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Guest post: public access to the Bar – more sideshow than shifting paradigms

Recent headlines seem to suggest that the Bar is gearing up to ‘bypass’ solicitors and embark upon an all-out war with for business in these increasingly competitive times.

This is on the back of figures published in a recent joint Bar Council and Bar Standards Board report, projecting that the number of barristers qualified to conduct public access work is set to rise from the current 20% to 50% by the end of 2015.

Public access is therefore increasingly being talked about as a major opportunity for the Bar and threat to solicitors. But how informed is this debate? Is there a genuine market shift in play or is this merely paranoia-induced hype?

It is important to point out here what types of work barristers can already do without being authorised for public access. Here, the waters have been muddied by the common reference to ‘direct access’, which has no prescribed definition.

First, barristers have always been able to accept instructions from large corporations or indeed any organisations that have their own in-house legal function (assuming it contains a qualified lawyer). Some of the largest corporations (notably banks, insurers and utilities) and public bodies, with a regular requirement for litigation services have instructed the Bar directly (ie without the involvement of a private practice solicitor) in large volumes for many years. Public access is therefore of no relevance to this significant segment of the market.

Secondly, since the International Practice Rules were introduced around 15 years ago, barristers have been able to accept instructions directly from overseas lay clients (although this excludes litigation after the point of issue of proceedings, when a solicitor is required).

Thirdly, again for about 15 years, barristers have been able to accept instructions directly from members of various recognised professions, such as accountants, tax consultants, surveyors and architects.

All in all, this renders public access completely irrelevant to a significant part of the legal services market. This does, of course, still leave the not insubstantial domestic consumer and SME markets, but it is important to set the context for any debate about threats or opportunities presented by public access by first recognising the restricted reach of its potential impact.

Authorisation for public access work

The position, particularly with regard to the perceived threat to solicitors, is put further into perspective when you consider what qualifying for public access actually entails.

Basically, it involves paying a fee in the region of £400 in return for a 1.5 day course. For many barristers, this is a relatively small investment of time and money particularly when you consider that it also takes care of a full year’s worth of CPD points. I’m not sure it requires a decision of any great magnitude to embark upon this and I believe that many barristers will not do so because of any great appetite for public access work, but rather they are happy to leave the door open for opportunities of special interest or those that may come at a convenient time, when business is otherwise quiet. To use the ubiquitous taxi metaphor, it’s like turning the light on but leaving the taxi in the driveway. (Having gone down this route, I should add that the controversial ‘Cab Rank Rule’ does not apply to public access work).

Where I’d suggest the debate has got a little hysterical is the widely reported perception that the increase in public access authorisations represents a wholesale strategic re-positioning of barristers’ business plans with a view to a major onslaught on solicitors’ territory. More likely, it is a sensible investment of relatively small amounts of time and money to put oneself in the frame, without obligation, for possible opportunities while meeting mandatory CPD requirements. Along the way, one might also learn a bit more about client engagement and gain a better understanding of some of the work of solicitors. In my view, taking over the world does not feature highly in the list of reasons to go down this route.

Appetite and capability

There does, however, seem to be an increasing appetite at the Bar for public access work and the profile of this route to instructing a barrister has certainly been raised in recent times, not least through the proliferation of web-based marketing portals for barristers.

I’d suggest the vast amount of the buying market does not particularly want to buy ‘public access’. More likely, they have a legal problem, to which they need an effective solution at the right price. That best solution can in many cases lie in public access, where it is primarily advocacy that is required or specialist discrete advice is needed in scenarios where the legal problem can be clearly identified and ‘packaged’. There is also the overlap between the work that both barristers and solicitors can do where they tend to be equally-suited (eg advice on tax or company law). Here, competition is surely a good thing.

