Further to my post noting the outbreak of ‘turf wars’ between barristers and solicitors…on further investigation the ‘turf wars’ appears to amount to a rather snippy press release from The Law Society in respect of its response to the MoJ consultation on the FGFS, in respect of which the FLBA have so far maintained a dignified silence. It would be all too easy to be distracted from the real issue (swingeing cuts in ALL our fees if the MoJ / LSC has its way) and waste valuable energy arguing amongst ourselves and achieving nothing except to further dim the view that jo public has of us ‘sharks’. Frankly, I find it difficult to understand what purpose the Law Society think their press release will serve (I don’t suppose that money cut from barristers pay is going to be returned to solicitor’s pockets as a result) but I guess that’s their prerogative. However, I know that many of the visitors to this blog struggle to understand the differences between barristers and solicitors, so it might be helpful if I explain a little bit about the differences in so far as is relevant to the work we do under Family Legal Aid.

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It is more common in family work than in many other areas of law for solicitors to carry out their own advocacy. However in my experience this is predominantly magistrates court work and probably largely public law (care) work. For some reason solicitors acting for children / guardians tend often to do their own advocacy. Barristers are routinely instructed by most solicitors and particularly so in relation to contested or final hearings, especially complex work and particularly in representing parents. Even solicitors who carry out much of their own advocacy will often send this type of work out to counsel. Additionally solicitors who do their own advocacy often brief counsel because they are unable to make a particular court fixture due to other work. Solicitors of course have to juggle other cases and a large number of client appointments in the course of preparing a case for trial. This means that they are simply unable to undertake all their own advocacy whether they want to or not.

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At court the work that is undertaken by a solicitor representative versus a barrister will be largely the same, although there may be a difference in style or the relative ‘polish’ of different elements of the work. Whilst many solicitors are excellent advocates it is generally true that barristers have a greater degree of training, experience and hence skill than solicitors in this area. It’s what barristers do best, and generally those who are good at it gravitate towards the bar rather than towards becoming a solicitor for that very reason. That said, a solicitor representing her client at court will probably also be a skilled advocate (those who are not prefer to instruct a barrister rather than undertake something they didn’t train for / don’t enjoy or simply aren’t good at), but even a solicitor who carries out the bulk of their own advocacy will still have to spend a large proportion of their time in the office seeing clients and dealing with paperwork and administration, whereas a barrister spends her time predominantly in court being an advocate and nothing else.

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Undoubtedly where a barrister is involved they bring a fresh pair of eyes and either a reinforcement of the advice previously given by the solicitor in her offices (often this ‘second opinion’ will enable a party to see sense and will produce a shift in proceedings leading to resolution) or a clearer view of something which may have been missed by a busy solicitor who has working with this (and other) cases day in day out (again, we are often able to suggest something which has not so far been tried). Occasionally of course a barrister will identify where the solicitor has gone wrong and advise the client accordingly. That is an important part of our function too, albeit that thankfully solicitors mainly do get it right.

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Because a barrister’s relationship with the client is a self-contained one rather than an ongoing relationship involving frequent contact by telephone, letter and appointments at a solicitors office, a barrister is able to function more effectively as a sounding board or testing ground for parents who are struggling to work out what their positions are or should be – in a client’s eyes often the solicitor is becomes just another cog in the litigation machine that is working against them, whereas the barrister is the only person who is truly fighting for them (that might not be accurate but its often the perception – clients are often disgruntled by the time of the trial with a solicitor who they perceive as having been ineffective in getting results). It is no criticism of solicitors to say that sometimes the first time a parent has been sat down properly and told ‘look, this is hopeless’ or ‘you need to focus on this’ is when they get to court and meet their barrister. This might be because a solicitor is overworked and unable to devote time to explaining things to a client as well as writing that letter or taking instructions for that urgent statement, or because (as with many parents) a client has found it difficult to keep appointments, to focus on proceedings or to hear the advice that is given – until the day of the hearing that is.

