Solicitors v barristers – the great ‘fusion’ debate

A conversation is taking place over lunch between a barrister and his wife’s friend, visiting from Italy. “You mean the person who serves the coffee?” scoffs the Italian with surprise. “No. A barrisTER!’ is the retort. “Well how is that different to a lawyer?”

This is an oft-cited, mundane conversation between English barristers and foreign laymen. It is a symptom of a rigid English legal system that has long distinguished between solicitors and barristers. In simple terms, the former prepares or conducts a case, while the latter argues that case in front of a judge, should it proceed to the courtroom. As a result, the concept of a ‘trial lawyer’, who deals with a case from its conception to its conclusion in court, has long eluded our antiquated English legal structure.

The debate about fusing the two sides of the profession is not a new one. One view is that fusion should be pursued as a way of reducing costs. Why should two fees be charged, one from a solicitor and one from a barrister? Fusion would avoid the waste that results from the duplication of work. It would mean providing one system of training for all aspiring lawyers, rather than the current dual-track entry system.

On the other hand, the independence of the Bar is of paramount importance. A barrister has an overriding duty to the court, and the cab-rank rule means that in theory at least, barristers are available to all those who seek their services. While solicitors are best viewed as businesses, barristers may still be regarded as guardians of the courts.

De-regulation – a different kind of fusion?

The parameters of the fusion debate have in recent years been shifted. Deregulation has opened the Bar to the world of powerful market forces. Barristers are no longer mysterious and immune gatekeepers of justice. They too are businesses. The fusion debate must now take into account the huge swing towards deregulating the legal profession that has taken place in the last 5 years.

Since October 2011, the Solicitors Regulation Authority has approved several hundred applications for alternative business structure (ABS) licenses. An ABS is a firm where non-lawyers can manage or own firms, widening the pool from which equity can be raised and diversifying the range of legal services that can be provided. ABSs can provide ‘one stop shops’, in that they are not limited in the services they can offer to the public.

Deregulation has opened up a world of possibilities for legal services on offer to the public. One example is the start-up ‘Casehub’. Founded by recent Cambridge law graduate Michael Green, this business model seeks to use the internet to unite people with common grievances, enabling class actions to be brought. The costs of litigation are financed by external investors, who invest in the prospect of being paid a portion of any final court award. 22,000 claimants were to challenge excessive penalty parking charges.

Other ABSs have seen investment from Dragons’ Den investor James Caan, while The Co-operative Group has also entered the legal fray. The emergence of savvy entrepreneurs onto the legal scene means the English legal system should brace itself for a colossus of fresh ideas.

As is often the case in the business world, equity investment encourages innovation, diversification and the pursuit of greater efficiency. Equity investors detest empire building. They promote lean, efficient and attractive operations. It is with this in mind that we return to the title of this piece; will the ABS bring trial lawyers to the UK?

ABS – fusion by the backdoor? 

Rather than focusing on a rigid solicitor/barrister dichotomy, it appears the fusion debate has been swept aside by the wind of deregulation. It is predicted that trial lawyers, in the form of ABSs, will emerge as part of the drive for innovation and the quest for greater market share.

Trial lawyers will not emerge because of arbitrary, full-blown legal change. Nor will it necessarily be a conscious choice. Trial lawyers will be an incidental and natural result of the innovation resulting from the market pressures caused by deregulation.

In areas such as personal injury clients will begin to flock to ABS. The ability for a single entity to handle a case, to master its progression and to argue that case in court, all the while only accepting a single fee, will be too attractive a prospect to refuse. In this brave, market-driven world trial lawyers will take the form of barristers supported by paralegals and other support staff. Together, these entities will be able to do much of the work of a solicitor, such as helping to prepare witnesses for trial, as well as then arguing the case at trial.

As oppose to fitting a client’s needs around what the legal world is capable of offering, an ABS provides the requisite malleability to shape its service to suit the customer. By flipping the lawyer-client dynamic on its head, fusion will occur by the backdoor, because in many cases an ABS acting as a trial lawyer will the most appropriate structure required.

Further, ABS trial lawyers will be aided by the increased use of technology and the lack of a strict demarcation in staff-roles. New staff roles may emerge allowing one-stop ABS to cater to all clients’ needs. Casehub is merely one resourceful example of how technology can be fostered.

This organic, client-driven and innovative approach to fusion is less dangerous or dogmatic than any policy-driven arbitrary legal change. While the former marks a truly evolutionary progression, the latter would be to use a sledgehammer to crack a nut.

Conclusion

Trial lawyers will not emerge as a result of any detached academic fusion debate. Rather, fusion is being pursued organically as a result of deregulation of the legal market. ABS will lead to ‘one stop shops’ moulded to serve a client’s needs. Often, this will mean requiring an ABS to act as a trial lawyer, providing a full service from the start of a case to its finish.

The substance of English law is one of the most flexible and attractive in the world. It is about time the structures of the English legal system were allowed to catch up. Deregulation is the catalyst through which to pursue organic reform.