A. INTRODUCTION
7.1 In this chapter we make recommendations in relation to regulation of specialisation amongst barristers. We look first at the position under the present division of the profession into barristers and solicitors. We then consider the implications in this area of abolishing that division in the manner recommended in our First Report.
B. UNDER THE PRESENT DIVIDED STRUCTURE
I. Some General Considerations
7.2 Several grounds can be given for arguing that the comments and recommendations which we made in the previous chapter in relation to solicitors are not applicable to barristers.
7.3 First barristers do not deal directly with the public and therefore, it can be argued, there is no need for the public to be able to identify those who are willing to handle work, or those who are competent or expert, in particular fields. There is some strength in this argument. But, on the other hand, members of the public are entitled to choose their barrister. Moreover, the fact that few of them may wish to be informed about particular barristers’ fields of practice does not justify prohibiting public dissemination of such information.
7.4 Secondly, it can be argued that in practice, solicitors usually choose the barrister for their client and have sufficient access to information about barristers’ fields of practice to be able to make an appropriate choice. As we said earlier, however, it is our view, based on submissions and comments made to us by many solicitors, that a number of solicitors experience considerable difficulty in identifying barristers who work in particular fields, especially fields of a somewhat esoteric nature. 1
7.5 Thirdly since there are relatively few barristers, it can be argued that the establishment of fields of practice schemes and special interest associations is less viable for barristers than for solicitors. This argument has considerable strength although there is scope for co-operation between barristers and solicitors, and their respective associations, in this respect.
7.6 With these considerations in mind, we turn now to the three areas in which we made recommendations in relation to solicitors, namely
- Advertising about Willingness to Accept Work in Particular Fields of Practice;
- Other Advertising about Fields of Practice;
- Associations of Practitioners in Particular Fields of Practice.
We do so against the background of our recommendations in Part IV on the general question of advertising by barristers. We recommend there that barristers should be entitled to advertise certain types of information about themselves in publications circulating principally within the legal profession. 2 We include within that category of publications the Law Society journal and a Referrals Directory of the type which we have proposed in Chapter 6 of this Report. 3
II. Advertising about Willingness to Accept Work in Particular Fields of Practice
Referrals Directory
7.7 In our Discussion Paper we suggested that barristers should be entitled to advertise in the Referrals Directory their willingness or unwillingness to accept work in particular fields. 4 In its response to our Paper, the Bar Association said that the suggestion was being examined by a joint working committee of the Association and the Law Society. 5 It said that the suggestion “ on the surf ace, would have some merit; but there are very real difficulties about implementing it.” 6 Some of the Association’s concerns arise from its opposition, which we share to a considerable extent to schemes for the formal designation of specialists. In our view, however, the Association over-emphasises the extent to which the publication of a directory containing advertisements about willingness to accept work is likely to affect the degree of specialisation amongst barristers. Moreover, while there may be circumstances in which some such advertisements, especially if they relate to broad fields of practice, may be too vague, or be prone to misinterpretation the directory would be a valuable addition to the present methods by which solicitors can seek to identify appropriate barristers. It can hardly be regarded as less useful than one of the two “accepted methods” referred to by the Association, which is to “flip through the law reports of similar cases to see who has appeared in the past in similar cases.” 7
7.8 We recommend that the Bar Association should arrange for the publication of a directory in which barristers may indicate their willingness or unwillingness to accept work in particular fields. The directory could be combined with the Referrals Directory of solicitors. 8 It should be intended principally for use by practitioners, rather than the public, and accordingly, unlike the existing Legal Services Directory, it would not need to be confined to a few broadly-defined fields. The English Bar List provides a valuable precedent for the type of directory which we have in mind. 9
Other Publications
7.9 We see no compelling reason why barristers should not be permitted to advertise in other publications their willingness or unwillingness to accept work in particular fields, subject to the same controls on terminology as we recommended in relation to advertisements of this kind by solicitors. 10 The fact that few barristers may wish to advertise in this way is not a good reason for prohibiting it. We recommend that, at the least, barristers should be permitted to place such advertisements in publications which circulate principally amongst lawyers. Advertising of this kind would be of particular value to barristers who are commencing, or returning to, practice at the Bar. We note that the Royal Commission on Legal Services in England recommended that these barristers should be allowed to use advertisements or circulars to advise solicitors of the types of work which they are willing to undertake. 11
III. Other Advertising about Fields of Practice
7.10 We described in Chapter 6 a scheme which would allow solicitors, subject to meeting certain low-medium level qualifications, to advertise themselves as “preferring”, or being “specially interested in”, particular fields of practice. 12 But we did not positively recommend that such a scheme be established. For the reasons mentioned earlier in this chapter, 13 the case for establishing such a scheme for barristers is less powerful than in relation to solicitors, and accordingly we do not recommend it We do recommend, however, that if a scheme is established for barristers it should be similar to the low-medium one described in Chapter 6.
IV. Associations of Practitioners in Particular Fields of Practice
7.11 As we mentioned earlier, the membership of many of the existing special interest associations includes both barristers and solicitors. 14 We know of no special interest associations which are confined to barristers. We make the same recommendations in relation to special interest associations which include barristers (whether or not they are confined to barristers) as we made in Chapter 6 in relation to special interest associations which include solicitors.15
C. UNDER OUR RECOMMENDED STRUCTURE
7.12 The principal reason for making different recommendations in relation to barristers, by contrast with those which we made in relation to solicitors, is that barristers do not accept work directly from clients. In our First Report we recommended the abolition of the present division of the profession into barristers and solicitors. 16 If our recommendations in that Report are adopted, the recommendations which we have made earlier in this chapter in relation to barristers should be applied to all practitioners who do not accept work directly from clients, whether or not they are in sole practice (as barristers presently are) and whether they are subject to the governance of the Bar Council or to that of the Law Society Council. 17
FOOTNOTES
1. See paras.5.20 and 5.21 of this Report: our Discussion Paper Advertising and Specialisation, pp.48-40: and Law Society of New South Wales, “Advertising” (Submission No.218). p.14.
2. See para.15.23.
3. See para.6.21.
4. See p.81.
5. “Advertising and Specialisation” (Submission No.406), p.2.
6. See source cited in note 7.7.2.
7. “Advertising and Specialisation” (Submission No.406). p.4.
8. The introduction of which we recommended in para.6.21 of this Report.
9. See para.3.25 of this Report.
10. See paras.6.15-6.19 of this Report.
11. Final Report (HMSO, London, 1979, Cmnd.7648), para.27.49.
12. See paras.6.22-6.42.
13. Paras.7.3-7.5.
14. See paras.3.12-3.14 and 6.48.
15. See paras.6.43-6.51.
16. Chapters 4, 6.
17. For our recommendations on the question of practitioners being subject to the respective governance of these Councils, see our First Report, paras.4.12-4.35.
