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Mark Humphries likes to tell the story about the American client with a bet-the-company case who needs a London lawyer. He contacts a law firm and hires someone called a solicitor. The solicitor works the phones, bosses associates around and gathers evidence. Then the client flies to London and sees his case argued by a guy called a barrister, who is wearing a wig. The client scratches his head. After the hearing, the client walks up to his new friend, the solicitor. “OK,” he says. “I’ve worked it out. The solicitor tells the barrister what to say, and the barrister says it.” Not surprisingly, Humphries is a solicitor. A partner in Linklaters’ London office, he thinks that the distinctions between the two halves of his profession are pointless and is trying to abolish them. He’s making some headway. In 1994 Humphries became one of the first of a new hybrid called “solicitor-advocates”: law firm lawyers who are allowed to argue in the U.K. high courts, previously a domain open only to barristers. Since then, some 1,500 solicitors throughout England, in firms large and small, have acquired the extra credential. While they have not yet argued any high-profile cases, they increasingly handle lower-stakes hearings. Thanks to rules approved in 2000 that ease the qualification requirements, Humphries predicts that the number of solicitor-advocates will triple in the next 12 months. The surge in the number of solicitor-advocates occurs at a time when barristers are under siege from a different source. Britain’s antitrust agency, the Office of Fair Trading, calls the structure of the law trade anti-competitive and threatens to regulate barristers out of existence. But the 10,500 independent barristers of England and Wales are not visibly quaking under their wigs. They dismiss Humphries’ anecdote as self-serving, the solicitor-advocates as irrelevant and the antitrust report as illogical. “I don’t buy the triumphalist nonsense that solicitor-advocates will take over the whole of law,” says David Bean. A member of Matrix Chambers, Bean chairs the barristers’ trade group, known as the Bar Council (in England “the bar” refers only to the barristers’ side of the profession). As for the idea that the bar restricts competition, Bean calls it ludicrous: “It’s the opposite of the truth.” So much for picking a fight with the world’s best arguers. While the conclusion reached by Humphries’ mythical client may unduly flatter solicitors, the client’s bewilderment rings true. What is the difference between barristers and solicitors? On this point, U.S. lawyers are often left confused. And their bewilderment only deepens as the rules change. Why was the English legal profession split to begin with, Americans may wonder, and what distinctions will remain in 10 years? More pointedly: Given the competition of solicitors’ firms and the antipathy of antitrust officials, can the bar survive? The split profession originated in a class-riven society, in which the pursuit of money was considered d�class�, and barristers were not supposed to ask for it. Their gowns still hold a pocket flap in back, where clients were supposed to discreetly drop an appropriate sum of shillings as compensation. By contrast, the first function of solicitors, in the 16th century, was to “solicit” officials (that is, to nudge or bribe them) on behalf of clients, in order to expedite chancery court cases. Over time, barristers came to specialize in the more intellectual task of court advocacy, at both the trial and appeal levels, and in analysis of technical legal issues, while solicitors took on the worldly — or money-grubbing — chores entailed by litigation, like dealing with clients and witnesses, as well as sordid noncourt specialties, like high finance. The spirit of the two types diverged further in the 19th century, when solicitors began to pool their capital in partnerships. The Bar Council banned partnership, and barristers remained solo practitioners — although many took residence in small groupings, known as chambers, or sets, that pooled overhead costs. Barristers were self-employed lawyers, with a monopoly on advocacy in the civil and criminal courts that deal with higher-stakes disputes (known to the English as the “high courts”), and to whom the public was denied direct access. A client could hire a barrister only through a solicitor serving as intermediary. Thus emerged the species in its modern form. After completing their three-year undergraduate law degrees, barristers and solicitors qualify by different routes. Solicitors, numbering 85,000 in England and Wales, are by far the larger group. A solicitor generally takes a one-year “law course,” and then trains for two years at a law firm. Typically, a solicitor takes 18 months longer than a barrister to qualify as a lawyer, but starts earning real money sooner. A barrister goes to “bar school” for a year, and then serves for six months as a “pupil” in a chambers. After finishing her pupilage, a barrister becomes a “junior.” If she has an accomplished career, she will eventually be one of the few chosen by the British lord chancellor, in charge of the administration of justice, to “take silk,” and become a Queen’s Counsel (Q.C.), or a King’s Counsel, should a man ascend to the throne. Increasingly, barristers hop from one chambers to another. Following a wave of consolidations, the average number of barristers in a set is 28. Chambers specialize in broad areas like criminal or commercial law; or in niches like tax, insolvency or intellectual property. In practice, many barristers handle noncourtroom matters and are consulted for advice or advocacy in fields like arbitration, where they never enjoyed a monopoly