When the rules were changed in the 1990's in the UK granting extended rights of audience to solicitors, I had no difficulty believing what was so commonly heard on the street at the time – the independent profession of barrister was going the way of the dodo.
I spent a week in London last month mostly among trust litigation lawyers. Of them, about half were barristers and half were solicitors. It became clear to me that the profession of barrister is alive and well. And I think I know why.
It always struck me as odd why solicitors and the public in the UK tolerated a system which reserved the right to appear in the higher courts to one class of lawyers. I thought there was something faintly unsavoury about such a limitation on access to the courts. It seemed "closed shop" and snobbish, and more than that, hugely expensive to the client who was compelled to pay two sets of lawyers to go to court.
What I was able to gather last month in London was that since the rule changes in the 1990's, the relationship between barristers and solicitors has relaxed significantly. Barristers are now very much more accessible. The rigid process by which solicitors had to deal with barristers via their clerks, and bundles of papers tied in pink ribbon, seems to have largely gone. Solicitors now often have the barrister's cell phone number and email address.
But the most interesting point, and one that has relevance for Ontario, is that solicitors want barristers. Barristers complement the services solicitors provide. There does not appear to be a turf war for high court appearance fees. There are four reasons for this that I could see.
First, solicitors regard advocacy as a very different skill set. Solicitors, who may specialize in the same area of law as the barrister they are hiring, want their clients to have the benefit of a lawyer who specializes in court advocacy. There is no superiority/inferiority thing going on here. The skill is simply a result of a career choice and different training.
Second, it is economical: solicitors are burdened with the overhead of a law firm. Barristers are self-employed, sole practitioners who share office costs. They don't write correspondence. They don't need much staff. Their overhead is far lower. They can generally take a matter through a trial or arbitration at a lower fee than the solicitor's hourly rate would generate. In these circumstances it doesn't make economic or practical sense for a solicitor, who has a vested interest in getting the best outcome possible for the client, to present the case in court.
Third, barristers are very competitive. They specialize deeply. They offer solicitors a huge range of expertise. Solicitors do not need to hire barristers on to their staff: they can go to them as needed.
Fourth, although litigation solicitors are themselves specialized and highly skilled, by going through the process of hiring a barrister and preparing the case, solicitors get a second set of eyes on the problem. Two heads are in fact better than one, and this usually results in more a streamlined and a more efficiently prepared and run case.