Merging of the Legal Professions.

Merging of the Legal Professions

The English legal profession is atypical of the majority of the rest of the world due the fact that is divided. Unlike countries such as the USA where they have just one lawyer known as an 'advocate´, in England we have two different types, each with different roles and responsibilities within the system. The principal distinguishing factor between them is that solicitors primarily do the paperwork whereas the role of barristers is mainly concerned with advocacy. The profession has been separated in such a way ever since the nineteenth century as a result of an agreement with the Bar. Solicitors were given the job of direct client contact and the writing of all legal documents in exchange for barristers to have the exclusive rights of audience in the higher courts and eligibility to become senior judges. In spite of this over recent years there has been a sequence of changes resulting in gradual progression towards the merger of the two legal professions.

The first step towards an attempt at equality for solicitors and barristers came in 1969 when the Law Society argued for rights of audience in the higher courts. However, their plea was essentially unsuccessful as the Beeching Report recommended that this should only be allowed if there were insufficient numbers of barristers, and even then this right could only been permitted by the Lord Chancellor in certain circumstances. As from 1972, due to a Practice Direction from the Lord Chancellor´s Department, if solicitors have appeared on behalf of a client in the magistrate´s court they are entitled to appear in appeals of committals for sentencing from the magistrate´s to the Crown Court. In 1979 a vote took place to decide whether or not there should be absolute coalescence, the idea was rejected unanimously. In addition, rights of audience for solicitors in the higher courts regarding triable either way offences was proposed. Again it was rejected by the Royal Commission by an eight to seven majority.

In 1985 the Lord Chancellor´s Department, via a Practice Direction, made it possible for solicitors to appear in the Supreme Court in certain circumstances; formal/unopposed proceedings and when judgments are given in open court. In 1986 it was proposed in the Law Society´s document Lawyers and the Courts: Time For Some Changes that all lawyers should complete two or three years work based training called 'general practice´ and only after this go on to specialize and choose whether or not to train as barristers. During this period they would all have rights of audience in the lower courts and tribunals, but after this initial training all lawyers would have rights of audience according to their competence. Therefore the Bar would become an organization of advocates with specialist skills instead of just barristers, however the Bar Council rejected the idea.

On top of this, also in 1986, in an attempt to save the Legal Aid fund £1m per year, the Legal Aid Scrutiny Report recommended that solicitors should be allowed to appear in the Crown Court for straightforward guilty pleas. This idea was later rejected in 1987 by the Government´s White Paper on Legal Aid. In 1987 the Law Society and the Bar Council set up the Marre Committee. One of its objectives was to look at the structure of the legal profession and investigate whether any changes were needed. It´s findings were predominantly concerned with maintaining the current state of affairs but it did propose that solicitor´s rights of audience should be extended to the Crown Court and that barristers should be able to take orders from other professions than just solicitors.

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The Courts and Legal Services Act 1990 (CSLA ´90) has been one of the most significant features of the history of the movement to merge the two legal professions. It brought about numerous changes; certain professional clients now have direct access to barristers, there is access to higher levels of judiciary for solicitors, formations of partnerships between lawyers and members of other professions are permitted and there are extended rights of audience to "suitably qualified persons". Traditionally lawyers were not allowed to form partnerships with members of other professions but the CSLA ´90 allows this to happen. However the Law Society and Bar Council are entitled to form their own regulations about this matter. The current situation is that neither of them has permitted partnerships and the Bar is particularly opposed to them. Additionally in 1992, Committee recommendations introduced that solicitor´s can now appear for either prosecution or defence in the higher courts by obtaining a Solicitor´s Advocate Qualification. This was a fundamental change as it meant that it is now possible for solicitors to gain rights of audience in the higher courts and thus lessening the gap between solicitors and barristers.

Up until 1996 clients could only indirectly access barristers through their solicitors, but in 1996 there was a slackening of this rule. The Bar Council made it so appropriately trained Citizens Advice Bureau´s, instead of solicitors, can prepare cases for barrister´s for members of the general public. Opportunities to gain rights of audience were further extended in 1997 to solicitors employed in industry and other organizations as opposed to just law firms. Nevertheless there were various limitations; they are not permitted to appear for prosecution in criminal court cases committed for trial in Crown Court, in civil cases in higher courts or for local authorities in care proceedings.

