One-in-four lawyers believe the Legal Services Act is likely to spell the end of the Bar, with Tesco law and one-stop solicitor-advocates set for prominence in the post-reform marketplace. Claire Ruckin reports on the latest Big Question survey

More than half of the UK's leading lawyers believe the Bar's independence is under threat from sweeping reforms contained in the Legal Services Act (LSA), according to new research.

The finding is part of the latest Legal Week/EJ Legal Big Question survey, which polled senior solicitors on their views on the future of the Bar in the wake of fundamental reform to the UK's regulatory framework for legal services.

Fifty-eight percent of responding partners said that the LSA was a threat to the future of the Bar, including 12% who thought the Act was a threat to the extent that 'the writing is on the wall' for the Bar's future.

The survey also found mixed views about whether the Bar would survive at all. Asked if the Bar would exist as an independent profession 20 years from now, only 16% strongly agreed, though 44% of respondents believed that the Bar would 'probably' survive. Forty-one percent believed its survival was in doubt, including 25% who said it was unlikely to continue.

Linklaters head of advocacy, Mark Humphries (pictured right), commented: "We are starting to see the beginnings of a generational change in which newly-qualified commercial litigation solicitors no longer think in terms of a split profession but regard themselves as one-stop dispute resolution lawyers who provide a full service to their clients, including advocacy."

He added: "The trend, currently in its infancy, will put increasing pressure on the commercial Bar with less work to be shared around as more of it is done by solicitor-advocates. Except to the extent that commercial barristers continue to move into non-advocacy markets, such as arbitrators or mediators, the number of practising barristers at the commercial Bar is unlikely to increase and may well slowly decrease."

Outer Temple Chambers commercial director Christine Kings (pictured left) commented: "I expect the Bar will get smaller and other companies coming into the market – such as the so-called 'Tesco law' models – will affect the Bar substantially. I do not think the changes will be sudden – it is bound to be a gradual process. But I do think there will still always be the need for a specialist Bar, with good quality advocates who are good value for money."

The survey, which drew responses from more than 100 leading partners, comes after the Bar Standard Board (BSB) issued a consultation earlier this month (6 February) as part of a root-and-branch review of the future of the profession in light of the LSA. The Act, which has already received Royal Assent, is set to come into full effect by 2012.

The consultation will gather opinions on issues such as how barristers will be able to form partnerships with non-barristers, whether the content of the Bar Vocational Course will change if barristers can provide litigation services in a similar way to solicitors and whether a compensation fund will be needed if barristers handle client money.

However, 61% of respondents believe the Bar Council and the BSB have so far had little or no impact in repositioning the Bar to cope with the post-LSA environment.

David Pope, director of Denton Wilde Sapte's advocacy group and a qualified barrister, said: "The Bar and the BSB have been effective in the sense that they have done a great deal of work in analysing the effect of the LSA and producing reports. But I am not so convinced that they have repositioned the Bar. Barristers have generally been opposed to many of the proposed changes."

The ability for barristers and solicitors to practise together as Legal Disciplinary Partnerships (LDPs), a key element of the LSA, received a mixed response from partners, with 31% of respondents saying the new structure would be met with little enthusiasm and the same amount undecided. Only 6% thought the new structure had 'huge' potential. A further 28% thought that there would be 'considerable' scope for the two sides to merge.

Kings told Legal Week: "LDPs could impact on the independence of the Bar. It is not yet clear what would make this attractive to barristers, but in the new marketplace other options will develop and it will be more competitive. With potential big players entering the market such as insurance companies or supermarkets, solicitors and barristers will be under pressure to be more competitive. This may increase the popularity among the profession for LDPs."

Pope added: "There will be enthusiasm among lawyers for LDPs, but I doubt it will be widespread at first. The solicitors' profession may welcome the changes more than the Bar as they appear to have the most to gain by offering a more complete service to clients."

