Bar behind the times?

On 2 July 2009, the Law Society Gazette reported with a slightly triumphant note that solicitors had gained the 'upper hand' over barristers as 61 solicitors firms had established legal disciplinary practices (LDPs). In contrast members of the Bar were unable to take advantage of the new arrangements as their regulator, the Bar Standards Board, had yet to finalise rules on allowing barristers to enter into partnerships. With multi-disciplinary practices - in which lawyers do not have to be in the majority - due to go live in 2011 it would seem the Bar might be left behind in the new world of legal services ushered in by the Legal Services Act 2007.

At the heart of the Bar's dilemma is its tradition of self-employment which it argues preserves independence and helps prevent conflicts of interest. Some believe that moving to allow barristers to join the new legal entities with solicitors and others would undermine this. But large numbers of barristers work as in-house lawyers and the tradition of self-employment was established in times when there were far fewer lawyers and therefore greater dangers of conflicts of interest. The legal services world is now also a multinational one, with most other jurisdictions not following the model of self-employed advocates.

Pressure for changes to the Bar’s code of conduct have been external, but are increasingly coming from within the Bar itself. Some members of the Bar might argue that not allowing them to join the new legal entities is restraint of trade and could take legal action against their own professional body. Economic necessity might force them to do so. Outside the higher echelons of the Bar, newly qualified and junior members are facing harsh economic times. The twin pressures of market forces and legal aid reform could be very damaging to the Bar.

Increasingly the Bar will be competing with solicitor-advocates and other in-house advocates. The Bar, especially at junior levels, is much more dependent on income from legal aid than solicitors. While it might be able to delay changes to legal aid such as the differences in pay rates for family work, the trend will continue to be that more advocacy work is undertaken in-house and, aside from very specialised work, is subject to greater competition on price both in the public and private sectors.

LAG believes that there is a need in our legal system for a specialist advocacy branch of the legal profession, but fears that without reform the Bar is in danger of diminishing to a rump of highly specialised niche practitioners. If this is to be prevented the rules need to be reformed to accommodate employed barristers or those who wish to join partnerships and other commercial vehicles.

In the longer term a fused profession of lawyers needs to be established with flexible entry and routes to qualification. This would increase diversity and the pool of talent from which to select the future of the profession. The role for the Bar would continue to be to train a unified specialist advocacy branch of the profession, rather like surgeons in the medical profession. For this to happen though there needs to be unity among the branches of the legal profession about this vision for the future; talk of gaining the 'upper hand' over another branch of the profession will not help.