Although in 1996 rights of audience were further extended, few solicitors took advantage of this, as by December 1998 only six hundred had qualified for rights of audience in the higher courts. This number is startlingly small when the size of the profession is taken into account. It may be due to the fact that it costs £2300 for a three-stage qualification procedure and the pass rates are significantly low, for example in 1995 71% of the candidates in the civil evidence and procedure test failed. Another problem is that the qualification requires candidates to gain two years advocacy experience in the magistrate´s and county courts. This requirement may be very difficult for commercial solicitors to fulfill.

Traditionally barristers are from a narrow social background and a lot of social networking and nepotism takes place. Therefore even if solicitors do gain qualifications to give them rights of audience it is very difficult for them to be accepted by barristers and judges. This was demonstrated when a circuit judge was trying to find a barrister to take on the case on an unrepresented defendant at Sheffield Crown court. Upon being informed that there was a solicitor advocate available he remarked "We don´t need to stoop that low, do we?" There is a fear among solicitor advocates that they or their clients would be subject to bias and prejudice from judges if they were to use their rights of audience in the higher courts, this has led to many being reluctant to put their qualifications into practice.

In 1998 the Lord Chancellor promised plans to allow all barristers and solicitors to appear in any court. This announcement was due to his belief that rules regarding rights of audience were still too limiting and the CSLA ´90 had failed to dispense a satisfactory choice of legal service providers. His criticisms and recommendations were presented in his report to Parliament, "Modernising Justice". The Lord Chancellor´s plans were implemented by the Access To Justice Act 1999 (ATJ ´99). The main points being that solicitors will have automatic rights of audience but are required to undergo training in order to use them, the procedure for approving rights of audience is now simplified and with Parliamentary endorsement the Lord Chancellor has the power to change excessively restrictive rules. The reason for power being passed to the Lord Chancellor is to ensure that the legal professions are unable to prevent development and reform by clinging on to restrictive regulations.

With regards to the history of the movement to merge, the evidence suggests that the majority of the opposition is coming from the Bar Council. For example in 1979 when there were proposals to introduce Crown Court rights of audience in tri-able either way offences, and again in 1986 when the Law Society suggested the idea of specialist advocates making up the Bar. This high amount of opposition and resistance to change is down to the fact that if the professions were to merge it is potentially the barristers who would be worse off than they are currently.

The negative implications for barristers would firstly be that there is no distinction between barristers and solicitors and therefore they would both have equivalent amounts of advocacy and paperwork and would be of equal status. In the current system the ratio of lawyers to clients is 2:1 but if there was a merger they ratio would be 1:1 hence creating more competition for employment. This extra competition may also force lawyers to reduce their rates and as a result they would not make as much money. At the moment there a fewer solicitors who have gained rights of audience in higher courts than there are barristers, therefore barristers can charge however much they like as they have a monopoly on the profession. It is clear that barristers have vested interests as they would most certainly loose out if the professions were to fuse.

The amalgamation of the two legal professions would have major repercussions and there are coherent arguments both for and against it. The most significant advantage for the general public is that it would be considerably cheaper; instead of having to pay for both a solicitor and a barrister, clients would only have to pay fees for one lawyer. Michael Zander demonstrates this concept well, "To have one taxi metre running is less expensive than to have two or three." Expenses for the Legal Aid fund would be dramatically reduced by £1m per year, as suggested by the Legal Aid Scrutiny Report. Solicitors would benefit as they would earn more then they do currently but barrister´s earnings would most definitely fall, which would obviously be a disadvantage for them.

In the present system the client cannot directly contact or choose their barrister, it is done on their behalf by their solicitor. This means that the client rarely has any knowledge about the abilities and skill of their barrister. An advantage of fusion would be that clients are able to choose barristers themselves and do not have to make do with the one they would otherwise acquire through their solicitor. Another current problem, highlighted by research by Bottoms and McLean, is the fact that in 96% of cases with guilty pleas and 79% of cases with not guilty pleas the clients don´t even see their barrister until the morning of the trial. As a result this could mean that principal points may be overlooked or misunderstood. Merging the legal professions would combat these problems of inefficiency within the system.

