THE LEGAL PROFESSION IN ENGLAND Unit 6

What can lawyers do for their clients?

Preview Branches of the legal profession Solicitors: type of work Solicitors’ professional organisation Solicitors’ training Barristers: type of work Barristers’ professional organisation Barristers’ training Advantages and disadvantages of a split profession Historical overview Legal terms

Branches of the legal profession Solicitors Barristers

Solicitors Provide members of the public – their clients – with skilled advice and representation in all legal matters

Instructions Anyone who needs legal advice or to have legal work done will go to a solicitor’s office and tell them what he requires – this is called giving a solicitor instructions Each set of instructions is called a brief

Solicitors Work on their own, or as partners with other solicitors A solicitor’s practice: firm of solicitors

Solicitors Traditionally worked in partnerships, based in local communities Undertook a broad range of work: divorce, conveyancing, draftig wills, dealing with criminal and civil litigation This is still the case with small firms (‘high street firms’) but increasingly solicitors work in large firms and have to specialize

Solicitors Large firms of solicitors (‘commercial’) firms have a number of specialist departments, such as company/commercial, property, private client, litigation Many areas of law – complex, change on a daily basis An individual solicitor cannot keep up to date Solicitors have to narrow their field of expertise and practice

Solicitors In a company department there may be sub-departments dealing with intellectual property, pensions, banking and finance, and insolvency The largest commercial firms – a huge array of specialist areas of expertise

Solicitors May also work ‘in-house’, i.e. as employees of business or other organisation or may be employed by local or central government Many large companies and local authorities have their own legal departments and solicitors, as well as acting for the company in legal matters, may also perform other roles, such as company secretary

Solicitors’ ‘monopolies’ Certain areas of work were once ‘reserved’ to solicitors: e.g. administering a deceased person’s estate (probate), conveyancing

Abolition of monopolies 1985 Administration of Justice Act – created licensed conveyancers 2007 Legal Services Act – allows non-solicitors to carry out some types of legal work, e.g. exercise a right of audience, conduct litigation, probate activities, notarial activities etc.

Representation in court Solicitors may represent their clients in magistrates’ courts and county courts Also: at tribunals Traditionally, a barrister had to be instructed if a client required representation in the higher courts Solicitors may be accredited for higher rights following the completion of an advocacy assessment: separate awards for civil and criminal advocacy

The right of audience The Courts and Legal Services Act 1990, as amended by the Access to Justice Act 1999 grants rights of audience in the higher courts to the solicitors who are admitted or registered, and who have complied with additional assessment requirements

Type of work The public comes into contact with solicitors more than any other people who work in the law; this gives them a unique insight into how decisions of the courts are made

Legal advice Solicitors must be able to explain what the law is and how a particular set of circumstances is affected by the law Good knowledge of the law and sound common sense

Family or ‘High Street’ Solicitor ‘on call’ to deal with almost every aspect of legal life Individual clients (crime, personal injury claims, family matters, employment and social security problems) Other clients: estate agents, bank managers, accountants

Legal firms The size of a legal firm can vary from one qualified solicitor (a sole practitioner) to firms with a global presence and over 3,000 solicitors Until 2001, solicitors could only practise as sole practitioners or in partnerships Since the Limited Liability Partnerships Act 2001, solicitors have been able to form limited liability partnerships (LLP) – a legal entity separate from its members: can own property, enter into contracts, bring legal proceedings, etc.

Solicitors and barristers Solicitors have direct contact with their clients, barristers do not The solicitor’s relationship with a client – more personal

Solicitors and barristers A client who needs the services of a barrister had to go first to a solicitor, who will instruct, or brief the barrister The solicitor would then choose the barrister who is right for the case, and help prepare the case for court

The Bar Council's Public Access Rules in 2004 The Bar Council's Public Access Rules in 2004 allow barristers to accept instructions directly from members of the public. Exceptionally, barristers may not accept instructions from the area of criminal and family law, as well as immigration.

