Mixed doubles

The Scottish Faculty of Advocates dropped its rule against “mixed doubles” representation last month. This was a prohibition on an independent advocate accepting instructions to appear with an employed solicitor advocate on behalf of the same client. The ban had been in place since 1993 and had provoked concern about restrictive practices. The Office of Fair Trading has welcomed its removal.

There is no prohibition on “mixed doubles” in England. Indeed, Denton Wilde Sapte’s advocacy group has been successfully using this model for many years. As well as appearing in their own right, our advocates are frequently led by top QCs from the commercial Bar. The Scottish Bar is now belatedly acknowledging what we have known for some time, namely that the “mixed doubles” combination can offer clients the best of all worlds. An in-house junior stays far closer both to the client and to the daily ebb and flow of a case than a barrister in chambers. The selection of an external leader then gives access to all the breadth and depth of expertise of the independent Bar.

Too often, the debate over employed barristers and solicitor advocacy overlooks the potential of mixed representation. The Independent Bar’s arguments about their lower overheads, their independence, their specialisation and forensic experience are well rehearsed. But those arguments often imply that the choice between the independent Bar or an in-house advocate is mutually exclusive. In a case requiring two or more counsel, it is not. No doubt the independent Bar would deploy similar arguments to say that at least the leader of a counsel team should be selected from its ranks. But in most cases the law firms would agree and there is nothing very much to debate.

In-house wins out
The reality is that commercial firms, with or without in-house advocacy, will continue to entrust their heavy cases to the coterie of silks who dominate this end of the market. After all, their level of experience is unrivalled. Those silks will know the judges and the judges will know them. All this can make them indispensable. But the supporting role of junior counsel raises different considerations. A key one is availability. Professional and lay clients make generous allowance for the busy diary of a popular silk. Since they are paying for courtroom experience, they will be slow to complain that their chosen leader is appearing in other cases. But junior counsel will not be given the same latitude. They should be available. Using an in-house junior is plainly more convenient for other fee-earners. Everyone is in the same building with immediate access to each other and to the same sets of physical and electronic documents. It is also more convenient for the clients, not least because they can communicate with junior counsel directly. Preparing a pleading becomes quicker, easier and more accurate when junior counsel can simply pick up the phone to the client rather than relay queries through an instructing solicitor.

Junior counsel in this model will also share at least some of the functions of correspondence, review of documents and liaising with the client. Such streamlining is intuitive and cost-effective. In an appropriate case, the roles of matter assistant and junior counsel will overlap completely.

The added transparency can also improve value for money for the client. The traditional instructing solicitor loses visibility and control when the pinkribboned papers go off to chambers. The “mixed doubles” model promotes better communication and teamwork. Leading counsel’s input can be sought in a targeted way and only when it will add real value. Transparency also means that the quality of the firm’s own preparation and analysis of the case is laid bare. A firm can no longer rely on an external junior to tie up loose ends. The firm’s work product, whether a research note or a draft pleading, must meet the expectations that a silk would have of a junior. All of this helps to maintain the highest possible standards.

Plainly, the “mixed doubles” model relies on collaboration between the two branches of the profession. A key factor in its future success will be the increasing movement—in both directions—between those branches. The business structures and ways of working differ significantly between law firms and barristers’ chambers. However, an ongoing process of “cross-fertilisation” of skills and experience will benefit the individual lawyers, the organisations in which they work and, ultimately, their clients.

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