MONOPOLY

The legal profession's attempt to define its monopoly was complicated by the existence of two branches concerned with patrolling the boundaries that divide them as well as those that exclude other occupations. During the course of the nineteenth century barristers and solicitors reached an accommodation (although not without considerable dissension): solicitors ceased to challenge the Bar's exclusive right of audience in the higher courts, and barristers relinquished any claim to perform conveyances (real estate transactions) or to serve clients without the intermediation of solicitors. The Bar has been very successful in defending its turf, perhaps because advocacy occupies the core of the legal profession's identity and is a highly visible activity, whose elaborate ritual and arcane language proclaim the esoteric qualities of law. Furthermore, solicitors share with barristers a common interest in excluding outsiders from the courts.

On the other hand, barristers and solicitors are opposed in their struggle over the right of audience in the higher courts, which traditionally also has conferred eligibility for appointment to the bench—not only a prize for those few who attain it but also an important foundation for the Bar's collective assertion of superior status. The greater difficulty of justifying a monopoly against fellow lawyers may help to explain the vigor with which the Bar opposed nineteenth-century proposals for common training with solicitors. Yet, the recent convergence of the two branches in terms of background, education, and qualifications may weaken the Bar's defenses. At the same time, the erosion of supply control among solicitors may stimulate the latter to press their claims more strongly. The historic compromise between the branches survived the Royal Commission inquiry of the late 1970s, in which the Law Society (unsuccessfully) sought only a modest expansion of solicitors' rights of audience. However, the recent threat of losing the conveyancing monopoly led to an immediate demand for equality with barristers. Although the Government summarily rejected

this claim, its concern to cut costs, together with the fact that it presently pays for half of all barristers' services, renders the Bar's monopoly precarious. Even if it is not abolished, the monopoly still may be eroded through the progressive expansion of lower-court jurisdiction, increased use of employed lawyers (solicitors as well as barristers), and the grant to solicitors of specific, if not general, rights of audience. Nevertheless, barristers may preserve a good deal of the market for higher-court advocacy by means of informal conventions despite the demise of formal rules.

Solicitors always have had greater difficulty defining and defending their monopoly. Much of what they do is less visible and less obviously technical than higher-court advocacy. Unlike lawyers in the United States and some Canadian provinces, English solicitors never claimed a monopoly over legal advice. Furthermore, whereas solicitors have been quite restrained in challenging the Bar, lay competitors have been far more aggressive in invading the domain of solicitors. Banks and trust companies, accountants, real estate agents, companies, and trade unions all perform solicitors' work for their customers, employees, and members. The lay public also seems less tolerant of the solicitors' monopoly than they are of the barristers' exclusive right of audience, perhaps because consumers encounter the former more often and more directly. Public resentment was most visible, of course, in the long-standing critique of the conveyancing monopoly. Recent legislation has forced solicitors to share it with a new paraprofession of licensed conveyancers; however, there is continuing uncertainty about the role of banks and building societies (savings and loan associations). On first impression this incursion, which solicitors vigorously resisted, appears to be an awesome loss, without precedent in the annals of any other profession, for solicitors derive half of their incomes from conveyancing. Yet, the ultimate consequences are unpredictable. The change will be felt more heavily by smaller firms, which typically earn a higher proportion of their income from conveyancing. In order to remain competitive, they will have to expand their volume through advertising, routinize conveyancing through computerization, and transfer work to paraprofessionals, all of which will foster concentration and render solicitors more like their lay competitors—that is, less professional. At the same time, solicitors may find themselves challenged from another direction for the first time in a century. Barristers, pressed by their own loss of supply control, threatened by solicitors, and perhaps concerned with allaying criticism about the wastefulness of the divided profession, may renew their demands to deal directly with other professionals (such as accountants and employed barristers) and possibly even with lay clients.

The monopoly of each branch is threatened not only by the other branch and by outsiders but also from within: by employed barristers and

solicitors, whose numbers are expanding because private practice is able to absorb a declining proportion of the influx of new entrants produced by the erosion of supply control (see table 2). The significance of these emergent categories is threefold. First, the demarcation between employed barristers and employed solicitors is far more tenuous than the line that separates the branches in private practice. Both categories not only share a common training but also may work for the same employer and perform similar tasks. Consistent with this, their monopolies have converged: employed barristers lack a right of audience in the higher courts. Second, employed lawyers are less protected from competition with other occupational categories, such as accountants, civil servants, and city managers. Third, the number of employed lawyers is augmented by reason of heightened demand as well as greater supply: clients (public and private) may prefer to employ lawyers rather than retain private practitioners because the former are less expensive and more easily controlled. Moreover, having put lawyers on their payroll, employers are likely to add their own voices to the call for expanding the rights of audience of employed lawyers and for allowing all employed barristers to perform conveyances and to brief barristers in private practice without the intervention of a solicitor.