Blurring the lines

For many years the answer to the layperson's question "what is the difference between a solicitor and a barrister?" was a simple one; barristers conduct courtroom advocacy while solicitors conduct litigation. However, lawyers being confronted with this question in 2014 will find the answer to be far less straightforward.

While solicitors have been encouraged to develop their skills as advocates and thus have removed the Bar's monopoly in the courtroom, the Bar's code of conduct has prevented its self-employed members from conducting 'litigation', a somewhat nebulous term which many have found hard to define.

Certificate extension

This restriction is to be lifted following the approval by the Legal Services Board of the new Bar Standards Board (BSB) handbook which comes into force in January next year. One of the most significant changes it brings about is allowing Barristers the opportunity to obtain an extension to their practising certificate enabling them to engage in litigation.

Many at the bar welcome this change and understandably so. Although barristers can train to see clients on a direct access basis they are restricted in the type of service they can provide. Currently, clients who approach a barrister directly can receive advocacy services but are required to conduct the litigation themselves. Clients who are unable to do this are required to instruct a solicitor, who may then, if the case goes to court, instruct a barrister.

A level playing field

The changes to the handbook pave the way for new models of client/lawyer relationships in which clients are able to receive the cost benefits of having a self-employed legal adviser whose final fee won't be influenced by a need to reach billable hours targets.

The change allows legal professionals a level playing field to compete for work which will allow able junior barristers to compete on the same terms as their solicitor counterparts with the greatest success being bestowed on those who offer the best deal in terms of cost and standards of service.

The proposals have not been greeted with enthusiasm in every quarter of the legal profession with some senior solicitors questioning whether the training of barristers and '¨the infrastructure of many chambers equips them to act as litigators, in essence the mirror image of the concerns raised by the Bar about solicitors appearing as advocates.

However, with the BSB introducing more robust training requirements before licensing individuals to carry out public access work, as well as providing training to assist barrister's clerks, it is apparent that both the profession and their regulator are committed to ensuring that the public will receive the highest standards of customer care regardless of the profession they instruct.

A competitive necessity

This change will be seen by many as not just blurring the lines between the two professions but erasing it altogether but although many '¨at the Bar will change their working practices, many will not.

Although it will prove '¨a competitive necessity for some at the Bar to conduct litigation as part of an overall package of services, for many established practitioners the time and resource costs involved in conducting more complex litigation will inevitably have an impact on the volume of work they can undertake. Those whose strength is advocacy will wish to maintain the freedom to practise and develop this skill through frequent court appearances. For many this was the very reason they chose to enter the profession.

In a more competitive and flexible market, consumers will be more focussed on what type of legal service they wish to obtain and the quality of that service provider's reputation in that area. The change does put an end to the idea that the Bar can be described purely as a referral profession alone but what will remain is the need for it to be seen as a specialist advocacy service.

Barristers who engage in litigation will only be able succeed if they can distinguish themselves from established litigation firms, and their best hope of doing this is by drawing on their expertise in advocacy.

There will always be need '¨for advocacy specialists and for litigation specialists and even '¨if this distinction is not enshrined in regulatory frameworks the market will always demand it is so.