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Making the case for a fused legal profession

23 Mar 2023

| Author: Leslie Thomas KC

So, we’ve traced the history of the English split profession. We now know why we have the division between barristers and solicitors and what each of them does on a day-to-day basis. That brings me on to the central question: do we need barristers? Or, more precisely, do we need a split profession? I practise both in England and Wales, which has a split profession and in the islands of the Eastern Caribbean, which, like many parts of the Commonwealth, have a fused profession.

So, I am in a good position to compare the two. That said, comparing the practice of law in two jurisdictions is necessarily an imperfect exercise. The jurisdictions of the Eastern Caribbean are much smaller than England and Wales, with a much smaller Bar and no two jurisdictions are exactly alike in the nature of their legal problems. Let’s start with some possible advantages of a split profession, and then look at the counter-arguments.


The advantages

A common argument in defence of the split profession is that barristers are professional advocates. We spend our whole careers doing written and oral advocacy before the courts. Since our day-to-day workload is so different from that of solicitors, we develop a different skillset. And so, we can often add significant value to a case. In my career, for example, I have cross-examined many witnesses, often in difficult circumstances and so I am much more comfortable with cross-examination than a lawyer who rarely does it.

This is an argument often made by barristers in defence of the split profession. In 2018, for example, Andrew Walker QC, then chairman of the Bar Council, said, “The bar’s focus is on advocacy and on the expertise of running trials, whereas, although there is a litigation element for solicitors, their work is primarily focused on the transactional work, which generates so much of our earnings.”

Another advantage is that, when a solicitor instructs a barrister, the barrister can sometimes offer an objective and detached view of the case. The solicitor may have been working on the client’s case for months or years, may have got to know the client well, and may be very invested (and rightly so) in obtaining success for the client.

By contrast, the barrister, with a shorter involvement in the case and more detachment from the client, may be able to offer a more impartial view. All of us lawyers know that when you are knee-deep in a case, it can sometimes be difficult to see the forest for the trees.

As Sir Owen Dixon, a former Chief Justice of the High Court of Australia, said in 1952, “The work of solicitors in the administration of justice has the greatest possible importance, but their allegiance is perhaps more to their clients who have a more permanent or at all events a longer relation with them than the transitory relations between client and counsel when the full enthusiasm and force of the advocate are attached to the individual for a short space of time.”

This objectivity and independence can also be valuable in contexts where the client isn’t an individual. For example, when the Crown Prosecution Service, (CPS) prosecutes cases in the Crown Court, it typically instructs barristers who are not themselves employed by the CPS. Many of these barristers have experience of defence work, as well as prosecution work. As such, they have a measure of independence from the CPS and may be able to take a more objective approach than an institutional insider.

A third advantage is that in a particular case, the barrister may have expertise that the solicitor lacks. For instance, if you’re a criminal defence solicitor and you’re dealing with an immigration issue outside your expertise, you might instruct a specialist immigration barrister.


The counter-argument

But there are, of course, possible answers to each of these points. In a fused profession, there’s no reason why we couldn’t have some lawyers who are primarily advocates and others who are primarily litigators.

We already have solicitor-advocates in England, many of whom have years of experience of courtroom advocacy under their belt and are highly skilled at it, while being solicitors. Nor is there any reason why lawyers couldn’t bring on other lawyers to assist them with a case, just as solicitors presently instruct barristers. In fact, in my experience in the Eastern Caribbean, this happens all the time. An attorney with a big case might bring on a senior attorney at another firm to serve as leading counsel, just as a big case in England would have leading and junior counsel. So, none of the points I’ve raised is self-evidently a reason to maintain a split profession.

Let’s move on to the disadvantages of a split profession. Some of these are not necessarily disadvantages of a split profession in the abstract but are disadvantages of the split profession as it currently functions in England and Wales.

One major disadvantage is that most barristers are self-employed and work in barristers’ chambers, which are associations of self-employed barristers rather than firms. Barristers are not salaried and are reliant on fees. This creates a range of problems.

Firstly, junior barristers who do primarily legal aid work often suffer financial hardship in their early years of practice. This is because legal aid fees tend to take a long time to come through and, in some areas such as crime, the fees are insultingly low. While barristers can earn better fees from winning civil claims or judicial review claims and securing inter partes costs, these too often take years to come through, especially if their costs are disputed.

So many junior barristers struggle financially for two or three years after completing pupillage and many need help from family. This is a huge deterrent to working-class people coming to the Bar. It also tends to push aspiring barristers into better-paid areas of legal work, such as commercial work.

Another problem associated with the self-employment system is fee inequality. This is a controversial subject, and I will touch on it only briefly here, but there can often be significant inequalities in work and fees between different members of the same chambers, and between different chambers. Sometimes these inequalities replicate broader inequalities in society as to race, gender, class and disability.

And a third problem is that as barristers aren’t employees, we have no right to holiday pay, sick pay, an employer’s pension scheme, paid parental leave or any of the other benefits associated with being an employee. Many chambers do have insurance policies and pension schemes for barristers, but these are voluntary and not all barristers can afford them. In short, the self-employed Bar can often be a sink-or-swim system where it is difficult for marginalised people to make a living.


Collegiality

This is admittedly mitigated by the strong solidarity and collegiality that often exists between barristers. Many sources of help exist, including one’s own chambers, the Inns of Court and the Bar Council.

