Solicitors and barristers – two sides of the same coin by John Bolch

The legal profession in England and Wales is divided into two: solicitors and barristers, each qualified under a different training system. Essentially, solicitors deal mainly with ‘non-contentious’ work, such as conveyancing and probate, and the preparation of ‘contentious’ (i.e. court) cases, while barristers act primarily as advocates in court. There are strict rules about what kinds of work each side of the profession can undertake.

But it is not like this everywhere. In the United States, for example, there is just one type of legal qualification, and all lawyers are able to undertake all types of legal work.

There are various claimed advantages for our separated system, but in recent years the line between the two has become increasingly blurred. Solicitors have gained rights of audience in higher courts, and barristers are now allowed to take instructions direct from the public. Is it time, then, for the two sides of the profession to be fused into one?

Let us look briefly at some of the pros and cons of fusion (there are many more arguments than I could go through here).

Amongst the possible advantages of a fused profession are:

1. One system of training – with aspiring lawyers not having to choose which side of the profession they wish to enter.

2. No duplication of work, with two different lawyers having to go through a case.

3. A reduction of costs.

On the other hand, claimed disadvantages of fusion include:

1. A reduction in the standard of advocacy.

2. Loss of expertise – barristers are often used to provide expert advice.

3. The lack of a ‘second opinion’ – the advice of a barrister may not necessarily be the same as that of the solicitor who instructed them.

None of these arguments are new – I can recall them being raised many years ago. Indeed, the issue of fusion was considered by the Benson Commission back in 1979. The Commission considered the arguments and came to the firm recommendation that the profession should not be fused.

So, has anything changed to alter that recommendation? As a solicitor, I suppose that direct access to barristers appears to be the biggest recent change, and not just because it poses a threat to solicitors’ businesses. It is something that involves the public directly, and therefore appears to be a fundamental change in the way the ‘system’ works –although the number of barristers offering direct access outside of the big cities seems quite small.

However (and this must be confusing for the public), there remain certain things that direct access barristers cannot do. In particular, they cannot correspond with the court and the other party, as a solicitor could do. The clients therefore have to do this work themselves as a litigant in person. To the public, this may seem a slightly absurd restriction – why not go the whole hog, and let barristers do what solicitors can do?

But if you do that, then surely it is only fair that solicitors should be allowed to do what barristers can do (provided they have the necessary expertise)? And if that is the case, then there is no longer any need for the two parts of the profession to be separated.

Of course, there are reasons why barristers are not allowed to do things that solicitors can do. In particular, barristers do not have the infrastructure of solicitors’ firms, with their support staff and procedures to protect clients and their money. If there is to be fusion, then barristers will either have to set up this infrastructure themselves, or join solicitors’ firms (as a number have already done – in January 2012 there were already 62 mixed solicitor/barrister practices).

In its guidance notes on public access to barristers for “lay” (non legal) clients, written in July this year, the Bar Standards Board (which regulates barristers) stated: “The historic difference between what a barrister does and what a solicitor does has become less obvious over the last few years.” Perhaps the time to close the gap completely is now approaching, if it has not already arrived.