What partners said:

The Bar as we know it is doomed

"The Bar is an historical anachronism that is being overtaken with increasing rapidity. Skilled advocates are an essential component of any legal system, but the fact that they exist as part of a unified profession in almost every other country confirms that the English divided profession is not the only system available. Nor is it the most efficient and effective. Barristers are ethereal theorists who cannot manage the intricate practicalities of conducting litigation. Litigation solicitors, for the most part, are timid souls who are afraid to stand on their feet in court. The theory is that, combined, two halves make a whole. is that each is less than a half. More often than not, the end product for the client is a shoddy muddling through, with barristers and solicitors speaking for years at cross-purposes about strategy, tactics, witnesses and evidence. The money and infrastructure for the efficient prosecution of litigation lies with solicitors in law firms. The Bar is shrinking. The facade insisted upon by barristers about the independence of barristers sharing the same chambers is exposed on a daily basis as a farcical fraud (when it suits them, barristers talk in hushed voices about their ability to have an influence upon their fellow tenants; informally, barristers regale listeners with comical anecdotes of erroneously swapped briefs and mis-delivered faxes; publicly, they primly imply that their chambers operates a tight ship of rigorously imposed ethical walls). The leading barristers are, of course, exceptional advocates. But the current generation is not reproducing itself. Instead, the leading barristers are moving into a small number of chambers and creating litigation super-boutiques. Some chambers now even have in-house solicitors, in an attempt to set up case-management teams that allow them to deal with cases from top to bottom without law firms. That trend will continue and the surviving barristers will practice in litigation boutiques in the same way as do many litigation specialists in jurisdictions with a unified profession. "

"The majority of barristers are jobbing hacks, whose 'specialist' knowledge of anything other than the white book is about that of a three-years' qualified City solicitor. The simple fact that they don't realise how their clients perceive them shows that their survival as a thriving profession is doomed."

"The only barriers to an integrated legal profession are legislative. The paradox of our split profession is not understood by those not within it, nor is it a sensible business model. As a good business model, however, we should ensure some of the benefits of the Bar (a robust and untainted view of the merits of a case, the ability to pick up a case at a particular point in time and bring insight and fresh perspectives, the intellectual integrity) are built-in going forward." Monica Burch, partner, Addleshaw Goddard

Only the strong will survive

"It has been a time of great change in the practices of both barristers and solicitors. Those chambers and firms who have adapted best to the changes in the interests of an increasingly demanding and international client base will succeed. The Bar will remain independent for as long as there is a need for specialist advocacy services which it can provide by competing on value and excellence."

"The Bar is likely to become more specialist, in particular areas of law or on higher courts advocacy. Given the conflicts problems in major legal practices, the desire of some to work outside the corporate environment of such practices and the difficulties in gaining oral advocacy experience in such practices, a (reduced) body of lawyers is likely to remain as independent legal contractors, consultants, practitioners and oral advocates. More common training of solicitors and barristers, and greater ease of transferring between the two sides of the profession, may be the best way to break down barriers to entry and preserve a viable independent Bar."

"I can see good reason for barristers and solicitors to work together for certain purposes, particularly in the middlebrow areas of legal practice, where we could see the emergence of litigation-factory firms along the lines of those in the US. But for complex legal advice, it is very important that senior and highly skilled barristers remain independent, and hence there has to be a continued basis for the independence of the Bar at that level."

"The combination of barrister and solicitor practices work perfectly well in Canada and so I do not see why, in future, such a model should not be successfully implemented in the UK. There will always be a requirement for those individuals who are specialist advocates, such as barristers."

"What will happen is more barristers will work in the large law firms without having to requalify as solicitors. That is good. I strongly believe there will be an independent Bar in five, 10 or 20 years time. It is great value and will continue to attract great talent. "

"There is the potential here for a wider trend towards specialist dispute resolution firms comprising counsel and solicitors under one roof; that may appeal to clients from other jurisdictions who do not understand the split profession. However I think firms, and chambers, will be wary of change and it will take a trail-blazer to convince all parties otherwise."

