WHY WOULD SOLICITORS WITH FULL RIGHTS OF AUDIENCE CHOOSE TO TRANSFER TO THE BAR? MATT BARNARD TRIES TO FIND OUTThis month the Bar Council produced a report under the auspices of Sir John Collyear -- whose committee included former Law Society President Mark Sheldon -- which assessed the impact of the Access to Justice Bill and the future role of the Bar in the changing legal market.The report concluded that the Bar should concentrate on remaining a 'referral profession of specialist advocates'.

However, it also made a number of recommendations concerning solicitors who wished to re-qualify as barristers, following provisions on this subject in the Access to Justice Bill.

Essentially, it proposed that solicitors who had already gained higher rights of audience should face no barriers to becoming barristers, while those who did not already have higher rights of audience should undergo a period of advocacy training and pupilage.

According to Bar Council figures about 70 solicitors apply every year to become barristers.Solicitor-advocate Paul Hampton of Paul Hampton & Co, a former chair of the Solicitors Association of Higher Court Advocates, is disparaging about the motivations of these solicitors.

'Why should a solicitor advocate want to become a barrister?' he asks.

'They have the same rights of audience as barristers, and if you become a barrister you take upon yourself all the paraphernalia of the Bar, become unable to form partnerships, have limited direct access to clients and have an infinitely less flexible and satisfying work style.

I think its a pipe dream.

I can see why a barrister would want to become a solicitor, because he gains far greater flexibility by being a solicitor, and particularly because quite a lot of the work sources of barristers are shrinking, so they may need to look elsewhere for work.'However, some senior solicitors do choose to become barristers because they no longer want the managerial burden of running a law firm.Some solicitors who requalify as barristers came from the Bar originally, such as Michael Conlon, who started at the Bar, was head of VAT and indirect tax at Allen & Overy, and then joined One Ess ex Court Chambers, in February 1998.

Mr Conlon says he returned to the Bar because even as a solicitor, he was becoming more of a specialist, and it was easy to establish a niche practice, with the added bonus that 'potential competitors are no potential clients.' Mr Conlon says that there are more advantages in being essentially a consultant at the Bar, and adds that even if both branches of the profession were to become unified or fused, he considers that his position would not be that different.Mr Conlon joined One Essex Court Chambers at the same time as former Linklaters tax partner Malcolm Gammie.

Mr Gammie, who was not a solicitor advocate, had spent ten years at the City firm and was a leading practitioner in the commercial and international taxation fields.

Mr Gammie says: 'The more important aspect certainly in my decision to switch branches of the profession was that I was in a specialist area like tax.

The differences between working as a solicitor in tax or at the tax Bar or working for an accounting firm in tax are not great.

I did want to do more litigation work for myself, which I was inevitably never going to do in Linklaters on the tax side.

I was nearly always instructing someone at the tax Bar and it was never likely to be worth my while getting rights of access to the higher courts to do just tax work.

I wanted to do more purely advisory work, inevitably within a large firm you do a huge amount of transaction execution.

Moving out of a large firm it gave me much more freedom to choose what I wanted to do both in terms of practice and advisory work but also in terms of my other interests in tax policy work.

Moving to the Bar does have an impact on your earning power because if you take a holiday or if you decide to do something on tax policy nobody is going to be earning your living for you in the same way as if you're doing it within a large firm.'In switching to the Bar, principally because of his seniority in this field, the only requirement he had to meet was a period of pupilage which was six months.

He says that generally the two sides of the profession are going to become more and more indistinguishable over time as solicitors get more rights of audience.However, he does not think it would be possible to create the working environment he has at the moment within the context of a firm.

He adds: 'The working environment is very appealing, so I think the Bar has a long-term future because there will always be people like me who prefer the working atmosphere here to the large firms.

Specialist areas of the Bar like tax may in time become more populated by people such as myself who have done their initial years working in firms and then have made the choice to move out.

