Merging of the Legal Profession

The English legal profession is atypical of the majority of the rest of the world due to the fact that it is divided. Unlike other countries, in England they have two different types, each with different roles and responsibilities within the system. The principal distinguishing factor between them is that solicitors primarily do the paperwork, whereas the role of barristers is mainly concerned with advocacy. But over recent years there has been a sequence of changes resulting in gradual progression towards the merge of the two legal professions.

For decades there were great restrictions on contact between the two professions. A barrister could not advertise and could not even hand out a business card unless he was asked for it. He was not supposed to interview witnesses other than his lay clients and experts. It was not considered appropriate for a member of the Bar to visit a solicitor's office. The solicitor had to visit the barrister in his Chambers. In recent years those restrictions have been greatly relaxed. Solicitors are now appointed to the higher judiciary and can act as advocates at trials in the High Court and Crown Court as well as on appeals.

The Courts and Legal Services Act 1990 has been one of the most significant features of the history of the movement to merge the two legal professions. It brought about numerous changes: certain professional clients now have direct access to barristers, there is access to higher levels of judiciary for solicitors, formations of partnerships between lawyers and members of other professions are permitted and there are extended rights of audience to "suitably qualified persons". In addition, in 1992 recommendations were introduced that solicitors can appear for either prosecution or defence in the higher courts by obtaining a Solicitor's Advocate Qualification. This was a fundamental change as it meant lessening the gap between solicitors and barristers.

Traditionally, barristers are from a narrow social background and a lot of social networking and nepotism take place. Therefore, even if solicitors do gain qualifications to give them rights of audience, it is very difficult for them to be accepted by barristers and judges. There is a fear among solicitor advocates that they or their clients would be subject to bias and prejudice from judges if they were to use their rights of audience in the higher courts. This has led to many being reluctant to put their qualifications into practice.

In 1998 the Lord Chancellor promised plans to allow all barristers and solicitors to appear in any court. As a result, the Access To Justice Act 1999 gives solicitors automatic rights of audience, but it requires them to undergo special training.

With regard to the history of the movement to merge, the evidence suggests that the majority of the opposition is coming from the Bar Council. The negative implications for barristers would firstly be that if there is no distinction between barristers and solicitors, they would both have equivalent amounts of advocacy and paperwork and would be of equal status. Such a situation might create more competition for employment, which may also force lawyers to reduce their rates, and as a result they would not make as much money. At the moment fewer solicitors have gained rights of audience in higher courts than barristers, therefore barristers have a monopoly on the profession and can charge as much as they like. It is clear that barristers have vested interests as they would most certainly lose out if the professions were to fuse.

The amalgamation of the two legal professions would have major repercussions, and there are coherent arguments both for and against it. The most significant advantage for the general public is that it would be considerably cheaper; instead of having to pay for both a solicitor and a barrister, clients would only have to pay fees to one lawyer. Solicitors would benefit as they would earn more than they do currently, but barristers' earnings would most definitely fall.

Another current problem is the fact that in 96 per cent of cases with guilty pleas and 79 per cent of cases with not guilty pleas the clients don't even see their barrister until the morning of the trial. As a result, this could mean that principal points may be overlooked or misunderstood. Merging the legal professions would combat these problems of inefficiency within the system.

Critics of the movement against the merger of the two professions claim that it is more effective to have two separate professions focusing on their different jobs than having one that does both. It is argued by the Bar that the fact that barristers are independent ensures that all defendants are represented regardless of wealth or power of their challenger.

In England they have an Adversarial System; judges do not have an investigative role and must make decisions based on lawyer's accurate presentation of the case, therefore good advocacy is important. It is suggested that if the two professions merge, it would jeopardize the quality of advocacy.

Fusion would make appointments into the Judiciary more difficult, although there will be more candidates to choose from, they will be less eminent and therefore not as well known to the Lord Chancellor and his advisors.

Over recent years there has been much deliberation about the future of the legal professions and the inevitability and effects of them merging. The Courts and Legal Services Act 1990 was probably the first move by the government towards fusion. It was contended that if large numbers of solicitors took qualifications to use extended rights of audience, the Bar would be under great threat and eventually the Bar would vanish, as the solicitors would become more dominant figures.

All of these theories have not yet proved correct, as only a minority of solicitors have qualified for rights of audience, and the Bar has actually increased in size over the last ten years from. Additionally, it is unlikely that the new rules will alter the long established practice of solicitors referring to barristers in times when they need specialist legal advice, and it is doubtful that the Bar would be in serious danger in the imminent future.

From the evidence above it is clear that there are logical and reasoned arguments both for and against the merging of the legal professions. Although there will be a few minor problems during the changeover period, in the long run merging of the two professions would be very beneficial for the majority of people and the advantages of it would prevail over the major disadvantages.

Task 2. Give answers to the following questions.

1. What is the principal distinguishing factor between barristers and solicitors?

2. Did barristers and solicitors communicate freely in the past?

3. What changes have lessened the gap between the two legal professions?

4. What would barristers lose if the professions were to merge?

5. What are the possible advantages of the merger?

6. What arguments are put forward by the opponents of the merger?

7. Is society likely to benefit from the merger?

Task 3. Render the following text into English summing up the arguments for and against the merger.

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