PUBLIC ACCESS BAR ASSOCIATION 12 November 2007

“The Bar – not a referral profession, but a specialist profession”

12 November 2007

Anthony Speaight Q.C.

"I intend to make it a priority to argue for .... the preservation of an independent referral profession of advocates" The Chairman of the Bar this year.

"The circuit reflects the value of an independent referral profession" The leader of the SE Circuit this year.

"The independent Bar is a specialist referral profession offering expert legal advice and advocacy." COMBAR website today.

I could, of course, repeat such quotes many times over. The description of the Bar as a referral profession has become a standard mantra.

It is not, as you know, a wholly accurate description. Nor is the introduction of Public Access the only reason why it is inaccurate. The dock brief and the drafting work of the Chancery Bar on direct instructions until the 1950s, illustrate that a total ban on direct client contact was not traditionally part of our ethics.

In more recent times examples of direct, as opposed to referral, work abound. Instances include work for the Pro Bono Unit, for the Free Representation Unit, for the many bodies which enjoy what is now called licensed access -- a number of probation services and fire brigades, for example. Most appeals to the Court of Appeal (Criminal Division) have for years been undertaken without any solicitor or professional intermediary: a court officer, the Registrar of Civil Appeals, handles the administration.

Almost all prosecuting work at trial level as well as on appeal is undertaken on the direct instructions of the client, the CPS: the old prosecuting solicitor disappeared a generation ago.

A significant proportion of civil work is undertaken on the direct instructions of in-house legal departments, or less commonly, of in-house accountants or surveyors. And so on and so on.

Yet even those leaders of the Bar who are alive to the inaccuracy of the "referral profession" label, still seem keen to hang on to it a description of the spirit in which the Bar works, even if it is not an exact description of the detail. A distinguished example of that approach was afforded by the lecture to this Association at its inaugural meeting recently by next year's Chairman of the Bar.

I wish this evening to argue that that approach is misguided. I wish to argue that the most important characteristics and qualities of the Bar are, in fact, being concealed by it.

The problem of self identification for the Bar is not particularly old. Until the Lord Chancellor's green papers in 1987, a barrister was a higher court advocate. That was not, of course, ever a total or full description. But if one wanted to tell an outsider in one sentence what we did, it was the way in which we put things. With the extension of higher court advocacy to solicitors under the Courts and Legal Services Act 1990 that explanation ceased to work. So how were we to describe ourselves to others, or even, identify ourselves to ourselves? I wrote in a Counsel editorial in the early 1990s, adapting Dean Acheson's aphorism: "The Bar has lost a monopoly, but not yet found a role".

In so far as the profession did struggle to find a self-identification in the years which followed, the phrase which stuck has been "referral profession".

One might expect a profession to describe itself by reference to what it is skilled at. It strikes me as odd for a profession to define itself by reference to a rule prohibiting its members from doing something.

"Barristers are lawyers who are normally not allowed to act direct for a client" -- what does that tell me?

Nor is that the only negative self-description. I hear many barristers going around saying that the key thing we have to hold on to is the rule against partnerships.

"Barristers are lawyers who are normally not allowed to act direct for a client, and not allowed to form partnerships" What does that tell me, other than perhaps that the profession has an identity crisis.

What might a better and more self-confident description be?

Here is what the Benson Royal Commission on the Legal Profession wrote in its final report in 1979:-

The distinction between the two branches may be regarded partly as that between general and specialist practice, and partly as a matter of function, the solicitor acting in particular cases (and sometimes generally) on a continuing basis for the client, the barrister being retained only when circumstances require it, usually to provide specialist advice or advocacy.

That strikes me as a description which is accurate and which does justice to the services which the Bar offers.

I should like to pursue a little further the Benson observation of the distinction between general and specialist practice. A few yeas ago I served on a small Bar Council working party considering the options for higher qualifications for barristers. Sadly no report ever emerged. But in the course of the working party's work we met a number of leaders of professional bodies in the medical profession. I do not today wish to go into the controversial territory of whether the Bar should develop identifiable higher qualifications along the lines of the medical profession. However, I do find of interest some of the things we discovered.

The early years of all doctors’ training is the same. But there comes a moment when the paths of the GP and the specialist diverge.

