To Split or Not to Split: That is Not the Question
The English legal system maintains a formal division between barristers and solicitors. Barristers are generally regarded as experts in court advocacy and specialised areas of law. On the other hand, solicitors have often been regarded as professional agents with general expertise in the law. Hence, ‘an analogy is often drawn between the two legal professions and the medical professions of general practitioner and consultant.’1 There remains a long-standing debate in England over whether the legal profession should be divided or fused. To understand this debate, I first discuss the origins of the divide between barristers and solicitors. Next, I trace key milestones in its historical trajectory. Third, I consider how the debate on the split profession has evolved. Having explored the UK position, I move to focus on comparing it with the legal profession in Singapore and explore the development of Singapore’s legal profession. Finally, I consider how, in light of the UK’s experience, Singapore’s legal profession may be further enhanced. THE ORIGINS OF DIVISION The division between barristers and solicitors was analogous to an earlier divide in the thirteenth century between attorneys, who acted as professional agents on behalf of clients, and serjeants-at-law, who were professional pleaders.2 However, as Professor Sir John Baker argued in his seminal work An Introduction to English Legal History, ‘solicitors were not at first rigidly separated from barristers.’ 3 This was because the name ‘solicitor’ originally described their function of ‘helping clients through the jurisdictional jungle’, and not ‘a specific class of lawyer.’4 The division between barristers and solicitors became increasingly clear from the 16th century onward as the Inns of Court began to exclude solicitors from joining them as members.5 However, it is noteworthy that as late as the 18th century, it was often the case that ‘the exclusion was honoured in the breach.’6 Far from being a carefully planned change, the division between barristers and solicitors in England emerged mainly as ‘a matter of historical accident.’7 KEY MILESTONES The division between barrister and solicitor was consolidated in the 19th century and remains formally intact. Neither the 1979 report of the Benson Royal Commission on Legal Services nor the 2004 Report of the Review of the Regulatory Framework for Legal Services in England and Wales by Sir David Clementi 1 Samarth Patel, Christopher Howarth, John Kwan and Philip Mcdonald, ‘Reform Of The Legal Profession’(The Wilberforce Society, February 2012) <http://thewilberforcesociety.co.uk/wp-content/uploads/2012/05/Reform-of-the-Legal-Profession.pdf> accessed 4 January 2014. 2 Wesley Pue, ‘legal profession, history of ’ in Peter Cane and Joanne Conaghen (eds), The New Oxford Companion to Law (Oxford University Press, 2008) 708. 3 John H Baker, An Introduction to English Legal History (4th edn, Oxford University Press, 2007) 163. 4 Ibid. 5 Ibid. 6 Ibid. 7 Harry Cohen, ‘The Divided Legal Profession In England And Wales-Can Barristers And Solicitors Ever Be Fused?’ (1987) 12 Journal of the Legal Profession 7, 12
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expressly recommended fusion of the English legal profession. As recently as January 2012, then-President of the Law Society of England & Wales John Wotton expressed his belief that ‘the two separate professional titles of barrister and solicitor will survive for the foreseeable future, if only because there is no strong current of opinion in favour of fusion.’8 The desire for efficacy may explain why the system of regulation in the UK largely mirrors the split profession. While barristers are monitored by the independent Bar Standards Board (BSB), solicitors are regulated by the Solicitors Regulation Authority (SRA). The division is also evident in the bodies representing their interests. Whereas solicitors come under the aegis of the Law Society of England & Wales, barristers are represented by the General Council of the Bar. The retention of the division is further seen in differences between the training paths for becoming a barrister or solicitor. While aspiring barristers pursue the Barrister Vocational Course, those seeking to become solicitors must complete the Legal Practice Course. Thereafter, barristers must complete a one-year pupillage, and solicitors a two-year training contract. Yet this is not to say there are no similarities between the training requirements for barristers and solicitors. Structurally, both paths involve 3 stages: ‘the academic stage, the vocational stage and a period of practice-based training.’9 In particular, the requirement for completing the academic phase is the same for both barristers and solicitors: either a Qualifying Law Degree or a degree in another subject followed by the Common Professional Examination or the Graduate Diploma in Law. However, legislative changes in the past 2 decades have greatly watered down the rigidity of the divide between barristers and solicitors. Following the passage of the Courts and Legal Services Act (CLSA) 1990, solicitors were given rights of audience before all superior courts in England and Wales. In accordance with sections 15(1), 19(1) and 45(1) of the Senior Courts Act 1981, solicitors could now appear before the Court of Appeal, High Court and Crown Courts as long as they met the criteria for qualification as Solicitor Advocates. This broke the monopoly barristers previously possessed over rights of audience in the superior courts. While solicitors have continued to refer most trial work to barristers, the change under the CLSA 1990 means that solicitors can no longer be typecast as solely involved in transactional work with clients. The ability for solicitors to secure conditional rights to audience in all superior courts was subsequently confirmed in sections 36-37 of the Access to Justice Act (AJA) 1999. However, barristers benefited from the CLSA 1990 as it allowed them to practise in conveyancing, an area previously restricted only to solicitors. This improved the ability of barristers to interact directly with clients in the provision of advice and the drafting of legal documents. The growing role of barristers outside courtroom advocacy could also weaken the traditional 8 John Wotton ‘Fission or fusion, independence or constraint’(The Law Society of England & Wales, 25 January 2012) <http://www.lawsociety.org. uk/news/speeches/fission-or-fusion-independence-or-constraint/> accessed 4 January 2014. 9 Avrom Sherr, ‘legal profession, social background, entry, and training’ in Peter Cane and Joanne Conaghen (eds), The New Oxford Companion to Law (Oxford University Press, 2008) 717.