Fusion by the back door?

In an article recently published on Lawyer2B.com, entitled The Changing Tide at the Bar, the barrister and law tutor Stephen Dale argued that fusing the training for barristers and solicitors could save the Bar.

In his view: “The fusion of pathways would provide an opportunity for the profession to continue to evolve and provide the much-needed collective strategic approach to safeguard career opportunities.”

I feel compelled to respond.

With the utmost respect to Mr Dale, this seems to be an argument for introducing ‘all-round’ American-style attorneys by the back door. Indeed, his reference to a “collective strategic approach” sounds suspiciously like: “more solicitor-advocates and less independent barristers.”

I believe that graduates pick the barristers’ Bar Professional Training Course over the solicitors’ Legal Practice Course for a reason — namely, because they dream of spending the larger portion of their careers in court, on their feet, persuading others that their client’s point of view is correct. Who else, if not one so impassioned, would forgo the comfort of a solicitor’s salary for a job which pays strictly for services rendered… meaning no steady income, no paid holidays, no perks and no pension.

In my view, people become barristers for the love of advocacy. As even this student can attest, there is no feeling like persuading a court that your interpretation of the law is correct. And as a mature student who has worked in office-based jobs ranging from customer services to the Civil Service, I have no doubt that my legal career should involve more time in front of the bench, and less time behind the desk.

However, I must not allow this ‘anti-fusion’ bias to blinker my view. While the 1990 Courts and Legal Services Act lifted the barrister’s monopoly on speaking in the higher courts, all solicitors had enjoyed advocacy rights in the lower courts for decades. Therefore, it would be wrong to assume that solicitors are, on the whole, less capable of advocacy than barristers. Moreover, it is wrong to assume that all barristers work mostly in courts while all solicitors work mostly in offices. A tax barrister’s career might be spent drafting opinions in the office, while a criminal solicitor might rack-up hundreds of hours spent defending clients before magistrates.

Still, if one graduates from law with the desire to be an excellent advocate above all else, why, then, choose to become a solicitor, thus avoiding that branch of the profession which virtually guarantees a life of advocacy? Even for a solicitor-advocate, advocacy represents just one aspect of an already-demanding job, as opposed to a fulfilling end in itself.

In his book, The Art of Cross-Examination, Francis Wellman, an experienced American trial lawyer, argued that America ought to be following England in the way its legal profession is organised: “The conduct of a case in court is a peculiar art for which many lawyers, however learned in the law, are not fitted.”

At this time of uncertainty for the independent Bar, we should be seeing advocacy exalted as an art, not subsumed into the broader range of tasks that are required of solicitors.

Richard Murtagh is an LLM student and UKELA Mooting Champion. He blogs at LLblawg.com.

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