In his Report of the Review of the Regulatory Framework for Legal Services in England and Wales, Sir David Clementi puts forward radical proposals about how the professions of barrister and solicitor should be organised and regulated. Five of the six Chapters of the Report are concerned with what might be called the regulatory aspects of the proposals, including the handling of complaints. In chapter F, Clementi turns his attention to what he calls “Alternative Business Structures”. He recommends changing the rules to allow partnerships between barristers and solicitors – Legal Disciplinary Partnerships, or LDPs. He also (tentatively) suggests that partnerships between lawyers and other professionals – surveyors and accountants, for example – Multi Disciplinary Partnerships, or MDPs, might follow.

Clementi recognises that LDPs, and particularly MDPs, pose acute problems of regulation, especially if outside ownership, i.e. by non-lawyers - so called “Tesco-law” - is permitted.

The regulatory aspects of the Report have been much discussed, and I seek to make no contribution to that debate in this article. The question I seek to address is a more fundamental one: namely whether LDPs (and MDPs) are in principle “a good thing”, and would serve the wider interests of justice.

The Bar Council, in its submissions to Clementi, supported in principle the concept of LDPs, and in his article in April’s issue of The Barrister, the Chairman of the Bar, Guy Mansfield, appeared to echoed this, saying:

“As regard LDPs, it should be as easy as possible for lawyers with different professional qualifications to work in the same legal practice”.

He goes on, in the article, to look in more detail, at the regulatory aspects of LDPs, and in particular, the thorny issue of outside ownership.

To my mind, this focus on the detail is misplaced. The important question is whether LDPs should be permitted at all. I practice in crime, doing both prosecution and defence work. In my view, LDPs would, if permitted, irretrievably damage the fabric of the criminal justice system. It would happen like this. If partnerships between barristers and solicitors are permitted, the ending of “ring-fenced” advocacy fees, already under consideration, will quickly follow. Solicitors will become the purse-holders, and advocacy fees will become a sub-contracted disbursement. Commercial pressures to keep the advocacy work in house will lead to the best advocates being cherry-picked into solicitors’ firms with offers of equity partnerships. The CPS will not be able to compete for the best advocates, being bound by Civil Service pay structures, and the standard of prosecuting will thereby suffer. A small referral Bar of independent advocates, probably highly specialised and in London and one or two other cities, may survive - for a while at least. But the profession will have largely divided into prosecutors and defenders, client choice will have effectively ended, and the pool of experienced advocates from whom the judiciary is drawn will have been dissipated.

Clementi himself does not foresee any of this. He does not favour fusion of the professions, and envisages a “mixed economy” of legal service providers. He speaks of the potential for partnerships of different legal professionals as being “facilitative, not mandatory”. If Clementi himself may be forgiven for failing to see the government’s wider funding agenda waiting beyond the gateway which LDPs will open, the Chairman of the Bar ought not, perhaps, to be afforded the same indulgence.

At present, barristers may not enter in to partnerships with other professionals, or even other barristers, to offer legal services. Each practicing barrister is an independent undertaking, able and obliged to accept instructions from both prosecution and defence. It is a widely held view that barristers who both prosecute and defend become better at each for doing both, and in due course make the fairest and best judges. This is an important matter of public interest, which has, to my mind, been largely overlooked. If the profession were to divide, where would judges come from? Would there be a specialist career path, independent of advocacy practice, as happens on the continent? This would no doubt be expensive and, in my view, a retrograde step. The English criminal judiciary is the envy of the world; a direct result of the existence of a high quality, independent referral Bar which both prosecutes and defends.

So why does Clementi want to change all of this? The answer is not entirely clear. Implicit in his conclusions are assumptions that establishing a “one-stop shop” will be in the interests of consumers, and that the present division between barristers and solicitors is a restrictive practice which, if got rid of, would lead to price competition and increased consumer choice. I question this reasoning.

In fact, the division of labour between litigator and advocate has served the public interest well. The solicitor is free to choose the advocate whom he believes will best look after the interests of his client from a vast pool of advocates of different specialisms, levels of experience and styles of advocacy – “horses for courses”. There is no commercial pressure to use an in-house advocate.

Whilst it is not difficult to see how an outsider, even an intelligent one like Sir David Clementi might regard rules which prohibit partnership between barristers and solicitors, and effectively require a client to have two lawyers as ‘restrictive practices’, in fact, a closer examination of the funding for criminal justice reveals that there is less to commend the “one stop shop” than one might think.

