Practicalities of unification

In March 1995, Judge David Bentley QC sitting in Sheffield Crown Court was forced to make a public apology after stating that a defendant did not need to ‘stoop so low’ as to employ the services of a solicitor-advocate. The idea that a member of the judiciary could publicly state such a view is now anathema, and rightly so. The legal landscape has shifted dramatically since 1995. Changes to public funding, rights of audience and regulation mean that the traditional distinction of the barrister in court and the solicitor behind the scenes preparing the papers is far removed from reality. But will these roles ever disappear entirely? It certainly seems to be the view of the Law Society president John Wotton, who in a recent speech at Oxford’s Saïd Business School stated that the future might see the distinction between the two professions being ‘more a matter of tribal culture than function, rather like the distinction between a Cambridge and Oxford degree’.

We however think that distinct functions will remain, particularly with regard to advocacy, whether conducted by solicitors or barristers. Although changes to rights of audience and access over recent years have removed many traditional distinctions between solicitors and barristers, the professions are still in a state of flux. The market has always demanded that advocacy be performed by those with the highest degree of expertise. The function of the Bar Standards Board (BSB) and the Solicitors Regulation Authority (SRA) must be to ensure that this is achieved.

In a speech to the Bar Council (at ‘The Future of the Bar’ symposium), the then chairman Nicholas Green QC said the bar needed to be less ‘coy’ about the ‘f’ word. He was referring to ‘fusion’ and the need of the bar to accept that it could no longer exist purely as a referral profession. In his view fusion was already occurring. And it continues to do so. Barristers can now be employed and become partners. They can also be members of multi-disciplinary partnerships. Many chambers have adopted the ProcureCo model of practice, which allows a commercial entity linked to chambers to enter into contracts with large suppliers of work which can then be outsourced. This allows for greater flexibility in putting together teams of lawyers to best meet the needs of the client. More and more barristers are training to be able to take on work on a ‘direct access’ basis. It is felt that this is vital, especially in an environment where solicitors are now viewed as competitors.

However, it is not just the bar whose position has changed. The monopoly the bar enjoyed in relation to the provision of advocacy services has been shattered. The junior bar reports being badly affected in criminal work in particular. The reduction in public funding has meant that many smaller criminal departments have become absorbed by larger firms of solicitors with their own set of higher-court advocates; they are now becoming the holders of the monopoly in relation to much of the less serious criminal work. Concerns about the standards of advocacy are being met by the introduction of a quality assurance scheme to ensure that the only criteria which govern whether an advocate appears in court will be the quality of the advocacy they deliver, assessed against objective criteria by the judiciary and trained assessors. The fact that they may have dined in halls the requisite number of times is an irrelevance.

There is no room in the current climate for the maintenance of a profession simply due to a romantic attachment to tradition. What should unite every member of either profession is the desire to provide their client with the highest standard of legal services in the most efficient way possible. Only by having this ethic at the forefront of their collective minds can the legal profession as a whole withstand being the easy target of public derision and government attack based on misconceptions of their function.

The legal profession encompasses many different skills and talents. The skilled contractual negotiator may well be an appalling advocate, and one would be ill-advised to ask even the most senior of criminal barristers to assist with conveyancing. Traditionally, these distinctions were recognised by the different professions and regulatory bodies. The solicitor carried out the organisational role before referring it to the self-employed advocate at the bar. It is, however, worth pausing a moment to consider what the special ‘magic’ of advocacy is. It has been argued that advocacy is a specialised art form, but what sets it apart from other equally specialised skills?

The answer must surely lie in the direct role it plays in the administration of justice and the importance of this to society as a whole. In reaching their decisions - decisions which may impact upon every individual in the country - judges need to have faith in the advocates appearing before them. They may disagree with the advocate, but they need to be able to trust them. Judges need to be confident that when faced with the difficulty of reconciling a duty to the court and to the client, the advocate will always remember their overriding duty to the court. When an advocate loses this trust their chances of successfully arguing even the most compelling of cases is greatly reduced.

There is no basis for believing that those who have been called to the bar are any better equipped to make this decision than solicitors. What is important is that those who offer advocacy services are regulated in a way which is consistent, and by a regulator which understands the difficult task faced by advocates in almost every second of their working life. As things stand, a judge with two advocates in front of them may have one regulated by the BSB and another by SRA. This cannot, we suggest, be correct. Those who carry out advocacy are governed by strict codes of conduct, the barristers’ and higher-court advocates’ codes being almost identical, and therefore they should be policed by the same body. In the view of Nicholas Green QC, advocacy demands the highly specialist regulation which the BSB provides. Law Society president John Wotton, meanwhile, believes that in the ‘short- to medium-term’ more barristers will practise in SRA-regulated entities.

'There is no room in the current climate for the maintenance of a profession simply due to a romantic attachment to tradition'

The future model for the legal profession may be that ‘advocates’ are regulated by one body while those who perform non-advocacy functions (whatever those functions may be) are regulated by another. This will not ensure an advocacy profession of the highest calibre. It is vital to consider the route by which lawyers enter the profession and the education and training they receive throughout their career.

The regulatory requirements differ with regard to teaching and assessing advocacy on the Legal Practice Course and Bar Practice Training Course respectively. The amount of advocacy teaching demanded by the BSB is considerably higher than that required by the SRA. Further, to teach and/or assess advocacy on the BPTC, tutors must be accredited by the Advocacy Training Council.

It has always been recognised that the training provided by the LPC and Professional Skills Course does not, of itself, equip individuals to perform advocacy in the higher courts. Those who have taken this path and wish to appear as advocates in the higher courts are obliged by the SRA to undergo an accreditation process. Barristers who have completed pupillage do not have to overcome this hurdle. The Joint Advocacy Group (comprising the SRA, BSB and CILEx) is developing a Quality Assurance Scheme for Advocates in the criminal courts. Under the proposed scheme a similar distinction will remain. Although barristers will have to apply for a provisional licence and demonstrate competence through judicial evaluation, they will not have to undergo the assessment process that solicitors will face.

One assumption that might be drawn from this is that those who desire to practise in advocacy will gravitate towards the BPTC. Students who complete the BPTC but are unsuccessful in obtaining pupillage are no longer ‘qualified lawyers’, they are now required to complete the LPC before they can practise as solicitors. Similarly, those who complete the LPC but do not have a training contract would be required to complete BPTC if they wished to cross-qualify. The cost of taking both courses is well beyond the means of all but the very richest. Students considering the legal profession as a career need to take many things into account in electing which of the two courses they select. One thing which they should not need to worry about in making this decision is whether or not their professional bodies will permit them to act as advocates.

If we are to achieve excellence in advocacy, which is in the interests of every individual client and the general public, this needs redressing. A single unified training system which allows all applicants a general qualification and offers those who wish to be advocates an enhanced option to gain higher rights would prevent those students from having to make this difficult choice. The professions would benefit by having a wider pool of the most able applicants available to them.

The public would benefit from the fact that those performing advocacy services and ensuring justice were doing so to the necessary standard. There will always be a demand for advocates of the highest calibre to perform a unique role within the legal profession. The public interest requires that the quality of the work they do is regulated consistently. They may operate in different ways but their functions will always be distinct.

Jeremy Robson is head of LLM advocacy and Helen Edwards is head of graduate programmes at Nottingham Law School