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Solicitor advocates could be regulated as barristers, Bar chairman suggests

15 December 2009

Nicholas Green QC, new chairman of the Bar Council, has shown he is prepared to think the unthinkable by suggesting that solicitor advocates could in the future be regulated as barristers.

“Peering into the future we need to ask ourselves some basic questions,” Green said in his inaugural speech.

“If we are to define ourselves by our functions then I would pose the question: Should the Bar be opening its doors to all specialist advocates?

“So, for example, a solicitor who specialises in advocacy could choose to become a barrister and be regulated by the Bar Council through the BSB. Equally, should the Inns open their doors when it comes to training and education? These are questions which we must begin to ponder.”

Referring to the BSB’s decision to allow barristers to join LDPs and form barrister-only partnerships (see Solicitors Journal, 24 November 2009), Green said the BSB had “rightly made clear” that it favoured an incremental approach to change.

He said there was “little appetite for partnership” at the Bar. However, he said that corporate vehicles, which he referred to as “ProcureCos”, could be used in a creative manner to help chambers bid for work.

“Moreover, they might also be used as vehicles whereby barristers can arrange for litigators such as solicitors to join with them in consortia to bid for work that requires a fully composite service of advice, litigation and advocacy.

“By using in a creative manner corporate vehicles barristers can plan to compete for work from which they presently risk being excluded.”

Tim Lawson-Cruttenden, former chairman of the Solicitors Association of Higher Court Advocates, said it would be a good thing if the Bar Council regulated solicitor advocates.

“It would give us the option to choose our regulator in a free market,” he said. “I would prefer to be regulated by the Bar Council, if it means I could be insured by the Bar.

“My insurance premium is ten times what it would be if I was a barrister. The way the Law Society runs the system for solicitors, with a single renewal date and a four-week window to get insurance, is completely idiotic.”

Russell Wallman, director of government relations at the Law Society, said there was a strong case for relaxing the current restrictions on solicitor advocates who want to become barristers.

“We would not ask the Bar to retain unnecessary restrictions,” he said. “If solicitors want to transfer to the Bar and be regulated by it, that’s fine. The transfer process is more complex than it ought to be.”

Elsewhere in his inaugural speech, Green said a priority for 2010 would be to negotiate an agreement with the CPS on advocacy, following the “sharp upward trend” in the deployment of advocates by the CPS.

He said discussions would resume shortly, and the Attorney General, Baroness Scotland, had indicated that the two sides should reach agreement by March 2010.

Green also promised that the Bar Council would challenge the “unfair and irrational” cuts in fees paid to criminal legal aid defence barristers announced by the MoJ in August, which he said the MoJ had “revised downwards” from 23 to 18 per cent.

“There is a financial crisis. We are not ostriches and we know that financial pain has to be shared out,” he said. “But that is a very long way from the present situation where there is an overwhelming feeling that the Bar has been singled out for unfair and discriminatory treatment.”

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