The Law Society The professional body that governs the solicitors’ branch of the legal profession Responsible for the training of solicitors

The Law Society Solicitors - ‘admitted to the Rolls’, which means their names are entered on the roll (list) of solicitors permitted to practise They must have a practising certificate issued by the Law Society In 2013: 167, 457 solicitors

The Law Society Makes rules as to how solicitors should look after their clients Carries out spot-checks and audits Disciplinary powers

Training A law degree – not essential A student who does not graduate in law takes a conversion course, or the Graduate Diploma in Law (GDL/CPE) 1 year (full time) or 2 years (part-time)

Training A qualifying law degree must include the following subjects: Constitutional and administrative law Contract law Criminal law Equity and trusts EU law Land law tort

Traininig Following successful completion of the academic stage, a student must enrol on the vocational stage: the legal practice course 1-year course that puts academic legal theory into practice and equips students for their training contract

Training Following satisfactory completion of LPC, the practical stage of the training process starts: a training contract with a firm of solicitors or local authority Fierce competition (small number of training contracts) The training contract lasts 2 years during which time the trainee must work in three different areas of practice

Training A typical training contract at a medium sized firm could include 4 ‘seats’: family law, conveyancing, civil litigation, and crime At the end of the successful completion of the two-year training period, a trainee is admitted as a fully qualified solicitor Once qualified, the Solicitors Regulation Authority requires solicitors to undertake a minimum of 16 hrs per year of continuing education

Training The traditional training route to become a solicitor takes at least 6 years Fees for undergraduate courses, fees charged for GDL and LPC No guarantee of a training place after completion of the academic and vocational stages of training Studies have shown that the system discriminates against prospective lawyers from lower socio-economic groups and ensures that the profession remains the preserve of a narrow section of society

Liability of solicitors The relationship between a solicitor and a client – contractual Each party may be sued if they fail to meet the obligations set out in the contract Solicitors may be sued for negligence if loss has been caused to someone to whom they owed the duty of care, e.g. a client or a beneficiary of a will

Barristers

Barristers Barrister-at-Law; also known as counsel

Barristers Litigation or ‘courtroom lawyers’ who actually conduct cases in court Rights of audience (rights to appear) in any court (Crown Court, Hight Court, courts of appeal)

Barristers Mostly specialise in just one or two aspects of litigation (only criminal cases, or one or more of the many types of civil case) Some: spend their professional lives advising, and writing opinions at the request of solicitors in cases that involve difficult and complicated areas of the law

Barristers Lay clients could not see a barrister directly; they could only arrange to be represented by a barrister or to take his advice by first going to a solicitor; the solicitor would then instruct or brief the barrister to help the client

The Bar Council's Public Access Rules (2004) The Bar Council's Public Access Rules in 2004 allow barristers to accept instructions directly from members of the public.

Barristers Unlike solicitors, barristers cannot work in partnerships Self-employed In-house lawyers

Barristers Since barristers cannot form partnerships, it makes sense for them to share expensive resources, such as premises, secretarial support, library facilities, a clerk who acts as a business manager

Inns of Court For centuries, the training institutions and professional societies for barristers

Inns of Court Gray’s Inn (1370) Lincoln’s Inn (1422) Inner Temple (1440) Middle Temple (1404)

Gray’s Inn

Lincoln’s Inn

Lincoln’s Inn (Banqueting Hall)

Inner Temple

Middle Temple

Inns of Court In order to become a barrister, students must pass all the necessary law exams; they must also attend ‘qualifying sessions’ which include ‘dining in Hall’ and other educational activities

Dining in Hall Eating a number of dinners in the Great Hall of an Inn of Court Dates from the days when students received their legal education by attending lectures which were given while they were dining in Hall

Inns of Court Each Inn has its own hall, common rooms, library, and church It is run by a number of Masters of the Bench, or benchers (senior barristers and judges who belong to the Inn, who are elected to govern it)

Call to the Bar When they qualify they are ‘called to the Bar’ dates from the days when each courtroom was fitted with a bar dividing the area used by the court from the general public. Only barristers were allowed to step up to the bar to plead their clients’ cases

Call to the Bar The ceremony that takes place in the Hall, at which newly qualified barristers are formally admitted and welcomed into the profession When barristers first qualify they are known as ‘junior counsel’

Barrister’s clerk Arranges court appearances and meetings between clients, solicitors, and barristers (conferences) Negotiates barristers’ fees Acts as liaison between the barristers and instructing solicitors