Those doctors who choose the specialist route, undertake training under the auspices of the Specialist Training Authority. But the training itself is determined by the specialist colleges. They vary as to entry requirements and training periods. They also vary as to the nature of the examinations. Some are oral; some written; some practical - that is, surgery under supervision. Often an important part is the completion of a number of hours carrying out a particular activity. A doctor who has completed specialist training has his name enrolled on the specialist register.

There are 56 medical specialities. They vary in size in terms of the number of doctors holding the speciality. One sees an analogy to the Bar, where some specialist associations, such as the LCLCBA cover a wide area of work, and others, such as the Revenue Bar, a very narrow one.

The specialist colleges are independent, and self-regulating. In most cases they hold royal charters.

QCs may be happy to note that Fellowship of a royal college, once acquired, is for life. And incidentally, election to fellowship is in the hands of the colleges themselves, free of outside interference.

The GP route also has its special steps. To become a GP today itself requires training -- 1 year's vocational training. There is also a Royal College of General Practitioners. I see some analogy to solicitors’ vocational training and to the Law Society.

There is no rule prohibiting a doctor with a certificate of specialist training in one speciality from undertaking work in another. But if a doctor undertakes work outside his competence, he would be liable to be disciplined. So if the Bar were to adopt features of the medical profession's arrangements, the civil common law practitioner need not worry that he would be prohibited from undertaking, say, professional negligence work, merely because there might be a Professional Negligence Bar Association accrediting Barristers, as well as a LCLCBA doing so.

The most important feature of medical arrangements for the purposes of the analogy which I am seeking to draw today, is that there is no rule prohibiting a member of the public from going straight to a specialist. Indeed, many privately-paying patients do just that. The only restriction is in NHS-funded work, where the NHS require a GP's referral. One can see the analogy to legal aid work, in respect of which public access is not available.

Although we do not currently have any formal higher specialist qualifications at the Bar, the identification of individual barristers with their specialised field has certainly been increasing over recent years. Chambers' websites are greatly referred to, and almost always contain detailed descriptions of each barrister's specialisations. Chambers brochures do the same thing. The wretched directories also promote knowledge of barrister specialisations. So do services like the newly launched web-based Find-a-Barrister. Several specialist bar associations limit membership to those who have an established practice in the field. There is even now one instance of the Bar Council itself operating a formal accreditationscheme: that is for immigration and asylum practitioners.

Therefore, whether or not the Bar ever moves further in the direction of definable higher, specialist qualifications, there is already ample basis for a presentation by the Bar of itself to the outside world, using the analogy of the medical profession, as the specialist part of the legal profession.

It will, I know, be objected that some solicitors are specialised today, as the larger firms put their staff into departments dealing only with one area of work. And he will probably know more about the industries with which he has to deal than his barrister counterpart -- for instance reading the trade press. But this does not detract from the truth that a barrister specialising in, say, planning, will in general be more of a specialist lawyer, for instance with a greater knowledge of planning case-law, and more of a specialist planning inquiry advocate, than a solicitor working in the planning department of a firm which has such a department. Ditto, a barrister in a patent set of chambers will in general be more of a specialist lawyer, and more of a specialist advocate, than a solicitor working in the IP department of a solicitors’ firm which has such a department.

Then there is the objection that it is impossible to hold out barristers as specialists because there is such variation in the scope of their specialisations. And the objection that any such approach is dangerous because barristers cannot be trusted to describe themselves accurately: they may make inflated claims.

We had these objections at full volume when the Access to the Bar Committee was seeking to establish a Bar Council on-line directory of PA barristers stating their specialised fields. I found the way to silence them by discovering that for years heads of chambers have been sending in lists of the members of their chambers in which the fields of work of each member is stated. I said that heads of chambers were ex hypothesi responsible, and could be disciplined if they were not, and since the Bar had for years been publishing the information on fields of work -- even if in a rarely consulted hard back book by way of obscure codes -- our proposal broke no new ground.

Alright. So the Bar should cease calling itself the referral branch of the legal profession and instead call itself the specialised branch of the legal profession. But what has this to do with the concern of my present audience, Public Access ?

The answer is that the development of PA has been held back by the view, widely held amongst barristers, that PA is marginal, if not somehow suspect. I should like to offer a few ideas which, perhaps with a less hesitant approach to PA, might be adopted.

This is a time of difficulty for many barristers. For civil practitioners, because there is so much less civil litigation than there used to be. And for criminal practitioners because although there remains plenty of work its remuneration is being squeezed ever further downwards. At such a time,the opening of new markets by PA is in the interests of almost all barristers. It may, in fact, prove that it is in the criminal field that PA will be of greatest importance, since it opens the possibility of barristers contracting directly for major cases, bringing in solicitors as their assistants.