There are some great things about the Bar, such as the Bar Mutual Indemnity Fund (BMIF), which provides professional indemnity insurance to all barristers, and is far better than trying to find insurance on the private market. So, I’m certainly not suggesting the Bar has an “everyone for themselves” culture. It does not. Nor am I trying to discourage anyone from coming to the Bar: in fact, I’ve spent a great deal of my working life trying to encourage people of colour and working-class people to come to the Bar. However, it remains the case that the structure of the self-employed Bar naturally creates inequality and hardship. That isn’t the fault of individual barristers or their chambers but of the system we inherited.

The problems with the self-employment system aren’t limited to fees. Administering a barristers’ chambers presents a unique set of challenges for chambers management and staff, because barristers aren’t partners in a firm, but self-employed individuals who simply share the same place of work. Members of chambers can and sometimes do appear against one another in the same case.


Blurred boundaries

Aside from the self-employment system, another major problem with the split profession is the apparently arbitrary lines between what a solicitor can do and what a barrister can do. Barristers, unless we have been specially authorised to do so, cannot conduct litigation. That means we commit a criminal offence if, for example, we issue proceedings in court on behalf of a client. The boundaries of the conduct of litigation are blurred, however, and barristers are allowed to file certain things with the court, such as bundles of authorities and skeleton arguments.

The rules can be especially complex and difficult when conducting Public Access work, where a barrister is instructed directly by a client. In such a case the client must conduct the litigation themselves, meaning they have to file documents with the court.

There are also limits to what Public Access barristers are permitted to do in gathering evidence. This often creates difficulties and it is very easy unintentionally to breach the rules. It is also difficult for clients to understand the differences between what a barrister can do and what a solicitor can do.

And these problems wouldn’t necessarily be alleviated by more barristers becoming authorised to conduct litigation. Since most barristers are self-employed and don’t work in firms, many don’t have the administrative support systems in place that would be necessary to conduct litigation efficiently. The restrictions on the other side of the coin are just as arbitrary. Barristers and solicitor-advocates have a monopoly on rights of audience in the Crown Court, High Court, Court of Appeal and Supreme Court, but not in the magistrates’ court or the County Court.

We’ve already looked at the historical origins of this distinction, but it doesn’t make a great deal of sense in the modern world. After all, the same skills are required to conduct effective advocacy in an inferior court and in a superior court. If solicitors can be trusted to carry out advocacy in some courts, why not all of them?

It’s no answer to say that the magistrates’ court and the County Court tend to deal with less serious cases. The County Court now routinely deals with a lot of high-value civil cases, as well as high-stakes litigation such as possession claims, where a person is at risk of being evicted from their home.

The magistrates’ court includes the Youth Court, where children can be tried for relatively serious offences. And solicitors can also carry out advocacy in tribunals and some tribunal hearings are of immense importance to the individual. For instance, a tribunal hearing in an asylum case is literally a matter of life and death.

That said, advocacy is a specialist skill, and it is true that barristers and solicitor-advocates tend to have much greater experience of advocacy than does the average solicitor. But that doesn’t justify drawing an arbitrary line between superior and inferior courts, which exists only for historical reasons. As an interesting aside, despite the Eastern Caribbean having a fused profession, the historical divide between solicitors and barristers is still of some importance there. In England, the rule that barristers were immune from actions in negligence has been abolished by case law.

But in many jurisdictions of the Commonwealth Caribbean, it still exists. This gives rise to significant ambiguity about which types of legal work are immune from negligence claims and which are not, since it is only the work of an advocate that attracts the immunity, not everything done by a lawyer.

I should make clear that this is not an argument against a fused profession. Rather, it’s an argument against maintaining this archaic immunity, which has been consigned to history in England and should be equally consigned to history in the Commonwealth Caribbean.


Conclusion

My overall view, which will no doubt be controversial among my colleagues at the Bar, is that there is in principle no sensible reason for a split profession.

The separation between solicitors and barristers exists mainly for historical reasons. The lines that are drawn between the two professions don’t make a great deal of sense in the modern world. And the structure of the Bar, where most barristers are self-employed, creates a lot of avoidable difficulties.

It is true that barristers often bring significant benefits to our cases, due to our specialist skill in advocacy and our independence. Similarly, it is true that solicitors often have skills and experience that most barristers do not. But this does not necessarily require a rigid separation between the two professions, nor does it justify the current arbitrary limits on what each can do.

That said, I’m not necessarily calling for an immediate change. It would be very difficult and disruptive to fuse the English legal professions overnight. And we also need to recognise that the structure of the legal profession does not exist in a political vacuum.

We are having this conversation against the backdrop of the systematic underfunding of legal aid over the past two decades. Many of the financial pressures on the self-employed Bar, and indeed the financial pressures on solicitors’ firms, are caused by the current parlous state of legal aid. The Legal Aid, Sentencing and Punishment of Offenders Act 2012, which radically reduced the scope of legal aid, was a huge blow to the legal profession and to the integrity of the legal system, from which it has never recovered. Whether we have a split profession or a fused one, it is essential that it be funded properly.

The legal distinctions between what solicitors and barristers may do have already been significantly weakened in recent decades. That process should continue. But this should happen alongside an immediate increase in legal aid rates, the repeal of the 2012 Act and a restoration of the full scope of legal aid, and a commitment to properly fund the administration of justice. ■

Professor Leslie Thomas KC is a lecturer at Gresham College in central London 

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