Topic 11 The legal profession

Barristers and solicitors Topic 11 The legal profession: barristers and solicitors Barristers and solicitors

Barristers and solicitors Topic 11 The legal profession: barristers and solicitors Barristers and solicitors education and training work complaints

Education and training Topic 11 The legal profession: barristers and solicitors Education and training degree vocational course training further qualifications

Degree Topic 11 The legal profession: barristers and solicitors A student wishing to pursue a career as a barrister or solicitor may read a degree in any discipline. Most take an LLB law degree, but if a student completes a degree in another subject, there is a 1-year law conversion course called the Common Professional Examination (CPE).

Vocational course Topic 11 The legal profession: barristers and solicitors Vocational course A decision must be made between becoming a solicitor or a barrister, and depending on this decision there are two different courses that can be taken: Potential solicitors will take the Legal Practice Course (LPC). Potential barristers will take the Bar Vocational Course (BVC).

Training: solicitors Topic 11 The legal profession: barristers and solicitors Training: solicitors Solicitors complete a training contract, which usually involves 2 years’ practical experience in a solicitor’s office, but it can also be with a government department, the Crown Prosecution Service, the Magistrates Court Service or in-house legal departments. The time is usually spent working in various departments so that the trainee gains practical experience in at least three different areas.

Training: barristers Topic 11 The legal profession: barristers and solicitors Training: barristers Barristers complete a pupillage. This is usually carried out in chambers and is divided into two periods of 6 months. A pupil will shadow an experienced barrister for 6 months and then undertake his or her own work in their second 6 months. There are a limited number of other places where pupillage can be carried out, including working in the European Commission. Once the pupillage is completed, the barrister needs to become a permanent member of the chambers or a ‘tenant’.

Further qualifications Topic 11 The legal profession: barristers and solicitors Further qualifications Solicitors can complete a certificate of advocacy, which will allow them greater rights of audience in the higher courts. Barristers receive on-going training covering advocacy, case preparation and procedure, professional conduct and ethics. Both solicitors and barristers can apply for the judiciary and the position of Queen’s Counsel.

Work of solicitors Topic 11 The legal profession: barristers and solicitors Work of solicitors There are over 100,000 solicitors in the UK who are supervised and represented by the Law Society. Some solicitors work alone but most work in partnerships, owned and managed by several partners who take a share of any profits. The type of work that a solicitor might do varies greatly depending upon the type of firm that they work for. In addition, most solicitors specialise in a couple of areas and may know very little about law in other areas.

Topic 11 The legal profession: barristers and solicitors Types of law firm Most law firms can be divided between high street firms and commercial firms.

High street solicitors’ firms Topic 11 The legal profession: barristers and solicitors High street solicitors’ firms High street solicitors’ firms may have several offices throughout a region. They generally deal with individual clients and cover criminal law or civil law or both. Some will carry out publicly funded work paid for by legal aid. They may advise and represent a client who has been charged with a criminal offence. They may carry out the necessary conveyancing when someone is buying or selling property or they may advise on personal injury matters or the mechanics of drafting a will.

Commercial solicitors’ firms Topic 11 The legal profession: barristers and solicitors Commercial solicitors’ firms Commercial solicitors’ firms often have offices throughout the world and they tend to work for businesses rather than individuals and as such are called on to provide a different range of services. Commercial firms may advise clients on intellectual property matters, mergers and acquisitions, employment contracts and business conveyancing. Commercial lawyers may also represent wealthy individuals.

A solicitor’s typical day Topic 11 The legal profession: barristers and solicitors A solicitor’s typical day As there is so much variation in the type of work solicitors carry out, there is a big difference in the activities that make up their typical working days. Many solicitors begin by reviewing and responding to the huge amount of mail that they receive. Some will draft documents such as a contract of employment or a will. Many solicitors spend their days meeting with clients or negotiating settlements or attending court. Others may draft instructions for a barrister whose opinion they require upon a particular matter.

Employed solicitors Topic 11 The legal profession: barristers and solicitors Employed solicitors Not all solicitors work in private practice. Increasing numbers of solicitors are employed outside solicitors’ firms. They may work in an in-house legal department for a large corporation, for the Legal Services Commission or the Crown Prosecution Service, for local government or in the Magistrates’ Courts as clerks.

Work of barristers Topic 11 The legal profession: barristers and solicitors Work of barristers There are about 15,000 barristers in the UK who are governed and supervised by the Bar Council. Most of these barristers are self-employed but share administrative costs by working together in chambers. A few are sole practitioners.

Advocacy Topic 11 The legal profession: barristers and solicitors Traditionally, barristers have specialised in advocacy — representing clients in court in both criminal and civil cases. Barristers will also have conferences with their clients to discuss certain aspects of their cases. These conferences may be before the case goes to court, or in straightforward cases, a barrister may hold a pre-hearing conference on the actual day of the court hearing.