However, I know too little of the current criminal work situation to address an audience further on that. But in civil work, there are a number of less spectacular programmes which might be adopted to assist the growth of PA.

Firstly, one of my omissions in my time as Chairman of the ABA was to organise a letter to all judges from the Chairman of the Bar, preferably jointly with the LCJ, informing them about PA. Most judges still seem unaware of it. Once aware, many judges are unreservedly enthusiastic, especially for its potential to enable litigants in person, who cannot afford full legal services, to engage a barrister on PA for the hearing. Judges and court officials could certainly do much to publicise to litigants in person the option of barrister-only services.

The second idea I should like to mention is one of my outright failures as Chairman of the ABC. I was much attracted to setting up a fixed-fee short interview scheme. It could be modelled on what happens in Germany. The idea is that there would be advertised the availability of a number of barristers willing to undertake an initial consultation with a lay client for a standard publicised fee. The fee in Germany is fixed by secondary legislation. Currently it is 190 euros, that is about £ 135.00. I am not clear whether the German scheme specifies the length of the consultation, but in the model I would propose the length would be 1 hour. In adapting the scheme to the English Bar, one might have a tiered fee -- say £ 135.00 for an hour with a junior, £ 200 for an hour with a Silk, maybe a slightly lower fee for a younger junior. Some will object that not much advice can be given in one hour. But look at the attraction for a lay person of access to a specialist -- there is that key word again -- for such a cheap price.

The scheme which I envisage would be purely voluntary for barristers. Only those who wanted to join would put their names on the published list of those offering such a consultation. Maybe few would join. But I certainly would do so. And I suspect so would many others. The fee would be a bit lower than our normal rates. But the work would be less demanding than much we do, since we would often be able to do no more than give a few very general pointers. And there would be the obvious possibility of the initial consultation leading on to further work at our normal full fees.

The Bar's PR consultants were keen on the idea when I presented it. But sadly the usual doubts about the Bar touching anything to do with PA were compounded by outright opposition from successful civil practitioners who feared that any kind of endorsement by the Bar Council of such fees would undermine their own ability to charge much higher hourly rates.

I mention this idea here in a mischievous spirit, since it has occurred to me that where the Bar Council feared to tread, PABA might dare to do so.

The third area of work which I hope will be pursued, is the independent, academic research, which has already been commenced under the aegis of the ABC, into the comparative cost of barrister and solicitor services. The work I launched was linked with TempletonCollege, Oxford, which should lend sufficient academic respectability. But the co-operation needed from clerks and barristers if there is to be sufficient data, will require determination to push forward. This audience will not be surprised to hear that some voices in the Bar Council were timorous about publishing any such thing, lest it upset solicitors.

The final initiative which I should like to suggest is, I think, a novel idea. I warn you that not all this audience will like it. The idea is that the Bar Council and the BSB should launch a concept of a pre-action barrister pleading. What I have in mind is that there should be promulgated a Protocol as to the significance of a barrister in a pre-action situation permitting his name to be placed at the foot of a document setting out a client's case.

In simple terms, I would envisage the Protocol stating that when a barrister does this he would thereby indicate that he had been given credible instructions as to all facts stated in it, and that he considered all legal contentions in it to be properly arguable. In other words, the signature would connote the same thing as a signature on a statement of case served in an action.

If such a pre-action pleading become a recognised feature of commercial life, it could attract new work to the Bar, as a pre-action claimant who could present such a document might feel that it had an edge over one who merely wrote a layman's letter. Focussing attention on the work of barristers in the pre-action phase -- which so often in civil contentious work today is the only phase -- could also encourage clients to think of a barrister as offering all the legal assistance needed in the pre-claim form stage.

Why do I say some will not like it? Because the recognition of such a document would undercut one of the arguments of those espousing a change in the Code to permit barristers to undertake inter partes correspondence. The argument goes thus: the lay client says to the barrister, "I know you can draft a pre-action letter for me to send, but it will carry more weight if it comes from you". If a barrister could produce a pre-action document under his signature as a recognised form of professional work, it would enable the lay client to have the benefit of the barrister's weight without any change of the Code. The lay client could post the pre-action pleading under cover of its own 2-line covering letter.