Direct access: The impact on barristers, solicitors and clients

Direct access is a topic rich in its implications for the UK legal profession and legal buyers. It is now possible for anyone to directly contact barristers for litigation, without having to go through solicitors. However, is direct access providing real benefit to the public as well as to solicitors and barristers? Is it truly enabling clients to get the right legal help in a timely manner and at a fair price? In my search for answers, I contacted a handful of legal professionals - barristers, solicitors and academics - to gain a balanced perspective from all concerned.

The consensus from many quarters is that direct access is potentially a good thing for the public and businesses. As Matthew Briggs, CEO of The Law Superstore and a legal buyer notes, "direct access for barristers can be a good thing as it enables a direct route to market which previously wasn't available to chambers".

Gareth Hughes, a barrister at Gordon Dadds, agrees. "It must surely be cost effective for both individuals and businesses to pay only one set of fees as opposed to two that would be required if referrals were via a solicitors practice."

For Sinead King, a barrister at 36 Bedford Row, direct access provides new opportunities to increase business by marketing to a whole new client base. "Because a lot of direct access work is on a fixed fee basis, we're pretty competitive when it comes to providing expert advice at a price companies just starting out can afford," she says. "The direct access side of my practice is geared towards litigation prevention and, as such, it gives me the opportunity to get in earlier, and provide timely advice."

Success with direct access is dependent on the person instructing the barrister having a reasonable idea of the legal issues involved. Many practitioners at the independent Bar who take instructions directly find that it is not always cost effective or viable for them to do much of the 'donkey work' that a law firm might carry out on behalf of the client. Understandably, barristers' chambers
"do not generally have the resources to support lower-level work which is often required in making the applications, or litigation", as Hughes points out.

Some may be concerned that direct access will negatively affect solicitors as it effectively cuts them out as the middlemen. However, Russell Davidson, a partner at Lupton Fawcett Denison Till, is unconcerned. "I doubt it will lead to much of a fall-off in work for the solicitor or increase for the barrister, but those in-house counsel who are savvy but not necessarily legally qualified may find direct access of considerable use and a cost saving," he says.

Work allocation

Perceptions vary as to the type of work which barristers should receive through direct access. Alarmingly, some law firms view direct access as involving low-grade, high-risk work, rather than as a nimble vehicle for the provision of targeted legal services. For some, it has led to a better quality of work. Indeed, Hughes has found that direct access "has often led to more interesting and challenging work".

Comments King: "One of the steepest learning curves for barristers undertaking direct access is selecting their clients. I tend to focus on working with very bright, organised and self-motivated individuals and companies.

"Far from being low grade, and high risk, I often become involved just at the point where they're beginning to branch out and do interesting things and they need a few pointers - and it's an absolute pleasure to be able to assist them in building their businesses. If things do go wrong, because I can get involved earlier, we can usually craft a solution without the need for costly litigation, and even when we do have to fight, the outcome is so much cleaner, because we've already done the groundwork well in advance of proceedings."

One issue to consider is whether solicitors and barristers are suited to some elements of legal work better than others or, more likely, if there are elements common to both. Mike Semple Piggot, an academic lawyer who was the first chief executive of BPP law School and a legal buyer, believes the issue is not so much the legal work, but the advocacy in court. "Barristers with experience of court advocacy may have the edge on solicitors," he suggests.

For King, the ability to look at a problem in several different dimensions - human, abstract, procedural, evidential - and to be able to switch gears is also "pretty important".

Since the introduction of direct access, have barristers been providing similar services to solicitors at a cheaper or more cost-effective rate? Not surprisingly barristers, academic lawyers, entrepreneurs and legal buyers say 'yes'. Davidson says "not necessarily".

Adds Briggs: "It is difficult to evidence a direct service and cost comparison on a like-for-like basis, this is why the 79 per cent of consumers (the public) surveyed by The Law Superstore would use a legal comparison engine if one existed."

Legal comparison sites (such as the Law Superstore, which launches to the public in March 2016) can be very beneficial to clients in selecting counsel. Similarly, the artificial intelligence technology used by Premonition to assess success rates in litigation in the UK and US could have a huge effect on how barristers are selected in future, for better or worse. Both types of client-focused tools will undoubtedly ruffle some feathers within the legal profession, with some seeing them as a threat and others viewing them as an opportunity.

A house united

A key consideration for many providers of legal services is whether direct access negates the requirement to split the profession between solicitors and barristers. "The split profession has historically been beneficial, especially for barristers' more sophisticated expertise in advocacy and the rules of evidence and causation, those benefits overriding the downsides. There is no reason for that to continue though, provided the same rules and standards apply to all," comments Mike Willis, a freelance professional risks lawyer.

