The Bar has set up a working party to investigate unfair competition from solicitor advocates. (Hat tip to CharonQC for this) The Law Society Gazette has a full report.
The tone of the article is unfortunate in that the Bar thinks it is being treated unfairly because solicitors have the advantage of direct access to clients and can pay referral fees. This has been exacerbated by the crazy ramblings of Judge Gledhill about the inadequacies of solicitor advocates. What follows is a comment I made on CharonQC's blog.
I am surprised at this non-controversy. I and some colleagues did some research for the then ACLEC (an advisory committee for the Lord Chancellor) in the late 1990s (also shorter Law & Society Review article). They couldn’t understand why the take up of solicitor advocacy was so low.
We examined 4 areas of practice: criminal defence, PI, immigration, and corporate. Each field had its own culture and ways of working. Criminal defence and PI for a variety of reasons–convenience, cost, tradition–found using the solicitor and barrister combination workable and there was little impetus to change it. Corporate was changing even though the Bar was still an integral part of litigation. Solicitors were more actively managing litigation and controlling what barristers did. Some firms, eg, Herbert Smith, decided to go down the advocacy route and hired two QCs to run a one-stop shop. Immigration was like the wild west of law practice and anything went back then. It was full of cowboys. It’s been cleared up since, I believe.
But perhaps the biggest impediment to take up we found was simply age. Those who were mid-career had too much at stake to gamble on new modes of practice. While those at the latter stages of their careers had no reason. The younger lawyers saw it as a positive career step and sought that kind of work. But they had to convince those above them that it was worth doing.
Finally, there is a London effect. London has more barristers who can do the running around the courts much more cheaply than solicitors and so the incentives for solicitors to do this kind of work are less. Outside London it is a different story and this is now where the ruckus is erupting.
I am constantly amazed at the legal profession’s conservatism. Even after the Legal Services Act 2007, lawyers are behaving (and I included judges) as if nothing has changed or will ever do so. They can’t go on thinking that restrictive practices–and the Bar’s virtual monopoly on higher courts audience rights is one–will justify themselves over a cigar and the port with a few stories about some awful solicitor johnnies who get uppity.
Market forces are about to hit the legal profession, solicitors and barristers, with a proverbial vengeance. The movie, Perfect Storm, comes to mind. And no one survived in that.
Whether someone is good or not in court is simply resolved by observing them and evaluating them dispassionately. Some years ago a researcher from Bradford Business School observed barristers in court. They were ranked on competency scales. Approximately a half came out as “poor”. Those who will be investing in legal services and legal practice in the future will expect better. Poor service will be punished. At the moment it, because of present arrangements, largely escapes censure.
I’m sure there are good and bad solicitor advocates just as there are among barristers. Accountability and transparency–perhaps we should televise court proceedings (it would shut mouthy judges up) so the punters who pay for lawyers can see what they get–will win the day. And the consumer orientation of the new regulatory apparatus won’t be promoting lawyers’ interests over those of clients.
The Bar is creating a storm in a teacup.