English Legal System

The Legal Professions and the provision of legal services

Solicitors

Barristers

Reforms to the profession

Aims

• The aims of this lecture are:

1. To introduce you to the legal professions in England and Wales;

2. To describe the functions which barristers and solicitors fulfil within the legal system;

3. To look at reforms which have been made to the provision of legal services by the Courts and Legal Services Act 1990 and the Access to Justice Act 1999;

4. To critically evaluate the success of those reforms and the scope for further reform of the provision of such services.

Outcomes

• By the end of this lecture you should be able to:

1. Describe the current division of the professions in England and Wales, and describe what someone working in either of them may do;

2. Describe the reforms to the provision of legal services introduced by the Courts and Legal Services Act 1990 and Access to Justice Act 1999 and critically assess how significant they were;

3. Describe further developments in the reform of the professions and state whether you think that these are desirable.

The Legal Professions and the provision of legal services

• Two main branches – historically there were others and still there are notaries, although these are often qualified solicitors or barristers

• Solicitors of the Supreme Court of England and Wales

• Barristers in practice at the Independent Bar of England and Wales

Solicitors

• Private practice and employed

• Approx 80,000 practising solicitors

• 81% working in private practice

• 19% public sector, commerce and industry

The role of solicitors

• Advising clients direct

• Dealing with non-contentious work, such as probate etc…

• Preparing cases for litigation, issuing proceedings etc…

• Conveyancing – once the sole preserve of solicitors

• The Court and Legal Services Act 1990 allowed for the first time licensed conveyancers

Structure of private practice• Solicitors in private practice work in a

partnership or as sole practitioners

• Ranging from hundreds of partners (nationwide and international firms) to High Street practices

• Many solicitors are employed by partners

• Solicitors are regulated by the Law Society

Sex Discrimination

• 33.9% of solicitor’s with practising certificates are women

• 51% of all new solicitors in 1998 were women

• 25% of women solicitors are partners vs 55% of male solicitors who were partners in 1998

• 10-19 year’s experience 87% of men are partners vs 63% of women

Sex Discrimination

• Median salary for female partners: £36,000

• Median salary for male partners: £51,000

Racial Discrimination

• 6.6.% of solicitors are from an ethnic minority

Training and Regulation

• In order to become a solicitor in England and Wales, one must do a law graduate or a degree in another discipline and the CPE, the academic stage of training

• After this academic stage there follows the one year LPC and then two years of a training contract

• Alternatively there still exists the possibility of training as legal executive and qualifying via that route

• Solicitors are regulated by the Law Society of England and Wales which has offices in Chancery Lane London

The Legal Practice Course (LPC)

• This is the year of vocational training equivalent to the BVC for barristers

• It is expensive, as is the BVC, but has always been more regionally based

• LPC students have to do core areas such as conveyancing and business accounts

• They also do skills areas similar to barristers such as interviewing and drafting

Continual Professional Development

• Both barristers and solicitors must participate in continuing training

• They must attend a certain number of CPD every year

• Courses are run by the Inns of Court for junior barristers and also by universities and colleges across England and Wales

Barristers (10,000 approx)

• Specialists?

• Advocacy

• Drafting

• Advice/Opinion writing

Sex Discrimination?

• 25% of barristers are women (1998)

• 50% of new barristers are women (1998)

• 7% of QCs are women (1998)

• 1994 only 8% of applicants for QC were women but more than 20% succeeded (higher proportionately than men)

Racial Discrimination?

• Only 1% of QCs (1998)

• Success rate for appointment in 1998: 18.5% vs 12% for non-ethnic minority

Training and Regulation

• In order to qualify as a barrister you need to do the following:

Either 1. A lower second class law degree2. A lower second class degree in a discipline other than law

and have passed the Common Professional Examination or Graduate Diploma in Law

After undertaking these you have to do a year on the Bar Vocational Course, which is the first stage of vocational training for the Bar

Complete a year of pupillage

The Bar Vocational Course

• This is the first compulsory element of vocational training for entry to the profession

• The aim of the course has been to focus on the skills that the barrister needs in practice, along with the substantive knowledge areas

