Posted by Neil Rose, Editor, Legal Futures
In the end, the Bar Standards Board (BSB) probably didn’t have much of a choice but to become a regulator of advocacy focused alternative business structures (ABSs).
Without it, barristers and chambers that wanted to practise in new ways would have been forced to go off and find a new regulator – most likely the Solicitors Regulation Authority (SRA).
The pressure was ramped up by the admission from Legal Services Board chairman David Edmonds at last month’s Legal Futures Conference that he had been wrong to say last year that the BSB should be the sole regulator of advocates. He had, perhaps, been playing to the crowd at the Bar Conference; maybe he then got an ear-bashing from the SRA.
So the BSB will regulate a restricted form of ABS and also allow suitably trained barristers to conduct litigation, while barristers will be allowed to go off and work in ABSs overseen by other regulators too. It is easy to come to the conclusion that the most dreaded of F words, fusion, is now truly on the agenda – if it looks like a solicitor and does the same work as a solicitor, then it must be a solicitor, right?
The BSB and Bar Council argue emphatically that this is not the agenda – quite the opposite, in fact. To do nothing would actually hasten fusion, the argument goes.
After all, the opportunities for barristers to move into entities regulated by other regulators, providing advocacy and getting involved in the conduct of litigation, already exist.
Barristers currently provide other legal services which overlap those of solicitors, such as non‐contentious advice, probate services and reserved instrument activities. Employed barristers can conduct litigation. All have done so while preserving their distinct professional identity and independence.
And with the ever-growing number of solicitor-advocates, and even legal executive advocates, there is an overlap the other way too.
So the question was not whether barristers should be permitted to participate in entities, but who should regulate those entities.
By creating an alternative regulatory framework tailored to the needs of the Bar, the BSB could help to reduce the likelihood of fusion, board members were told last week. The BSB will have a framework within which the Bar can provide its own distinctive offering, including alternatives to the types of one‐stop service available from SRA-regulated entities, without needing to switch regulator.
For the medium term at least, I should think this is right. No doubt most barristers would prefer to stay under the umbrella of the BSB than seek shelter from the SRA, and when you throw in ProcureCo (which will become a direct SupplyCo employing lawyers under the new regime), there should be enough flexibility to keep most of them happy.
But surely longer term, there will be significant blurring, if not exactly fusion. For example, previous Bar Council chairman Nick Green said the criminal Bar needed to team up with solicitors to transform into “fully functioning litigation units” – and quickly – if it wanted to survive. Pressure on the public purse, such as on local authorities, could lead down the same road in other areas of practice.
The future looks like one-stop litigation shops, whether run predominantly by barristers or solicitors and whether regulated by the BSB or the SRA. At February’s future of legal education event at Inner Temple, I was particularly struck by the address from Jasvinder Kaur, an employed barrister at solicitors Lyons Davidson, who leads a team of mainly Bar students undertaking the kind advocacy for which they do not need rights of audience, such as acting for insurers in the small claims court or in chambers.
And this is all before we get to common training for solicitors and barristers, an idea gaining currency and supported by SRA chairman Charles Plant among others.
There will, surely, be a place for a cadre of specialist referral advocates and advisers come what may, although whether they need to be barristers, as opposed to senior solicitor-advocates, is open to question.
The future for the junior Bar as a separate entity, particularly in a world of common training and less prosecution work, is far less certain. Last year I facilitated a discussion on ABSs for a well-known commercial set, which found that while junior barristers were busier than ever, this was more because they were being led than because they had their own caseloads.
Is the BSB just staving off the inevitable? Does this all add up to fusion? Does the exact description matter? The future of the Bar is a complicated picture and I’m not quite as sure of its demise as I was a year or two back. Because one thing is for sure: it won’t go down without one hell of a fight.