Queen’s Counsel After 10 years of experience, a junior counsel who produces work of a high standard, may be appointed by the Lord Chancellor to be ‘One of Her Majesty’s Counsel Learned in the Law’ : Queen’s Counsel (QC) Becoming a QC: taking silk

‘Cab rank’ rule A barrister must accept any case referred by a solicitor, provided that it is in their area of practice, they are available, and a reasonable fee is payable

Barristers’ access to clients Traditionally, barristers could not be instructed by members of the public; could only be instructed by a solicitor Licensed Access allows certain organisations, such as firms of accountants, to instruct barristers directly

Barristers’ access to clients 2004 The Bar Council’s Public Access Rules came into force allowing barristers to accept instructions directly from members of the public in mainly civil work May not accept instructions from members of the public in criminal, family, and immigration law

Barristers 2010: 15,387 practising barristers in England and Wales 65% male, 45% female

Type of work Advocacy – work in court The art of advocacy – the art of persuasion

Principles of advocacy ‘A practising barrister must promote and protect fearlessly and by all proper and lawful means his client’s best interests without regard to his own interests or to any consequences to himself or to any other person’ (Barrister’s Code of Conduct)

Training 1.A degree in law/or Conversion course 2.Membership in an Inn of Court (‘keeping terms’ 3. One-year Bar Professional Training Course (BPTC) 4. Examination 5. Pupillage

BPTC Course: content Case work skills: Case preparation, Legal research Written Skills:Opinion-writing (giving written advice on cases), Drafting (writing various types of documents required for litigation) Interpersonal skills: Conference skills (interviewing clients), Negotiation, Advocacy (court or tribunal appearances) Legal knowledge: Civil litigation and remedies, Criminal litigation and sentencing, Evidence, Professional ethics, optional subjects, e.g. commercial law

Pupillage Apprenticeship with an experienced barrister in a set of barristers’ chambers 6 months with one ‘pupil master’ and 6 with another, in order to gain a wider experience

Pupillage During the first six months a young barrister is not allowed to appear in court on his own During the second six months he may do so in ‘appropriate cases’ Difficult to obtain pupillage: intense competition

Tenancy After completing a pupillage, the new barrister can apply to become a tenant in a set of chambers Very difficult to be accepted

Tenancy If accepted, the new tenant will use the chambers as a base, and will be ‘clerked’ from them Tenants have to make a contribution towards the expenses of running the chambers

Tenancy All barristers in chambers – self-employed: no guarantee of regular income or regular work Continuing education required: min. 45 hrs in the first three years; after this: 12 hrs per year

Bar Council The governing body for barristers Issues a code of conduct to which all barristers are obliged to adhere Regulates activities of barristers, maintains standards within the Bar Considers complaints against barristers

Liability of barristers Traditionally – could not be sued for negligence This protection – removed in 2000

Advantages Having an independent barrister reviewing a course of action gives the client a fresh and independent opinion from an expert in the field. A barrister acts as a check on the solicitor conducting the trial; if it becomes apparent that the claim or defence has not been properly conducted by the solicitor prior to trial, the barrister can (and usually has a duty to) advise the client of a separate possible claim against the solicitor. Having trials conducted by experienced specialist advocates makes for smoother,more professionally run trials.

Disadvantages A multiplicity of legal advisers leads to higher costs As barristers are dependent upon solicitors for referrals of work, it is open to question how willing barristers are to criticise those who instruct them to the client. Barristers are sometimes criticised for being "over-specialised" and not having sufficient general expertise outside of what can be highly specialised fields.

Historical development: The emergence of barristers England saw the very early emergence of a centralised system of justice within the Royal Courts Common law courts supplanted local courts A legal profession operating in the central courts – 13th century

Factors facilitating the development of the legal profession The language of the court – Norman French Geography – impossible to make all the necessary journeys from a litigant’s local estates to the Royal Court Litigants required persons who could speak for them in court and attorneys for procedural purposes who could act on their behalf in their absence

Emergence of barristers In late 13th c. the Common Bench judges decided who they would permit to appear as advocates – these persons began to form an elite which stood apart from other legal practitioners 14th c. they organised into a guild known as “order of serjeants at law” Admission to the guild – conducted by the judges of the Common Bench

