When is a barrister not a barrister?

...Answer: never! But many choose to work outside the Bar, as solicitor s or for the Crown Prosecution Service.

There are almost 11,000 barristers in this country, not all of them practising at the independent Bar. Every year hundreds opt to take a different career path - there are 1,500, for example, working for the Crown Prosecution Service; and increasing numbers are now drifting over to work in solicitors' firms. This latter group was airing its grievances at the recent Bar Council AGM. In particular, it almost universally despises the "non-practising" barristers.

"Why should we be ostracised and given the pejorative title of 'non- practising barristers'?" asked Margaret Casely-Hayford, a planning specialist with a City law firm. "We remain barristers in practice." Ms Casely-Hayford and some other employed barristers have therefore opted to retain the title of "barrister" rather than switch to solicitor or solicitor-advocate. Were they to switch, which would mean taking the Law Society exams, they would be required voluntarily to disbar. "At present then, gaining a second qualification, namely that of becoming a solicitor, leads to the same treatment as would be meted out as punishment for misconduct," said Ms Casely-Hayford. "It is bizarre that the status and qualification of barrister can be retained unless the alternative career is in the law; one could be a ballerina without having to disbar!"

The Bar Council points to the fact that its members have voted again and again to maintain the bar as an independent and distinctive referral profession and that holding a dual qualification could mean fusion by the back door. "If a barrister goes to work in a solicitor's office, that implies a very specific professional relationship with the bar, which is not implied by working as, say, a ballerina, or a chatshow host," said a spokesman afterwards. He also points to the fact that it has to be clear to the client which set of rules the lawyer is operating under. "If the lawyer makes a mistake, the client has to know to whom he can complain, and who is going to carry the can, the Law Society or the Bar Council. It has to be absolutely clear which regulatory body is responsible for which practitioner."

But non-practising barristers remain unconvinced by arguments such as these. Teige O'Donovan, another planning specialist working for a London law firm, points out that nowhere is it laid down in stone that barristers must disbar themselves if they become solicitors, adding that "the Law Society has no rule requiring disbarment before a barrister becomes a solicitor". He, like other non-practising barristers, feels reluctant to give up his hard-won qualification as barrister on gaining another qualification. He adds that the qualification to become a solicitor-advocate takes six months to acquire, and there is a fee of pounds 700. Moreover, disbarment would clearly make things difficult were he to wish to return to the bar at any stage.

But these points seem to be minor irritations compared to the major areas of discontent: the fact that barristers who work for firms of solicitors have fewer rights of advocacy than their new employers now enjoy. Non- practising barristers see this not only as an anomaly, but as an injustice. So why not simply re-qualify and become a solicitor with a Higher Court qualification? They say they have a lot to lose if they do so and that it means something to their clients that they have qualified as barristers.

"It seems to me to be ridiculous that somebody who is a trained advocate cannot appear in court simply because instead of working in chambers he goes to work for a law firm," says Neil Addison, a Newcastle-based barrister who formerly worked for the CPS and has now returned to the independent Bar.

"The Bar hasn't got the foggiest idea what it wants," he continues vehemently. "It's pursuing two totally contradictory policies. On the one hand it's trying to swell the ranks of the bar, by broadening the number of training centres where one can qualify. But at the same time it's reducing the opportunities available by ignoring the other ways of being an advocate. I believe advocacy should be one profession." But the Bar Council says that would inevitably damage the independent referral system and ultimately lead to fusion. "If a case can be made for dual qualification, then we'd like to hear it," said a Bar Council spokesman. "But it would have to be an extremely good case because the political audiences that have yet to be convinced of it are legion."

Ms Casely-Hayford and Mr O'Donovan's proposals were heavily defeated at the Bar Council's AGM. "What's happening there is that barristers who are safely in chambers are saying to others, 'We will not let you earn a living'," says Mr Addison. "But people are now having very different careers within the legal profession. Change is definitely coming. The question is, is the Bar going to help to dictate that change, or passively let change just happen to it?"