Advocates need to start making the case for the Faculty

Published on Tuesday 3 April 2007 01:02

I'VE noticed something rather odd has been happening recently. Advocates seem suddenly eager to be on speaking terms with journalists. This is not entirely without precedent, and the Faculty of Advocates is not quite as cut-off from reality as its detractors might like to suggest.

But it has to be said that members of the Bar are not particularly noted for their desire to engage with the fourth estate. Indeed, their code of conduct sets out such strict rules on advertising, touting, publicity and "relations with the media" that it probably seems more bother than it's worth.

What could be behind this sudden burst of media-friendliness? Could it have anything to do with the so-called devolution of the faculty's arcane and archaic stables? Of course it does, and the changes are not before time.

No-one seems to remember quite how old the stable system really is, though the current arrangements date back to 1971 when Faculty Services Ltd (FSL) was established as a not-for-profit company, providing administrative support to advocates. At that time, their number could be measured in the dozens, not the hundreds.

But dissatisfaction with the system - organised into groups according to clerk rather than speciality - seems to have been growing at a pace in direct proportion to the growth in membership.

There are now more than 460 advocates competing (if not touting) for business, and advocates can no longer rely on such quaint perks like exclusive rights of audience in the higher courts.

Last autumn, John Campbell, QC, announced that he was breaking away from FSL to set up Oracle Chambers with fellow advocate John Carruthers. No-one else was willing to jump with them; equally, however, few were jumping to defend the status quo.

Clearly the devolution model that has emerged a year after the two Johns gave notice is a compromise. It's designed to appease the "old school", who don't see the need for radical change - some stress the advantages of being able to focus on the law without having to worry about niggling matters such as whether clients pay on time - with the desire of the modernisers, who recognise the need to meet the challenge of competition from solicitors, solicitor advocates and even barristers.

Six stables seem set to devolve, remaining tied to FSL but with the flexibility to spend additional money on things such as extra staff or marketing. Campbell's comments that this hardly seems like a money-saving idea are surely pertinent. While the devolution is not exactly "the shifting of deck chairs on the Titanic" as one faculty wag put it, it is tinkering with the stable system and it's not the radical change that some want to see.

So, the big question is, will the Bar survive much longer? Privately, some advocates admit they are not convinced it can - or least not in criminal work, which has been squeezed by the rise of the solicitor advocate.

Senior counsel have established reputations to fall back on but, as they head towards retirement or are elevated to the bench, there may be trouble ahead for the junior counsel seeking to replace them.

Not only do they face increased competition from within their own ranks, they will have a real problem in convincing potential customers that they offer an enhanced service.

In a time when the Lord Advocate is neither a man nor an advocate - and can use the letters QC after her name - there is no escaping the fact that times have moved on.

There is no divine right for the Bar to exist. Indeed, few outside the past and present ranks of Parliament House would mourn its passing, not least because of the widespread lack of understanding about what advocates do.

It is high time that its members started arguing the case for advocacy, and speaking to the media isn't a bad start. If no-one knows what advocates do, then what reason would they have to instruct one?