Despite all this, I cannot help thinking that it all boils back done to the basic and obvious point that the Bar is all about advocacy. Advocacy is a specialist and demanding discipline, both in terms of training and skills required to do it well and also practice management revolving around tricky diary management of multiple practitioners often in scenarios where courts are increasingly less inclined to flex to accommodate advocates’ availability. Any successful advocate will tell you that preparation is paramount and that time allocated for this is pretty much sacred in the diary to the exclusion of almost everything else. Many solicitors will tell you it is the existence of practical constraints of this kind that is the reason why they seek services from the Bar, in addition to the small matter of simply not wanting to do advocacy work themselves.

While inevitably a generalisation I make no apology for stating my view that barristers are simply better advocates than solicitors. An obvious and uncontroversial conclusion, I would have thought; more so perhaps if I remove the labels and say that those with the desire, aptitude and training for specialist advocacy are better at it than those who have none of those things. You could turn this into a debate about ‘fusion’ of the profession, but I would simply point to the US: there are those who are specialist trial advocates and those who are not. It’s just that the divide is less visible and the labels are less distinct.

Challenges for the Bar

So yes, public access is a good thing for the consumer seeking advocacy services in cases which they are either competent to prepare themselves or need little preparation. I make that qualification, because often a client will not know how to prepare or conduct a case to trial or even know what facts and documents are relevant or, significantly, what they don’t know but should explore. Here we are in the territory of solicitors, for whom building, preparing and conducting a case is the day job. While this work is undoubtedly not beyond the capabilities of many barristers, it is not naturally an easy fit. It dilutes the advocacy specialisation and their self-employed status makes this sort of activity impractical to service on a regular basis. And no, generally speaking they are not as good at it as solicitors. (Of course, the impending ABS regime for barristers may create opportunities here, but as with any opportunity it comes with risks)

Other potential barriers to success in public access often cited are the inability to handle client funds or to deal effectively with lay clients. The former issue is now no longer a hurdle at all thanks to BarCo’s escrow account facility. As for the latter, I have no time whatsoever for this argument. Solicitors who hide behind this for reassurance – who tend to be the same ones who hide behind anonymous comments on legal media websites – are frankly deluded. The Bar has upped its game. I will not explore here the merits of these points; they are put forward as opinions of this impartial observer who has plenty of experience working both sides of the proverbial fence.

Lastly, I turn to the area which will most challenge the growth of public access: marketing. It is easy to overlook the length and precariousness of the journey of an instruction, from its embryo as a client’s realisation that they may have a legal problem, through to a brief in a barrister’s inbox.

In this respect, barristers have the benefit of what is effectively an enormous marketing department, in the form of the 10,000 firms, with a presence on every high street in every town, in the cities, spread across regional chains and of course online. Collectively, they cover every demographic, practice area, consumer type and industry requirement. Collectively, this creates something of a marketing colossus that benefits the Bar hugely. In comparison – and despite commendably increasing efforts – marketing impact and reach of the Bar is minuscule. It is hard to imagine it will ever approach the scale of that of solicitors and much of the Bar will acknowledge that it will be reliant upon solicitors for the bulk of its business for the foreseeable future.

The marketing of the Bar in its own right is however dramatically improving, with chambers quite rightly aiming to build closer, more direct relationships with its non-professional client base. Smart sets will be building these relationships to the extent that they are the first port of call for new work enquiries, giving them the option to act directly and/or recommend and bring in trusted solicitors’ firms when appropriate. In this respect, the balance of power is shifting, which in my view can only be a good thing, as the increasing range of options for selecting a legal team makes the client the winner.

Of course, law firms will continue to win business from clients who have advocacy and/or specialist needs that they can’t themselves meet, for the reasons explored above. So solicitors will continue to need the Bar, as the Bar will continue to need solicitors. This may yet be challenged by the evolution of new business structures and so it should if this makes for more effective or better value service for clients.

In the meantime, call me old-fashioned but this all sounds to me rather like a recipe for a very well-functioning market.

So, let’s play nicely everyone.

Jeremy Hopkins has been a barristers’ clerk since 1989 and is currently director of operations at Riverview Law. You can read his blog here or follow him on Twitter here.