If I were starting again, I would still not come direct to the Bar to do tax work, it is a very difficult discipline to start up in and you have to be pretty exceptionally talented to be successful at it.

In terms of the breadth of experience one gets as a solicitor there's a great deal to be said for working in a firm.'Florence Krause was a solicitor specialising in immigration, prisons and housing law who left Sheffield firm Taylor & Emmet in 1998 and requalified as a barrister.

'My main motivation was that I wanted to do more advocacy,' she recalls.

'I also wanted to do more hands on legal research.

I got sick and tired of doing administrative work, filling in legal aid forms and recording every single minute of my time.

I qualified to be a lawyer, not an administrator.

Also, I wasn't happy with the quality of the barristers on offer in my field.'Ms Krause, who is at Central Chambers in Manchester, is now, to her knowledge, the only barrister specialising in prisons and immigration law outside London.

She receives instructions from clients as far afield as Devon.LINDA TSANG QUESTIONS WHETHER THE RISE OF SOLICITOR ADVOCATES IS LIKELY TO USHER IN UNIFORM TRAINING FOR BOTH BRANCHESAppointing an engineer to respond to the government's plans to end the Bar's virtual monopoly on higher courts advocacy may have been an unusual move, but the Collyear report, published less than a year since his appointment last August, has been mostly well received.Nigel Savage, chief executive of the College of Law, comments that it is 'a good report, as Collyear [a senior figure from the engineering industry, and former chairman and chief executive of AE plc] does not bring any baggage from the legal profession.

It contains some scathing remarks about the academic stage, and calls for greater monitoring of that stage.

It is one of the most refreshing reports I have read, because it is all about raising standards'.The main thrust of the Collyear report, according to Nigel Bastin, head of education and training at the Bar Council, is that 'the Bar sees its future as a profession of advocates, as lawyers specialising in advocacy -- whether written or oral.

And the Bar does not see itself becoming a small group of general practitioners -- nor as a mini Law Society'.With that objective at the forefront, the report contains a raft of recommendations dealing with the development of the bar vocational course (BVC) and pupilage, to improve and enhance advocacy training.And it is not just the initial training and entry levels that are targeted for improvement.

Apart from ensuring that there is linkage between the BVC and pupilage, the report also aims to ensure that training is part of a continuous process, and recommends the introduction -- as already exists on the solicitors' side -- of continuing professional development.

An additional objective of the report is to ensure that requirements for pupilage are modified; with the proposals on rights of audience for employed barristers in the Access to Justice Bill, currently going through Parliament, that will include provisions for the anticipated increase in pupilages in employment.Another area that the Collyear 'Way Ahead' committee had to consider was the extent to which barristers' qualification and training requirements should be co-ordinated with the Law Society.

Although Mark Sheldon, a former President of the Law Society, was on the committee, Bernadette Griffin, chief education and training officer at the Society, says the Society itself was not heavily involved.

Ms Griffin comments: '[The Law Society] is pleased to see that the Bar sees some commonality in its training with that of solicitors; but it is not a common training approach for solicitors and barristers.

Although there are some common elements, such as the life-long learning approach, which is good for legal education in the future, the two are necessarily different.

And with those common elements of training, although it is not common vocational training as such, it lays the foundation for the Law Society to have discussions with the Bar Council to see how far that could go.

It will not lead to a fused profession, but it indicates that there is fusion in relation to certain aspects'.Despite that commonality, the consensus is that the report does not resurrect or further the debate about common vocational training.

As the College of Law's Mr Savage puts it, rather more forcefully: 'Common training is a dead duck -- the two sides are two separate professions, and the BVC and the LPC [legal practice course] are two different animals.

The former concentrates on evidence, procedure and advocacy and the latter is dominated by business and non-contentious matters'.It is thought that the fact that there will be an element of convergence at the early stages of legal training, combined with the Collyear report's recommendation that the current aptitude test which solicitors have to complete before requalifying as barristers be dropped, is likely to lead to an increase in the number of solicitors switching to the Bar.

