a divided legal profession is problematic, and the case for fusion has been argued for a considerable period of time (Huxley-Binns and Martin, 2005, p314). Duplication of work and spiraling law costs are just two of the main reasons behind such calls. There are both positive and negative arguments towards calls for fusion.
The operation of the legal profession suffers much criticism, and the majority of this centres around the cost of the provision of services. Is it fair for a client to have to pay two sets of legal fees – one to a solicitor one to a barrister? Should fusion occur, it would almost certainly lead to a reduction in duplication of work and fees. This would result in court representation being carried out by one person, as opposed to the current practice, where both a solicitor and a barrister are usually required.
Currently, solicitors send all paperwork from a case to a barrister, which can be seen as unnecessary, and would be eradicated if there was only one profession, as one person could manage a case from start to finish. It would be far more efficient and would give the added benefit of saving time and effort on the client’s, solicitor’s and court’s behalf.
One of the failings of the current legal system is public access to the people actually representing them in higher court. Research shows that as many as 96% of defendants pleading guilty did not see their barrister until the day of the trial. Of defendants pleading not guilty, this reduces to and 79%, which is still an extremely high figure (Bottoms and McLean 1976, p158). Is this fair on the client?
Many argue not – it would be better for a barrister to engage with a client earlier in the process, after all, a barrister’s main function is to act on behalf of a client, even though their solicitor appointed them. This puts further credence to the argument of having in-house barristers.
You could also be presented with a situation that means a new barrister is appointed the day before a case goes to court. When a barrister is initially instructed, they will start reading the case but may not have availability once the court date is known, leading to a late change in counsel.
A way to resolve this would be to look at changes in the way cases are given court dates. Instead of having the traditional ‘window’ for dates, perhaps it would be better to provide a specific date and adhere to that date. The modernisation of this system is imperative and would benefit both the legal profession and the clients. By changing the allocation of court dates, then the issue of having to switch barristers/QC’s at last minute should hopefully disappear.
Fusing the profession would provide a greater level of continuity, as in most cases the client would deal with the same contact throughout the case, as opposed to being represented by a barrister with little prior knowledge of the client or case. On the other hand, it could be argued that just modernising the working practices of the two professions could resolve this.
Following The Courts and Legal Services Act 1990 the roles of solicitors and barristers grew closer, the act allowing solicitors to be advocates in the higher courts and to become High Court Judges. The Access to Justice Act 1999 gave all barristers and solicitors full rights of audience upon qualification, whilst also allowing barristers to conduct litigation.
Statistics provided by the Solicitors Regulation Authority in January 2007, show that a total of 3663 solicitors had been granted higher rights of audience, which is an increase of 212% since the introduction of the regulation in July 2000, but still a relatively low figure considering the number of solicitors in England and Wales. Comparatively, as at December 2006, there were 14890 barristers of which 12034 are self-employed and 2856 are employed (The Bar Council, 2007).
In an article by Hanley (2007), she cites an example of a 23-year-old newly qualified barrister is given automatic advocacy rights, yet solicitors with 40 years practical experience still have to prove themselves in the courtroom. This shows that the professions are not on a level playing field – and leads to the argument towards modernising the system.
However, barristers are not welcoming solicitors into advocacy, and some feel that allowing solicitors such rights dilutes the UK legal system. Unfortunately, there is an ‘us and them’ attitude in operation. This goes back to the fact that many barristers feel superior and want to keep it that way.
Many barristers do not wish to merge, and feel that they would lose out, whereas solicitors would gain. An example of this could be that lawyer may lose money as they are forced to reduce prices as a result of stronger competition. As mentioned earlier, there are currently fewer solicitors with higher rights of audience than barristers, which allow barristers to determine their own fees. Some feel that a merger of the professions would result in a loss of income and solicitors would obtain better pay. This is not a valid basis against merging the professions though is it?
As time moves on, those coming into the legal profession may take advantage of the opportunities to practice law from both angles granted to them by the higher powers and it may gradually become acceptable resulting in the fusion of the legal professions in a natural way.
Whilst the two professions are still seen as distinct, and a line can be drawn between the two, in reality, there is lesser distinction today than there was 20 years ago. Both professions are now performing a number of services that used to be the realm of one experienced side of the profession.
The remaining distinctions between the two professions are gradually decreasing. As mentioned earlier in the essay, (most) solicitors deal directly with the public, but barristers do not, they receive their instruction from solicitors. However, in 1999, a Bar Direct scheme was launched, which provided key clients with direct access to barristers. This led to other professions such as accountants being able to instruct a barrister when required.
Then again, breaking up the close working relationships between a comparatively small number of specialists at the Bar, could result in endangering standards of professional conduct because of the lack of effective supervision. It also may lower the standards of advocacy because of the general lawyer’s lack of courtroom experience, though as mentioned before, handling a case all the way through might ensure better results.
Having barristers ensures that small firms and clients have access to a wide range of knowledge and if the profession is fused the best lawyers will be driven to the largest, most expensive firms thereby depriving clients of the expertise needed to ensure cases are dealt with justly. Barrister’s independence provides a level of independence and integrity.
