Of Barristers and Solicitors

Malaysia enjoys a fused legal profession in that there is no legal distinction between an advocate and solicitor. When one is Called to the Bar, one is admitted as an Advocate and Solicitor of the High Court of Malaya.This is in contrast to countries, for instance England and Wales, which have a split profession. One is either a barrister or a solicitor. Barristers enjoy the rights of audience to appear before the higher courts, rights which to a large extent solicitors are unable to enjoy. Solicitors may carry out the litigation through exchange of correspondences as well as the drafting of the court papers, tasks which barristers are forbidden from carrying out.

Barristers also provide specialist legal advice to solicitors, which therefore draws some comparison to the medical profession, whereby solicitors can be seen as general practitioners while barristers are specialists in advocacy or advisory services.

As explained by Epstein, the barrister-solicitor distinction dates from the 13th century, when English courts held that only advocates who had regularly come before them could argue a litigant’s case. An advocate was allowed to enter the picture only at the final argument stage, so that the litigant had to make the initial pleadings himself. Advocates were precursors to barristers.

By the 15th century, litigants were allowed to hire out-of-court attorneys to submit pleadings in writing, and these attorneys were precursors to solicitors. As the demand for legal services increased with economic development, so did the need for courtroom advocates. Inns of Court arose to train and regulate the advocates — drawn exclusively from the upper classes — as the only people authorised to appear before high-court judges. In the 16th century, the division between barristers and solicitors became fixed. Clients dealt only with solicitors, and solicitors arranged for barristers.

Epstein argues that this historical baggage provides scant reason for such a market division, and I agree with this contention. One argument in support of the continued split in the profession is that having an independent barrister reviewing a cause of action gives the client a fresh and independent opinion from an expert in the field, something that rarely happens in jurisdictions with fused professions. Another is that by having recourse to all of the specialist barristers at the Bar, it levels the playing field by enabling smaller firms, who could not maintain large specialist departments, to compete with larger firms.

One clear disadvantange of maintaining a split profession is that of possibly high legal fees. Multiplicity of legal advisers will necessarily lead to higher costs.

In England and Wales, the clear demarcation between barristers and solicitors have eroded with solicitors also enjoying rights of audience if they become qualified as solicitor-advocates. Solicitor-advocates can also enjoy the title of Queen Counsel. Further, larger solicitor firms have also started to hire barristers to act as their specialist in-house Counsel.

This post does not propose to cover in-depth the vast span of this topic, and I have not been able to flesh out the advantages or disadvantages of maintaining either a fused or split profession. I would however like to invite views though on these issues.

It is noted that in 2004, in the Review of the Regulatory Framework for Legal Services in England and Wales, dubbed the Clementi Report, Sir David Clementi did examine the present framework of the provision of legal services in England and Wales. The Report did touch on the split in the barrister and solicitor profession. While making no recommendations on converting to a fused profession (it appears that the Report did not consider such a step), there were recommendations made in creating alternative business structures which would allow solicitors and barristers to enter into partnership together, as well as entering into partnerships with non-lawyers.

This post was also brought about by this interesting article on a QC who had requalified as a solicitor to head the advocacy unit of Herbert Smith.

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