Another branch of the argument for fusion is that at the moment talent is easily wasted. This is due to the fact that future lawyers must specialize very early on; either following the path to become a solicitor or a barrister. Therefore, if further into their training or career a lawyer discovers they have an aptitude for advocacy, for example, they do not have the opportunity to maximize the use of this talent. It would be an advantage to merge in order to be inline with legal professions in other common law countries that have expert advocates; England is the only one with a divided profession.

Although there is a lucid argument to suggest that fusion would be an advantage there is also a rational one to propose that it wouldn´t. Critics of the movement claim that it is more effective to have two separate professions focusing on their different jobs than having one that does both. It is argued by the Bar that the cab rank rule and the fact that barristers are independent ensures that all defendants are represented regardless of wealth or power of their challenger. However, this argument has been to some extent been weakened by the introduction of the Solicitors Advocacy Certificate by the CLSA ´90 and it is fairly easy for successful barristers to avoid the cab rank principal.

In England we have an Adversarial system; Judges do not have an investigative role and must make decisions based on lawyer´s accurate presentation of the case, therefore good advocacy is important. It was suggested in 1979 by the Royal Commission that if the two professions merged it would jeopardize the quality of advocacy. Arguing cases before a jury is very different to presenting before a magistrate and necessitates different skills and expertise. The Commission also claimed that even if rights of audience for solicitors were to be extended to the higher courts it was doubtful that they would gain adequate practice to improve these skills.

Fusion would make appointments into the Judiciary more difficult, although there will be more candidates to choose from they will be less eminent and therefore not as well known to the Lord Chancellor and his advisors. It is likely that there would be a shift of leading independent barristers to large commercial solicitor´s firms, thus creating an even more unequal dispersion of solicitors around the country and an inaccessibility of the specialist skills of barristers. Small firms may suffer as a result and find it difficult to attract a large enough clientele to warrant a partnership with a barrister or acquire a barrister of equal status and reputation to that of the opponents.

Over recent years there has been much deliberation about the future of the legal professions and the inevitability and effects of them merging. The CLSA ´90 was probably the first in what was regarded to be a move by the government towards fusion. It was contended that if large numbers of solicitors took qualifications to use extended rights of audience the Bar would be under great threat and fusion could easily happen anyway, regardless of any government involvement. If this happened eventually the Bar would vanish, as the solicitors would become more dominant figures.

On the other hand the Bar may continue but in an attenuated form. Generally barristers can be classified into two categories; those that deal with a variety of legal issues and those who specialize in commercial fields. The Bar has always traditionally claimed that they provide high levels of legal analysis, skill and expertise. However, due to the fact that solicitors in large firms are also becoming increasingly specialized and now have extended rights of audience, they could pose a threat to the claims and security of the Bar.

Some argue that it is barristers with common law practice, i.e. that deal with a range of common law issues such as crime, housing and family law, that are the one that are the most likely to survive the competition from solicitors. This is because the majority of local solicitors spend so much time on paperwork and direct contact with clients they don´t have the time to study the particulars of all the aspects of law. Therefore when they need specialist legal knowledge they then refer to a barrister with the relevant experience in that field.

All of these theories have not yet proved correct as only a minority of solicitors have qualified for rights of audience and the Bar has actually increased in size over the last ten years from 5500 to 8500. Additionally, it is unlikely that extended rights of audience would alter the long established practice of solicitors referring to barristers in times when they need specialist legal advice. The evidence shows that it is difficult for solicitors to develop their advocacy skills, so it is doubtful that the Bar would be in serious danger in the imminent future.
From the evidence it is clear that there are logical and reasoned arguments both for and against the merging of the legal professions. Although the number of advantages is outweighed, it is submitted that the majority of the disadvantages are questionable and in actual fact not that fundamental. For example, the argument that solicitors would not gain adequate practice in order to improve their expertise at presenting cases in the higher courts is just a short term issue and would be overcome as the new system progresses. If there were to be only one profession there would be no difference between barristers and solicitors and so they would all have equal training and opportunity to develop the necessary skills. Therefore, in the long run differing expertise between barristers and solicitors would not be a problem.

We can conclude from the evidence that although there will be a few minor problems during the changeover period, in the long run merging the two professions would be very beneficial to the majority of people and the advantages of it would prevail over the major disadvantages.