and compete directly with solicitors. While the barristers are technically solo practitioners, the members of a set frequently collaborate, and the chambers cultivate distinct brand images in the competition for clients, recruits and laterals. Matrix, a relatively new chambers noted for public law, apparently chose a name that would project a modern image. Most of the rest are named for their venerable locations, like Brick Court or One Essex Court. As has been the custom since the 14th century, every barrister is affiliated with one of four clubs known as the Inns of Court. Each inn has its own campus, but, in contrast to the chambers, the inns have no functional significance. Lincoln’s Inn, Gray’s Inn, Middle Temple and Inner Temple are a charming warren of gardens and courtyards lined with Tudor and Elizabethan architecture — like little bits of Oxbridge plunked down in the city of London. Most London barristers still work in and around the inns, in wood-paneled offices adorned with hunting prints and hand-painted nameplates. And in case they are called to court, they keep at the ready the same style of white horsehair wig perfected by Humphrey Ravenscroft in 1822. Even more than the musty, collegiate surroundings, what gives a chambers its distinctive feel is its small, noncorporate structure. Barristers need not contend with a boss or company politics. On the other hand, they lack security, benefits and holidays. “If this lightbulb goes out, it’s up to me to replace it,” says Dorian Lovell-Pank of the leading criminal set, 6 King’s Bench Walk, gesturing toward a lamp. “That’s the price you pay for independence.” Other traditions, large and small, have fallen away. Once banned from all advertising, barristers may now do things like print business cards. Once compelled to dine at the Inns of Court, barristers are now free to eat all of their meals at McDonald’s — if they are so inclined. Once immune from suits for negligence in court, barristers are now as exposed as other lawyers. Once monochrome, barristers are an increasingly diverse lot. More than a quarter of their total ranks are women, and 7 percent are members of an ethnic or racial minority. Among pupils, half are women, and nearly 20 percent are minority. But the two most important changes, which go to the heart of the bar’s identity, concern direct access to the public and the rights of advocacy. To pre-empt legislative changes, the Bar Council, which has the authority to establish operating rules for barristers, has gradually loosened its limits on direct access. Prior to the first rules change in 1989, all nonlawyers with cases in the high courts had to hire solicitors to get barristers. Now, certain sophisticated professional or institutional clients, including accountants and unions, may retain barristers directly. Under the newest rules change, adopted by the Bar Council in February, even lay clients may skip solicitors and go straight to barristers in court procedures requiring little factual preparation — like submitting a guilty plea, or arguing an appeal on a pure question of law. Contrary to popular myth, U.S. lawyers have always had the right to go directly to barristers. Meanwhile, in the biggest change, a 1990 act of Parliament robbed barristers of their monopoly on arguing in the higher courts — and created the phenomenon of solicitor-advocates. The act authorized the solicitors’ trade group, the Law Society, to issue qualifying criteria for solicitor-advocates. Although the act took effect in 1994, the initial requirements for qualifying (for instance, 40 days of petty court hearings over two years) were too onerous to attract many aspirants. The Law Society cleared the way for the current surge in the ranks of solicitor-advocates by loosening the rules in 2000. The act of Parliament was the result of pressure from a few influential London solicitors’ firms, like Linklaters. It frustrated Linklaters partner Humphries that he could manage a $1 billion arbitration case by himself but could not appear in a U.K. court. Clients were the driving force, he hastens to add: “They couldn’t understand why expensive lawyers had to defer to a different type of lawyer, who, as far as they could see, couldn’t add any value.” While solicitor-advocates continue to take depositions, they also regularly submit briefs, work that was handled mostly by barristers. Now, they can also make all the same court appearances as barristers. Humphries, for instance, has argued a large insurance dispute for Cr�dit Lyonnais in the Court of Appeal. He wore a plain business suit, but no wig or robe. Those accoutrements are still the sole domain of barristers. With the looser qualifying requirements, the top litigation departments of London firms are churning out solicitor-advocates. Linklaters had a dozen at the start of 2000; by this summer, it expects to have 60. Lovells, with about two dozen now, projects 100 by the end of 2003. Herbert Smith expects that its roster of about 30 solicitor-advocates will more than double by late 2003. Humphries estimates that Britain’s top 100 law firms, collectively boasting 200 solicitor-advocates today, will see those ranks rise to a thousand by the end of 2003. In time, he foresees up to a quarter of law firm litigators qualifying as solicitor-advocates. Will the barristers be able to compete? Humphries makes them sound like a pompous and clueless lot. “Nostalgia comes to barristers early in their careers,” he says. “They won’t use couriers, but their clerks will call up the partner on the case and ask him to arrange for a courier. If we have to meet, the barrister will insist on meeting in his inadequate facilities and pontificate.” Peter Taylor, a former barrister who is now an