SOLICITORS WILL CONTINUE TO ERODE BARRISTERS' TRADITIONAL MONOPOLY ON ADVOCACY, WRITES LINDA TSANGA pocket guide to the law published by The Economist tries to distinguish a barrister from a solicitor.

It says: 'Everyone knows that the barrister is the one in the wig who stands up in court, but some never go to court at all or only rarely.

Some think that the barrister is the cleverer lawyer (solicitors take their clients to see the barrister for a definitive view on a particular topic of law), but there are one or two clever solicitors, too.

Many think that barristers earn a fortune, but a lot of them are struggling to make it pay.'Those barristers will no doubt not be surprised by a Bar Council report published at the end of last year that concluded that it was up to 50% cheaper to instruct a barrister than a solicitor in some cases.

The Bar Council then said that it was likely to make a formal request to the Law Society to amend its practice rules to force solicitors to disclose barristers' rates compared with the firm's rates.The next move was an extension of direct access to the Bar through the BarDIRECT scheme, which adds to the number of bodies which are authorised to approach the Bar directly.

That includes the British Psychological Society and the Medical Protection Society, and it is planned to extend direct access to trade unions, insurance companies and banks.The reaction of some was to query whether this was some form of gunboat diplomacy on the part of the Bar.

The Bar's virtual monopoly in the higher courts has been eroded since rights of audience to the higher courts were extended in February 1994, and some have commented that the Bar has had to adapt more in the past ten years than it has had to in the whole of the past century.Solicitor-advocate Mark Humphries, who is head of advocacy at City giant Linklaters & Alliance and also chairman of the Solicitors Association of Higher Court Advocates, comments: 'Solicitor-advocates were initially dismissed by the Bar as something that would not catch on, but the Bar has seen that solicitor-advocates have made certain inroads into their work.'He adds that having one solicitor-advocate instructed by another is not just a flight of fancy by solicitors who might want to cut out the Bar altogether.

He was recently approached by a solicitor-advocate from another firm to ask whether he could attend a hearing.

But he admits 'that would be a luxury'.As to the issue of giving clients comparative costs raised by the Bar Council, he says: 'A tiny amount of research on the professional conduct of solicitors would show that solicitors are already obliged to give the best advice in relation to cases -- it is already part of the duties of solicitors to advise whether it is appropriate to use a barrister and that it is cheaper if that is the case.

There seems to be the idea that solicitors are foisting advocacy services on clients rather than giving clients the choice.'The solicitors' response to BarDIRECT is that the logical consequence is that the Bar would have to invest as much as solicitors on premises, IT and support and other administrative costs, making barristers virtually indistinguishable from solicitors.

Incoming Bar chairman Jonathan Hirst answers that barristers will know when a case needs the skill of a solicitors' team to run it.

But in the short term, Mr Humphries says: 'BarDIRECT does have the capacity to enable some barristers to conduct litigation more cheaply.'Barrister Richard Anelay QC says: 'Everyone is money-conscious, but proper professional standards must be maintained.

Unfortunately, you can argue that there is always someone at the Bar (or any profession) who will do it at a cheaper price, but that is not necessarily the right person.

In my own area, matrimonial, some solicitors have exercised the right to appear.

But more often than not, they have briefed the Bar because in matrimonial finance, they can bring in someone with an overview.

In such cases, solicitors can sometimes get too close to the client, which is not to disparage them, but that is what can happen in family law -- but by using counsel, they can be more objective."As for his other area -- criminal law -- Mr Anelay says that is where solicitor-advocates are ma king the greatest impact.

'Where private practice solicitor-advocates and the Crown Prosecution Service keep the work in-house, the junior Bar is not getting that experience, and that has an almost Catch-22 effect.'Linklaters' Mr Humphries says: 'Far more responsibility has been undertaken by solicitors on advisory work in litigation and on advocacy.

As a consequence, barristers are needed less and have less experience, and have ended up becoming less able.