"Bulk providers of legal services will probably take more counsel in house to provide advocacy services. The commercial Bar will probably continue in its present slimmed-down form for some time to come. Barristers are generally much better at providing advocacy services than solicitors, who do not get sufficient court exposure. Also, most litigation departments use a range of advocates, a luxury they would find hard to replicate by employing a few in house people. In an age of ever greater specialisation, it is difficult for solicitors with a busy caseload to compete at the specialised end of the practice."

"It is horses for courses. Those firms (principally larger ones) which have taken barristers into their ranks have made good use of them in some respects. The fact remains, however, that in complex litigation there is much to be said for a separation of roles between solicitors and junior counsel in particular. QCs operating without adequate barrister junior support (ie not from their instructing solicitors using in-house barristers for this purpose) are, in my experience, significantly less effective and efficient."

"The big City practices will offer full service in relation to certain types of work, including finance. The Bar's work might shrink to work in the criminal courts and to support on family and private client matters. If so, that would be a shame."

Crisis? What crisis?

"The death of the independent Bar has been called far too often and unfortunately in many cases by those who are prejudiced and/or have little understanding of what the Bar offers to clients. I expect that the commercial Bar will survive for as long as clients cannot obtain from any other source the same level of advocacy and trial skills, experience and understanding of the judges, granular familiarity with the law, and genuine objectivity – all with a range of personalities to choose from." Jonathan Kelly, head of finance litigation, Simmons & Simmons

"The great attraction of the Bar to solicitors is the choice of specialisms, skill-sets, and personalities which it offers. For a solicitors' firm to form a joint practice with a group of barristers significantly limits those options, and is therefore to the detriment of the ultimate client. From an individual barrister's point of view, going into practice with a firm of solicitors is constraining in a different way. Currently, a barrister is only unable to accept instructions if he or she has a personal conflict. However, once in practice with a firm of solicitors, he or she will be subject to the firm's conflicts position as a whole. Before joining forces with a firm of solicitors, a barrister will therefore want to be confident that the firm can guarantee not only a constant flow of work but also work which is consistently of the right level of interest and quality; so I can't see either branch of the legal profession rushing to jump into bed with the other." Tom Custance, head of litigation, Fox Williams

"Long live the independent Bar. If I need advice or advocacy I want to choose the best person for the job and not be limited to a pool of people who happen to be a member of my LDP. The case for in-house advocacy teams (outside the rarefied environs of the City) has not been made out." "There will be a lot of interest among solicitors in having a small number of barristers in house, which the legal disciplinary practice model will make much easier. I doubt this will have any significant impact on the Bar as an independent profession." Ed Weeks , partner, Cripps Harries Hall

"The intellectual property (IP) Bar is of such a high standard that its independence will remain for the foreseeable future. As far as I can see there would be little appetite to merge the IP solicitor's profession and the IP bar."

"The Bar has already changed in the way it sources work and its relationship with solicitors. That process has occurred over the last 5-10 years. I don't think anyone is getting very excited about the Legal Services Act (LSA) in that respect. Yes, it makes the relationship between the Bar and the rest of the profession more fluid, but I doubt its impact will be as great as some hope/fear. "

"There will always be lawyers who prefer the collegiality and independence of sole practice or small groups. Barristers by their nature are loners, and not all will want to merge their practice into LDPs, or want to be in partnership with other barristers. For the really talented (and a lot of the Bar is very talented) the attractions of sole practice in a chambers environment must be considerable. So much so that I predict that an increasing number of senior solicitors will change to the Bar, as they get fed up with administration and politics, and are attracted by the cleaner, leaner Bar. Solicitors also will want to keep an independent Bar: not every firm has the size or appetite to provide all advocacy and all specialisms in-house. The presence of the Bar enables smaller firms to provide their clients with a broader service than they could otherwise manage. If the Bar goes or diminishes greatly, solicitors could be forced to focus on narrow specialisms, which will mean forced mergers, fewer firms, and ultimately less competition."

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