The Legal Services Act, in combination with changes to the bar’s Code of Conduct agreed last month by the Bar Standards Board, herald a historic sea change for the bar. They give barristers the opportunity to practise in new ways that could radically change the relationship they have with solicitors.

Many barristers have been seeking greater flexibility for some time, given the recession, growing pressure on the legal aid budget and the government’s proposals to reorganise legal aid. Increased competition from solicitor higher court advocates has also concentrated minds.

Some have been critical of the bar and its regulator for being slow to respond to the changing climate and ensure barristers remain competitive in the post-Clementi legal services market. And when the BSB announced on 1 April that the Legal Services Board had approved changes to the profession’s rules, there were some who thought it was an April fool.

The changes, which followed lengthy consultation, include allowing barristers to practise in partnerships either with other barristers, or in legal disciplinary practices with solicitors; and permitting barristers to work in more than one capacity at the same time, so they can practise in an LDP part-time and be self-employed in chambers.

The public access scheme has been expanded to enable clients to instruct barristers directly without a solicitor intermediary in private crime, family and immigration work. And the BSB also increased the scope for barristers to conduct litigation, allowing them to carry out work that has traditionally been the preserve of their solicitor colleagues. For example, barristers will now be able to attend at the police station, collect evidence, prepare witness statements and conduct correspondence.

Bar Council chairman Nick Green QC told the Gazette: ‘What we’re trying to do generally is make the bar more modern so it can respond better to the pressures it faces and deal more flexibly with clients.’

That modernisation will in some instances necessarily involve encroachment on the turf of solicitors: potentially biting the hands that have traditionally fed the bar.

PartnershipGreen does not think the idea of partnerships will prove an attractive option for many barristers, not only because of the conflicts rule, which will operate to reduce the capacity of the profession to take on cases, but also because of the independent nature of barristers and their desire to preserve the traditional chambers structure.

John Holland, manager at Argent in London, a progressive set that is already making use of some of the changes, says Argent looked at the idea of LDPs and alternative business structures, but concluded they were not appropriate at present.

‘Our philosophy is to preserve the independence of the two professions, because that’s what barristers at Argent want. Aside from not wanting to do solicitors’ work, they are put off by the conflict issues that may arise and limit the cases they could take on,’ he says.

Nicole Curtis is one of the first barristers to have found the idea of partnership in a solicitor’s firm attractive. She recently became a partner in the regulatory team at London firm Penningtons, where she has worked as an in-house advocate for the last six years.

Curtis says the change in status will not affect the way she works on a day-to-day basis, but will enable her to take a greater role in the firm and its management.

She is not certain how many other barristers will follow her example, but agrees with Green that the changes provide the opportunity for a more flexible approach that will enable a more seamless service to be provided to clients.

‘It is definitely not an either/or situation – there will be a place for different models. It’s a question of there being more flexibility, which offers more options in the way services can be offered,’ she says.

Barrister Portia O’Connor has taken the opportunity provided by the rule changes to practise in a dual capacity. She works as a self-employed barrister from Foregate Chambers in Winchester, but is also a partner at Pegasus Legal Research in West Bromwich.

O’Connor, who specialises in consumer credit, matrimonial finance and employment law, started doing public access on a limited basis in 2004 when the rules first permitted her to do so.

‘I liked the contact with clients and have seen the advantage of being involved with cases from the outset. Being a partner in a law firm allows me to have direct access to my own clients,’ she explains.

She believes other barristers will want to go into practice with solicitors because it gives them access to clients from the beginning of the process, and removes the uncertainty over obtaining instructions.

‘It’ll become the norm for barristers and solicitors to work together, but I don’t think there’ll come a point when they’re doing the same work. The two professions have different skill sets and people decide at the outset of their career which type of work they want to do,’ she says.

If more barristers do take up the option of practising in partnership with solicitors to present a one-stop-shop to clients, Christine Kings, commercial director at innovative London set Outer Temple, says that will necessarily change the nature of the relationship between the two sets of professionals.

But she predicts that even if they do not opt for this formal partnership approach, the relationship between solicitors and barristers will become closer, as they seek to provide more complete services to their clients, marketing themselves jointly as legal teams.

ProcureCoBecause the Bar Council believes that most barristers will not think partnerships are a viable business model, it has focused its efforts on developing a model that preserves the traditional chambers structure, but allows corporate vehicles to be added as an adjunct to chambers – the ProcureCo (see news).

The ProcureCo will not be able to supply legal services, merely procure the services of lawyers to be provided to clients.

The idea is that chambers will be able to set up a company that will allow them to bring together a range of professionals to contract directly with clients for work, offering a comprehensive service and enabling them to tender for contracts with volume purchasers of legal services.

For example, says Green, a local authority seeking to cut its legal spend may seek to outsource the work and agree to contract with a set of chambers on the basis that it provides all the services required for the work.

