In the old days if you wanted to consult a barrister you could do so only via a solicitor. The rationale was that, as a referral professional, it was in the client's interests for a solicitor to prepare coherent instructions to a barrister, limited to those points upon which advice was needed. A more likely truth was that the Bar was just not geared up to receiving the public, and that 30 practitioners crowded into one historic building (with one historic lavatory and photocopier to match) were unable to deal with the day-to-day needs of the discerning client.
Some believed, however, that exceptions should be made for members of other professions, who were equally capable of presenting information efficiently and sensibly and who ought to be able to seek the advice of a barrister without going through the hoops of instructing a solicitor first. In 1989 the Bar Council agreed and extended the right to other professionals, including architects, to instruct the Bar by direct professional access (dpa).
The advantages of dpa included:
Cost. Despite much publicity to the contrary, barristers are generally cheaper than their solicitor counterparts, who have swanky offices, smart lavatories and decent photocopiers.
Experience. dpa provides a direct route to the whole range of barristerial experience from leading silk to jobbing junior. The best barrister for the job can be selected. When instructing a firm of solicitors, on the other hand, it is less easy to control who will actually be doing the work.
Expertise. Barristers tend to practise in increasingly specialist fields. The construction Bar, for example, can readily advise on the many idiosyncratic problems thrown up by today's building projects, from how to rein in a wayward adjudicator to the effect of the final certificate. Solicitors are limited to the particular expertise available within their firm. Of course specialist solicitors exist but are, comparatively, expensive.
Whatever the advantages of dpa, at the time the notion was rather radical, the list of approved professional bodies was carefully vetted and stringent guidelines were drawn up. Barristers could be instructed by dpa to give advice or to appear in arbitrations or enquiries, but not in court. They were also obliged to say when the resources of a firm of solicitors were required, for collating documents or entering into correspondence, for example. One suspects that the Bar rather steeled itself against a sudden rush of the world's problems being visited upon its doorstep.
Ten years down the line, we can see that dpa has been very successful in some areas. Accountants, for example, regularly call upon the revenue Bar and provide some Chambers specialising in tax law with up to 75 per cent of their work. Planning barristers and those specialising in landlord- and-tenant work are also instructed directly by members of the RICS. Some arbitrators seek legal advice direct. But surprisingly, the building professions seldom instruct the construction Bar.
This reluctance to venture down into the Temple, or speak directly to a barrister, may be attributable to a general suspicion of the (now not so) archaic working practices there, the (increasingly unjustified) fear of the barristers' clerk or because of the (much hyped) general witch- doctory which is seen by some to surround the Bar.
Whatever the myths or misgivings, they can be readily dispelled by the information now available on dpa. The riba's Guidance Notes on dpa clearly explain the process. and legal directories, such as Chambers' Guide to the Legal Profession or The Legal 500, identify specialisms and describe barristers' experience and reputation. Further information can be obtained from the specialist Bar associations, such as the Technology and Construction Court Bar Association. (tecba can be contacted via The Secretary, Atkin Chambers, Gray's Inn, London WC1R 5AT tel: 0207 404 0102.)