• The skills taught on the BVC are Advocacy, Drafting, Opinion Writing, Negotiation and Conferencing

• The substantive knowledge areas cover Criminal and Civil Procedure, along with the rules of evidence

Criticism of the BVC

• The BVC has been criticised on a number of grounds:

1. It is too expensive;

2. It lacks academic rigour;

3. It is centred on the capital where most providers are based.

The Inns of Court

• Traditionally these trained barristers for practice

• In Tudor times they were described as ‘the third university of England’ after Oxford and Cambridge

• The common law was not taught at the universities until 19th century, only the Roman or Civil Law was considered worthy of study

• All students commencing the BVC must be a member of an Inn of Court

• There are four Inns, the Middle and Inner Temple, Gray’s Inn and Lincoln’s Inn

Professional Regulation

• Regulation of professions has increased in recent years

• Traditionally professions have been characterised by self-regulation

• This has become more complex and difficult in modern times

• The Bar Council is the body which both regulates and promotes the interests of the Independent Bar of England and Wales

• Was not established until the late nineteenth century

Professional Conduct

• Barristers have to comply with the Bar Code of Conduct in order to practise in England and Wales. This governs a variety of matters, but the main ones can be summarised as follows:

1. Duties towards clients, both professional and lay clients and to the court;

2. The Cab-rank rule;3. Regulation of who can practise in a jurisdiction;4. Written guidance on the conduct/appropriateness of barristers

engaging in certain conduct.

Liability of Advocates

• It used to be the position that an advocate could not be sued for his advocacy in the face of the court

• This was established in the case of Rondel v Worsley 1969

• The rationale that the court gave was that there may be a conflict of interest between the duty to the court and the duty to the lay/professional client if the barrister could be held liable for his actions in front of the court

• It was changed in the landmark case of Arthur J S Hall & Co. Ltd v Simons 2000

Separate branches

• First point of call for someone who needs to instruct a lawyer will a solicitor

• This has now changed to certain extent with the introduction of BarDirect, the instruction of barristers by certain clients directly

• Barristers cannot be solicitors at the same time

• Most judges are former barristers (in 1996 only 72 out of 517 circuit judges were former solicitors)

Reform

• Direct Access to the Bar?

• Rights of audience

• Multi Disciplinary solicitor’s Partnerships

Direct Access to the Bar

• Professional clients

• Others

• Can barristers service clients?

Rights of audience

• Magistrates’ Courts

• Access to Justice Act 1999– Automatic rights with training

• 200+ solicitor advocates in Dec 94• 1077 solicitor advocates in Aug 2000• 341 of these are qualified for civil work

Fusion: Will Barrister’s chambers disappear?

• City solicitors’ firms take advocacy in-house

• “Members of the public should be educated by us that the most likely scenario is that they will not need to go to a barrister” (Mark Humphries, Head of Advocacy, Linklaters, from “Solicitors on Trial” Law Society Gazette, 31.8.00)

• “No one in the City calls themselves solicitors…Solicitors are all referred to as lawyers. The big international clients can’t understand why we are bringing in barristers. It’s an unnecessary fee add-on to them” (John Potts, Managing partner for litigation, Clifford Chance ibid).

Counter arguments

• Smaller solicitors’ firms

• “To be really good at advocacy you need to do it all the time, and solicitor-advocates don’t” (Bruce Houlder QC)

• Can barristers provide a more objective viewpoint?

Multi Disciplinary Partnerships

• S.66 Courts and Legal Services Act 1990

• Possible advantages of MDPs:– Freedom of association and consumer choice– A wider range of services– Economies of scale

• Possible disadvantages:– Independence of services– Legal Professional Privilege– Complaints against MDPs harder– Concentration of all the best in one place– Client confidentiality

Summary of lecture

• You now be able to:

1. Describe the roles of the two branches of the profession within the English Legal System;

2. Identify the different models for training within the English Legal System;

3. Describe areas for further reform of the professions and critically consider whether those reforms are desirable.

Further reading on the professions

• Zander, Cases and Materials on the English Legal System

• Slapper and Kelly

• Darbyshire On the English Legal System