Pastures new

Is the balance of opportunity changing as between the solicitor and advocate branches of the legal profession? What is the future for the Faculty of Advocates if alternative business structures mean the end of the age-old rule against advocates operating in association with others, as desired by the Office of Fair Trading? With the English Bar coming out publicly in favour of the reforms in the Legal Services Act, can the Faculty hope to maintain its present status?

At the same time the high profile recent moves by Colin Boyd QC and Michael Jones QC, “crossing the floor”, as it were, to the solicitors’ side, raise new possibilities both as to the future delivery of legal services and the career paths open to the litigator.

Richard Keen QC, recently elected Dean of Faculty, recognises that his professional body, along with the legal profession as a whole, will come under unparalleled scrutiny over the next couple of years, yet mounts a robust defence of the Faculty as an efficient business model compared with the proposed alternatives.

Not like England

It might be thought odd that the Faculty is not more in favour of change, given the Bar Council’s attitude in England. The latter’s briefing note prior to the Legal Services Bill’s Commons second reading invited MPs “to support the bill in the interests of consumers and the public generally”, and expressed “no objection in principle to the development of alternative business structures”. Richard Keen however doubts whether much will change at the end of the day.

“It may very well be that the Bar Council will change their code of conduct to enable barristers to go into partnership, but the perception seems to be that although they will be enabled to do so, they will not actually do so. And they won’t see the attractions of that model.”

Pointing out the vast difference in size between the bars (about 12,000 practising barristers compared with 460 or so advocates), he maintains there would be major problems over conflicts of interest if the Faculty’s stables were to form themselves into partnerships.

“To cite a recent example, we’ve got nine separate parties represented in the Erskine Bridge litigation; the majority have counsel instructed in one stable. They are all independent practitioners; there is no issue over conflict of interest. How could we accommodate that in circumstances where that stable had become a partnership?”

As for advocates entering into partnership with solicitors, Keen maintains that there are issues “still to be bottomed out” regarding duties owed to the firm as against third parties, as well as rights and obligations in the context of conflicts.

Nor, he adds, is the consumer likely to benefit, citing the economies of scale “with the maximum of competition”, currently achieved through the Advocates’ Library and Faculty Services Ltd – though not all advocates agree that the service company operates to their best advantage (cf “Bar to progress”, Journal, June 2007, 10).

Compatible partners?

Indeed, Keen sees the Faculty structure as itself incompatible with such mixed partnerships. “The Faculty has a particular business model for advocates; solicitors have a business model which is different. You wouldn’t expect some sort of regulation whereby a partner in Maclay Murray & Spens could go and work for Dundas & Wilson; that would strike you as absurd. What you would say is an individual can leave Maclay Murray & Spens and join Dundas & Wilson and vice versa, and that’s exactly the position we’ve reached with regard to the Faculty and the solicitor branch of the profession.” So the Michael Jones case is a classic example of how to do it. “I don’t have a problem with that any more than I have a problem with a solicitor advocate who practises as a partner of one firm on a Friday and commences practice with another firm the following Monday. There’s no difficulty with it.”

He goes further. “Why on earth would you want to be a partner in a firm of solicitors and remain a member of Faculty? Quite apart from anything else, consider the financial implications. As a member of Faculty you have a professional obligation to pay a percentage of your income to the Faculty. I don’t think your partners would be terribly happy about that. To put it bluntly, why would you pay to maintain two places of business when you’re only employed in one?”

For Keen, then, the Faculty structure, despite its vintage, will withstand the test of exposure to modern alternatives. Indeed he discloses that an independent economic report commissioned from the University of Manchester, to be published when finalised, endorses the Faculty view.

Radical voice

Former Lord Advocate Colin Boyd QC (Lord Boyd of Duncansby), however, does foresee changes affecting the way the Faculty currently operates, whether it likes them or not. Boyd, who resigned from Faculty to join Dundas & Wilson as a public law consultant last May (see panel on p 11), admits he had something of a reputation as a radical among colleagues when at the bar, but voices doubts as to whether the Faculty can survive in its present form.

“On the one hand of course we now have solicitor advocates and they have the same rights of audience as advocates, with the advantage that they can be in partnership. And they have perhaps fewer restrictions on them than advocates do. So the expertise that was once thought to reside solely at the bar, of giving opinions, very largely has now diffused through the profession. So I think that there has to be a different type of profession now in Scotland.”