The Bar Council's Mr Bastin adds that 'the report recognises in general that the regulations regarding transfer have to be radically overhauled -- solicitors applying to the Bar come with different levels of experience, and that has to be taken account of'.But the Access to Justice Bill and its proposals to sweep away the Bar's virtual monopoly on rights of audience may pre-empt the report's relaxation of the rules on requalification to the Bar.

One solicitor-advocate to take that view is the newly-appointed chair of the Solicitors Association of Higher Right Advocates, Mark Humphries, who is also head of advocacy at City firm Linklaters & Paines.Mr Humphries, who stresses that these are his own views, says: 'The Collyear report looks at the question of transfer between the different sides of the profession in a parochial way, and how barristers would want to regulate it.'That is not the way the government -- or the general public -- looks at it.

The Access to Justice Bill is likely to achieve this time what was the original objective of the Courts and Legal Services Act 1990, which was to broaden the availability for the general public of advocacy services, to provide new and cheaper services, and introduce market forces to that area.

That failed, and until 1994, there was a complete closed shop in that area.'The status quo is about to be stood on its head -- the prima facie position will be that all qualified solicitors will have rights of audience'.More recently, the Higher Courts Qualifications Regulations, introduced by the Law Society in 1998, brought a new training route which gave the Society discretion to set the amount of advocacy experience in the lower courts that a solicitor needs, and gave it the right to make exemptions.There are now three ways to become a solicitor-advocate: the experience route, the training route, and the exemption route.

It is thought that the number of solicitor-advocates -- currently 651 -- is likely to double or even treble with the introduction of the simplified route.

The Law Society has set up an eight-member taskforce to deal with the extended rights of audience proposed under the Access to Justice Bill.Those regulations, the Access to Justice Bill and the Collyear report all acknowledge the de facto situation, that the two branches of the legal profession are changing, and that solicitors and barristers are more likely to switch from one branch to the other.Mr Savage, whose College of Law sees both sides of the profession through providing the BVC and LPC, adds: 'The Bar has leapt ahead with the Collyear report's proposals, the solicitors' side will have some catching up to do generally, and more specifically on advocacy with the rights of audience provisions in the Access to Justice Bill.

All legal training will have to cater for the likely situation that solicitors at a certain level may want to become barristers and v ice versa'.As Mr Humphries comments: 'If it is a matter of terminology, then I am a fan of fusion, in that I am a fan of sweeping away artificial distinctions between different lawyers, provided that the training requirements are satisfactory, and the public have confidence in the ability of lawyers competently to represent them.

Lawyers have to be more pro-active in increasing the standards in both branches of the profession, instead of trying to regulate them or put hurdles in the way of how and under what title they practise -- it is all a load of labels.'What is needed is greater freedom of choice for the public, and the advantage of competition on price.

And that must be right, provided the standards of advocacy and legal services generally are maintained and improved'.VERONICA COWAN ASSESSES WHAT USE LAW FIRMS ARE CURRENTLY MAKING OF IN-HOUSE ADVOCACY TEAMSThe Access to Justice Bill provides that all lawyers should have full rights of audience before any court -- subject to meeting reasonable training requirements -- and makes it easier for professional bodies to grant rights of audience to their members.Some predict that solicitor-advocates will take a major part of the work usually given to junior barristers.

However Bar Council spokesman, Stephen Doherty, says confidently that: 'The young Bar can compete with solicitors on advocacy and price'.Mark Humphries, chairman of the Solicitors' Association of Higher Court Advocates, is a litigation partner at Linklaters and Paines, which has a dispute resolution department comprising 20 partners and 60 assistants, all of whom act as advocates where rights of audience are open to them.For tribunal work they never use an outside advocate.

Mr Humphries says that under the present system, because of the hurdles, not many can appear in the High Court as trial advocates.