Education of barristers 13th c. – legal education available; texts of lectures and disputations survive 1280s students referred to as “apprentices of the bench” 14th c. apprentices began to live around the area of the four Inns of Court 15th c. The Inns of Court – collegiate establishments (the “Third University of England”)

The emergence of solicitors 15th c. solicitors – persons who helped clients through the legal labyrinth, instructing counsel on their behalf In 16th c. solicitors were young barristers Sufficient advocacy work to occupy the Bar, leaving preliminary interviews with clients and procedural matters to solicitors

Further Developments 17th c. – division of responsibility between solicitor and barrister Rules preventing barristers from undertaking the work of solicitors and excluding solicitors from the Inns of Court

Status of solicitors 17th and 18th c. status of solicitors improved – legal advisors of the wealthy 1804 conveyancing monopoly 19th c. probate, divorce and Admiralty work Rights of audience in County Courts (set up in 1846)

Training: summary Solicitors Barristers Degree, if not in law then a Graduate Diploma in Law/Common Professional Examination Legal Practice Course Bar Professional Training Course Training contract Pupillage

Role: Summary Solicitors Barristers Private practice in solicitors’firm Self-employed in chambers Wide variety of work Mostly court work Contracts, wills, conveyancing Also write opinions and draft documents Direct access by clients Direct access limited to other professions, e.g. accountants

Advocacy rights: summary Solicitors Barristers Advocacy certificate Full rights

Supervision Solicitors Barristers Law Society Bar Council

Legal terms Barrister odvjetnik s pravom zastupanja pred svim sudovima Solicitor odvjetnik s pravom zastupanja pred nižim sudovima

Legal terms Instructions Details of the case given by a client to a solicitor, or by a solicitor to a barrister

Legal terms Client A person who pays for a service carried out by a professional person such as a solicitor A person who employs a solicitor to carry out legal business on his behalf; a solicitor’s client cannot consult a barrister directly but only through his solicitor; the solicitor is therefore the barrister’s client

Legal terms Estate: all the property that is owned by a person, especially a person who has recently died Ostavinska masa, ostavina Conveyancing: drawing up a document which legally transfers property from a seller to a buyer Sastavljanje dokumenta o prijenosu vlasništva

Legal terms Brief: details of a client’s case, prepared by a solicitor and given to the barrister who is going to argue the case in court To brief a barrister to give a barrister all the details of the case which he will argue in court

Legal terms Defamation: act of injuring someone’s reputation by maliciously saying or writing things about them Negligence: the tort of acting carelessly towards others so as to cause harm, entitling the injured party to claim damages Nehaj, nemar

Legal terms To sue: to start legal proceedings against someone to get compensation for a wrong Damages: money claimed by a claimant from a defendant as compensation for harm done Liable: legally responsible for something

Legal terms Pleadings: documents setting out the claim of the claimant or the defence of the defendant, or giving the arguments which the two sides will use in proceedings Iskazi parničkih stranaka, podnesci u građanskom postupku

Exercise: Legal professionals Below is a list of tasks carried out by solicitors and barristers. Classify them: advising clients on general legal issues, advising clients on specialist legal issues, advising on litigation, advising on tax matters, advocacy in all courts, advocacy in lower courts, commercial work, conveyancing of houses, dealing with commercial transactions, drafting of documents in connection with litigation, making wills, preparing cases, share and other property dealings

Solicitors Advising clients on general legal issues Advising on tax matters Advocacy in lower courts Commercial work Conveyancing of houses Dealing with commercial transactions Making wills Preparing cases Share and other property dealings

Barristers Advocacy in all courts Advising clients on specialist legal issues Advising on litigation Drafting of documents in connection with litigation

Exercise 2: Legal training Legal training for solicitors (who provide general legal advice to clients) and barristers (who present cases in the upper courts) is different. The following texts describe the stages in legal training, but they are mixed up. Put the steps into the correct category (Training for solicitors/Training for barristers) and order:

Exercise 2 1. PRACTICE AND CONTINUING EDUCATION The next stage is to obtrain a ‘tenancy’: becoming an assistant to a practising barrister. 2. GETTING THE QUALIFICATIONS The next step is to acquire some legal traiing specific to the work of a barrister. 3. DEVELOPING PRACTICAL SKILLS Next the intending solicitor has to enter a two-year training contract with a firm of solicitors to gain practical experience in a variety of areas of law.

