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Archive for May 21st, 2009

When two tribes go to war…

The legal profession as a whole faces competition from the so-called Tesco Law providers; but closer to home, and very much an issue of the present,  is the ‘war’ going on between the two main branches of the legal profession – The Bar and Solicitor-advocates.

First, it was Judge Gledhill expressing robust disapproval (at an impromptu press conference at the end of a case ) about the way solicitor-advocates had conducted themselves.  Paul Marsh, president of  The Law Society, objected.  Then it was Lady Justice Janet Smith, president of the Council of The Inns of Court, writing to resident judges seeking evidence about the quality of work done by Solicitor higher-court advocates (HCAs).

Lady Justice Janet Smith has now ‘taken the unusual step’ of withdrawing her letter.

The Law Society Gazette reports:

“Smith’s climbdown came after the Society complained to the Lord Chief Justice about the letter. Chancery Lane shared the concern of solicitor-advocates that the letter ‘appeared to demonstrate a bias against solicitor-advocates and employed lawyers, and to support the campaign against these advocates by the self-employed criminal bar’.”

It appears the Lord Judge, The Lord Chief Justice, was able to resolve The Law Society’s concerns;  allowing Paul Marsh to state “I hope that we can now work with the bar and the judiciary to achieve a consensus about advocacy standards across the board.

Setting aside the obvious issue about quality (an issue of education and training) and the premise that advocates, be they barristers or solicitors,  will not take work on outside their experience and competency – we are left with, possibly, a single difference between the solicitor or employed barrister and the barrister – that of independence.  A barrister in practice at the bar is not employed, he or she is not beholden to a firm, corporate or organisational policy.  The duty is to represent the client.  The same should, of course, be true for solicitor advocates and the employed barrister.

There is an issue which I would be most interested in hearing from practitioners on: To what extent is a solicitor advocate, employed within a firm, influenced in the performance of their role by management or firm culture when they act  as advocates?  Is this a different influence from the barrister working to the brief of an instructing firm? – or are all barristers truly independent in being able to ignore the influence of further work from that instructing client?  Putting it another way, is the independence of the independent bar true independence and does it matter provided the barrister conducts the case in accordance with the code of ethics of his or her chosen profession and within the rules of law and procedure?

There may well be more solicitor-advocates soon.

I haven’t looked at the precise figures, but there has been a significant rise in the number of solicitor-advocates gaining higher rights of audience in recent years.  This is likely to increase rapidly now, in my view, for three reasons:

(1) Training at the LPC and Bar stage is providing young lawyers with the opportunity to develop and hone advocacy skills.  This can be followed up by specialist advocacy training available in the open law training market. To all intents and purposes, training and early experience can equalize the skills of the solicitor-advocate and barrister in time.

(2) The solicitor-advocate scheme has been a success.  The Law Society Gazette refers to thousands of Solicitor HCAs and,  do not forget the Crown Prosecution Service advocates.  New entrants to the solicitor side of the profession – possibly former prospective barristers or those who would have enjoyed a career at the bar – may well qualify as solicitors instead to become advocates, given rights of audience,  secure in the knowledge that they will be paid well, on time and at a reasonably sensible level.  There is also employment security, backed up by law for those employed solicitors and barristers.

(3) Increasingly, particularly the big regional firms, are building advocacy teams.  This is likely to spread down the scale to medium and smeller sized firms. The independent bar is roughtly 1/10th of the size of the profession give or take.  If law firms see money and control in advocacy, and not just criminal advocacy, it will not be long before they act effectively to build internal teams and, whatever emollient words are used to allay the fears of the bar, they will, as sure as the sun sets at night, gradually rely more on their own internal controllable resources and less on the independent bar.

We have seen how City, Commercial and large regional firms rely less and less on counsel’s opinion pro rated to modern work volumes in all areas of  law – simply because the solcitors side of the profession is now attracting the very best young lawyers because of the rewards on offer.  The days when the bright inevitably went to the bar seem to be over?

We could see a situation in ten years where there are 25,000 or more solicitor-advocates – dwarfing the independent bar.  If this happens how can independent men and women at the bar hope to compete with the corporatised and conglomerate law firms?  They just won’t have the resources.

It is possible, in time, thinking the unthinkable (which is quite fashionable these days),  that the Bar could become an irrelevance to the thrusting modern law firms and PLCs waiting in the wings to take their pick from a multi-billion pound industry.  I call the legal world an industry, rather than the more prosaic ‘sector’ or ‘profession’, because it is, in essence, no more than a provider of a service and therein lies the danger.  The thinking of the independent barrister may be quite different and suited to the needs of a gentler  more ‘vocational time’ – from the thinking of a Chief Executive of a law firm or PLC used to the harder ways of commerce and global business.

The Criminal Bar is certainly worried enough to establish a working group and raise the spectre of unfair competition from solicitor-advocates.  The Bar’s monopoly on advocacy has been broken.  Maybe the entire bar needs to look into the future.  Some already are and what they see looks good, I am told.  And, of course, there is always the prospect of  very high earnings within a law firm or PLC  for those who do not wish to wait for the meteor to hit the legal world.

