In praise of the bar

A body of independent advisers and advocates is essential to the vast majority of solicitors, says David McIntosh

The relationship between the Law Society and the Bar Council and between individual solicitors and barristers is now strong and perhaps better than it has ever been.

This is a real benefit for the profession and for the clients we serve.

We are once again drawing strength from each other while recognising that we do not agree on every issue of the day.

The bar has accepted the advent of solicitor High Court advocacy rights, and we solicitors are able to appreciate the need for the bar to fight its own corner in widening the still small range of direct access to barristers.

In responding to the Office of Fair Trading's report which seeks to widen competition for providing legal services, the Society continues to support the bar's plea for barristers to continue to be independent and sole practitioners available to all.

We agree also that the bar should be entitled to retain its prohibition on barristers conducting litigation.

That prohibition has no significant impact on competition, but it does help the bar to keep overheads down and thus to provide a more cost-effective service.

However, we envisage that independent bar being resourced not just by barristers who have served their pupillage but also, in due course, by solicitor-trained advocates.

A body of independent advisers and advocates, whether called barristers or, as in Scotland, advocates, is essential to the vast majority of solicitors, as well as being in the public interest.

More than 80% of English and Welsh firms have fewer than four partners and they would be seriously disadvantaged without unfettered access to an independent source of additional expertise.

Even the largest of firms with well-manned advocacy departments still require - and will continue to require - access to an independent bar, not just in major and exotic matters and cases, but where their own fixed resources do not match their clients' needs.

No firm is likely to employ sufficient specialist advocates to cover every day's needs, for to do so would involve having highly qualified people - who are expensive to employ - twiddling their thumbs on less busy occasions.

Much better to be able to sub-contract to an independent bar for those needs as and when necessary.

Nor would it be a good thing for client choice and accessibility to lawyers if smaller firms - as was my own, Davies Arnold Cooper, when I joined it 30 years ago - could not thrive and develop with the additional assistance that the independent bar regularly supplies.

Another advantage of an independent and available body of barristers is that it guarantees access to a pool including experienced and senior counsel.

Star solicitors within firms, whatever their discipline, tend to gravitate into supervision and management roles (which is where the power and often highest rewards lie) at the expense of their transaction and case-handling roles.

Those still excellent lawyers, if advocates, will soon become at the most part-time court lawyers.

That is, for example, the way in which the Australian and New Zealand bars are serviced.

The injection into the English bar of members with experience of the hurly-burly of solicitors' practices and the street wiseness that can come with that would improve the independent bar (and eventually the judiciary), which at the moment is over serviced by those who join it straight from university with little, if any, experience of business life.

Such an improved independent bar would carry with it heightened potential for collaboration on a case-by-case basis with instructing solicitors and for continued good relations between the Society and the Bar Council.

In the longer term, we may want to look again at the precise demarcation between the responsibility of the Bar Council and of the Society, and at the way advocates in independent practice start their careers.

Is it sensible for aspiring advocates to go straight to the bar, or would they get a more rounded legal training by practising first in a solicitors' firm? Is it sensible for the Bar Council to regulate barristers who are employed in solicitors' firms or should that become the Society's responsibility? Should freelance solicitor-advocates be regulated by the Society or by the Bar Council? As a result of our improved relations, these questions can be considered in a calm and collaborative manner rather than in a confrontational way.

By doing that, we serve both the profession and the public interest.

David McIntosh is the Law Society President