There is also a declining number at the star level; it would be difficult to name a barrister who, in 10 years' time, would be on the level of -- for example -- Gordon Pollock QC or Jonathan Sumption QC.'Mr Anelay disagrees that there will be no new generation of Pollocks or Sumptions, but agrees that the Bar 'will have to become leaner and smaller, which, in the long run, may be no bad thing because it is necessary to maintain that specialisation and expertise'.And in relation to one of the main complaints that barristers too often return briefs at short notice, he argues that such a situation is also possible if a solicitor-advocate is unavailable and there is no one else at the same firm.

He lays the blame at the door of the Crown Courts for the way in which they list their cases.

'Obviously, returns do happen,' he says.

'And part of the reason is that they don't list cases for counsel's convenience but are listed to use up judges' time as efficiently as possible.'It seems that, despite the odd gripe, both sides of the profession would agree that the relationship between the two sides of the profession is overwhelmingly symbiotic.

Comparatively few solicitors want to do all their own advocacy, and the ratio of solicitors to barristers (about 9:1) will still result in work for the Bar, even one that is reduced in size.And inevitably, there will be some blurring at the edges between the two sides, and that blurring is where there will be the most competition.

And clients would no doubt argue that bringing the long-overdue tension of market forces and competition to bear on the legal profession will benefit them -- although, as Mr Humphries argues: 'Clients are not motivated entirely by costs -- that is true not only in theory but in practice.'JON ROBINS EXAMINES WHETHER THE UK MODEL OF A DIVIDED PROFESSION HAS SURVIVED IN THE COMMONWEALTHThere is nothing like talk of fusion of the legal profession -- no solicitors, no barristers, just lawyers -- to illustrate how far apart the various members of the legal family can be.At the Solicitors' Law Festival at Disneyland Paris last year, Law Society President Robert Sayer called on solicitors to 'think the unthinkable' and embrace a new unified legal profession for the millennium.

But the Bar Council went predictably ballistic, deriding it as a 'Mickey Mouse policy dreamt up in Disneyland'.There is nothing new in talking about fusion; in fact, one seasoned legal commentator was spotted walking about Disneyland absently musing about how it was the hot topic a quarter of a century ago when he first started out covering the law.

But this time the Law Society president has given the idea his blessing.

Mr Sayer predicts that fusion will happen whatever sceptics say or do, and so lawyers should embrace a profession with a single code of conduct, one set of rules and one regulator.In the same way as the issue polarises opinion amongst UK lawyers, so it divides their colleagues in the Commonwealth who inherited the British system.

According to Judge Rod Hansen QC, the immediate past president of the Commonwealth Lawyers Assoc iation, many jurisdictions have opted to stick with tradition but others have developed a whole range of models.

In fact, the English model has become 'very much a thing of the past', he reckons.For example, New Zealand -- where Judge Hansen sits on the bench -- has had a fused Bar as far as training and qualifications are concerned for most of the last century.

'That's where everyone starts from,' he says.

Lawyers can practise as solicitors or advocates from within firms and solicitors have full rights of audience.

But there is also a 'separate Bar' regulated by its own rules, most significantly the 'intervention rule' requiring that members take instruction from solicitors.So there is a distinction, but he stresses that it is not one of practical importance as there is total mobility between firms and the Bar.

For example, Judge Hansen spent 20 years in a firm before joining the Bar for nine years, 'which really meant I was going to practise on my own'.

Some of the best court practitioners are employed at law firms, he adds.There are one or two grumbles which will be familiar to UK lawyers -- such as the intervention rule leading to duplication of work and additional expense, and Queen's Counsel only coming through the Bar -- but otherwise, the fusion debate is a 'non-issue'.

He says: 'All the New Zealand experience tells you, is that it is not the end of the world if solicitors have [full] rights of audience.'Elsewhere in the Commonwealth the experience has not been so happy.

Since 1986, practitioners in the islands of Trinidad and Tobago have all been attorneys at law.

According to Karl Hudson-Phillips QC, president of the local law association, the government legislated for a common system of training for both solicitors and barristers to curb rising litigation costs.

Post-fusion, Mr Hudson-Phillips reports the 'logical division' between solicitor and barrister has for the most part been retained.

