Once, a fringe, micro-aspect of work at the Bar, is Public Access to become the way forward to see the Bar through the 21st century?
Readers of the blog will know my friend Matthew Shardlake. Matthew was a tolerably successful advocate, and ‘well connected’ for his time. Is this why he is one of the rare survivors from the 16th century? He was, of course, the fictional barrister created by C J Sansom for his Shardlake series ‘Dissolution’, ‘Dark Fire’, ‘Sovereign’, ‘Revelation’ and ‘Heartstone’, published between 2003 and 2010. Sansom’s novels chart the fate of the Tudor barrister as he played out his part in the sensational reformative events of the time.
My interest in Matthew Shardlake is less for his historical role, but more for his current relevance. It seems, in the times of Henry V111, that barristers operated a very effective form of public access. Indeed the work of the ‘solicitor’ was confined to that of a clerk – preparing cases for the barrister who would advocate in court. The difference was that the barrister received his (for in the C16 barristers were male) instructions from the client, and the barrister advised the retention of a solicitor or clerk to obtain depositions and liaise with the court.
Perhaps a sign of hard times, with economic recession and job insecurity, members of the public are questioning the cost of solicitors’ services, and why they really need them. With ever increasing levels of literacy and huge assistance from the internet, many clients want to tackle the basic tasks themselves rather than pay for a solicitor’s silver-plated service. Some appear as litigants in person; but others are becoming ‘supported litigants’, who retain a barrister for the tasks of advising them and advocating in court.
The change comes at a clear cost to the legal profession. Many solicitors are feeling the rub – just as the Bar felt when solicitors sought and obtained higher rights of audience. Neither is the Bar immune to collateral stress from the fact that non-legal clients are preparing their own case.
Well managed, the advent of public access need not be hard for the Bar, and may be part of its salvation. For years, barristers have had to await a solicitor’s instruction, courting them and managing their preferences. But with direct public access, clients have the chance to check out a chosen barrister and instruct them directly. They receive early, cost-effective advice and keep control over the purse strings. The professional roles are reversed – now the chosen barrister nominates a solicitor to undertake only those tasks that are beyond the client.
So, we return, as inevitably we would, to the days of Matthew Shardlake. The court may not be the ‘Court of Common Pleas’ – now more probably a county or family court in the provinces – but the re-ascendance of the Bar is possible.
More and more clients are going to seek early and less-costly contact with the barrister of their choice. They will have read about them in the press, met them in their communities, checked out their profile on a dizzy dozen of web sites and want to hear how their case looks to the practitioner who is going to advocate it. Wise lay client – lucky Bar.
Having led the way in public access to the Bar by piloting for the Bar Council for England and Wales the first two schemes under ‘Bar Direct’ in 1999, the blogger has had a regular ongoing relationship with direct access.