Written opinions Topic 11 The legal profession: barristers and solicitors Written opinions Barristers write opinions, usually on the instructions of a solicitor. Opinions give their views on matters such as the strengths and weaknesses of a case, how a complex area of the law relates to a particular case, and whether evidence is likely to be admissible or not.

The ‘cab-rank’ rule Topic 11 The legal profession: barristers and solicitors The ‘cab-rank’ rule Self-employed barristers work according to the ‘cab-rank’ rule, whereby if they have the time and skills and are offered a reasonable fee they must accept the job. This is to avoid situations where some people may not be able to get a barrister to represent them.

Instructing a barrister Topic 11 The legal profession: barristers and solicitors Instructing a barrister It used to be the case that only solicitors could instruct a barrister, but from 1989, some professions have been allowed to instruct barristers directly either for their own needs or on behalf of their clients.

Direct access Topic 11 The legal profession: barristers and solicitors Barristers can provide direct assistance, but those seeking such access have to apply for a licence. Those who are licensed include members of organisations such as the Chartered Institute of Building, the Society of Financial Advisors, the Engineering Council and several accountancy institutes. Some groups have direct access without the need for a licence, including employed barristers and certain legal advice centres.

Public access Topic 11 The legal profession: barristers and solicitors Members of the public can, since 2003, go directly to a barrister in a number of cases, rather than needing to instruct a solicitor first. This is known as public access. Barristers must fulfil certain conditions before they can accept public access work, including practising for at least 3 years and attending a training course. Public access is allowed in most areas but there are exceptions, which include some areas of criminal, family and immigration work.

Employed barristers Topic 11 The legal profession: barristers and solicitors Employed barristers About 3,000 barristers are employed rather than self-employed. They work for a variety of organisations including in-house legal departments, government departments and advice centres.

Queen’s Counsel (1) Topic 11 The legal profession: barristers and solicitors Queen’s Counsel (1) Barristers may apply to become a Queen’s Counsel. The system dealing with these applications has recently changed and has become more transparent than previous methods, which had been heavily criticised. Applicants pay a fee of £1,800 initially and a further £2,250 if successful. They complete a form giving details of their work and skills and listing several referees who are familiar with their work. After a selection panel has reviewed their applications, candidates are interviewed.

Queen’s Counsel (2) Topic 11 The legal profession: barristers and solicitors Queen’s Counsel (2) The advantages for those who are successful in achieving QC status are that they gain an elevated status among their peers. They can command much higher fees, often as well as having a junior barrister to assist them. They can also wear silk rather than polyester gowns!

Complaints against solicitors Topic 11 The legal profession: barristers and solicitors Complaints against solicitors There are various ways to complain about a solicitor if a client is dissatisfied with the service that he or she has received or the amount that he or she has been asked to pay. These options include: speak to the solicitor the Law Society Legal Services Ombudsman action through the courts

Speak to the solicitor Topic 11 The legal profession: barristers and solicitors Speak to the solicitor The first step in a complaint is to raise the matter with the solicitor or the firm that they work for. All firms should have a process in place for dealing with complaints. Ideally, the complaint should be made in writing (the Law Society has a resolution form on its website that can be printed off and filled in). The dissatisfied client should explain what the complaint is about and how he or she would like it to be resolved. Many complaints are resolved at this stage.

Topic 11 The legal profession: barristers and solicitors The Law Society If a firm does not reply to a complaint within a reasonable amount of time or if the complaint has not been resolved, the next step is for the client to contact the Law Society. This must be within the time limits that the Law Society sets down — usually 6 months. It will investigate the complaint and has the power to reduce the solicitor’s bill, order the solicitor to pay compensation of up to £15,000 or tell him or her to correct the mistake and meet any costs incurred.

Legal Services Complaints Commissioner Topic 11 The legal profession: barristers and solicitors Legal Services Complaints Commissioner The Office of the Legal Services Complaints Commissioner was set up following the Access to Justice Act 1999. It works with the Law Society and represents the interests of consumers to improve complaints handling.

Legal Services Ombudsman Topic 11 The legal profession: barristers and solicitors Legal Services Ombudsman If the client is unhappy with the way that the Law Society has investigated a complaint, he or she can make a final appeal to the Legal Services Ombudsman (LSO), currently Zahida Manzoor. This must be within 3 months of receiving the Law Society’s decision. The LSO will not usually look at the original complaint but rather at how it was dealt with by the Law Society. The powers of the LSO include recomending that the Law Society reconsider the complaint, formally criticising the Law Society or ordering it to pay compensation.

