When it was introduced, there was an assumption that the Bar’s permitting barristers to accept instructions directly from the public would put them into direct competition with solicitors but my experience points to the creation of a rather different dynamic.
It may be due to the inherent complexity of landlord & tenant and property-related litigation generally but, what, to me, has been a surprising number of direct access clients do not seem to be looking to conduct litigation themselves but rather to get an initial piece of advice before going on to instruct solicitors. Often they will be looking for a recommendation as to a suitable solicitor to instruct. The Bar’s lower overheads mean that an initial piece of bespoke advice from Counsel is often more cost effective to obtain directly. Counsel instructed on a direct basis is able to advise as to solicitors and is allowed to make an initial approach on behalf of a direct access client and, far from cutting solicitors out, the Bar’s direct access scheme can actually result in the generation of work for solicitors.
At last year’s Bar Conference Lord Justice Briggs talked of the need for the legal profession generally to be more prepared to offer “de-bundled services” and while the Bar has historically always worked on the basis of providing individual bespoke pieces of work, whether by way of written advice or advocacy, solicitors appear to responding to the challenge to do so as well.
Costs can, for example, be saved by solicitors remaining in the background and doing preparatory work such as taking witness statements, gathering evidence, or being instructed in relation, say, to a mediation but not going on the record in relation to substantive proceedings.
In Multitrack cases, solicitors assisting on a limited basis obviates the need for costs budgeting and the often disproportionate expense of that exercise. Not only does the litigant in person remain a litigant in person but having the support in the background may make the difference between litigants in person being able to conduct proceedings on their own account and not being able to do so, which, in turn, may have an impact on whether a barrister can or cannot accept instructions on a public access basis.
Providing bespoke services also allows solicitors to limit the scope of their retainer, where, for example, a litigant in person has only sought legal advice very late in the day and a solicitor could not commit to the full set of responsibilities associated with going on the record.
In the event, direct access by the public would appear to have had the incidental effect of turning the Bar, in part, into a referring profession, which, if anything increases the degree to which, in a split legal profession, barristers and solicitors must exist symbiotically.