Fusing the profession will make it difficult for lawyers to specialise in narrow areas of work in which a single firm would not be able to attract enough business to support it. This hinders the legal profession further if a lawyer has the potential to be the best in his field at something but cannot progress due to this.
It can still be argued that it is necessary to perhaps keep the two professions distinct - although conceivably an overall reform and modernisation of the professions may be required. Greater access to the bar could be provided for solicitors, whilst keeping open a path to more specialised cases for barristers. Perhaps cases such as murder, manslaughter, the class one offences, could be left for experienced lawyers?
In 2004, a review was undertaken by Sir David Clementi on the regulatory framework in England and Wales, in which he deemed it to be ‘outdated, inflexible, over-complex, and insufficiently accountable or transparent’. Perhaps there is scope to learn from other European countries, after all, many of these already have a fused professions. Plattern (2004) points to France, where the distinction disappeared in 1992, and led to the creation of a single profession, whilst Germany has always had an undivided legal profession. This shows that it is possible for the professions to work together.
Nevertheless, it would be very difficult to change the philosophy of the 'current generation' of barristers. This is a view shared by Sayer (1999) who believes the long-term goal should be a legal system free from restrictive practise and old boys – and girls. Its time to modernise the bar’s traditions.
Perhaps in years to come, the thought process of the newer legal academics can be altered to a more modern way of delivering the legal services? Updating the training methods of lawyers could bring about such change, and on the job development would be a beneficial way of improving advocacy skills.
- Conclusion
During my research into the two professions, it has been apparent that they have closer links than I originally anticipated. You can see the clear distinction, with solicitors effectively performing and providing the first level of legal services to clients, and barristers taking the service to the next level, through the higher courts.
On further reading, it is evident that the role of a barrister, only really differs with access to the courts. As such, the solicitor has a greater understanding of the needs of the clients. This distinction itself is decreasing with the higher rights of advocacy being granted to solicitors, and the two professions are slowly evolving into one.
To change to a single profession would mean changing the tradition behind the legal professions, which have worked the same way a considerable amount of time. The legal system is changing every day to accommodate for the changes in society and it seems logical that the professions that support it should change at the same pace. Unfortunately this is not the case and to change suddenly would severely disrupt the legal system, and could lead to serious issues with legal cases.
Overall I concur with Malleson’s view that the changes are having a significant effect on the professions and perhaps more so that a formal merger could achieve. At present, the best way forward for the legal profession is for a restructure and modernisation to take place. The argument should not be about the fusion of the professions - but what can be done to make the professions work better together?
More research needs to be put into this area, and more ‘in-house’ operations would be beneficial, with barristers working for solicitors firms directly. If this happened, then surely a law firm could, in theory, provide a better service to its clients, as the barrister would/should be more knowledgeable of their case, which should also result in lesser duplication of work, as solicitors and barristers would work closer together. The only potential issue here is the creation of monopolistic law firms.
One prevalent point made in Sayer’s article (1999), was that if fusion did occur, then it would require not only the merging of the professions, but a merger of all elements surrounding this – so there would need to be a merger of code of conducts and regulators. Its safe to assume that fusion may be easier said than done.
Word count – 3172 (excluding contents and bibliography)
- References and Bibliography
Bottoms, A., E. and McClean, J., D. (1976) Defendants in the criminal process, Routledge: quoted in Roshier, B. and Teff, H. (1980) Law and Society in England, Tavistock Publications p118
Collins Gem English dictionary (2004), 12th ed., Harper Collins Publishers
Huxley-Binns, R. and Martin, J. (2005) Unlocking The English Legal System, Holder Arnold
Malleson, K. (2007) The Legal System, 3rd ed., Oxford University Press
Martin, J. (2005) The English Legal System, 4th ed., Holder Arnold
Partington, M. (2006) Introduction to The English Legal System, 3rd ed., Oxford University Press
Slapper, G. and Kelly, D. (2000) English Law, Cavendish Publishing
Oxford Dictionary of Law. (2006). 6th ed., Oxford, Oxford University Press
Journals / Reports
Clementi, D., Sir. (2004) Review of the Regulatory Framework for Legal Services in England and Wales: quoted in Plattern, H. (2004) LDPs: fusions of confusion, The New Law Journal, Volume 154 Issue 7131, 4th June 2004
Hanley, K. (2007) Higher Rights: Access all areas, Law Society Gazette, Issue 4, 25th January 2007
Plattern, H. (2004) LDPs: fusions of confusion, The New Law Journal, Volume 154 Issue 7131, 4th June 2004
Sayer, R. (1999) A United Vision: Comment fusion of the legal profession, Law Society Gazette, Issue 44, 17th November 1999
Acts of Parliament
Great Britain (1999). Access to Justice Act 1999, Chapter 22, London: quoted in Martin, J. (2005) The English Legal System, 4th ed., Holder Arnold, p205
Web References
Solicitors Regulation Authority (2007) Higher Rights of Audience Study: Appendix 3
- last accessed 12/12/2007
Barristers (Table 1 - self-employed, table 2 employed) - last accessed 12/12/2007
Coates Solicitors company information
Irwin Mitchell company information
- last accessed 03/01/2008