‘So it will enter a contract with the ProcureCo which will set up a panel with barristers, solicitors, surveyors and others,’ he explains.

‘The ProcureCo will control the pot of money. In this way, it reverses the normal order of things and barristers will get their hands on the money first.’

Green says that chambers considering this option cover a diverse range of practice areas including: family; mediation; arbitration; City advisory and compliance work; and local authority work.

However, he believes that the area where they will take off the most will be crime. In the past, the Legal Services Commission has contracted only with solicitors but, says Green, the bar has been having discussions with the agency on the issue of contracting with barristers.

‘This will certainly result in barristers being in competition with solicitors,’ he points out, explaining that ‘because higher court advocates are being used more, the bar’s only way to compete is to fight back’.

This may sound like a recipe for friction, but Green does not think it will have an adverse impact on the bar’s relationship with solicitors. ‘Most solicitors I’ve spoken to have said it’s about time the bar woke up and did something,’ he observes.

Green goes further and suggests that ProcureCos will provide an opportunity for barristers to help solicitors. He says the LSC’s new contracting regime for criminal defence services will see many firms leave the market. That, he predicts, will mean a lot of redundant solicitors eager to team up with members of the bar and be on their ProcureCo panels. ‘It’ll be a way back into the market for them,’ says Green – and it is a route he believes that many are already examining.

London’s Argent Chambers has set up a ProcureCo – a separate limited company called Argent Law, offering financial and regulatory advice services to business clients, including banks and hedge funds.

It is run independently from chambers by business development manager Steve Jones, who explains: ‘It’s a vehicle through which chambers can procure work at source and then outsource the legal functions to various professionals.

‘What we do is effectively assess the needs in a case and decide on the best team of solicitors, barristers, accountants, litigation funders and whoever else is required.

‘It provides a one-stop shop for clients. For the solicitors and barristers, while the source of the work has changed, the work itself remains the same,’ says Jones.

He says the arrangement puts barristers on a level playing field to compete for work with solicitors, gives clients greater choice, and improves access to justice. The latter object, he notes, was the basis for introducing the legal services reforms in the first place.

Public accessThe expansion of the public access scheme is another change that will enable barristers to get their hands on the source of instructions and reverse the current direction of referrals.

QEB Hollis Whiteman has launched a direct access service, aimed primarily at corporations and individuals coping with the increasing burden of compliance and statutory reporting backed up by penal sanctions.

To enhance its service, the set, known for its work in the business crime and financial regulation fields, is due to move from its current site in London’s Temple to premises near Cannon Street in the summer.

From the client’s perspective, says Martin Secrett, the set’s senior clerk: ‘Direct access will enable us to be a "first port of call" for business and other professionals who recognise the advantage of obtaining the advice of experienced specialists at the outset of a legal problem.’

Chambers, he says, sees no immediate need or benefit to clients in seeking to enter joint ventures with solicitors’ firms. But he believes the changes provide an opportunity to strengthen relationships with solicitors who currently provide referral work, as clients will often require litigation services as matters progress.

Jonathan Maskew, the set’s marketing director, echoes Secrett, adding: ‘Typically, our clients have gone to a solicitor initially and we have been instructed at the end of the chain. But the referral market can work both ways.

‘Direct access complements our present relationship with solicitors and gives us the opportunity to refer work back to firms who have been instructing us for years,’ he says.

Argent has also added a public access arm to its offering. Argent Direct offers specialist advocacy services in criminal appeals, licensing and professional discipline.

Argent’s Holland says: ‘Our model is based on advocacy. We don’t want to be solicitors or take on their function, but preserve and strengthen the current relationship between barristers and solicitors and maintain the independence of the two professions.’

Jones comments: ‘The fundamental change is that barristers get to the source of the work and it can be them who put the work on to solicitors.’

So what will the bar of the future look like? Outer Temple’s Kings says: ‘We’re at the beginning of the process and how things will pan out is not clear. But the expectation is that the bar will remain specialist advocates and advisers, and solicitors will continue to do the litigation and handle client affairs.’

She predicts: ‘There will be some barristers who may want to do more of the work that solicitors have done, but the majority just want more freedom to be able to compete in a new market place.’

Peter Rouse, director of online diary-based directory of barristers Bar Select, notes that, in common with other business relationships, the relationship between barristers and solicitors has become less formal and more integrated.

‘There was a time when a barrister couldn’t speak to a solicitor unless it was about a brief,’ he recalls.

Rouse believes the legal services reforms, together with the economic situation, will accelerate that process of integration, as clients look for greater efficiency in terms of cost and performance, and the lawyers seek to deliver a quality service and keep their costs under control so they remain profitable.

The last word on the future of the bar goes to its chairman, who says: ‘The bar will still be a referral profession with a focus on advocacy. We won’t be doing solicitors’ work, but there will need to be a greater commercial flexibility and a greater litigation tail.’