He concedes that the business structure and conflict questions have to be addressed, but not that the necessary conclusion is that the present structure should continue. “I’m sure there will still be a core of people who will want to practise on their own, who will see the advantages of doing so, but I rather suspect it will be a smaller organisation and one where there is at the very least an easier ability to switch between solicitor and advocate, if not a fused profession.”

He adds: “If you look at some of the Australian states, for example, they do actually have a flourishing bar but one where they can be solicitors as well as barristers. And so there are various models around. But I think the wider question is, what is the future of the profession? And in a sense the bar is only one part, possibly a smaller part, of the general issue.”

Continuing contribution

Michael Jones QC, whose recent move to Simpson & Marwick (see panel opposite) created quite a stir, does express confidence that the Faculty will survive any of the likely changes. “It’s an institution of which we should be proud, and we should be aware of the contribution that it makes generally to the legal system. It’s a very great contribution.”

For Jones, an independent referral bar, and with it the cab rank rule, “remain of importance, and the only way to have the advantages in Scotland of the independent referral bar and the cab rank rule is that we do have the Faculty of Advocates”.

Similarly his now partner Peter Anderson emphasises that Simpson & Marwick remain enthusiasts for the Faculty, with or without reforms. “There are lots of very fine, very able lawyers who are members of the Faculty of Advocates and we will want to continue to instruct them, so we are definitely supporters of the Faculty.”

Delivery mechanism

Richard Keen is critical of the apparent fixation of the would-be reformers with allowing partnerships where they are currently prohibited.

“It isn’t exactly the cutting edge for the delivery of legal services. We now live in an environment where people have to be on the same network, not in the same room or the same building in order to operate effectively together or as a team. So the very basic structure of the traditional partnership is if you like called into question by more recent developments in technology. There is also a belief, from my discussions with chambers in England, that partnership tends to protect the second rate at the expense of the first rate, and can also be the cause of artificial restrictions on practice.”

For the Dean, increasing access to legal services involves taking a more radical look at aspects of public policy such as the rule against champerty. “In the wider area of delictual claims, contractual claims, personal injury, commercial claims, very often the client looks to the provision of legal services and rather resents the fact that they pay all the costs on an hourly or daily basis, however long the case takes, and assume all the risk…

“Perhaps we should be looking first of all at the way we should be delivering legal services and alternative methods of dispute resolution, and secondly the way legal services have to be charged for…. If people have a legal claim and wish to pursue it, could there not be machinery by which they can go to their lawyers and say, we have a claim, we don’t have the funds to pursue it, we would like to share the risk of this claim with you if you are willing to put in your expertise… I think that when you look at the delivery of legal services, you’ve got to look at more than just the structure; the business structures are just one small part of the picture.” Radical issues indeed, given the implications, including for legal aid, which there is not the space to explore in the present article.

Similarly he defends the extension of the Faculty’s Direct Access scheme, as consistent with the government’s and the OFT’s desire to extend access to justice and to lawyers – given that counsel can decline instructions where they feel these should come through a solicitor. “At the end of the day we have no desire to try and embrace the work done by solicitors.”

Ease of movement

He adds: “I’m not in any way complacent about the position of the Faculty at the present time. I know that we are under immense scrutiny. There is always room for improvement. I know there are a number of parties who feel that there is some need for change – although I sometimes think they are a little limited and a little unimaginative about the sort of changes they have in mind…

“And I go back to this theme. Unlike England, movement between the two branches of the profession is now a matter of great simplicity. That addresses one of the issues that the Legal Services Act in England is otherwise attempting to address, the barriers between the Bar in England and the solicitors’ profession…. Here we’ve always had a very different environment.”

Richard Keen points out that the number, “but more importantly the standard”, of applicants to join the bar remains at a high level. It remains the case that many are from individuals with some experience in practice as solicitors. And just as there are solicitors who will always prefer life as sole practitioners, so there will always be lawyers who prefer to work as independent advocates, under whatever name. Nevertheless the traffic is not all one way, and the moves by Colin Boyd and Michael Jones, particularly the latter, have undoubtedly made waves. If the Dean is correct to claim that moving between the branches of the profession is already a straightforward matter, we can expect to see a much more fluid state of play as regards career options in future, with or without changes in the structure of the profession.