The bar must embrace direct access to the public to compete in a system that has been ‘calibrated and designed to hand the entire legal aid pot to solicitors’, the Bar Council chairman said last week.

Speaking at a symposium last week to discuss the paper The Future of the Bar, Nick Green QC also suggested that it should be open to solicitor-advocates to join the bar.

Green said the bar, and particularly the publicly funded bar, needs to modernise and adopt new business structures to cope with the rapidly evolving market, and challenging economic environment.

This means contracting directly with government for legal aid work through ProcureCos, he said, and embracing direct access to avoid the risk of ‘suffering death by a thousand cuts as solicitors hang on to more of the fees and instruct less barristers’.

Green said the legal aid system has in the past been ‘calibrated and designed to hand the entire legal aid pot to solicitors, who are incentivised by the self-same system to hold onto as much of the funds as they can.’

This meant solicitors kept the advocacy in-house and used the ‘most cost effective (ie cheapest)’ and least experienced advocates to do it, which not only caused the junior bar to dwindle, but also diminished the quality of justice in the courts, he said.

But Green also forecast that solicitors and barristers would work closer together through new business models, with legal disciplinary partnerships having a ‘substantial barrister presence’ over time.

He anticipated that some of the solicitor higher court advocates (HCAs) in those partnerships would want to transfer to the bar to get the best training and support. There were already a growing number of HCAs applying to join the bar, he noted.

Green said the bar will have to address its future membership, and suggested it could be open to all specialist advocates, with all of them regulated by the Bar Standards Board.

‘This is an issue brimming with complexities, but it is not something we should dismiss out of hand,’ he said.

Lady Deech, chair of the bar’s regulator, the Bar Standards Board, said the bar should welcome in all those who wanted to be specialist advocates and accept its code of conduct, and the BSB would look to regulate them and the entities that are ‘recognisably for advocates’, as well as employed barristers.

‘But it should not go head to head with the SRA, nor get into the expensive territory of regulation of client money handling,’ said Deech.

The Lord Chief Justice Igor Judge added that the profession had to ‘face up to the fact that it is in a new world’.

He said the judiciary were not in a position to give any steer on business practice or regulation, but he called for a single code of conduct for all advocates appearing in court.

‘You can’t have a situation where two advocates appearing in the same case reach a different conclusion as to their duty to the court based on their separate codes of conduct,’ he said.