The divide certainly seems necessary; however, there is a strong argument to unite solicitors and barristers under the one roof. Canada, for example, has for many years combined firms of solicitors and barristers. "There is no logical basis for the divide to continue in the UK. It slows down the process of law and causes more cost for the client," argues Davidson.

This model is beginning to emerge in the UK and no doubt we will see more joined-up models being created, particularly if Briggs is right in his view
that "there is a tangible first-mover advantage for models which piece together all the different elements under one cohesive brand".

Accordingly, it's about time solicitors and barristers work more closely together to benefit the client. "Now that the traditional model is giving way to more unbundled services, I'd like to see more smart relationships between the different parts of the legal service industry: barristers, solicitors, paralegals, experts, investigators. We're already beginning to see it with referrals between barristers and solicitors," comments King.

Evidently, further changes to direct access, attitudes and behaviours of legal professionals ought to be contemplated. As a profession, we need to increase public awareness about the direct access option available to them. Interviewees suggested a range of options to consider to improve the management and regulation of direct access.

The first change should be an equal playing field for promoting legal services. "Barristers should be allowed to advertise their services on the same basis as solicitors," says Davidson.

More tools to compare providers should also be developed. We need "one governance umbrella, so the buyer knows and can compare providers," says Willis. Also needed is the development of "appropriately sophisticated and governed comparison and introduction agencies/sites, linked with more liquid business structures to convert lawyers back into individual guns for hire, under overarching governing praesidium/principles of ethics and managemental responsibility, properly enforced by the courts and executive government, not quangos," he says.

In addition, a review of the costs to the client of accessing barristers directly should be undertaken. "I would like to see a considered review of the practical costs of direct access - going to law is expensive," says Piggot. "I had a two-day hearing in the High Court 25 years ago. I was the defendant in a restraint of trade case. I won. The costs were well in excess of £0.5 million. The Trial judge, Cresswell J, suggested that the plaintiffs give the case up...it was, in his view, a non-runner. They took his advice and the advice of their excellent barrister."

Other changes to consider, as suggested by Briggs, include "a more cohesive relationship, led by the LSB, between the SRA and the Bar". This should involve: education of chambers regarding dealing with clients directly and what makes excellent client service; a joined-up regulatory governance; investment in public awareness; incentives to introduce new models which bring transparency, ease of use, certainty and quality; tax benefits for funding vehicles; grant incentives; and encouraging solicitors and barristers to embrace change, he says.

Perhaps if we had joined-up regulatory governance, we wouldn't witness the likes of Evolve Family Law, which was the first to make the switch as a traditional law firm by shunning the Solicitors Regulation Authority (SRA) for the Bar regulator and the third business to adopt the BSB entity model rather than regulation by the SRA.

Redefining roles

One final consideration is, if solicitors and barristers are to come together, we ought to consider what each of their roles should be in future and even contemplate doing away with the terms 'barrister' and 'solicitor' altogether, with each simply known as' lawyers'.

It seems that there is a mix of ambivalence and contrasting opinions
on this matter. Whilst Piggot holds the
view "I don't think we should do away
with the separate roles of solicitor and barrister", Willis has "no principled objections to one profession, under
one objective governance".

Davidson, along with Hughes, agrees we should get rid of this distinction. "I think that there is very much a blurring of the understanding by the public of the two brands and my experience is that they will often refer to our profession as the lawyers' profession and very few people are aware of this distinction between solicitors and barristers. Such distinctions as they are
now are confusing to the public which is why I would be in favour of 'lawyer',"
says Hughes.

As Piggot notes, in a digital world, where we can access all kinds of media and television productions, "it is difficult
to work against the universal public use
of the term 'lawyer'".

Access to justice

Direct access appears to be a positive thing for legal buyers and the two strands of the profession. Yet, much more could and should be done to bring about improvements for the benefit of clients
and the legal profession.

Clearly, there is much for solicitors, barristers, regulators, quangos, politicians and lawmakers to consider and act on
to ensure there is improved access to justice for all.

Chrissie Lightfoot is named in the 2015 list of the 'World's Top Female Futurists'. She is the author of bestseller The Naked Lawyer and its sequel Tomorrow's Naked Lawyer: NewTech, NewHuman, NewLaw - How to be successful 2015 to 2045.
You can pick up her latest book today
by emailing publishing@ark-group.com