He comments: 'Currently, it is impossible for a City firm to get higher court advocacy certificates for its entire departments.

The Lord Chancellor has recognised that, and introduced liberalising measures'.Mr Humphries compares the position to a race in which talented people are at the starting line waiting for the whistle.

When it is blown, there is a rush forward.

'The presumption should be that a qualified lawyer ought to be capable of trial advocacy, and be allowed to do it.

Market forces will take over, and those who are good at it will get work and those that are bad won't,' he adds.The firm offers a one-stop service, whereby the same lawyer prepares and handles the case in court.

It is not looking to start a discrete advocacy unit, like a mini Bar, because it is advantageous to have the same solicitor handling the case throughout.Mr Humphries says clients prefer that, and he maintains a number of firms will take the same view.

He argues that it is cost-effective to do the advocacy, and says greater income can be generated in other ways.

He has appeared in the Court of Appeal and says that if one of his cases goes to the House of Lords, he will handle it himself.

His firm hardly ever uses junior barristers, but does use leading silks in major cases, and will continue to do so.Raj Parker, a litigation partner with Freshfields, is less bullish.

He says: 'The Bar is extremely reasonable for the service it provides, especially at the junior end'.Freshfields still uses barristers extensively, although it has a number of solicitor-advocates.

Mr Parker sees the process as evolutionary, rather than revolutionary.

If clients do not want a barrister, he will do the advocacy, but he is 'not busting a gut to be Perry Mason'.

If he were in the Court of Appeal, he would prefer to be led.

He says: 'We want to grow our own advocates, not replicate the Bar in-house, so we won't be referring cases to each other'.

There is a great demand for advocacy for junior lawyers, and the firm runs a training programme in conjunction with others.

Mr Parker says the Woolf reforms will make things more solicitor-friendly in the courts, with more managed cases, and the scope for long and complex trials reduced.

Big cases could subsidise small ones, but if the large cases fell away, the matter would have to be reviewed.Allen and Overy has an in-house advocacy section but is not planning to set up a specific unit.

One of its higher court solicitor-advocates is David Mackie QC.

Andrew Jeffries, a litigation partner at the same firm, says that everyone at the firm is encouraged to do as much as possible, but 'one had to look at the costs, and not running until you can walk'.

It uses the junior Bar where cost effective, but makes more use of the senior Bar, and tends to act as junior counsel with a leader.Terry Mehigan, a litigation partner at Herbert Smith, says the firm tends to use QCs because of the size of its cases.The firm also has an in-house QC, Lawrence Collins, but he usually acts on a case in his own field.

It has no specialist advocacy section and no plans to set one up.

It reviews this periodically and does not see it as the way forward.

Its solicitor-advocates offer a one-stop service.

Ultimately, it is up to the clients.

The firm has a lot of sophisticated corporate clients, whose in-house legal departments usually want barristers, and often nominates them.Clifford Chance has grasped the opportunities offered by the extension of rights of audience to date.Litigation partner, Matthew Newick, sees the additional liberalisation of access to advocacy qualifications as a continuation of the trend.

He maintains that in the future the lion's share of work traditionally done by the Bar.Clifford Chance's use of the junior Bar has decreased heavily, and will continue to diminish.

The firm's 12 advocates have appeared on their own, or have been led by counsel.

The reaction of the senior Bar and clients, corporate or otherwise, has been positive.

'It makes good business sense, and is a natural evolution to total lawyering,' he said.Not all of the medium-sized City firms have embraced the opportunity for in-house higher court advocacy.

A spokesman for Masons said it was still instructing counsel and had no definite plans to change this.

He said 55% of the firm's cases involved construction disputes, which lent themselves to arbitration and mediation procedures.A spokeswoman for Mishcon De Reya said it had no special advocacy section, and only one senior person at the firm was applying to become a solicitor-advocate.

However, it proposed to keep this under review.