Throughout the 20th century the public was prohibited from instructing barristers themselves; if they wanted to see a lawyer they were required to see a solicitor who, in turn, would instruct a barrister for the lay client only if he, or the lay client, so desired. This meant that solicitors had a monopoly of direct access to the public. Monopolies are rarely conducive to competitive pricing or service and even, in the worst cases, provide potential for abuse. Perhaps I can illustrate with an example that has always stayed in my mind.
About 25 years ago, when I was in the early stages of my career practising from a well-known London chambers, I was instructed by a solicitor to represent a motorist accused of driving without due care and attention. The case was listed for hearing in a north London magistrates’ court. I lived in the heart of Kent, as I still do, and travelled up to court very early the next day. I had to go early as my instructing solicitor had sent me only a cursory note as to the case background and the client’s instructions. When I say, ‘cursory note’, I mean just that; the total length of the instructions was about the same as you see in the first paragraph above. Therefore, I needed to obtain full instructions from the lay client himself. As it happened, although the case had been listed for hearing in the morning, the case was not called into court until the afternoon by which time I had spoken to the prosecutor, read the Crown’s evidence, and, taken instructions from the lay client. Fortunately, after a hard fought case the client was acquitted late in the afternoon. In those days, one could make a costs application as costs would usually follow the event ie the side that won could seek, and would usually obtain, an order for its costs to be paid. Consequently, I had to enquire of the solicitor by telephone as to his costs ie what he had charged his lay client (as otherwise I would have been unable to make the costs application.) It transpired, upon enquiry, that my instructing solicitor had charged £1,100. The princely sum of £100 was my fee. The solicitor had charged £1000 for one short paragraph and, no doubt, a very short conference with the lay client (compared to £100 for me for obtaining full instructions, attending for the whole day, and contesting the case at court)! As time passed I learned not to be surprised by such conduct on the part of my instructing solicitors (although it should be said that I have, of course, come across honourable solicitors who would never conduct themselves in such a fashion).
You may find it hard to believe that the solicitor could ‘get away’ with such conduct. However, a few seconds consideration will eliminate any incredulity. The client would have expected his legal fees to be costly. He probably would have believed, at least initially, that by far the larger part of his fees would have been to pay my costs (as he would have expected my input to the case to be infinitely greater than that of the solicitor who had done little more than pen a few words to me). However, he was thrilled because he had been acquitted and had an order for his costs to be paid. The solicitor would have been sure that I would not have complained to him or anyone else as he knew that all barristers’ instructions came through solicitors; barristers could be relied upon not to ‘bite the hand that feeds them’. This served as an early illustration to me of the potential for inequitable conduct that could sometimes occur under cover of the solicitors’ monopoly of initial access to the public.
The good news is that in a little known change to the regulatory framework the public can now instruct barristers directly; there is no requirement that they instruct a solicitor first, or, at all. Consequently, I have set up Kent Traffic Law, a public access, road traffic law practice. I wish to give the public a choice as to whether to instruct a barrister or a solicitor. However, the principal hurdle to the effectiveness of this change is that most people don’t know of its existence. Consequently, most people’s initial reaction when they decide they require legal advice or representation is still to contact a solicitor. The changes will only have their full competitive effect, including downward pressure upon solicitors’ fees, once the public is aware that they have a choice as to whom to instruct.
So, how does public access work? I specialise in defending motorists, or companies, facing road traffic prosecution. Suppose a motorist faces a road traffic charge. So long as he is prepared to give me the instructions (and, if necessary, do the administrative work, as required) that a solicitor would otherwise have done there is no need, or requirement, to instruct a solicitor at all. By way of example, my first public access client was the managing director of a medium sized haulage company. One of his drivers had been accused of an offence whist driving a 30 tonne truck. The MD intended to plead ‘Guilty’, on behalf of his company, but he was most concerned as to the reputation of his company and that the case could be exaggerated. I took instructions from his staff in the days before the court case was listed and attended at court to put forward the company’s mitigation. After the case the MD again asked me about the difference between public access and instructing a solicitor. I summarised it as, ‘To tell you the truth, the main difference is that you saved yourself a couple of grand’ to which he replied, ‘at least’.
You may wonder how a barrister’s costs can be less than a solicitor’s. A barrister in independent practice is a sole practitioner. I no longer have the costs of permanent staff or a full time office whereas solicitors usually employ staff (secretaries, legal executives, associate solicitors etc) and house them in expensive high street offices. Additionally, solicitors have high administrative and regulatory burdens imposed upon them by the SRA. The upshot is that a barrister’s fees can be very competitive when compared with a similarly experienced solicitor.
If you require legal advice or representation and you consider yourself able to provide instructions and make enquiry as necessary why not consider avoiding the duplication of costs and waste of time sometimes involved in instructing solicitors and go straight to an expert barrister who is, after all, a specialist in advocacy. They are often prepared to act on a fixed fee basis (as I am) and provide expertise on tap. The choice is yours.
(If you wish to hear more from Sunil Rupasinha tune into the ‘Business Bunker’ radio show with Paul Andrews and Jules Serkin, on 17.2.15 on Channel Radio, www.kentbusinessradio.co.uk. The show can also be heard on podcast).