Mr Justice Michael Burton has entered the solicitor-advocate debate with a bang. As we reported last week, he told a meeting packed with solicitor-advocates that they were starving the junior bar of work, thereby threatening the very future of the Bar.

What he said is not new – barristers and many senior solicitors have been articulating the same warning for several years now. But it is certainly significant that a senior judge, working at the coal face, felt the need to express these fears.

On one level this is good news for solicitor-advocates. It shows that they are starting to make an impact. But what of the warning itself? The perceived problem is that while the top firms still rely on silks to appear in the big trials, they are keeping more and more of the junior work in-house thereby starving the silks of tomorrow of the work they need to reach the heights of their illustrious predecessors.

But the argument is misconceived. It assumes that if you change one key aspect of the system, its other parts will remain frozen in time, rather than adapting to the new circumstances.

Crucially it assumes that the silks, and for that matter the judges, of tomorrow will continue for the rest of time to come from the ranks of the Bar, rather than solicitors.

Before embarking on his career as a solicitor-advocate, Herbert Smith partner Terry Mehigan acted as a graduate associate to a federal court judge in his native Australia. When he asked the judge for advice on how to launch his legal career, the judge suggested he undergo his training at a top law firm, even if his ultimate goal was to join the referral bar. It is hard to imagine a judge in this country offering similar advice – yet.

But that is because solicitors here have only had the right to appear before the higher courts for a handful of years, whereas in New South Wales solicitors have enjoyed these rights for decades.

In New South Wales, not unsurprisingly, this has had a profound impact on the way the referral bar operates. Yes, it still exists, but many would-be advocates begin their careers in law firms, before moving to the referral bar if and when they decide to become specialist trial
advocates.

Much of the Bar in this country is still set against this sort of crossover, seeing it as the top of a slippery slope towards the fusion of the two branches of the profession. Those partners, barristers and judges who fear for the future of advocacy in this country are sorely underestimating the system's ability to adapt in new and exciting ways.