Fusion via the back door

When the chairman of the Bar Council, Chantal-Aimée Doerries, was asked whether she thought the legal sector was moving towards a fused profession her answer couldn’t have been clearer: absolutely not.

Ask most barristers the same question, and many will also stress the importance and endurance of the independent bar. But while I wouldn’t yet predict the demise of the independent bar, their objections seem to be based on a false premise; that the two branches of the profession are not on some level already fused.

True, recent reforms that were heralded as a milestone on the road towards a fused profession have so far failed to gain traction. Take up for the Bar Standards Board’s entity model, which among other things allows barristers and solicitors to work together, has been low.

Just 54 entities have been set up against a projection of 400 in the first year, as the vast majority of barristers have opted to stick to the traditional chambers model. This has already led the BSB to revise down its estimate for the number of alternative business structures it expects to set up once it becomes authorised to license them in October.

But the entities that have been set up so far have already started to blur the division between the solicitor and barrister professions. Some barristers have set up structures similar to law firms which will compete with solicitors' practices; others have used the model to enable them to work alongside solicitors. 

Entities have also been adopted by solicitors looking to switch regulators. This reminds me of a conversation I had with a barrister when I started at the Gazette, where he noted that the only real difference between a barrister and a solicitor was who they were regulated by. Now even this is becoming less of a clear-cut distinction.

And although take up has been low so far, entities could still catch on. Direct access had a similarly slow start. Now over half the members of the self-employed bar are licensed to take on direct access work.

I am sure that whatever happens there will still be a divide between lawyers who opt mostly to advocate and those who opt mostly to litigate.

But to talk about fusion as something that is yet to happen is not entirely accurate. The fusion of the two professions might not be so much a matter of knocking down walls but gradually slipping in via the back door. And it has already begun.