I am at risk of stealing a joke from Patrick Kielty. Actually, I may as well confess, I am about to just steal the joke. It is from Kielty’s famously (and some may say “only”) funny routine where he imagines a world where nations communicate on Facebook.
So here goes, if barristers and solicitors were to describe the nature of the relationship in Facebook terms it would be “complicated”. And the MoJ would definitely “like” that.
In fact there are many ways that the relationship would be better described as “open”. Barristers and Solicitors are allowed to
see brief other people. When it comes to the Bar, we are even allowed to go into bat for both sides. Blimey, it is complicated.
No matter what the nature of the relationship it would be fair to say that when news of “the deal” broke a while ago we were very much “on a break”. And during the break the Bar “did a Ross” and started to see the MoJ. And ever since then the relationship has been tempestuous. To say the least.
I have been an interested observer in Bar politics, and therefore the politics of the wider legal landscape, since before Carter came along. In that time I have often pondered the unusual relationship that exists between barrister and solicitor. There is such an interesting dynamic at work. In my view it divides into three areas. Understanding the balance of power in those three areas may help in establishing a more unified approach.
The most common way that the relationship is expressed is the commercial relationship between instructing solicitor and the instructed advocate. Without doubt the nature of this relationship is one where the solicitor holds most of the power. The solicitor is, in such cases, the holder of the Representation Order. They have the security provided by the Regulations which will bind the client to them in the majority of circumstances. The Bar have none of that security. The instructed barrister can be sacked the day before the trial and have no recourse whatsoever and little prospect of receiving a fee that equates to the work undertaken.
And with that insecurity comes the power that the solicitors holds. Even in a “one-off” instruction the barrister is at risk of a withdrawal of instructions. And of course the barrister should be hoping for a long term relationship with that the solicitor with lots of work flowing their way. It is one of the factors, along with professionalism and pride, that spurs you on to impress and to continue to impress. And it is the ability to terminate that relationship that the solicitor should use to make sure their clients get absolutely top notch service from the barrister, the clerks and the chambers.
In recent times there has been a regulatory relationship. The parent LSB has the SRA and BSB as the siblings with the slightly awkward relationship. This is a relationship where it is more difficult to gauge the balance of power. It is impossible to fathom what motivates regulators, other than the desire to regulate and regulate regularly. I suspect that the SRA often have the upper hand because of the cost of regulation. The costs of the LSB are divided between the BSB and the SRA in fractions that relate to the comparable numbers of professionals regulated ie the SRA pay more because they regulate more individuals and entities. And it is preserving this division of costs where the BSB will often tread on eggshells – they never want their big brother to push for more money from them.
Now we have the nature of the relationship in the visceral world of politicians and civil servants. This is where I suggest the Bar currently edge it. I suspect that we have, in fact, wielded more “power” in this arena than our colleagues than we even realised. It is not just the influence that was garnered as a result of “the deal” and subsequent engagement. It is not influence gained by the Bar being more “establishment”.
It is slightly perverse that solicitors undertake the lion’s share of criminal work within the system and yet the Bar wields the greatest power to cause embarrassment in the Crown Court. It is the focus of interest in cases that appear in the Crown Court which means the Bar are “feared” more than solicitors. It also stems from the fact that the Bar prosecute a significant proportion of the cases in the Crown Court and are, to that extent, of greater perceived value to the Government.
As I say, it is all incredibly complicated.
Understanding the nature of the relationship is important in improving the relationship. Politically the relationship is at quite a low ebb at the moment. I have said this before in a previous blog but that relationship is not going to be improved if solicitors continue to find offence in everything the Bar do. It is not going to improve if every time the Bar try to promote their strengths they are accused of denigrating solicitors.
The flip side to that is that the leadership of the Bar need to carefully consider the nature of their public pronouncements. As advocates we should be able to make sure our words do not cause offence or leave room for offence to be taken. That is particularly important when being “pro-Bar” to make sure it is not either the product of, or an unintended manifestation of, an anti-solicitor rhetoric.
It is important to remember that the various representative bodies represent their members. It would be ridiculous for the Criminal Bar Association to ignore the concerns of its members. Everything such associations do should be consistent and not contrary to the public interest. But it should be done on behalf of their members. To recognise that would be a huge step forward to effectively working together.
We are not yet a unified profession. For a number of reasons there are still some competing interests. These are capable of being recognised and coped with in a mature and mutually beneficial relationship. A complicated, but not impossible, relationship.