The legal profession in England and Wales has a long history and a number of traditions that set it apart from that in other countries. Perhaps the most central is the distinction between solicitors and barristers.
What is the difference between a solicitor and barrister?
Both barristers and solicitors are lawyers of course, but they undergo different training and specialise in different areas. Solicitors are client-facing. They work on multiple cases at once, and directly deal with the legal legwork and paperwork that lie at the heart of every case. Barristers by contrast, tend to focus on a single case at a time and specialise in courtroom advocacy: they are the ones who stand up in court, in wigs and gowns, and argue their client’s case before a judge and (sometimes) a jury.
This is not the case in many other countries. In the United States, attorneys combine both roles. The term ‘attorney’ was used over here too until 1873.
Novelists and dramatists love barristers because it is an inherently theatrical role. Solicitors, by contrast, get little attention – but their contribution, so easy to gloss over – is very important.
My thoughts turned to my learned friends in court after I came across a case today concerning Dr Brian May, the Queen guitarist and now astrophysicist. He and his wife, actress Anita Dobson, launched legal proceedings and accepted the first offer made by the defendants.
What made the case stand out for me was the fact that Brian had chosen to bypass solicitors and instructed a Queens Counsel – a very senior and expensive barrister -directly. They had therefore incurred significant costs.
That is an unusual approach. Amongst the many differences between the two sides of the legal profession is the fact that – traditionally at least – solicitors are ‘retained’ directly by members of the public. Barristers are then instructed – on case-by-case basis – by the solicitors themselves to represent their clients in court as the need arises. So incurring the level of fees charged by a QC is unlikely in the normal course of affairs. Instructing a QC at all in a relatively small-scale case like this was arguably quite unnecessary.
Nevertheless the introduction of a ‘direct access’ scheme now allows members of the public, like Dr May, to go and see barristers themselves and cut out the “middle man” i.e. the solicitor. But whether he is happy with the outcome is another matter. And should solicitors and barristers be treading on each other’s toes like this?
In this new video I take a look at the direct access scheme and suggest one solution that might help stop solicitors and barristers from straying outside their usual fields of competence.
Could it be time to get rid of the archaic and arcane practices, the wigs and gowns and insularity?
Hello, I would like to thank Barrister Gordon Exall for bringing to my attention a judgement issued today entitled Dr Brian May, yes, the same guy who is the guitarist for Queen and astrophysicist, against Wavell Group PLC. What is interesting about this case is that Dr May and his wife, actress Anita Dobson were bringing a case in nuisance against the defendants and they launched a claim for some £208,000. They didn’t instruct solicitors, they went to instruct a QC (Queens Council), a Barrister at the highest level directly under the newly introduced Direct Access Scheme. They settled for the first offer made by the defendants who were represented by solicitors of £25,000. Then the question of costs arose because they were entitled to their costs but their costs were £208,000. How much of those should be paid by the defendants? Ultimately, it was decided that £99,000 of the costs were reasonable but only £35,000 plus VAT of those costs should be paid by the defendants.
Overall, was it worth it?
This case got me thinking about why we have this Direct Access Scheme to barristers who are traditionally part of the legal profession to advise on cases, they look at one case individually and advise on the law and they go into court as advocates. The higher up the level of bar barrister that you go, say to the QC, the more expensive and the more refined the argument and of course the costs. Solicitors of generally regarded as second rate even though they have actually trained just as long to go to their side of the profession as the bar have to theirs. What we do, is we are front facing. We deal with lots of cases at one time. We act and speak to the public. We negotiate. We conduct correspondence. Some of us do go into court and advocate for the client but overall, if it is required and if it is sufficiently complex, of course you would instruct a barrister whose job it is to be an advocate.
It got me thinking, direct access to the bar, solicitors taking over the job of advocates, particularly in criminal cases now that legal aid has been wacked down and everybody is trying to do each other’s job when I think it is the pressure of costs that has probably cause the whole thing.
Is it time to fuse the professions?
Well I definitely think it is. I have been involved in cases all over the world and in particular in America where I have seen entire firms preparing cases for trial. Some people go into court, some people prepare. It struck me that, in-house, it is so much more sensible and it is so much more proportionate. So I followed their lead and I employ barristers in this firm in the same way that I employ solicitors and it works very well. I think the time has come for all of us in the legal profession to consider fusion. Get rid of this distinction of barristers and solicitors and just have law firms; a one stop shop where the public can go and get access to all kinds of good, qualified lawyers.
Now, Gordon Exall has already tweeted that he does not agree with my position here. He was a solicitor and he became a barrister; he thinks it would increase costs, I respectfully disagree.
What do you think? I would like to hear from you too.
Thank you very much.