arbitration solicitor at Lovells, also finds the bar impractical. “For anything document-heavy, you need resources that the bar doesn’t have — bodies, space and time,” he says. “The fact is, there are still dinosaurs stalking the temple.” In an extreme example, a Q.C. who recently moved from the bar to a solicitor’s firm confessed, when he was being equipped with a state-of-the-art work station, that he had never used a computer. This characterization of barristers as clueless relics is unfair, argues barrister Ian Glick, a member of One Essex Court and a former chair of the Commercial Bar Association. “The bar is vastly more businesslike and less ivory-tower than it was 30 years ago,” he says. “We’re not fuddy-duddy, and we’re not dinosaurs. We just have a habit of keeping up-to-date while maintaining the facade of antiquity.” The threat posed by solicitor-advocates is uniformly dismissed by spokesmen for the bar. Barristers like Glick and Bruce Houlder, chair of the Criminal Bar Association, doubt that the pool of solicitor-advocates will ever grow to the size Humphries foresees. For one thing, they don’t believe that a vast pool of solicitors is fervently trying to argue in court. Also, they say, it makes no economic sense for solicitors to provide advocacy except in the few huge firms that generate a large, steady flow of litigation work. Since 80 percent of U.K. law firms are tiny, with five or fewer solicitors, they are clearly dependent on barristers. Despite the dismissive attitude of practitioners like Humphries, most solicitors, even at the largest firms, regard the bar as a valuable resource. Indeed, the early record suggests that, so far, solicitor-advocates have posed no serious threat to the bar. No one can point to a major piece of U.K. courts litigation that has been directed by a solicitor-advocate. High-stakes trials, like Unilever PLC’s suit against Merrill Lynch & Co., for the mismanagement of pension funds, go to accomplished advocates who have already established their names in court. By definition, those are barristers: for Unilever, Jonathan Sumption of Brick Court Chambers, and for Merrill Lynch, Glick of One Essex Court. What solicitor-advocates have captured are the lower-stakes trials — and that could pose a problem, since those are the cases that junior barristers cut their teeth on. If the juniors aren’t learning, then how will the next generation of great silks emerge? In one possible scenario, barristers of the future will begin their careers as solicitor-advocates. So, if barristers have lost their monopoly on pleading, and if the ban on direct access is riddled with exceptions, is there still any functional distinction between barristers and solicitors? “The one difference left is that barristers wear a wig,” claims Humphries, with a rhetorical flourish. “What possible difference could it make if someone wears an 18th-century piece of garb? Not a jot of difference.” Well, maybe a jot. The fact is that, Humphries notwithstanding, one key distinguishing trait of barristers remains intact — the ban on partnership. Self-employment is the sine qua non of the modern bar. And now that rule is under attack by Britain’s antitrust agency. A December 2000 report commissioned by the Office of Fair Trading concluded, among other things, that the Bar Council’s ban on partnership is anti-competitive. The OFT report reasons that a ban on partnership raises the barriers to entry in the market for litigation services, because it stops lawyers from setting up more efficient competing structures. In the OFT’s view of the market, some specialized practice niches are served only by two or three chambers. Barristers Bean and Glick retort that chambers don’t compete against each other; individual barristers do. It follows, they assert, that the current setup, in which 10,500 barristers practice solo, is the most competitive imaginable from the viewpoint of legal clients. Under the so-called cab-rank rule, barristers, like cabbies, must accept any client who comes to the front of the line. Barristers within the same chambers very often face off against each other in court. By contrast, if all of the members of a chambers were to form a partnership, conflicts would force them frequently to turn cases away. Some barristers suspect that the OFT report is motivated by class resentment. The report argues that the ban on partnership might deter risk-averse law graduates from becoming barristers. In contrast to a young solicitor, who is paid a salary, a young barrister is a sole proprietor from the outset, with all of the attendant risk. The report might in fact be seen as a fancy economist’s repackaging of the old complaint that the bar is elitist, because only law graduates from prosperous families can afford to take a pupilage at low or no pay, and bear the risks of sole proprietorship. The Bar Council has recently addressed that complaint by, for the first time, requiring a minimum pupilage salary, pegged at �10,000 (around $14,000) per year. Pupils’ salaries are part of a set’s shared overhead costs. The most profitable chambers, such as Glick’s One Essex Court, pay �30,000, which is competitive with the comparable wage for solicitor-trainees. While conceding that the bar must do more to open its ranks to students from diverse backgrounds, Glick says that any discriminatory effect is unintended and no worse than in the circles of solicitors or other professionals. Criminal barrister Lovell-Pank’s response to the charge of elitism is that barristers are self-selected, not for their ability to tolerate financial uncertainty — but for their hunger to perform in court. A chambers, he says, is like an actor’s collective. To prove his point, Lovell-Pank wanders into the