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The changes under the Courts and Legal Services Act 1990 and the Access to Justice Act 1999 mean a solicitor can take a case in the courts from start to finish. This means that solicitors exercising full rights of audience before the higher courts are acquiring and exercising very similar advocacy skills and abilities as barristers when they are acting as advocates, but does this mean there is no longer a need for solicitors as well as barristers?
It seems as though only a small number of solicitors exercise their rights of audience in the higher courts so this suggests that the needs and skills of these solicitor advocates are being met by the changes made by the 1990 and 1999 Act, so it raises the question of whether this aspect justifies fusion. In reality the training received by solicitors and barristers is not the same and in the event that fusion was brought about these differences would need to be addressed.
Solicitors are required to undertake the Legal Practice Course (LPC) and and barristers are required to undertake the Bar Professional Training Course (BPTC). At present the courses in question concentrate on giving training on different aspects of the profession which results in those undertaking the BPTC being given far more advocacy training than those on the LPC. This raises the point that fusion would result in one course and all students being equally trained in advocacy whereas not all members of the legal profession enter with the view to undertaking advocacy work.
Barristers are not always known for their advocacy skills and some are known for their area of specialisation in specific areas of the law and become experts in their field of the law e.g. human rights, tax, immigration, planning and trusts. In these circumstances specialist barristers will provide written advice in the form of opinions as required by instructing solicitors. So the work of a barrister is different in the sense that whilst some solicitors may have an awareness of the area of law concerned, the barrister would be regarded as the expert. Some might use the analogy of the difference between a GP and a consultant in the medical profession. However to see the bar in a 'referral' role is an over simplification now that members of the public can instruct barristers directly. Barristers can now conduct litigation from start to finish subject to meeting certain Bar Council conditions so that some of the distinctions between solicitors and barristers have already broken down.
A solicitor's work can be varied and will also depend upon the type of firm to which they belong. Such work might include the giving of legal advice and negotiating upon a range of matters, such as debt and consumer complaints, family problems and employment and business matters. It may be that the practice will have a number of departments specialising in a particular area of the law e.g. family, private client, probate etc. Family matters would include all aspects of family law for example, divorce and child custody, civil partnerships, family mediation and prenuptial agreements.
Probate work would include dealing with the estate of a deceased person. Other work might include negligence meaning, for example, having to deal with personal injury claims. So it could be argued that this variation between the two branches of the legal profession comes about as a result of the needs of the client and or the nature of the work of the courts and other institutions. In which case one would need to be wary of fusion of a kind which did not properly reflect these differences. Presumably the BPTC and the LPC have not come about by accident but as a result of the needs of practitioners whether they be solicitors or barristers.
Opportunities now exist for the BPTC to be undertaken at various institutions for example the course is available at a range of centres which include the Inns of Court School of Law, The College of Law, BPP and other university linked centres offering vocational training courses. As for solicitors the vocational stage of the training consists of a LPC and similarly such courses are offered around the country and competition to obtain a place on the course can be competitive. The course concentrates on practical aspects of the work of a solicitor including legal drafting, taking instructions from clients, interviewing, advocacy, conveyancing etc. The course is seen as demanding by virtue of its heavy workload. It is said that fusion would result in one training course and all students receiving training in advocacy but this may be a simplification and further work may need to be done by all those involved in the delivery of courses if the needs of the Law Society and the Bar Council as well as the educational establishments are to be met.
Direct access has allowed barristers to take a case from start to finish. A barrister is now permitted to be directly approached in respect of all types of cases including criminal, family and immigration. However, a client cannot use Direct/Public access and receive public funding for their case. Therefore it is still necessary to instruct a solicitor in the first instance for criminal, family and immigration cases where funding is required. Fusion would result in just one ‘lawyer’ being needed. It is difficult to find out how much legal work is being undertaken by barristers as a result of direct access but it could be argued that direct access is undermining the argument for fusion as the rules operated by the Bar Council facilitate direct access work.
Solicitors and barristers can now carry out similar work but under the current system students have to make an early decision as to which part of the legal profession they wish to enter before their academic studies. At present however students do seem to be able to identify their preferred career paths and distinguish between working as a solicitor or barrister and this may extend to the respective skills and qualities needed. Only a small proportion subsequently retrain and transfer to the other arm of the profession. It is said that fusion would result in a student being able to experience all aspects of the profession on a training course before making the decision regarding which area to specialise in. However this does not reflect the growing need for specialists and experts in particular fields and does not show how training courses can take on-board even heavier workloads bearing in mind the growing costs involved.
Alternative Business Structures which are now permitted are often held out to be the basis of any argument that there should be fusion. ABSs are seen by many as the means of proving a 'one-stop shop' for legal services. The Solicitors Regulation authority has conducted limited research into the setting up of ABSs but the jury is still out on the question of the extent that ABSs will deliver benefits in terms of access to justice and the affordability of legal services. It is is early days but it seems that ABSs feature significantly in the personal injury market. It will be interesting to see how universal ABSs are applied in other areas and how this may drive calls for fusion of the legal profession.
The Legal Services Act 2007 enables solicitors and barristers to work together in the same legal business. Therefore there is no longer a requirement to retain separate professions. If fusion is to be achieved it could be argued that the way has been shown now that complaints are dealt with in a similar way with the Office for Legal Complaints dealing with both professions in the same way, again justifying the argument to simply have one profession.
Cost has been at the heart of the fusion argument for a long time. Fusion would be justified on the basis that it would reduce costs in many areas but particularly criminal and family (where legal funding is required). There have been dramatic legal aid cuts but at present but there is still a requirement for both a solicitor and barrister to be instructed in criminal and family cases. There are still instances of duplication and fusion of the professions would reduce duplication of work particularly in terms of criminal and family cases where there is only Direct/Public access in respect of private work.
Merger or fusion is not new and the debate goes on but what will drive the matter forward remains to be seen. In a recent speech given at Lincoln's Inn Sir Andrew Burns, the new chair of the Bar Standards Board , said ‘The government says it cannot afford the cost of legal aid and court administration, individuals clearly cannot afford the cost of litigation and representation’ . Adding ‘This gives rise to an increase in litigants in person, and barristers find themselves squeezed out of the market by a declining case-load and growing competition both from other regulated legal professionals and from unregulated service providers.....'.
(Word count 1500)
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