The structure of the Criminal Defence Services (Funding) Order 2001, through which defence lawyers are paid for Crown Court work, in fact admits of little or no duplication of work between the barrister and the solicitor. The vast majority of criminal cases (in number, at least), are remunerated, so far as the barrister is concerned, under the Graduated Fees Scheme (GFS), which now covers all cases up to 40 days in length.

Under the GFS, the barrister’s pay is linked to court appearances. Almost no preparatory or paperwork is separately remunerated. For 40 day cases and beyond, the Very High Cost Case (VHCC) regime takes over, in which the division of tasks between the barrister and solicitor is defined by the contracts, which they each sign.

The rates of pay for barristers under both the VHCC and GFS regimes are lower than solicitors’ rates, because barristers’ overheads (at around 30%) are much lower than those of solicitors, where rates of 75% are not uncommon. In other words, the advocacy services of the Bar are cheap. One of the reasons why there are presently so few solicitor advocates undertaking higher court work is that it is simply uneconomic for a solicitor to travel to court, wait all day and appear in court, all for £46.50, as barristers frequently do.

To find the motivation behind the idea of LDPs, one needs to look no further than the Department for Constitutional Affairs (DCA) report of July 2003 which led to the establishment of the Clementi review, quoted in paragraph 1 of chapter F of the Report:

“Such new structures [i.e. LDPs and MDPs] would provide an opportunity for increased investment and therefore enhanced development and innovation, for improved efficiency and lower costs….” (My emphasis)

The government is constantly complaining that the bill for criminal legal aid is too high and looking for ways to cut it. There is presently underway a review of the GFS, but of greater concern to the Bar must be something called the Fundamental Legal Aid Review (FLAR), a root and branch examination of all public funding of legal services, not just crime. In the field of crime, however, one item, which is high on the agenda, is the ending of the present system of “ring-fenced” advocacy fees, and their replacement with what is called “one case, one fee”. Plans are already in place for Price Competitive Tendering (PCT) for Magistrates work, and the same may follow for VHCC contracts. Let there be no mistake about this: the government thinks that purse-holding through PCT is the way to cut costs, and LDPs are the vehicle by which “one case, one fee” can be extended to all Crown Court work.

It is not difficult to see the thinking. If LDPs establish the one-stop shop for criminal work, why pay two lots of fees for one service? No reason at all. If “one case, one fee” comes to pass, the commercial pressure to keep all aspects of the service offered by the purse-holder “in house” is obvious. Sub-contracting the advocacy to an independent barrister is simply giving money away. Inevitably, the firms which have successfully bid for contracts with the LSC will seek to keep the money “in house” by recruiting specialist advocates from the independent Bar with offers of equity partnerships. Faced with choosing between the prospect of regular work from one source, and the uncertainty of competing for increasingly scarce work from other purse-holders and the CPS, it is not difficult to see that many practitioners will succumb to such blandishments.

Of course, Clementi is right; there will be no compulsion to enter into partnership, but harsh commercial reality will make it happen. Those who try to soldier on will find it increasingly difficult. It may be that a very small, highly specialised, referral profession will survive – in London and possibly one or two other cities – but for all practical purposes, the independent Bar will divide in to prosecutors and defenders. The public interest will suffer in a number of ways from this, not least of which is that the CPS, with its rigid Civil Service pay structures, will get the leftovers when the solicitors have finished cherry-picking, and the standard of prosecutions – ironically the only part of the criminal justice system where the government actually cares about standards – will further decline.

The legal services market is not like any other market. What appear to be restrictive practices in fact serve the public well, and cheaply too. It is by no means certain that, through LDPs, “one case one fee” will actually deliver a cheaper service than the divided professions presently offer. Standards will undoubtedly be driven down, and there is a real risk of representation deserts.

Clementi did not consider the wider agenda over public funding of legal services. LDPs will put in place the essential feature of the legal services architecture which is needed for “one case, one fee” to become a reality, and if that happens, I predict that the independent criminal Bar will cease to exist within 5 years.

The profession, and the leadership of the profession, needs to come to the realisation that, in embracing LDPs, we may be clutching a viper to our bosom. So, Guy, ditch that snake!

Ian West is a member of the Bar Council Remuneration Committee and the Fees Committee of the Criminal Bar Association.