hallway and finds a young junior barrister, Kate Wilkinson. He asks why she chose the bar. Her instant response: “I love to talk.” If Wilkinson talks well enough and long enough, she will eventually take silk. Queen’s Counsel have immense prestige and enhanced earning power — indeed, many insurance or arbitration contracts contain “Q.C. clauses,” which mandate that Q.C.s be hired in the event of a dispute. But the Q.C. selection process has itself been called flawed and elitist. Queen’s Counsel are selected by the lord chancellor — the minister for the administration of justice — after consultations (known as secret soundings) with senior lawyers and high court judges. The number of Q.C.s has long hovered at roughly 10 percent of the bar. Antitrust regulators suspect that the Q.C. selection process is altered each year to keep the percent constant — rather than to select those who are purely deserving. Solicitors are convinced that the system of secret soundings is rigged against them. Solicitors became eligible to become Q.C.s with the 1990 act of Parliament. But the Law Society stopped participating in the secret soundings process — in Humphries’ words, they “threw their toys out of the pram” — after only four solicitors had been chosen as Q.C.s by late 2000. Speaking for the bar, Bean insists simply that Q.C. selection is not an antitrust issue, and that the number of solicitors selected to be Q.C.s is proportionate to the number of applications received. The OFT report, which has been criticized by the Lord Chief Justice of England, Harry Woolf, is still under active consideration by the government. The Department of Trade & Industry has stated that “in due course” it will publish a proposal to implement the OFT report’s recommendations. In a head-to-head competition with solicitors, the bar does have some natural advantages. Americans, for example, can refer work to barristers without fear that their clients will be poached. And because the bar spends only about 15 percent of revenues on overhead (few barristers even have secretaries), its billing rates are often lower, and its profit margins are higher [see chart]. According to a survey by the accounting firm BDO Stoy Hayward, the billing rates of specialist barristers in London with less than 10 years’ experience are at least one-third lower than the rates of solicitors with equivalent seniority. According to London’s Legal Businessmagazine, barristers enjoy average profit margins of 75 percent, in contrast to a typical law firm margin of 40 percent. It should thus come as no surprise that the Chambers Guide to the Legal Profession lists 32 barristers as surpassing �1 million in earnings per year. In some noncourtroom fields, barristers have always faced competition, and they have fared fine. Brick Court Chambers, which was ranked first in revenue by Legal Businessin January 2001, draws only 40 percent of its work from the barristers’ traditional monopoly sector of U.K. court litigation, according to chief clerk Ian Moyler. The rest of the workload is composed of advisory fields like tax; litigation in the European Union courts (especially European antitrust); and arbitration (especially insurance arbitration). Arbitration and European litigation together comprise up to half of Brick Court’s docket and are seen as its two biggest growth areas. They are also the areas where clients are disproportionately American. “We certainly compete well in the open market with solicitors as mediators, as arbitrators and as arbitration counsel,” observes Brick Court’s Hilary Heilbron, who serves as a London panel member of the American Arbitration Association. Barrister Glick professes no fear for the future. His One Essex Court tied for second on the Legal Businessrevenue charts, and he personally defended Merrill Lynch in the pension fund mismanagement case that ended with a December settlement exceeding $100 million — and was one of the biggest London lawsuits of 2001. In Glick’s view, the only thing the bar has to fear is fear itself. An irrational perception of crisis, he warns, could itself lead to lateral defections and lackluster recruitment. Demographically, the news for barristers is mixed. While about 70 solicitors a year join the bar, generally lured by its freedom and prestige, 184 barristers became solicitors in the first 10 months of 2000, attracted largely by the London firms’ stability and office resources. That’s not an unsustainable rate of defection, Bean suggests, so long as young law graduates continue to feed the bar. Indeed, the number of barristers in England and Wales has nearly doubled over the last 15 years. But growth began to level off in 1999, declining from 4 percent to roughly 2 percent, and the criminal bar, which faces pressures due to cuts in public subsidy, has begun to shrink. The Inns of Court are among the few nooks in the modern world where small is still beautiful, and Bar Council chairman Bean insists that he would not be bothered if the number of barristers were to hit a plateau. “I don’t see it as necessary for a healthy profession for the numbers to keep on growing forever,” he says. Barristers like Bean will be satisfied if, in 10 years’ time, a confused American client can still encounter a lawyer in a wig arguing his case in a London court. After some initial confusion, this perceptive client of the future might remark: “Oh, I get it; the barrister is a sole proprietor who has the time, training and independence to meet the highest standards of advocacy — and still competes well on an open market.” Just don’t expect to hear a solicitor deliver that punch line. Related chart: The Top 20 Chambers in the U.K. Ranked by Revenue

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