Lawyers must adapt to meet public's needs
THERE are some who would wish to characterise the current debate about the Law Society's proposal to introduce greater flexibility and competition into the market-place for legal services as being a matter for the two branches of the profession to sort out themselves.
Nothing could be further from the truth. This is above all a matter of public interest, quite apart from the fact that lawyers themselves are the most directly affected by any proposed changes and all of them therefore have vested interests of one sort or another.
Others will seek to characterise the debate as a war between the Bar Association and the Law Society with an elusive and undefined prize for the victor. Again, nothing could be further from the truth.
Both sides of the profession have a responsibility to examine their structures to see whether they really meet the public need. The preservation of the status quo must not be motivated by self-interest or complacency.
Many at the Bar will fight hard to resist change and equally some solicitors would doubtless prefer to sweep the whole issue under the carpet for fear that it will focus attention on other areas of their practices which they would prefer to keep out of the glare of public scrutiny.
The Council of the Law Society felt compelled to widen the debate, however, so that the real public interest could be assessed.
The proposals themselves are not that revolutionary. What is proposed is that there should be applied to the legal profession an elementary truth widely accepted in other fields, namely that free competition, backed by the minimum of necessary regulation, is good for the public.
It is surely absurd that in 1993 if a consumer wishes to ask for the straightforward advice of a particular barrister he knows and respects he must first ask the question of a solicitor who will in turn ''instruct'' the barrister with the result that the poor client has to pay the fees of both.
It is equally absurd that a solicitor who has long enjoyed a right of audience in the Magistrates Court, in the District Court and in Supreme Court proceedings heard in Chambers cannot appear for his client in open court however satisfied that client may be with his solicitor's services and no matter how competent he may be to do so.
Why too should a client, irrespective of the need for an additional head, have to pay not only for his solicitor but also a junior barrister whenever a QC is retained, thereby increasing the cost to him still further? The public should not however be deceived. The proposal is about the removal of restrictive practices which are both antiquated and anti-competitive. It is not a debate about the abolition of the barristers' profession.
Barristers have always been briefed in tribunals and courts where solicitors already enjoyed rights of audience and this is because solicitors recognise that in many cases specialist advocacy skills are required or that in certain cases it is more cost-effective or for any number of other good reasons.
In many cases the Bar provides an excellent service, but as David Pannick, the British barrister and legal consultant, has said: ''If the Bar cannot prosper in an atmosphere of competition then it needs to improve its standards''.
ANY monopoly can lead to abuse and while among the 400 or so practising barristers there are many who must struggle on inadequate fees, particularly in the field of criminal law, there are equally numbers of their brethren, particularly on the civil side, who can command quite breathtaking fees for their services.
Nobody could seriously contend that free competition does not mean that the best can command what the market will pay, but that the market price should be maintained at an unrealistically high level in some cases by the operation of the Bar's monopoly is hardly appropriate.
It seems clear to me that the public deserve better. The present proposals should be considered on their merits. If the conclusion is that the proposed changes will result in the profession being more responsive to public need without, in the longer term, any commensurate loss of quality, then they should be endorsed wholeheartedly by the Government; they may not solve all problems, but they are a step in the right direction.
And if there are some who think that it is all too convenient that the Law Society's present proposals should focus on the Bar's monopoly, remember that the Law Society has already played a significant role in paving the way for the elimination of the current restrictive barriers to the admission of solicitors in Hongkong by its active promotion of the foreign lawyers scheme.
The introduction of changes along the lines proposed would bring the practice in Hongkong into line with the practice in many overseas jurisdictions including New Zealand and Victoria, Australia, to name but two.
It will not inevitably lead to lower standards and a loss of independence any more than it has in those jurisdictions; nor will it lead to a breakdown in confidence in the legal profession; nor will it be playing into China's hands! This and more will be suggested by opponents, to judge by the intemperate and inappropriate language of some of the more outraged members of the judiciary in England, when the Lord Chancellor announced proposals for reform in 1989.
An important side benefit may well be that, whatever the outcome of the debate, both sides of the profession may find that they reassess their standards and perhaps even appreciate that many of the restrictions which they operate and which they have hitherto blindly accepted as being fundamental to the integrity of the legal system, are nothing of the sort but merely antiquated and anti-competitive practices which serve nobody's interests but their own.
Patrick Sherrington is a member of the Future of the Legal Profession Working Party.
