If advocacy is your calling, don’t try to force the creation of a single, merged profession – join the Bar, urges anonymous barrister The Law Horse
It is easy to be magnanimous when you are winning. Two weeks ago, Julian Young fired a calculated broadside in The Guardian at the Bar’s attitude towards solicitor advocates, while calling for a cessation to hostilities. With solicitors’ invasion of the courtroom all but secured, only one side of this legal battle stands to gain from the outbreak of peace.
Solicitor advocates, by their very nature, deprive barristers of work to which they alone were traditionally entitled, and are better trained and qualified to deal with. Instead of passing briefs up to barristers, solicitor advocates now retain some for themselves. This means less work for the Bar, especially junior barristers. Less available work – there is no sign of a correlated drop in general courtroom work – forces a reduction in pupillages and a long term decline in the number of practicing barristers. Where once our QCs were sought after the world over, a generation from now will see a dearth of talent at the top of the profession and the death of reliably excellent advocacy. It is a situation about which the entire legal profession, and not just the Bar, should be deeply concerned.
As I would not blame a vulture for dining on my carcass, I do not blame the Law Society for embracing and encouraging solicitor-advocates.
But there are real concerns as to the value provided by solicitor advocates, which are only exacerbated when SAHCA (the solicitor advocates’ professional body) regards it necessary to produce idiots’ guides to courtroom advocacy for its members, including the helpful instruction:
“Don’t shake hands with a barrister when you’re appearing as advocate – apparently they are above mutual shows of honesty.”
Solicitor advocates were supposed to open the courtroom doors to the forces of the market-place, reinvigorating a profession stuck in the early twentieth century with competition and consumer choice. In my field of the criminal law, solicitors continue to have virtually uncontested access to individuals who have been arrested and detained at the police station. With the advent of solicitor advocates, a client can journey through the system from arrest and charge to trial, conviction and sentence without a barrister ever being made aware of the existence of their case. This is not competition, it is a cartel.
Solicitor advocates are destroying the junior Bar. The tragedy is that direct access – the much touted saviour of the bar – has the same destructive potential for senior solicitors. Direct access, which allows barristers to bypass solicitors and offer their services directly to the public, will not work in every sector. But in commercial (civil and criminal) litigation, some notably high-powered London chambers are already stealing a march on their solicitor counterparts, offering their considerable experience and expertise without need of middlemen. If this trend continues, some extremely competent solicitors could find their practice on the wane.
To be successful, direct access will involve a drastic change in the working practices of the Bar. From accounting and general administration to pre and post-trial client care, barristers will struggle to provide a credible service. Mr Young points out, seemingly without irony, that these are matters “with which solicitors have dealt for many years and about which solicitors are experienced”, before going on to ask whether such responsibilities are what the Bar wants. I believe my position to be uncontroversial when I answer, emphatically, no. Having worked with criminal solicitors for a number of years prior to joining the Bar, it is not an area of legal practice I wish to revisit. But many see direct access as the last hope of reclaiming work that has been taken by solicitor advocates.
Mr Young suggests a solution: a single, merged profession. I can think of little (the passing of Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) aside) more damaging to the administration of justice. The Bar is an outstanding legal asset, a dynamic library of knowledge and excellence that will fall by the wayside should professionals be forced into jack-of-all-trade roles. Would you be impressed if your paramedic, ward nurse, consultant and surgeon were all the same person, or would you prefer the doctor slicing you open to have a specialist skill?
I have participated in American legal practice, where “advocates” work a case from cradle to grave. It is no accident that their courtrooms are as polarised as their politics, that the standard of advocacy and case preparation ranges from the sublime to the punishingly absurd. American advocates have been known to sleep through capital trials.
Many features are to blame for the poverty of the American system, not least the lack of funding and over-reliance on pro-bono representation. But if advocates were not expected to be lawyers, secretaries and investigators, as well as courtroom litigators, they might have the time to perform something more than a slipshod service. A fresh, independent pair of eyes at the courtroom door can highlight the errors, and bring out the best in any case.
Independence is a word I use uneasily to describe the Bar. There is an innate tension in a profession which is beholden to others for instruction, but which is expected to challenge them when the wrong call is made. But by and large barristers bridge this gap well, and solicitors appreciate frank advice. These are two professions, rich in heritage, with two distinct duties. Barristers and solicitors work best when they work in partnership.
The Bar Standards Board’s (BSB) description of solicitors as “superfluous intermediaries”, borne out of understandable frustration, was neither helpful nor accurate. Solicitors are very necessary intermediaries and I hold the profession in great esteem. They carry out work that I could not nor would not wish to take on. I could not effectively perform my job whilst at the same time attending police stations at 2am to represent a client. I do not have time to interview witnesses and organise exhibits, and still prepare a meticulous and effective courtroom strategy. Advocacy is greater than the words you say, and quality advocacy requires time and dedication. With the pressures of two jobs, I could not look a client in the eye and assure them that I had performed to my best.
There are many eminently qualified solicitor advocates. But if advocacy is your calling, join the Bar and you will excel. Many solicitors have crossed the divide and many barristers have taken the reverse leap. Do not conflate your personal desire to have your cake and eat it with the virtues of access to justice: those who ultimately pay the price will be your clients.
The Law Horse is an anonymous barrister at the criminal Bar of England and Wales. The Law Horse tweets at @thelawhorse.