Action through the courts Topic 11 The legal profession: barristers and solicitors Action through the courts A dissatisfied client can sue the solicitor through the courts for neglience. He or she would have to prove that the solicitor fell below the standards of a reasonable solicitor. The courts are able to award compensation if the client is successful.

Complaints against barristers Topic 11 The legal profession: barristers and solicitors Complaints against barristers Clients with a complaint against a barrister should speak to their solicitor, if they have one, to see whether he or she agrees with the complaint and if he or she can resolve it. Other options include: the Bar Council the Complaints Commissioners the Legal Services Ombudsman action through the courts

Topic 11 The legal profession: barristers and solicitors The Bar Council If the complaint cannot be resolved by a solicitor, the next step is for the client to contact the Bar Council. This must usually be done within 6 months of the complaint arising.

The Complaints Commissioner Topic 11 The legal profession: barristers and solicitors The Complaints Commissioner The Complaints Commissioner oversees the complaints process and investigates any complaints. The current Commissioner is Michael Scott, who is a non-lawyer entirely independent from the Bar Council. If, after consideration of the complaint, the Commissioner thinks that it might be justified, he will refer it to the Professional Conduct and Complaints Committee (PCC) for its opinion. If it agrees, the complaint is sent to a disciplinary panel for a final decision as to whether the complaint is justified and, if so, to determine the measures that should be taken.

Legal Services Ombudsman Topic 11 The legal profession: barristers and solicitors Legal Services Ombudsman As with solicitors, if the client is unhappy with the way that the Bar Council investigated the complaint, he or she can make a final appeal to the Legal Services Ombudsman. The process is the same for barristers and solicitors.

Action through the courts Topic 11 The legal profession: barristers and solicitors Action through the courts Again, as with solicitors, a dissatisfied client can sue a barrister through the courts for negligence. Barristers used to have immunity from liability, but that changed in 2000 when the House of Lords abolished this protection in the case of Arthur JS Hall and Co. v Simons (2000).

Crown Prosecution Service Topic 11 The legal profession: Crown Prosecution Service Crown Prosecution Service

Introduction to the Crown Prosecution Service Topic 11 The legal profession: Crown Prosecution Service Introduction to the Crown Prosecution Service The Crown Prosecution Service (CPS) was created under the Prosecution of Offences Act 1985. Its main responsibility is prosecuting those charged with criminal offences. Prior to the setting up of the CPS, the police used to investigate and prosecute cases themselves.

The CPS role deciding whether to prosecute Topic 11 The legal profession: Crown Prosecution Service The CPS role deciding whether to prosecute staff

Role Topic 11 The legal profession: Crown Prosecution Service The CPS works both in offices and in police stations, deciding who to charge and who to release. If a person is to be charged, it decides what he or she will be charged with. The CPS reviews cases submitted to it and decides whether or not to prosecute. If a prosecution is to go ahead, the CPS prepares and presents the case in court. The CPS used to employ many barristers to present prosecutions in Crown Court.

Deciding whether to prosecute Topic 11 The legal profession: Crown Prosecution Service Deciding whether to prosecute Decisions on whether to prosecute are based on a two-stage test in the Code for Crown Prosecutors. The CPS will first consider whether the evidence available gives a realistic prospect of conviction in court and if so, it must then consider whether it is in the public interest to prosecute. It will take into account the circumstances of the offence, looking at the motive behind it and how it was carried out, for example if a weapon was used or whether the victim was serving the public. If both tests are satisfied, a prosecution will go ahead.

Staff Topic 11 The legal profession: Crown Prosecution Service The CPS is headed by the Director of Public Prosecutions (DPP), currently Ken Macdonald QC. The DPP reports to the Attorney General, currently Lord Goldsmith, who is, in turn, responsible to Parliament. The CPS has several offices around England and Wales that deal with around 1.3 million cases a year, the vast majority of which are in the Magistrates’ Court. It employs about 7,700 staff, 2,500 of which are lawyers.

Topic 11 The legal profession: judges Judges

Introduction to judges Topic 11 The legal profession: judges Introduction to judges types of judge termination judicial independence

Types of judge Topic 11 The legal profession: judges Law Lords Judges in the Court of Appeal High Court Judges Circuit Judges District Judges District Judges (Magistrates’ Court) Recorders (part-time judges)

Law Lords Topic 11 The legal profession: judges Title: Lords of Appeal in Ordinary/Law Lords Number: 12 Court: House of Lords and Privy Council Appointed by: the queen on recommendation of the prime minister, who has been advised by the Lord Chancellor Qualifications: appointed from those who hold high judicial office, e.g. a judge in the Court of Appeal, or from those with 15 years’ experience of supreme courts

