31 May 2007

Public Access ≠ Public Enemy

A meeting of counsel undertaking public access work should have taken place at 23 Essex Street this afternoon. The purpose of the meeting was to launch a new bar association to be known as PABA (Public Access Bar Association). I had been invited but was unable to attend as I was attending a reception for my old friend Dai Davis, who has recently moved firms. However, I certainly intend to join and contribute to the PABA once it is up and running.
The Bar on Direct Access
The rule that counsel could accept instructions or give advice only through a solicitor, patent or trade mark attorney or other professional intermediary dates back only to the 1950s. When introduced, the rule was probably in the public interest. Members of the public had less information on the law and few had any idea of how to obtain legal services. There was a sharp distinction between solicitors and counsel. Law firms were limited to 20 partners, fewer solicitors were graduates and information storage and communications technology consisted of the typewriter, telephone and filing cabinet. The analogy drawn with the relationship between a specialist and GP in medicine was one that the public could easily understand. The notion of a single point of access for legal as well as for medical services was sensible and readily accepted.

The Changing Legal Services Market
When the Office of Fair Trading considered the working practices of the professions in 2001, the restriction on access to counsel was much difficult to defend (see “Competition in Professions”.
The medical analogy no longer held true. Changes in partnership law and information technology and the recruitment of some of the best law graduates enabled many law firms to develop at least as much expertise as the bar. The bar, for its part, abandoned many areas of non-contentious work as it expanded rapidly on publicly funded court and tribunal work.

Need for Competition
Developing expertise does not come cheap, and the costs of such development were passed on to the public in the form of higher fees. Throughout the 1980s and 1990s, increases in the cost of legal services did not appear to be a problem. The rich were well able to afford such fee increases and the poor could apply for legal aid. Public funding of all kinds of legal services was, of course, unsustainable and the Access to Justice Act 1999 abolished legal aid for business and property disputes. That was a particularly heavy blow for freelance commercial artists and designers, private inventors and many small and medium enterprises who found that they could no longer enforce their intellectual property rights. Though missed by Gowers, there is more than enough anecdotal and indeed statistical evidence to show that it has dampened British innovation and enterprise. Quite clearly, access to professional services had to be made more affordable, but how to do it? In other markets, such as air travel and mobile phones, costs had been reduced dramatically through competition. Encouraging the bar to permit direct access to its members for the public in July 2004 was one way to do it
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Opportunity not Threat
Now not every solicitor, patent or trade mark attorney or other professional intermediary has taken kindly to public access, which is a pity because it can benefit those professionals too. Public access does not change the nature of the work that barristers do, only the route by which they are instructed. If, as is often the case, it is clear that some other professional service is required we have a duty to say so. Usually that service requires a solicitor or patent or trade mark attorney, which usually prompts a request for a recommendation. Obviously, such requests require the exercise of reasonable care and skill just as much as any other professional instruction. My recommendations are fair and through assessments of a professional’s competence based on my knowledge of his or her aptitude, dynamism, integrity, personal motivation, legal and technical education, practical experience, training and resources. Clearly I am better able to make such an assessment of professionals who have worked with me or one of my colleagues in the past but, exceptionally I have put forward the name of someone who has been against me, whose book I have read or whose presentation I have attended. I never but never base such an assessment on a firm brochure, website or corporate entertainment and I doubt that very few other professionals do that either.

My Criteria
So what do I look for when assessing a solicitor or other professional? First and foremost, I look the same commitment towards encouraging creativity and innovation by small and medium enterprises as me. All are expert in their field having gained experience in a major practice. All run their practices very efficiently making good use of technology keeping overheads to a minimum but having or having access to all the resources needed for the job in hand. Each of them takes my referrals on the understanding fees and disbursements will be fair, reasonable and non-discriminatory.