In the debate about how the legal regulators should amend practising rules to allow solicitors and barristers to operate in the new structures modelled in the Legal Services Act 2007, some predicted that the reforms could alter forever the identity of lawyers and lead to fusion – ending the distinction between law firms and chambers. That has not happened, but does slow progress to date rule out greater upheaval in future?

The Solicitors Regulation Authority changed the Solicitors Code of Conduct in March 2009 to allow solicitors to form legal disciplinary practices and permit up to 25% of partners to be non-lawyers. A month later, the Bar Standards Board followed suit, amending the bar’s rules to enable barristers to go into partnership with solicitors.

The latest figures from the SRA show there are currently 280 LDPs, and of the people either employed or within the partnership in these organisations, only 14 are barristers. To date, it has all been a bit of a damp squib. But will other factors bring about closer collaboration?

Positive impactThe Legal Services Act (LSA), according to Bar Council chairman Nick Green QC, has had a positive impact on the relationship between the two professions, but only in a limited way.

It has provided the opportunity for closer working relationships, but as the figures show, it is an opportunity that few have elected to take up. Green puts this down to the nature of the bar as an independent referral profession, focused on providing specialist advocacy services.

The LSA, Green believes, is not an irrelevance, but it is not the main driver of change: ‘The main driver is the legal aid crisis, exacerbated by the economic situation caused by the bankers, which will create an interesting jockeying for position between the bar and solicitors.’

Growing financial pressures on the bar resulting from the downturn, the falling legal aid budget, and competition from higher court solicitor-advocates, mean that those barristers who mainly do publicly funded work are keen to get their hands on the sources of instructions and fees, rather than relying on referrals from solicitors.

The solution the bar has come up with is a model procurement company, which has become known as ‘the ProcureCo’. It preserves the traditional chambers structure but allows corporate vehicles to be added as an adjunct to chambers.

The model will enable the bar to contract directly with the Legal Services Commission, and then instruct solicitors to perform the elements of work that chambers do not wish to, or cannot do, reversing the current referral arrangements.

Green predicts: ‘We’re looking at a juggernaut. Big bar units will compete against solicitors’ firms in contracting with the LSC.’ He adds that the prospect of large sets competing in contracting exercises has alarmed some solicitors, who have threatened to blacklist any chambers that bid against them. ‘There are some solicitors’ firms, especially in big cities, who are making threats that if barristers’ chambers bid against them, they will blacklist them and won’t instruct them if they fail to get a contract,’ he alleges.

That reaction will not prevail, he adds: ‘This is an irrational stance, held by the minority. The vast majority of solicitors have worked out that they need to enter into sensible discussions with chambers and think how they can work together. We’re natural partners. There is huge scope for synergies between solicitors and barristers in the new arrangements.’

According to his analysis, contracts will be awarded on the basis that the bidder can provide the full range of criminal work, from police station advice to the Crown court, so barristers will need to have links with solicitors to fulfil this criterion. ‘The bar does lots of Crown court work and solicitors do lots of police station and magistrates’ court work, so they can work with each other,’ he explains. ‘It’s complementary in the sense that they might fit together well.’

According to this view, barristers and solicitors will be bidding against each other for work, but they will also need each other and will be included in each other’s bids or form panel arrangements. And there will be cross instruction, so ‘things will not be too different from the way we work now’. Moreover, the bar could provide a lifeline for small criminal legal aid firms that fail to get contracts when the LSC next tenders.

If the coalition pursues the last government’s plans to contract the criminal defence market, over 1,000 firms will be left without contracts, says Green. ‘Some firms that don’t get contracts could join a ProcureCo.’

In summary, the bar chairman does not see the roles of solicitors and barristers or their relationship changing a great deal. ‘There will be a greater degree of formality between the relationship and the way work is procured, but that’s about it,’ he observes.

He doesn’t believe that is about ‘fusion’, adding: ‘Barristers and solicitors will still do much the same work they have always done. The bar’s approach will be the same. We will remain advocates but with a longer litigation tail.’

Law Society president Linda Lee notes that most legal work is carried out by solicitors and does not affect the bar. She is in agreement with Green over the limited impact of the LSA. ‘There will be some barristers employed in solicitors’ firms or who go into partnership with solicitors, but I don’t think the number of people doing this will increase hugely,’ she says.

Where this does happen, Lee predicts that the traditional firm model will be preserved, with no discernible change from the client’s perspective. According to Lee: ‘For clients it won’t look different. They will still be getting the same service and I don’t think they’ll notice whether it’s from a barrister or solicitor.’

Element of competitionBut the solicitor’s role is changing from the traditional one of calling on the expertise of the bar when required for specialist work to be undertaken. As solicitors are increasingly developing their own specialisms, so there is a reduction in the need for them to approach the bar.