A fable… but not from Aesop…

Twelve years ago a small law school effectively broke the monopoly on legal education at vocational level when it became the first private college to be accredited to run the LPC and the Bar.,  I know.  I was there.  I was the CEO then.  I enjoyed being involved in the establishment of a company that broke the monopoly.  I am, it has to be said, less good and less interested in running things once they are set up and others took it on to what it has become today. BPP Law School is now the fastest growing law school in the country with a private sector mentality driven by shareholders and the markets. They may even be bought up by an even bigger, more corporate entity – American or British – that is inevitable in time and may happen sooner rather than later. Here endeth the lesson/fable/metaphor/analogy… call it whatever you will.

We are already seeing law firms behaving more corporately, using business techniques, thinking globally, thinking strategically, employing specialists and bringing them in as partners as they are now permitted to do.  Law firms are beginning to float on stock exchanges.  It won’t be long before the legal profession in this country undergoes major change – not ‘Big Bang’ but more akin to a meteorite hitting the earth.  Who will be the new rulers of the legal world?  I don’t think it will be the independent bar. I think it will be the global law firms and their smaller brethren – the regional firms or associations of law firms.  And yes… Tesco and others will be right in there calling the shots, as indeed will the big client corporates who devour legal advice and services.

OK – let’s stir it up a bit.  I’m not a practitioner.  I have not practised in your world.  I am a mere observer and commentator who keeps his eyes and ears open.  They are still open.  Let’s hear what you think.  I may like to predict, but this is a technique.  I am not Nostradamus.  I am keen to learn what the future holds.

***

Oh… and finally…. I agree with Lord Judge – we need more solicitor judges…  a lot more… to reflect the interests, culture, emotions and philosophy of our nation.  There is a lot of  skill, intellect and ability in the the other side of the profession… maybe we could have some of it in the judiciary?  Maybe we could do a bit more thinking the unthinkable and bring some clever men and women from our universities into the appellate judiciary or the Supreme Court?  Perhaps that may take a bit of time – but I, for one, would like to see it.

Well.. that should get you coughing into your conflakes this morning.  Over to you.

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He’s Ducked!…

Tory grandee Sir Peter Viggers forced to quit over £30,000 gardening bill
Times: The purge of Conservative MPs caught up in the expenses scandal intensified last night as David Cameron forced out a grandee who had claimed £30,000 for gardening.


Off with their heads?

As Gordon dithers while Westminster burns, rejects Cameron’s calls for an immediate election and admits that a conservative government being elected at a snap election would cause chaos Richard Gordon, QC, writing in the Times states –

“Thinking the unthinkable is what constitutional lawyers are paid to do. Many are now saying that with the daily revelations about improper expenses claims from beleaguered MPs the Queen should step in and dissolve Parliament — against the Government’s wishes — forcing a general election to compel MPs to stand for immediate re-election after a scandal on the scale of that of the pre 1832 rotten boroughs. Trust has now been destroyed. It can, so the argument runs, be rebuilt only by a neutral third party, the Queen, and not by a self-interested and wholly discredited cabal of politicians. ”

I suspect that an immediate election would do more harm than good at present and The Queen would be best advised to keep well out of this sorry mess. The prospect of an immediate election at a time when we are in the midst of a serious financial situation is not one that appeals greatly – a view quite possibly shared by many who sit back and reflect on the wider picture. While The Queen may have constitutional prerogatives to dissolve Parliament, in the event that she stays her hand, the timing of the next election will be at the discretion of Gordon Brown – assuming, of course, that the Labour Party men in togas, knives hidden within the folds of cloth, do not call upon the prime minister late of an evening shortly.

Far more interesting is the nature and scale of the cull of MPs coming. Tory grandees are dropping like flies. Hogg, Steen and now Sir Peter ‘Donald Duck’ Viggers are standing down… what will Gordon Brown’s Star Chamber do. Hazel Blears, we are told by the PM, has behaved unacceptably. Unacceptably enough to be removed? There are others, at a senior level within the Labour Party who should be considering their position. They may also have to look at their shoulders frequently to see if their collars are being felt by PC Plod. Jonathan Fisher, QC, in a most interesting article in The Time today writes: ” A police investigation into the MPs expenses scandal will swiftly identify false accounting as the criminal offence most likely to have been committed by the most egregious of the SW1 claimants. ”

Bar Boy, commenting on my blog yesterday wrote: “Do any of you grown up lawyer experts have a view over those of our esteemed parliamantarian troughers who also happen to be barristers, such as Hogg, Straw and Hoon. No one, to my knowledge, has yet commented on this aspect. The Bar is very insistent, to the point of being annoyingly repetitive, when banging on about standards and conduct, blah, blah, yawn etc. Should, for example, Inner, now be making an example of governing bencher Straw, and passing him the pearl handled revolver ? ”

He has a point. I may be making a telephone call to the Bar Council this morning and make yet another nuisance of myself.

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