A losing battle (From Solicitors Journal)

Family Law|December 14th 2011

From my latest Solicitors Journal column “Family Business”, 13/11/2011.

Direct access is pitting solicitors and barristers against each other when instead we should be working together, says Marilyn Stowe

When I decided to become a solicitor and not a barrister, my decision was based on a number of reasons – but not least that I wanted contact with real clients on a daily basis.

Also, as a student I worked for both solicitors and barristers and I didn’t like the more theatrical antics of the Bar. So, while it wasn’t for me, many of my friends did go on to become barristers and now play an active role in the spectacle of court hearings.

Three decades on I value the opinions of some as it is good to get a different perspective and discuss difficult points. It’s also good to hand over a case to an advocate whose job it is to represent my client in court. I have no problem sharing the risk and instructing counsel to do the job they are trained to do, while other solicitors prefer to keep the advocacy for themselves.

Recently the Bar Standards Board announced it is considering making it easier for members of the public to instruct barristers directly. The move follows the BSB’s decision earlier this year to remove the prohibition on barristers conducting litigation work, and will inevitably bring them into closer competition with solicitors.

It doesn’t make much sense to me. Solicitors have clear skills that barristers lack, and vice versa. Limited experience of dealing with clients directly, on a day-to-day basis, puts barristers at an immediate disadvantage in an increasingly specialised industry that is focused on client care and delivering consistent, cost effective results.

Increased specialisation has meant law firms can only compete by investing in their teams. Solicitors, trainees and assistants are now joined by admin and human resources teams, client care executives, researchers, IT specialists and marketers. In contrast, the Bar, with its one-man barrister brand with no ability to delegate and every case a nightly challenge, faces an uphill struggle to compete on the same terms. Barristers simply aren’t equipped in their Dickensian set up to deal with the needs of clients in the 21st century – day in, day out.

Room for everyone

So what would my solution be? To me it’s blindingly obvious. Increasingly, we have a New York-style operation in my firm, with a barrister and a German Rechtsanwalt who are both qualified solicitors. And we have another barrister who has recently joined as a trainee solicitor. We have a team of forensic accountants who were initially an ‘experiment’ but now fit perfectly into our structure. We all work together, complementing one another on a daily basis. In due course we will also set up a dedicated advocacy unit comprising more barristers all working under the same umbrella. It’s an exciting concept and one that I am confident clients will appreciate.

We each bring specialist knowledge and experience to the firm. It provides barristers with a wider context in which to practise and allows clients to benefit through increased choice and a greater pool of expertise at the earliest stages of their case – two of the BSB’s stated aims in relaxing the rules. In an amalgamated law firm, there is room for everyone.

I believe it would make more sense, for the consumer and us all, if we fused our profession under one name and worked together, rather than competed to do jobs that neither profession is fully equipped or trained to complete.

The great divide

There is no doubt that inequalities still persist in the legal profession because of the distinction between solicitors and barristers: one recent report highlighted the sad truth that, in the past ten years, not one solicitor has been appointed to the High Court.

This is clearly a fact that should lead to some soul searching within the highest echelons of the legal community, and I believe that increasing competition between the Bar and solicitors does nothing to resolve the fundamental inequalities faced within the profession. Indeed, to my mind it is these inequalities that prevent the justice system from being fairer and more representative – two aims that should surely be at the forefront of our minds as we wait to see what 2012 holds in store.

Despite these weighty issues, I do hope you all enjoy a relaxing and happy Christmas – and offer my best wishes for a prosperous and healthy New Year!

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(3)

  1. rachel says:

    A topic of particular interest to me because of my first hand experience of the public access scheme. I instructed a solicitor who strongly encouraged me to use a barrister for the FDR even though it was obvious to me my husband was intransigent. In effect I threw away thousands of pounds on the dual fees for both my solicitor and counsel. Because of limitf resources I had to jettison my solicitor who quoted £16k to go to a final hearing but she did encourage me to ask my counsel to let me instruct him directly. He did not participate in the public access scheme and said no. I then had to instruct another barrister in their chambers who came to my case cold. He was equally experienced and also sat as a DJ so i felt safe in his hands. Unfortunately he was not as bullish an advocate as my first counsel and seemed to capitulate too easily in court. I migit be wrong but i got the distinct impression he was putting in minimal effort for a 2 day hearing (being a trained legal exec I researched the case law we used in court and altered some figures in the open offer re the pension sharing and this proved to help me get a better settlement). It seemed to me he was not properly engaged in my case as I was a litigant in person and he was dealing directly with me and not a solicitor who might put more work his way in the future! My advice to anyone contemplating using the public access scheme would be to think very carefully about your choice of advocate. I would have liked my solicitor to represent me at the final hearing but she was a small firm and said she could not neglect her other clients for 2 days. After my 2nd counsel failed to respond to correspondence for long periods citing being busy with other clients I became very disenchanted with the system. I believe being a litigant in person demotes you to 2nd class citizen in the legal process. I spent £25k in total and saved about £10k by using the scheme at the final hurdle but what did I lose in terms of a settlement?

  2. Marilyn Stowe says:

    Rachel your case is an example of what is wrong with the professions right now. You had limited funds, and you had to access both sides of the profession. You had to manage as best you could between the two and some might say you fell between two stools except that you are bright and knew what you wanted to accomplish.
    I believe you and thousands like you would be far better served by one single profession where lawyers do what they want to do, all under one roof.
    I saw the one stop shop in action for myself in the USA and it’s a very smooth system and impressive. In fact it’s so obviously the way to go it’s hard to understand why any one body genuinely interested in keeping costs contained and the public happy don’t just agree to modernize and streamline the whole system.
    Of course it’s easy to me but I’m not part of the ‘Establishment’ who run the Bar and want our work but who don’t seem to understand how tricky it is to run a law firm.
    As you discovered the barristers you came across didn’t do it well either.
    The plain truth is not every lawyer, whichever branch they belong to, is always any good at their job! There may be a lot of PR or achievement through social connections, but ultimately only the strongest do actually thrive and that’s the best recommendation I think there is.
    If the professions are fused, the public will then receive the best possible service rather than this disorientated system at the moment, highlighted by increasing lack of funds to pay legal costs.

  3. Ann says:

    I was in a similar predicament and my solicitors offered the solution of just sending a very junior member of staff to the actual hearings to help keep my costs under control whilst my barrister kindly allowed direct contact. However this was after 3 years of battle with the same barrister/solicitor team

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