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Separate professions
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The
professions of barrister and solicitor are separate and the work is different.
It is wrong to think of solicitors as some sort of junior barrister, or
barristers as trainee solicitors.
It is not possible to belong to both branches of the legal profession, but it is
possible for a barrister to retrain and become a solicitor, and many often do;
similarly solicitors can move in the opposite direction. By
convention solicitors can join Inns of Court, but few do.
The rank of Queen's Counsel is awarded to solicitors on the same basis as barristers,
this is recent example of a fusion of the two branches of the profession.
Fusion, in this context means a union resulting from combining or merging
elements or parts.
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The Royal Commission on Legal Services in 1979 (the Benson Commission)
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Unanimously recommended against fusion.
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The Marre Committee (set up by the Bar Council and Law Society) in 1988, (set up by the Bar Council and Law Society) in 1988
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Recommended extending the rights of audience for solicitors and direct access to barristers for other professionals e.g. accountants.
These changes have been implemented.
No change recommended separating branches.
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Current Law Society position
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Legal profession should be similar the medical profession.
Common training for all to practise as general lawyers.
After a period, those who wished to specialise could become consultants.
Pressure for change is less now than a few years ago, because the granting to solicitors of limited rights of audience has allayed their strongest grievance.
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Alleged advantages of fusion…
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Young lawyers would not have to decide which part of the profession to join
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At present, after university young lawyers to be have to decide whether to be a solicitor or barrister, without experiencing any practical law.
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Eliminate wasted effort and duplication of work
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It is often said that a client explains the case to a solicitor, who then instructs a barrister, the argument is that if there were only one lawyer there would only be one fee.
It is has been said that a barrister in charge of the case would be able to deal with the instructions and evidence better than one who received instructions second hand.
This argument is fallacious because barristers do not receive instructions second
hand. They have a client at court from whom they take instructions.
Inmost cases an experienced solicitor will only provide a brief set of
instructions because the evidence itself is self explanatory.
Solicitors will often use their brief to provide their overview of the
case but express a desire to have Counsel's overview.
There is rarely duplication of work when the instructions are themselves a short and
concise summary.
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Barristers overview
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The pre-trial process is often referred to as "conducting litigation" and is undertaken by the solicitor, not the barrister. If barristers had to deal with conducting the litigation they would be unlikely to be able to see the case
objectively.
Solicitors who have transferred to the Bar, report that as a solicitor, they formed a
partisan view of the client's case and one which was far too
optimistic. As a barrister they are more able to see the
evidence objectively because they are not involved in the litigation
on a daily basis and the client on a daily basis.
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Returned briefs
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Barristers often find themselves double booked and have to return the brief at the last moment for another barrister to read and deal with.
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National Audit Office survey 1997
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Found three-quarters of all prosecution briefs accepted by barristers were returned shortly before the trial.
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Costs would be lower
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Lowering costs is often put forward as a reason for fusion, but it is argued that in practice two lawyers are needed.
Sometimes solicitors (or the solicitor's clerk) sits behind the barrister in court throughout the trial, although, it is becoming more rare these days.
The solicitor plays an active role in representation process. It is not possible whilst the barrister is on his / her feet cross
examining to take notes of evidence. Notes of evidence are essential
for closing submissions upon which they will be largely based and for
appeal purposes.
Additionally, there have been cases where firms of instructing solicitors have been criticised for not providing someone to sit behind the barrister when it became necessary to
a) support the client who was vulnerable and,
b) go out and check available dates of witnesses to enable the court to timetable.
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Specialisation
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Nowadays solicitors specialise and take on preferred work, the most obvious example is solicitors specialising in criminal work on contract to the Criminal Defence Service.
Instructing counsel forms no part in preventing them from specialising.
In reality it is the solicitor's huge case load, driven by the partnerships' wish to drive down overheads that limits their time. If the profession were fused this would then apply to all.
Solicitors with a talent for advocacy can now practise it in any court
as solicitor-advocates (there are about 3,700 nation-wide).
Solicitors are already being appointed as Recorders and Circuit judges, a few have been appointed as High Court Judges, and although most judges come from the bar it is argued that to remove the distinction between barrister and solicitor would provide a larger pool of candidates.
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Alleged disadvantages of fusion…
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Independence of the bar
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One of the Bar's most important features
is its independence. There are no links between
barristers and anyone else (they are self employed), their independence
ensures they are not subject to persuasion in the way they view and
conduct the case.
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Workings of the Bar
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Although the bar is comparatively small there is not necessarily a 'close working relationships' any more than there are between solicitors.
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Reluctance to use specialists.
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Most lawyers to become general practitioners, and try to deal with cases himself rather than use an expert.
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Standards of advocacy would fall
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The standards of advocacy would be put at risk, because of the lack of experience in particular types of case.
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Professional ethics would be at risk
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The relationship between barristers and judges (whom barristers often wish to become) is of the highest integrity. There is also close supervision by colleagues and judges.
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Loss of expertise
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Small firms would not have access to the full range of knowledge and experience available at the Bar.
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Best lawyers would join big firms
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The best lawyers would gravitate towards the larger firms, and would not be available to all clients.
Lawyers who wanted to specialise in narrow areas of work would be unable to do so within a single firm.
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Second opinions:
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The second opinion of a barrister on a case can bring objectivity to it, and is extremely useful to solicitors confronting a client who thinks he has a good case.
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Loss of 'cab-rank' rule
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Fundamental rule that ensures client will always receive proper representation, no matter how distasteful the case or the client.
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Comparison of the costs of barristers and solicitors
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Two studies, 'The Panel: A Study of Private Practice' by Sidaway and Cole and Law Society surveys 25 November 1999
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In civil work, it is generally more economical to employ the services of a barrister, particularly a junior, for work within his or her area of expertise than to use a solicitor.
Charge out rates makes it from 25% to
50% cheaper to employ the services of a junior barrister than to employ an
assistant solicitor in London.
In the regions, the differential is between 3% and 36%.
At the more senior/experienced level barristers are up to 15% less expensive, but comparable to partners in the regions.
A major factor is that barristers' overheads are approximately half those of solicitors.
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An important implication of the findings of this survey is that for a solicitors' firm to tie a client in to that firm’s services throughout the progress of a case is likely to be more expensive for that client, as well as denying choice. The specialist advice and advocacy offered by the Bar remains less expensive.
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Charge Out Rates per Hour Solicitors
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PARTNER
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£171
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ASST SOLICITOR
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£128
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Charge Out Rates per Hour for Barristers: Civil
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0 – 5 YEARS CALL
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£60
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5 – 10 YEARS CALL
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£100
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OVER 10 YEARS CALL
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£150
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Inns of Court;
solicitor-advocates 12 June, 2000
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A report
set up by the Inns of Court has suggested that it is time to admit
solicitor-advocates as members of the bar. The review headed by Sir Murray
Stuart-Smith claims that moves to include those with rights of audience in the
high court in its ranks would be in line with the government's legal reforms but
would not be a step towards the amalgamation of the roles of solicitor and
barrister.
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