Who will clients turn to?

The Bar Council's move to embrace direct public access will have less impact on solicitors than many fear, says Michael Gerrard

When the headlines proclaimed last month that the bar would soon be open for direct dealings with the public, many solicitors wondered whether they would be thrown out of work.The Bar Council at its February meeting reluctantly voted to liberalise its rules on direct public access from next year, after an Office of Fair Trading (OFT) report on anti-competitive practices in the professions recommended the removal of most of the regulatory restrictions protecting the status of the independent bar.Exact details of how the scheme will be implemented and regulated are expected to be thrashed out during the coming months, and it is set to become operational next year.But Mark Humphries, former chairman of the Solicitors Association of Higher Court Advocates (SAHCA), maintains that solicitors have little to fear and adds that increased competition could be healthy, rather than a threat to the livelihoods of law firms.The move will also benefit the public, says Mr Humphries, who heads Linklaters' advocacy department.

'It would be hard to continue justifying restrictions on direct access, as it is a prima facie example of anti-competitive practices,' he says.'Should one have to employ at least two lawyers in order to get access to the bar?'And Bar Council chairman David Bean QC is keen to reassure solicitors that barristers have no wish to muscle in on their work.He says: 'We are not saying there is going to be unrestricted direct access full stop.

That would turn barristers into solicitors - and they are not trained or equipped for that.'That is not to say that in future barristers could not be trained to take on such roles, but behind Mr Bean's comments lies the organisation's distaste at the prospect of fusion between the two branches of the profession.The Bar Council committee behind this move, which was chaired by Sir Sydney Kentridge QC, rejected almost all of the OFT's original proposals.The report had questioned a number of the bar's long-cherished beliefs, including its status as a referral profession, the silk structure, and even the ban on partnerships either among barristers or with other professionals.The Bar Council was prepared to give ground on direct access and the referral principle.

But as Robin Purchas QC, chairman of the Bar Council's education and training committee, admits: 'The competition laws in Europe and this country meant we had no real option but to allow barristers to accept direct public access in a regulated manner.'However, direct access is not new ground for the bar; it has been successfully practised for 13 years in a limited form.Direct Professional Access was introduced in 1989 to facilitate instructions from fellow professionals, and a decade later this provision was further widened by the introduction of BarDIRECT.Under this scheme, nearly 100 commercial and public organisations are licensed by the Bar Council and are therefore permitted to approach barristers' chambers directly.In all these cases, barristers are dealing with in-house legal departments, made up of qualified lawyers, or other professionals such as accountants, rather than the public.That said, the Bar Council is determined that any liberalisation will steer clear of taking solicitors on directly.To this end, barristers will be restricted only to areas where no litigation or evidence-gathering work is required, that is advisory work and straightforward court and tribunal cases.Similarly, counsel will not get involved in issues such as handling client money and other traditional functions of solicitors.Such a narrowly defined system means that City and commercial firms - which concentrate on complex litigation and corporate work - are unlikely to be touched by the changes.

Any possible threat would be to high street practitioners engaged in more straightforward work.This view was bolstered by a decision last month by the European Court of Justice, which gave law societies and bar associations the right to maintain bans on multi-disciplinary partnerships as the minimum regulation required to meet justified policy objectives, such as lawyers' independence (see [2002] Gazette, 21 February, 1).But Mr Humphries maintains this move towards direct public access could have an unintended consequence.He says: 'If you are looking at the one thing the bar could do to speed up fusion, it has got to be direct access.

People are going to ask what the difference is when both solicitors and barristers have the same rights of audience.'Of course, in recent years solicitors have not been slow to capitalise on the easier access to the higher courts they have enjoyed since 1994, which saw the birth of the solicitor-advocate.For several years, candidates were required to undergo a lengthy qualification process, which discouraged many able applicants from putting themselves forward.These ranks currently number 1,291 practitioners, bolstered by a liberalisation of qualifying procedures introduced by the government in its Access to Justice Act 1999.

Now several larger firms, such as Linklaters and Norton Rose, are encouraging their litigators to gain solicitor-advocate qualifications.This has led such firms to keep more of their work in-house, which when combined with the effects of the litigation-unfriendly Civil Procedure Rules has meant that barristers, particularly those at the more junior end, have seen some sources of work dry up.Darren Finlay, a commercial law specialist at Sovereign Chambers in Leeds, backs the changes afoot at the bar: 'This helps the balance for the junior bar, which has been affected by the fact that some solicitors' firms tend to keep more of the junior work in-house.'Allowing barristers to accept direct access in theory is one thing, but how such a service could be delivered in reality is something else.Solicitors are at a distinct advantage when it comes to accessibility to the ordinary person in the street.Patrick Walker, himself a barrister and now head of advocacy at national law firm Hammond Suddards Edge, comments: 'There might be a perceived risk to high street practices, but the problem for the bar is: how many chambers do you find in the high street?'Joe Bloggs would prefer to use the solicitor found conveniently on his own high street, and one he has probably used before.'If the general public overlooks this inconvenience and makes the trip to London's Inns of Court or the cluster of chambers to be found in the centre of Britain's major cities, they are then faced with the problem that unlike a solicitor, they are not used to briefing counsel, and similarly barristers are not used to such unescorted meetings.Rodney Warren, a high street solicitor in Eastbourne and chairman of the Criminal Law Solicitors Association, notes: 'Solicitors are much more hands-on when it comes to working with the client and enjoy a greater ease of communication.'There are relatively few barristers that can give advice in layman's terms.'On top of communication, location considerations and the fact that the Bar Council is only introducing the new rules somewhat reluctantly, simple mathematics suggest that at least for the foreseeable future, public direct access to the bar is unlikely to hit law firms.

Solicitors, after all, outnumber barristers by a margin of roughly nine to one.Michael Gerrard is a freelance journalist