Straight There No Detours: Direct Access to Barristers

20 Pages Posted: 25 Jan 2010  

John Flood

Griffith University Law School; University of Westminster School of Law; University College London

Avis Whyte

University of Westminster - School of Law

Multiple version iconThere are 3 versions of this paper

Date Written: June 2009

Abstract

Modernity unsettles professional certainties. For four centuries the Bar has enjoyed many privileges (Prest 1986) but there has been a hollowing out of its professional core as its reserved areas have come under threat. The gradual erosion of the referral aspects of barristers’ relationships with solicitors and others exposes barristers to the contingencies of the market in a raw form not usually experienced. The rising intervention of the state into the lawyer-client relationship through the control of the legal aid budget is accelerating these moves. These are moves to bureaucratic control and potential proletarianization (Larson 1977: 232). The Bar is losing its grip on its professional project. Or is it? Muzio and Ackroyd (2008: 49) argue we are not observing the end of professionalism but rather various defensive manoeuvres by professionals to maintain their privileges.

How does the rise in direct access work fit with the changes in the Bar? In part it has to do with what Boon and Levin (2008: 77) described as “'he legal services market has a multitude of sites in which different norms proliferate.' Barristers occupy many positions outside traditional private practice. They are in business, government, the Crown Prosecution Service, and even inside solicitors’ firms. And when we add to the mix an increasing diversity of professional members in gender and ethnicity, common cultural values change and may not hold. This is reinforced by the division in work at the Bar between those who largely undertake publicly aided work and those who act for private clients. Barristers paid by the state operate under considerable control in terms of what they can do and what they can charge for their labour. No equivalent constraints fall on private client practitioners: they function within the market. Further controls are imposed by chambers arrangements which are becoming more corporate in focus. Chambers are increasingly specialized in their practice areas. They target potential lateral hires, including groups of practitioners, and establish business targets, all of which compromises the ethic of individuality espoused in the Bar.

Although the fusion of barristers and solicitors is unlikely to happen, the introduction of Legal Disciplinary Partnerships in 2009 has opened up the organization possibility for the conjoining of the two. And when alternative business structures make themselves known, any conventional arrangements might begin to fail. Alternative business structures will seriously affect numbers and structures within the legal profession and increase the employed section of the legal profession. We suggested that up to a thousand law firms could fail in competition with supermarkets and other legal service providers. Barristers too will be affected.

With these eventualities direct access work grants the possibility of holding onto traditional values and procedures. Prest (1986) is clear that the settling of the referral structure of the Bar did not come into being until the 19th century, so that an earlier paradigm of professionalism for the Bar encompassed direct relations with clients. Attorneys and solicitors stepped in when geography made it difficult for clients. Direct access recaptures these pre-modern ideals of working. But perhaps of more significance is that barristers can situate themselves more centrally in the market through doing direct access work. Their potential for control over their work and professional relationships is enhanced.

Keywords: Bar, barristers, clients, direct access

JEL Classification: J44

Suggested Citation

Flood, John and Whyte, Avis, Straight There No Detours: Direct Access to Barristers (June 2009). U. of Westminster School of Law Research Paper No. 10-08. Available at SSRN: https://ssrn.com/abstract=1540650 or http://dx.doi.org/10.2139/ssrn.1540650

John A. Flood (Contact Author)

Griffith University Law School ( email )

Nathan Campus
170 Kessels Road
Nathan 4111, Queensland
Australia

HOME PAGE: http://https://experts.griffith.edu.au/academic/j.flood

University of Westminster School of Law ( email )

4 Little Titchfield Street
London, England W1W 7UW
United Kingdom

HOME PAGE: http://www.westminster.ac.uk

University College London ( email )

Faculty of Laws
Endsleigh Gardens
London, England WC1H 0EG
United Kingdom

HOME PAGE: http://www.laws.ucl.ac.uk/people-at-ucl-laws/honorary-appointments/

Avis Whyte

University of Westminster - School of Law ( email )

4 Little Titchfield Street
London, England W1W 7UW
United Kingdom

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