However, he also reports that a new breed of lawyers -- 'attempting to do both and succeeding at neither' -- has arisen.He remains deeply sceptical about the success of fusion elsewhere in the Caribbean, where there has been a longer experience.

He believes that litigation techniques -- such as standards of documentation, filing, meeting deadlines and billing costs -- have deteriorated dramatically.

For example, he claims that in Grenada nobody has taxed a bill in 12 years.

The attorneys do not know how to prepare a bill and the registrars do not know how to tax one.

'What you are getting is lots of jacks of all trades, and masters of none'.

Commenting on Mr Sayer's assertion that a divided profession in these times is an anachronism, he says politely and with no small measure of understatement: 'I don't entirely agree.'While the debate warms up in the UK, in South Africa -- currently divided -- the argument is in full flow.

According to Julian Von Klemperer, co-chairman of the Law Society of South Africa, anyone can practise as a barrister; however, those who want to do it 'properly' operate under the auspices of the Society of Advocates via an examination and six-month pupillage.

Attorneys have to pass an academic qualification and complete two years' articles.

As in most areas of post-apartheid South African life, race relations is the driving force for change in the legal profession.

A source of friction has been the rise of the 'independent' Bar of lawyers who have been unable to find pupillage or articles.

Mr Von Klemperer acknowledges that historically black lawyers have argued that the dearth of available positions for black lawyers has been used to keep them out of the profession, because white candidates have been favoured.Consequently, there have been strong and persuasive calls from black practitioners and reformers -- in particular, the National Association of Democratic Lawyers (NADL) and the Black Lawyers Association (BLA) -- to restructure the profession radically.

Three years ago an accommodation was achieved between the various interest groups and Mr Von Klemperer says the Law Society is the 'embodiment of that compromise'.The NADL and BDA have, in equal measures, half the number of seats on the ruling council.

The main object of the society was the establishment of an Attorneys Act but -- kick-started by the Ministry of Justice -- an all-embracing Legal Practitioners Act looks set to hit the statute books.

Mr Von Klemperer reports that 'very substantial' consensus was achieved at a professional forum at the end of last year, in favour of greater mobility, standardised training (four years' academic and one year practical) and one over-arching regulatory body.It was also suggested that there would be no examinations as they were considered discriminatory.

Candidates would be admitted as legal practitioners and could then chose to practise as either attorney or advocate.

The future regime, he suggests, could accommodate voluntary organisations -- such as a Bar -- with their own rules.

The opposition of the existing Bar has not been as vociferous as expected, he observes, but he acknowledges that there is considerable resentment at what are seen as knee-jerk reforms.Commenting on the UK debate, Mr Von Klemperer says he would be surprised if the traditional model did not continue given 'your much more sophisticated infrastructure and wealthy legal aid system'.

But he adds that there are a 'lot of unnecessary barriers' between lawyers.Perhaps Canadian lawyers have the most seamlessly fused profession in the Commonwealth.

Everybody practises from law firms, even the QCs.

'And the sky hasn't fallen in there,' says Judge Hansen in mock wonder.

Yves Fortier, former-president of the Canadian Bar Association and Canadian ambassador to the US, says it works well and rules out any interest in following the UK model.

'Where you have a structured profession, we have a natural one,' he explains, and this means there are no barriers.

If someone who has never stepped into a courtroom wants to become an advocate tomorrow he can.Despite enthusiasm for the Canadian model, he says that he does not agree with Robert Sayer's argument that a divided profession is an anachronism in today's world.

It has a long history and has worked well, he thinks.

Mr Fortier acts as an arbitrator in international tribunals, and has seen many barristers in action.

They have been 'absolutely outstanding without any exception,' he says.Whatever happens in the Commonwealth, Mr Sayer's guess is that there will be a single legal profession in the UK by 2010.

His vision, he told the Paris conference, was 'no more solicitors or barristers -- just lawyers, operating under one code of conduct, one set of rules, one regulator'.

If he is right, UK legal practitioners will not have long to wait to find out whether it works here.