The changing roles of lawyers

Mar 14, 2019

Written By Alex May

The difference between barristers and solicitors is becoming less distinct. ALEX MAY explores whether there is good reason to keep two different legal professions, or if it is inevitable that they will merge, as in most other countries.

As every first-year law student knows, solicitors work with clients and barristers go to court. As every final-year law student should know, the difference between the two is much less clear cut, and what a given lawyer does depends much more on what type of practice they have.

The UK is something of an anomaly in having a split profession with two different types of lawyer. In the US, there’s just one type of lawyer, an “attorney-at-law”. Canada is the same—with the exception of the province of Quebec, which has kept two types.

New Zealand, which has stayed more closely aligned to English common law, decided to fuse the legal profession in the 1990s, though the title of “barrister” is still used to distinguish some lawyers who specialise as such. France, which of course is a civil-law system, actually used to have similar distinctions between avocats (advocates) and conseil juriqidue (legal advisor). But as in New Zealand, a series of legal reforms over the last few decades have merged other legal professions into avocats.

Voices for change

Every year, a few important voices pop up to argue for a merging of the split profession, just as others argue for the status quo. Though the discussion has merit, at present there aren’t any serious institutional shifts on the horizon.

In 1999, Robert Sayer—at the time, the president of the Law Society— called for a merger. Speaking at their annual conference, Sayer described the Bar as “an anachronism” and called for a united legal profession within five years. His speech included criticism of the Bar’s culture, including the secret ways the judiciary was appointed.

The Bar Council, the barristers’ membership body, didn’t take this well. Playing on the fact that the Law Society conference had been held at Disneyland Paris, they described it as a “Mickey Mouse policy”.

This decade, there has been less discussion about a merger of the professions, but in 2010, the chair of the Bar Standards Board called for a merger of the training courses for solicitors and barristers. The motivation was less about merging the professions and more about allowing would-be lawyers to have more time to decide which path to go down. Although this reform didn’t get much more off the ground, a harmonisation of advocacy standards for solicitor advocates and barristers did get closer to implementation.

Speaking to the Law Gazette last November, June Venters—the first female solicitor to be appointed Queens Counsel—said that she believed there should be a fusion of the two professions to use better their shared skills.

Andrew Walker, chair of the Bar Council, responded in an interview with the Law Gazette, saying that “separation remains for a reason”. He described the role of the solicitor as more “transactional”, with the barristers being more focused on advocacy and running trials.

One of the common arguments made for fusion is that the distinction is archaic and not actually justified. The majority of countries around the world don’t have two distinct legal professions, with France and New Zealand both choosing to merge their legal professions in recent years. It could be more efficient and cost-effective to have a lawyer who can take the case from start to finish. But smaller cases, and those which don’t make it to court, are already dealt with entirely by one solicitor.

Even if the professions were formally fused, there would still be a distinction in roles and specialisms between the lawyer who initially advises the client and the trial lawyer. All fusion would actually do is create more scope for flexibility for cases in the middle of this spectrum, where a doubling up of work isn’t worth it.

In 2012, student think-tank The Wilberforce Society published a report on reforming the legal profession. The report outlined the problems that lawyers and would-be lawyers face in having a split profession. Students have to decide, without much experience, which career path to go down. Particularly for the barrister path, the significant financial obstacles limit the ability of those who cannot afford it to try. Those who have tried but had no success cannot easily swap across to the other, needing to complete the LPC or begin their career mostly from scratch.

Their report argues for a reform of the training system, describing the ‘Hong Kong’ model—a common vocational course with flexibility for specialism that both solicitors and barristers take—and the ‘Scottish’ model—in which the split to be an advocate comes after qualification as a solicitor.

Recent reforms

Although the two professions are no closer to fusing, the distinctions between the two have lessened. Traditionally, only solicitors work directly with clients and then instruct barristers to appear in higher courts. However, the last few decades have seen direct public access to barristers and the introduction of solicitor advocates.

The public-access scheme allows members of the public—clients —to contact and instruct barristers directly. According to a 2016 report into the scheme by the Bar Standards Board, 5,695 of the total 15,915 barristers had undertaken the necessary training and were available for public-access work. Removing the 2,900 of these barristers who are employed in-house, this is about 44% of practising self-employed barristers.

Despite this take-up, the report describes public-access work as “a relatively small proportion” of the majority of barristers’ caseloads. It also works well for some areas of law, such as family law, but in others there are significant difficulties. Members of the public are often unable to handle the aspects of the case that remain their responsibility, or have unrealistic expectations of what the barristers can do.

The emergence of solicitor advocates is perhaps more significant. Solicitors were previously only allowed to appear in lower courts: magistrates court, tribunals and county courts. Higher rights of audience were the preserve of barristers, giving the traditional distinction that barristers appear in court and solicitors do not.

Made possible by the Courts and Legal Services Act 1990, the first solicitor advocates qualified in 1994. The Solicitors Regulation Authority grants the rights, sets the competency standard and undertakes the assessments.

This expansion gives greater scope for solicitor advocates to see a case from start to finish. Although in many situations a solicitor will prefer to get a barrister to take the case, there will be some cases in which they prefer to take it themselves. Alternatively, the solicitor working on the case would instruct a solicitor advocate in their own firm to take it, so there’s still a different and perhaps more specialised lawyer dealing with the trial, but without the difficulty of having to hire an external solicitor.

Although there are only twice as many practising self-employed barristers (13,076) as solicitor advocates (6,701), they are still a small proportion of the total number of solicitors (139,797). Although this removes a key distinction between barristers and solicitors, solicitor advocates still play a different role to barristers and barristers are still advocacy specialists. It’s much more a shift in the work solicitors are able to do than that solicitor advocates are seriously challenging the work barristers do.

These two shifts have made the split professions more fluid. Beyond these, though, there aren’t any further significant institutional moves on the horizon.

One significant reform was attempted this decade: the Quality Assurance Scheme for (Criminal) Advocates (‘QASA’). It faced fierce opposition from solicitors who disliked its restrictions and barristers who disliked being grouped with solicitors. It even faced a legal challenge for being too invasive as a regulatory scheme, but the Supreme Court upheld QASA as being sufficiently justified.

However, after years of delays it was cancelled by the BSB in November 2017. Director-general Dr Vanessa Davies announced at the Westminster Legal Policy Forum that the BSBs new regulatory approach had shifted, focusing on barristers taking more responsibility for their learning and development, and flexibility in how their competence was maintained. Last month, the SRA followed suit. Speaking at the annual conference of the Solicitors Association of Higher Court Advocates, SRA policy associate Richard Williams said that the SRA was “considering several options” and was likely to abandon QASA, acknowledging that it was perceived as “a sledgehammer to crack a nut”.

After the failure of QASA, it remains to be seen whether there’s still a drive to some sort of integration or whether this has pushed the SRA and Bar Council further apart.

Defenders of the split profession argue that the cost savings are unlikely to be significant. There would still be a need for a distinction between preparing a case and presenting it at court. There’s also an argument that the independence of the barrister and their commitment to the client is highly important to our justice system. Finally, it’s argued that specialism is inevitable and a good thing.

However, it’s not clear that clear distinctions, independent representation and specialism can only be achieved via a split profession. As in the French and New Zealand systems, there can be one type of lawyer but still significant specialism within the role. And there is already a lot of differentiation between lawyers doing different work based on their area of law, not to mention the growth of alternative dispute resolution—a new legal role in its own right.

Legal Spotlight