Judges in the Court of Appeal Topic 11 The legal profession: judges Judges in the Court of Appeal Title: Lord and Lady Justices of Appeal Number: 37 Court: Court of Appeal Appointed by: the queen on recommendation of the prime minister, who has been advised by the Lord Chancellor; the Lord Chancellor will have consulted senior members of the judiciary Qualifications: the statutory qualification is a 10-year High Court qualification or being a High Court Judge; most Court of Appeal judges are promoted from the ranks of experienced High Court Judges

High Court Judges Topic 11 The legal profession: judges Title: Mr or Mrs Justice (Surname) Number: 112 Court: High Court and serious cases in Crown Court Appointed by: the queen on advice from Lord Chancellor. Qualifications: they must have a right of audience in relation to all proceedings in the High Court for 10 years, or have been a Circuit Judge for at least 2 years; once appointed, they are assigned to a Division of the High Court — the Chancery Division, the Queen's Bench Division, or the Family Division.

Circuit Judges Topic 11 The legal profession: judges Number: 636 and 42 Deputy Circuit Judges who sit part time in retirement Court: Circuit Judges are assigned to a particular circuit and may sit at any of the Crown and County Courts on that circuit; they can hear both criminal and civil cases Appointed by: the queen on the recommendation of the Lord Chancellor Qualifications: 10-year Crown Court or 10-year County Court qualification or to be the holder of one of a number of other judicial offices for at least 3 years

District Judges Topic 11 The legal profession: judges Number: 412, and 744 Deputy District Judges Court: on appointment, a District Judge is assigned to a particular circuit and may sit at any of the County Courts or District Registries of the High Court in that circuit; a District Registry is part of the High Court, situated in various places in England and Wales Appointed by: the Lord Chancellor Qualifications: 7-year general qualification

District Judges (Magistrates’ Court) Topic 11 The legal profession: judges District Judges (Magistrates’ Court) Number: 128, and 167 Deputy District Judges (Magistrates’ Court) Court: District Judges (Magistrates’ Court) hear cases in Magistrates’ Courts; they are paid and deal with the full range of cases and usually hear the longest and most complicated cases; they can either sit alone or with lay magistrates Appointed by: the Lord Chancellor Qualifications: 7-year general qualification

Recorders (part-time judges) Topic 11 The legal profession: judges Recorders (part-time judges) Number: 1,404 Court: Recorders may sit in both the Crown and County Courts;most begin in the Crown Court, although after about 2 years and further training, they may sit in the County Courts; a Recorder must sit for at least 15 days a year but not normally for more than 30 days Appointed by: the queen on the recommendation of the Lord Chancellor Qualifications: the statutory qualification for appointment as a Recorder is a 10-year Crown Court or 10-year County Court qualification

Termination Topic 11 The legal profession: judges A judge’s appointment can be terminated in four different ways: resignation retirement removal due to infirmity dismissal

Resignation Topic 11 The legal profession: judges Judges may resign at any time. This has been used in the past as a way of getting rid of judges without having to dismiss them, by giving them an opportunity to resign instead.

Retirement Topic 11 The legal profession: judges The usual retirement age for judges is 70.

Removal due to infirmity Topic 11 The legal profession: judges Removal due to infirmity This method is used if a judge is incapacitated, usually through ill health, and is unable to resign.

Dismissal Topic 11 The legal profession: judges Judges are given security of tenure during good behaviour. Following the Act of Settlement 1700, the Law Lords, Lords Justices of Appeal and High Court Judges can only be removed by the queen on the petition of both Houses of Parliament. Circuit Judges and other judges can be removed by the Lord Chancellor for incapacity or misbehaviour.

Judicial independence Topic 11 The legal profession: judges Judicial independence Great weight is given to the notion of judicial independence, and it is central to the theory of the separation of powers. The idea behind it is simple, namely that judges should operate free from pressure, whether it be applied by the government, political parties or anyone else. Without pressure, judges are free to make independent and impartial decisions, without fear of reprisal.

Measures to ensure judicial independence Topic 11 The legal profession: judges Measures to ensure judicial independence Security of tenure Legal action against judges Judicial salaries Unable to take part in party politics

Security of tenure Topic 11 The legal profession: judges It is very difficult to dismiss a member of the judiciary. This is to ensure that he or she acts without fear of losing his or her job at the hands of the government or other bodies.

Legal action against judges Topic 11 The legal profession: judges Legal action against judges Judges cannot be sued for anything done in their judicial role.

Judicial salaries Topic 11 The legal profession: judges These are paid out of the consolidated fund and are not voted upon by Parliament, so judges will not be tempted to find in favour of the government in order to secure a pay rise. Equally, judges can act without fear of a wage cut if they make unpopular decisions.

Unable to take part in party politics Topic 11 The legal profession: judges Unable to take part in party politics Full-time judges must refrain from active political involvement.