Courts and Legal Services Act Analysis

The duplication of work may also lead to mistakes. A solicitor may, having spent many months or years collecting evidence, forget to brief the barrister on a fundamental point in the case. The barrister may not find the brief sufficient and because they might have spent little time with the client they fail to get a feeling of the case and miss vital evidence. An active solicitor who has a barrister with no enthusiasm for his client feels frustrated. Barristers who have worked with a solicitor in pre-trial opinions may be substituted before the case comes to court losing all continuity.

Barrister diaries are especially difficult to timetable as they never truly know the length of each case. This could be stopped with a one-stop legal profession with a lawyer taking the case to its conclusion. It must seem frantically disorganised to a client to not see the barrister until the morning of the trial. Research by Bottoms and McLean showed 96% of defendants pleading guilty did not see their barrister until the day of the trial and 79% who were pleading not guilty did not see their counsel until the day of the trial either. 50% of briefs from the C. P. S.

and Government Legal Services Department reached barristers only two days before the hearing [1992] NLJ. 8. Barristers appear aloof at the best of times and Paul Hill, one of the Guilford Four, remarked on the fact that "… the cab-rank barrister, which had been changed prior to trial, seemed more interested in talking to the prosecution counsel than to me… " [1992] NLJ. 8. The division of the legal profession also robs society of some of the very best lawyers. The forced separation at degree level does not allow for an exploration of the different sides of the profession.

Many students still believe money is the key to becoming a barrister. Good advocates may be lost because of the division, only able to practice in the lower courts as a solicitor. It is also said that the advocacy skills of a senior solicitor who has spent much time in the lower courts will arguably be as good as most barristers and better than most new arrivals. Opening up the franchise could enhance the skills of both professions and bring a bigger pool from which to choose our judges. As the system now stands both professions are insulated.

The solicitor can hand his hard work to the barrister for "opinion" and the barrister has little or no insight and input into the preparation of the case. The case for fusion seems to be clear but the Law Society and the Bar Counsel are both frightened of losing their identity. The Bar, strongly vocal in its calls for the status quo, are supported much by the judiciary. In the words of Many Rice-Davies "… well they would wouldn't they… " especially as the vast majority of judges are old barristers. They argue that such fusion would eradicate the identity of the skilled advocate who is seen as a specialist.

These skills of advocacy are available to all solicitors through the cab-rank system. Fusion could create a vacuum where litigation could become under represented, lawyers preferring to take on lucrative non-contentious work. Along with the decline in advocates comes a decline in standards. Unqualified and inexperienced lawyers may try to undercut their opposition to keep clients. It is often said that the greatest aid to learning is experience and the more time lawyers spend in their office the less time they may have for court work, thus decreasing their advocacy skills.

At present standards are maintained by peer pressure on the barristers close knit family. The one stop lawyer may also be inclined to hold onto a client and not to seek advice from a specialist in that area of the law which they or their firm do not specialise in. Specialists would tend to work in larger city firms and the sole practitioner could end up like the corner shop. Good for quick, general law but nothing of choice compared to the to the supermarket firms which have a vast array of choice at cheaper prices.

Lawyers would no longer have a cab-rank rule so disenfranchising those whose cases were repugnant. This would take the judicial function away from the courts and place it in the hands of lawyer who decide on who has justice. The government have pushed forward a number of measures especially in the Courts and Legal Services Act (1990), section 66 allows barristers to join solicitors' practices, section 62 gives all persons qualified to advocate the same immunity in negligence.

Under section 67 the Lord Chancellor can direct that certain categories of solicitors can have rights of audience in designated Crown courts. The Law Society has made applications for increased rights of audience to the Lord Chancellors Advisory Committee although an article by Robert Smith [1992] NLJ. 8. suggesting that of the four judges, there are seventeen members, only one has to veto any proposals for it to fail.

The first tentative sounding seems to suggest that solicitors with three years advocacy experience and relevant training may be extended rights of audience but not employed solicitors, they being too closely involved with their client who is their employer, as with employed barristers. With argument raging on both sides of the profession both for and against it seems we could be in for a long protracted battle. This time however it is not the lawyers who make money out of pain but the academics and column writers who will be kept in beer tokens.

Fusion will occur, maybe not through logical ideology but economic pressure. The only question is one of time. "The Bars monopoly… only has history on its side"[1990] G. Bindman NLJ. 1712. and that time is running out. When change does come the cries will be loud but, much like the cries from solicitors when they lost their conveyancing monopoly, they will not last long. Both sides will have to adjust to a new position but this seems to have been achieved admirably so far in the changes that have already occurred.