This has created an element of competition between the two professions. But Lee is dubious about the effectiveness of the bar’s solution or whether they will be able to pull it off: ‘The ProcureCo is an interesting development. The reputation of a chambers will be staked on their contracts and they will have to ensure the quality of the work they don’t carry out themselves.’ She adds: ‘In addition, barristers will have to learn how to administer and manage the company – a different skill set from that needed by independent practitioners.’

The development, she adds, risks damaging the relationships that sets have with firms and alienating their existing client base. ‘Essentially, solicitors are clients of the bar. If they see the bar as competing with them rather than purchasing services from them it will change the relationship.’

The instability of the legal aid market, she says, adds to the uncertainty of the venture, although she concedes ‘one or two sets may make a go of it’.

Chair of the Bar Standards Board Lady Deech acknowledges the distinct roles of barristers and solicitors and, although the boundaries are becoming more ‘fluid’, she says both branches of the profession share common causes. ‘They are both concerned with the issues around legal aid, getting the best young people into the professions, and the impact of the recession,’ she notes.

Deech does not see the LSA or the regulatory changes that followed it leading to fusion, as ‘neither the Solicitors Regulation Authority nor the BSB want that’. She adds: ‘There are some solicitors who do advocacy and some barristers who are employed in firms, but there remain two core roles.’ Solicitors, she says, are ‘more in charge of affairs and negotiation and providing general all-purpose help’.

Barristers, meanwhile, are ‘independent advocates with special responsibilities to ensure they take the next case that comes along, to safeguard the rule of law, and to train future judges’.

There is, Deech accepts, a certain amount of overlap where solicitors do advocacy and barristers do employed work, and she expects this to grow along with the number of entities in which barristers and solicitors work together. It is partly for this reason that she would like to see a single comprehensive postgraduate legal training course covering every lawyer activity, from advocacy, to practice management and ethics.

This would prepare the future generation of lawyers for practice in any type of legal entity and mean that students would not have to decide so early in their studies which career path to follow, explains Deech.

On this point Deech’s counterpart at the SRA, Charles Plant, is in agreement. ‘There should be a common legal education, particularly to enable young people to make career choices later than they have to now,’ says Plant. ‘It doesn’t mean there’d be fusion of the professions but it would help young lawyers move from one area of the profession to the other.’

In structural terms, Plant envisages a situation where barristers and solicitors are increasingly likely to go into partnership together.

He explains: ‘You have a situation where it’s arguable that there are too many lawyers. Every lawyer needs to ask themselves the question whether they could have a more rewarding career if they went into a partnership structure.’ The roles played by these two types of lawyer would vary, he says. ‘There may be solicitors who want to do more advocacy and barristers who want to do more of the case preparation.’

Going into partnership with solicitors, according to Plant, would be advantageous for barristers, improving their career prospects. The bar, he argues, is ‘overmanned’ and solicitors have developed the advocacy skills that were once the preserve of the bar, so solicitors are less reliant on the services of their barrister colleagues. He adds: ‘The bar’s role as a referral profession works well among the top echelons, but once you get outside that it’ll increasingly come under attack as solicitors expand their role.’

The jury remains out, then, on the precise extent of the impact that the LSA will eventually have on relations between these two groups of learned friends. But all seem agreed that the economic challenges facing the publicly funded sector of both professions are providing the greatest catalyst for change at present. Whether that will lead to increased competition and friction between barristers and solicitors, or whether it will see the fostering of unity and closer cooperation, also remains to be seen.

United front

One example of barristers and solicitors coming together to promote unity and understanding can be seen in a pioneering move by Birmingham Law Society (BLS). President Dean Parnell invited all 162 barristers at the city’s second largest set, St Philips Chambers, to become members of the local law society. And they did. Barristers have been permitted to join BLS for some years, but this is the first time in its 191-year history that an entire set of chambers has signed up.

Parnell is also keen to have barristers and chambers’ employees on BLS’s committees. He explains why: ‘The challenges anticipated by the Legal Services Act and other economic pressures mean that different arms of the legal profession will need to work more closely together. We want to make the local legal community more cohesive so firms and chambers don’t feel isolated. If we can improve the networks and lines of communication we can face the threats together.’

St Philips Chambers’ chief executive Chris Owen observes: ‘The profession has changed a lot since I became an articled clerk in 1968. Among other things, the LSA will mean we all have to operate more cooperatively than we have done hitherto.’

Explaining why his set joined BLS, he adds: ‘Local bars and solicitors should work more closely together. It’s a good way to gain greater understanding and it demystifies the relationship between the bar and solicitors. It’s about getting rid of the "them and us" view – if that ever existed.’