The scale of justice: status quo seems to suit Scots while change continues down south
Further evidence of innovation at the bar south of the border is emerging with news that direct access is to be extended to “baby barristers”, while a new barrister-led partnership is likely to become an alternative business structure (ABS) in the next six months.
Direct access – under which members of the public can directly instruct a barrister without first going through a solicitor – is increasing in popularity (as reported last week in these pages), but is a system not currently available in Scotland.
About 5,000 barristers in England and Wales are trained to do direct access work.
Until now, the service has been restricted to barristers with more than three years’ practice experience, but the regulator down south has announced the right can be extended to all barristers, including fledgling lawyers just setting off on their career in advocacy.
Several other restrictions to direct access remain that make it more likely to appeal to certain categories of client, such as middle-level commercial and in-house legal departments.
The barrister cannot, for example, take witness statements, gather evidence, hold client funds or raise a court action.
Meanwhile, a group of barristers has lodged an application to become the first barrister-led ABS enterprise.
Artesian Law comprises six criminal law barristers, one silk and a solicitor, and will focus on serious fraud, and health & safety offences. Its barristers do direct access work.
ABS – a type of legal business which allows for ownership and management by non-lawyers – was last autumn launched in England and Wales (only ten have so far been created) and is on its way to Scotland in terms of the Legal Services (Scotland) Act 2010.
The act came into force on 2 July and the Scottish Government is currently in discussion with the Law Society of Scotland which it is proposed will become an approved regulator of licensed legal services.
Other bodies interested in becoming an approved regulator have been encouraged to make early contact with the Scottish Government.
ABS has been compared to the “Big Bang” in the City of London in the 1980s, with the advantages and disadvantages that were seen there.
Enthusiasts point to the benefits of breaking the stranglehold of professional vested interests on whom clients can approach and how much they will be charged.
Opponents point to the perils of lowest common denominator law and convincing clients that what they get is the same as what they need.
Is there an appetite for direct access or other varieties of enterprise among advocates in Scotland?
The Faculty of Advocates maintains its strong opposition to either ABS or direct access to members of the public, although it currently provides direct access to certain regulated professionals. This may be due to the differences in scale – there are 450 advocates in Scotland compared with about 20,000 barristers in England and Wales.
It could also come down to the fact that the faculty’s main selling point is that it is an independent referral bar run using the cab-rank rule – a rule which cannot apply to direct access work because the client directly instructs the advocate.
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