The first research into the Bar Council's licensed access scheme indicates that clients may be interested if they knew about it. Mark Smulian asks: should Solicitors be concerned?




What is the connection between the Labour Party, the National Probation Service, the Medical Defence Union and the Kennel Club?



All four appear on the list of organisations that can make a direct approach to a barrister without going through a solicitor.



Licensed access began in 2004, sweeping away centuries of tradition to put clients, at least potentially, in direct touch with barristers – so long as they decide that it is practical and economic to do so without the reassurance of their solicitor by their side.



As the Legal Services Act looms, heralding the dissolution of many barriers between different parts of the legal profession, the isolation of barristers from clients could end, as they will be able to form partnerships with other lawyers.



To judge by the first major survey of licensed access, the prospects for barristers who choose instead to take on clients directly are decidedly dicey. This suggests that it will take time to shift attitudes, and that barristers have so far done little to help themselves.



London chambers Hardwicke Building sought the views of 65 inhouse counsel, company secretaries and commercial directors across large- and medium-sized businesses and public bodies. Its main conclusion was: ‘Potential clients welcome the opportunity to increase their use of the bar while remaining uncertain how it is best achieved.’



While 95% of respondents favoured direct access, a mere 8% said the Bar Council had given clear information about how to use it, an ignorance shared even by many inhouse lawyers. The survey said: ‘If the bar is serious about direct access, significant information on the benefits of instructing the bar needs to be given to this large group of new potential clients in the very near future.’



Solicitors need not necessarily fear that improved access to the bar would automatically cut them out of work, the survey suggested. ‘An increase in direct access will not necessarily reduce the work done by solicitors, rather it may change the flow of work… to barristers becoming the first point of contact with solicitors, sometimes recommended by them, being introduced at a later date if required.’



Hardwicke Building found that while there was considerable interest in direct access, few had yet taken this step. Lack of knowledge of how to do so, lack of clarity about barristers’ fees and lack of information about barrister’s specialisms were the most common reasons for this reticence.



One in-house lawyer quoted anonymously in the survey summarised the reason why solicitors need perhaps not fear a large defection of work to the direct access route: ‘I use external solicitors out of habit. I wouldn’t know which barrister to use if I wanted to go direct. It is part of the added value of the solicitor that she/he can advise which barrister to use.’



Nor would many company lawyers or directors know what to pay a barrister. An overwhelming, if not entirely unsurprising, 77% said the bar’s fee structure was ‘unclear’, and 70% that the bar was ‘not user friendly’. Two-thirds said the clerk and barrister system was ‘old-fashioned and confusing’, while small majorities considered barristers to be unapproachable and out of touch with commercial realities.



Further comfort for solicitors came when respondents were asked to rate the relative advantages of the two wings of the legal profession. Barristers were preferred only for specialist expertise and value for money, with solicitors scoring heavily on ‘dedicated client contact’ and ‘knowledge of my business’. Bar Council chairman Geoffrey Vos QC seized on the 22% ‘very likely’ to use direct access as ‘very encouraging’, even though almosttwice as many were unlikely to do so.



Mr Vos says: ‘While we recognise that the bar could have done more in terms of providing greater information about direct access, this does not detract from the finding that 95% of respondents welcome it.’



He says the bar will ‘strive to achieve’ better information, and that the favourable findings on barristers’ expertise and value for money ‘augers well for the future prospects of direct access’.



A Bar Council spokesman comments: ‘We recognise we have to do more but this is something happening after about 700 years of no change. All the details are on our website, but we do need to communicate it better.’



He urges would-be clients to ask clerks for fee rates early in negotiations and points out that some chambers will publish these.



Others share the view that too little has been done to promote direct access. Dianne Burleigh, chief executive of the Institute of Legal Executives says: ‘There is a role for the Bar Council, just as there has been for the Law Society, to demystify legal services. They need to do it because even so-called sophisticated clients will have little idea of how to go about approaching a barrister and they will not want to faff around. They will want to know where to go straight away.’



The institute is itself licensed for direct access so that its members can approach barristers directly. ‘I would guess there has been little use of it so far, but it is there because we are looking ahead to the future,’ she says. ‘It would be a disaster for clients if we all retreated into our little shells. The successful people of the future will be those who can work across traditional boundaries. Widening access for users of legal services is part of the jigsaw that is not yet quite finishedbut we are all going to have to work together and direct access to the bar is part of that.’



Kathryn Mortimer, head of legal services at legal expenses insurer DAS, which also has licensed access status, says: ‘I’m aware of how to access barristers but I suppose that colleagues who are not legally qualified might be hesitant. I think direct access is advantageous because there is a cost saving. If you instruct a solicitor first, there is an additional cost that is not always necessary.



‘Barristers’ specialised skills can sometimes be superior to those of solicitors but it is something not a lot of lay people find understandable.’



Ms Mortimer thinks the survey’s criticisms of barristers’ fees are fair because there is no industry norm. ‘It is all quite mysterious how they work and how they charge,’ she says.



The experience of two institutions that offer direct access as a membership benefit suggest its use is indeed patchy. A Chartered Institute of Housing spokesman knew of just one case since it gained licensed status in 2005, but he says: ‘We still think it is a useful benefit to provide as it allows people quick access to expertise on legal issues, mainly for counsel’s opinions.’



The Chartered Institute of Building joined the scheme in 2004, but legal manager Samantha Hawkes says it was then hemmed in with restrictions that meant only members who were adjudicators or arbitrators could use it. She has since negotiated removal of these limitations with the Bar Council, and has the impression that counsel’s opinion is the most common use, though no records are kept.



But direct access may confront users with unexpected problems. One person who will not use it again is Julian Hedley, office managing director at tax advisers and accountants Tenon.



The company instructed a barrister directly in a 2004 case involving an Inland Revenue claim against tennis player Andre Agassi. He won his appeal, but the court held that Tenon could not recover costs from the Inland Revenue because it was neither a solicitor nor an authorised litigator.



‘We ended up in the Court of Appeal up against the Inland Revenue, who said Agassi was in effect a litigant in person under licensed access,’ Mr Hedley recalls. ‘I do not know why anyone would now use licensed access. Tenon sought a licence originally because we thought it offered something quicker and more efficient, but we will certainly not be using it again.’



Bodies can become licensed through ‘a simple process of application to show they meet some basic standards like whether the origination is capable of interacting effectively with barristers’, the Bar Council says.



Public access, which, subject to various restrictions, would allow anyone who feels inclined to approach a barrister, is developing slowly alongside licensed access. Although the Bar Council publishes a 58-page list of barristers who are trained to accept work through this route, it says this approach is ‘in its infancy’.



It is a phrase that sums up the direct access experiment. At the present rate of progress, it seems more likely that it will be through barristers joining legal disciplinary partnerships that movement on this front will really be made.



Mark Smulian is a freelance journalist