Exercise 2 4. GETTING THE TRAINING AND EXPERIENCE: PUPILLAGE This is the ‘apprenticeship’ served by trainee barristers, who are known as pupils. It usually takes a year and consists of a mixture of assisting and observing experienced barristers, as well as more practical experience. 5. GETTING THE ACADEMIC QUALIFICATIONS The quickest and most common route to qualification is by means of a qualifying law degree.

Exercise 2 6. GETTING THE VOCATIONAL QUALIFICATIONS You will have to undertake the Legal Practice Course, which is the professional training for solicitors. The course teaches the practical application of the law to the needs of clients. 7. GETTING THE ACADEMIC QUALIFICATIONS The first part of training to become a barrister is known as the academic stage, which provides a general theoretical introduction to the law.

Exercise 2 Training for solicitors 5, 6, 3 Training for barristers 7, 2, 4, 1

Exercise 3 VERB NOUN NOUN - PERSON partner trainee advise practice partner trainee advise practice specialise

Exercise 4 Match the two parts of the definitions: 1. Someone who works for his or herself is 2. If you speak on behalf of clients in court, you 3. Non-professional clients are known as 4. Barristers working solely for a company are called 5. The governing authorities of barristers are 6. When a solicitor gives a barrister the details of a case, the barrister is 7. When you work as a barrister you

Exercise 4 A) provide representation B) lay clients C) Self-employed/ a sole trader D) instructed E) in-house counsel F) practise at the Bar G) the Bar Council and the Inns of Court

Key 1c 2a 3b 4e 5g 6d 7f

Exercise 5 Complete the extracts from a trainee barrister describing her professional life using the following: advocacy, Bar Vocational Course, chambers, conversion course, document/pleading/opinion, exercise rights of audience, pupillage, pupil master, senior barrister, shadow

advocacy, Bar Vocational Course, chambers, conversion course, document/pleading/opinion, exercise rights of audience, pupillage, pupil master, senior barrister, shadow I took a first degree in Modern History, then did the ____ ____ in law at City University, which was much harder. I then did the ____ _____ _____ at the Inns of Court School of Law. Most days I’d expect to be present in ____from about 8.45 am to 7.00pm, working almost throughout in my ____ _____’s room. During that time I ____his professional life completely.

advocacy, Bar Vocational Course, chambers, conversion course, document/pleading/opinion, exercise rights of audience, pupillage, pupil master, senior barrister, shadow I generally look at papers when they first come in. I’m expected to be able to suggest how the case might be approached. In a week I might draft a___, prepare notes for a conference with clients, comment on draft witness statements, and research legal points. Although all ___ are for twelve months, if they think you have no prospect of finding a ____in the chambers, after six months you would be told discreetly.

____ _____ _____ in court. advocacy, Bar Vocational Course, chambers, conversion course, document/pleading/opinion, exercise rights of audience, pupillage, pupil master, senior barrister, shadow Chambers runs ___training evenings to reduce the loss of opportunity to ____ ____ _____ _____ in court. When I’ve prectised for more than ten years, I’d be interested in being appointed as a _____ ______, with a specialist area such as employment law.

Key I took a first degree in Modern History, then did the conversion course in law at City University, which was much harder. I then did the Bar Vocational Course at the Inns of Court Schoold of Law. Most days I’d expect to be present in chambers from about 8.45 am to 7.00pm, working almost throughout in my pupil master’s room. During that time I shadow his professional life completely.

Key I generally look at papers when they first come in. I’m expected to be able to suggest how the case might be approached. In a week I might draft a pleading/opinion/document, prepare notes for a conference with clients, comment on draft witness statements, and research legal points.

Key Although all pupillages are for twelve months, if they think you have no prospect of finding a tenancy in the chambers, after six months you would be told discreetly. Chambers runs advocacy training evenings to reduce the loss of opportunity to exercise rights of audience in court.

Key When I’ve practised for more than ten years, I’d be interested in being appointed as a senior barrister, with a specialist area such as employment law.

Additional information Barristers: www.barcouncil.org.uk Solicitors: www.lawsociety.org.uk/home.law International professional organisations www.ibanet.org

Inns of Court https://www.youtube.com/watch?v=R80ZjoyLMkA