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The role of a barrister briefed as ‘advocate’ is subtly but importantly different to that of a solicitor advocate whose attendance at court is part of a continuum of conduct of the case. The barrister’s involvement on discrete occasions creates a different client: lawyer dynamic and one which can bring real benefit.

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As I understand it The Law Society’s point is that all advocates (whether barrister or solicitor) should be paid the same money for the same case – effectively the graduated fees paid to barristers should be harmonised with the fees received by solicitors for the same work (i.e. brought down). They take issue with the FLBA for supporting this in principle but not in practise. But there are important practical differences (quite apart from the points I’ve outlined above about how each branch of the profession functions differently at court): solicitors are paid by hourly rates, barristers by ‘units’ (2.5 hours). Solicitors are paid a ‘case fee’ at the start of each case, barristers are paid a fee for the hearing and only that fee. Solicitors are paid in respect of their preparation for the hearing, which is often indistinguishable from their general conduct of the case, barristers are paid nothing for preparation and nothing for drafting documents or for writing up attendance notes (where solicitors are generally able to bill for time spent on the file). Barristers are expected to ‘get up’ the case often the night before the hearing, with papers arriving / received at close of business when they get back from court on the previous case. Solicitors are busy too, but they have the papers at hand to work on whenever a spare minute presents itself. In short, when a barrister is briefed as advocate for a hearing they undertake many hours of preparation, travel, waiting, and writing up of the case for the benefit of the solicitor none of which is paid for (except travel) under FGFS. If ‘advocacy’ fees are to be at equal rates these other elements of the advocates role must be factored in.

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Perhaps more importantly, even if one were able to iron out all these factors and find some truly ‘harmonised’ or ‘equal’ rate of pay for advocacy work, is the fundamentally different business models through which barristers and solicitors operate. Solicitors are employees (or partners) with all the legal and contractual protection that comes with that (usually shared risk for partners, and for employees annual leave, sick pay, pension, redundancy protection etc). Barristers – lean, mean advocacy machines as we are – have no such benefits. No sick pay, no annual leave, no safeguards against redundancy, no guaranteed income or salary. When a solicitor isn’t in court she’s in the office being paid. When a barrister isn’t in court she isn’t being paid. When a solicitor is sick they brief counsel or send the trainee. When a barrister is sick, they go to court anyway because they have a professional obligation and no deputy.

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So when The Law Society’s press release states that barristers make more profit ‘in absolute terms’ from these cases than solicitors – I’d say two things: I think it would be very difficult to evidence that claim as its almost impossible to compare like for like. I would doubt that it is accurate. But even if it were correct that we make more profit in absolute terms – that is because we operate on a business model that is financially more streamlined but inherently more high risk than the solicitors’ business model. And at the end of the day its not about how much profit is made its about getting value for money and the COST of the provision of advocacy services. Relative levels of profit as between two incomparable business models are a red herring in respect of this consultation – the consultation is about enhancing value for money for the public pound not reducing profit per se. If there is inadequate profit to offset the risks and stresses of the job at hand service providers will not undertake the work. That would NOT be the vfm our clients deserve. If the question is whether or not the bar can provide an equivalent service at an equivalent cost I would say that we already provide an equal or enhanced service for probably less money.

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I hope the rather unhelpful ‘turf wars’ spin that has been put on this when it was picked up by The Times will not prove to be a self fulfilling prophecy in the way that certain journalists may be eagerly anticipating: to spend our time sniping at each other because ‘his slice is bigger’ might well suggest to the public at large that we are more interested in lining our pockets than in the stuff of justice itself – and now more than ever we cannot afford to take our eye off the ball. Disproportionate profit would not be right, but a fair profit for doing a tough job will promote a strong family justice system. I think most of us are only really interested in being able to carry on doing this job and in doing so to be able to pay the mortgage on time each month.

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PS See Ruthie’s Law for a really interesting post on solicitor-advocates.