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Solicitor advocates could become barristers, Bar chairman suggests

9 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.”

Green said barristers could no longer look to the rules and define themselves by what they did not do.

“We did not have direct access to clients; we did not enter partnerships; we did not engage in litigation (as opposed to advocacy). There were many things we simply did not do.

“But these old truths no longer hold firm. They no longer define us because they are no longer truths. Today we must define ourselves by what we do.”

Referring to the BSB’s decision to allow barristers to join LDPs and form barrister-only partnerships (see Solicitors Journal 153/44, 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.”

Green said one of his priorities 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 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 per cent to 18 per cent.

Green said the existing rates, introduced after the Carter review, were far from being generous but were recognised by the government as being fair.

“Is it any wonder therefore that the Bar is furious and that there is a widespread belief that Government is simply not to be trusted?” he asked.

“There is a financial crisis. We are not ostriches and we know that financial pain has to be shared out.

“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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Legal Aid Procedures Discrimination Funding The Bar