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This was taken as a Word Document from Here: (Link now defunct)

 

Additional reading: Future of Law

 

Cautions:

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News Roundup

Speech on Legal Services Reform by the Lord Chancellor, 21 March 2005.

Barristers want clients to contact them directly. Sunday Times 30 Jan 2005

 

European Business Management School

THE LEGAL PROFESSION

 

There are two distinct and separate branches of the legal profession, namely:

 

BARRISTERS AND SOLICITORS

BARRISTERS

 

1.      In September 2000, there were 10,132 barristers practising in England and Wales.  They are collectively known as THE BAR.  Twenty five percent are women.

 

          Barristers, who are referred to as COUNSEL, have a history stretching back to the

13th Century and their profession remains steeped in custom and archaic restrictive practices.  When they appear in court they wear a black gown and white wig.

 

2.      All barristers have to be members of one of the four Inns of Court, which were established in medieval times.  These are the Inner Temple, the Middle Temple, Lincolns Inn and Grays Inn.  They are situated around The Law Courts in London.  The Inns are governed by the master of the bench who are judges and senior barristers.  A barrister, up until recently, had to sit at least 12 dinners at his/her Inn.  Now a number of dinners can be linked to seminars, lectures and weekend or day education courses.  The Inns today have five main functions.  They own and administer accommodation, which is rented to barristers for professional chambers (i.e. their offices).  They provide law libraries and common rooms for barristers and students.  They provide lunches and dinners for their members.  They award scholarships and bursaries for students and young barristers.  They help in the training of students and young barristers by the traditions of keeping terms through eating dinners, by moots, talks and practical exercises.

 

3.             All intended barristers must have a second-class honours degree, which is followed by a one-year course at the Inns of Court School of Law, where the emphasis is on practical aspects of advocacy and the study of academic subjects.  After the Bar final examinations and “call” to the Bar, a student must find a PUPILLAGE in chambers, where he is attached to an experienced barrister and attends court with him for 12 months.  Since 1992, pupils must take a further advocacy course before the end of pupillage.  Around half the 900 pupils each year receive funding of £6,000 for their 12-month pupillage from their chambers, but for the rest finance can be a big problem.  The Bar Council Scholarship Trust provides interest free loans of up to £4,000 but this does not go far e.g. a wig and gown costs about £550.  In March 2000 Rebecca Edmonds, a young barrister, brought a test case before the Court of Appeal to see if pupils were entitled to the minimum wage.  The Court of Appeal Held: - No they were not.  A pupil was not a worker within the definition of 1998 National Minimum Wage Act.  Pupillage was for the educational benefit of the pupil, providing nothing in return.  (EDMUNDS v LAWSON [2000]). The pupil can earn nothing for the first 6 months of pupillage, and even after that money comes in very slowly.  Some chambers have begun to pay their pupils and in 1990 this was put on a systematic basis where the Bar announced a scheme to pay 400 pupils a guaranteed £6,000 per annum.  This has now been raised to £10,000 per annum.  Once pupillage is complete, a Barrister needs to find a permanent place in barristers’ chambers in order to practice.  This is called a TENANCY.  These tenancies are very few and far between, and many people give up practice for jobs in other spheres.  Even the fortunate few who secure tenancies can by no means look forward to an assured future.  Unlike the newly qualified solicitor, who is paid a salary and given work by partners in his firm, the fledgling Barrister is expected to attract his own work and earn his own fees.  In practice, he will rely heavily on the Clerk to the Chambers to suggest his name to solicitors ringing up to ask for someone appropriate to handle simple County Court and Magistrates’ court work.

 

In 1999/2000 there were 2,018 applications under the Bar pupillage-clearing scheme (PACH) for 671 places of which only 226 were funded.

 

In 1998-1999 only 476 new barristers obtained a tenancy. Eventually, many abandon the Bar, taking jobs in business etc. or changing to the solicitors branch.

 

4.      When complex points of law or procedure are raised, or when representation in the higher courts is called for, a solicitor will engage a barrister (brief counsel) to represent his client. 

 

5.      The Clerk

 

          Each set of chambers must have a clerk who acts as an office administrator and accountant, business manager, i.e. he works for each member of chambers individually in maintaining his professional diary, checking court lists for cases, negotiating fees etc.  He also acts as AGENT advising barristers on the development of their practice, ensuring that beginners receive work according to their abilities and experience and advising on allocation work as between members of chambers.

 

          His own pay may be on a commission basis in the order of 5 to 10% of gross chambers income.  His earning capacity is, therefore, extraordinary, as he will be drawing anything from 5 to 10% of the professional earnings of 15 to 20 barristers.  He will normally be earning considerably more than most members of the chambers.  It is more common now for the Clerk to receive a salary.

 

N.B. Recent changes now allows a barrister who has at least 3 years practice experience to work without a clerk (even work from home).

 

6.      It is a rule of Bar conduct and etiquette that barristers may not form partnerships.  The members of chambers share the services of the clerk and office expenses, but they may not agree to share fees.  The basis of this rule is that the barrister is an individual and should take responsibility for his work as an individual.  Traditionally, the most important aspect of the barrister’s work is advocacy, or speaking in court, presenting the facts of the cases and legal arguments.  Barristers also draft documents connected with pre-trial work and write opinions for solicitors on points of law and evidence.

 

7.             Generally the client cannot deal directly with a barrister.  The solicitor will select a barrister.  Originally barristers could and did receive instructions direct from the lay client.  It was not until the 19th Century that it was finally settled that a barrister had to have instructions from the solicitor. A major relaxation to allow direct access by members of recognised professional bodies took effect from April 1989, e.g. accountants and surveyors and Citizens Advice Bureau can now consult a barrister without first going to the solicitor. ‘Bar Direct’, a pilot scheme set up in 1998=9 has opened the direct route to police, trade unions and professional bodies, e.g. BMA. 

 

8.             In the interests of his client, the solicitor must choose a barrister who specialises in the appropriate work, who has sufficient expertise in the area and is not too expensive.  The solicitor will send the barrister a “BRIEF”, which is a bundle of documents together with written instructions tied together with pink ribbon.  N.B. Problem of late return of briefs. 

 

9.      It is also a rule that was relaxed in 1996 that a barrister must not talk to the client without the presence of the solicitor.  Therefore, if the barrister wishes to discuss a case with the client, he will call a CONFERENCE at which the client, barrister and solicitor will attend.  When the barrister represents the client in court the solicitor will also attend.  (Since 1996 this has been relaxed to state that the solicitor need only attend in court if the matter is contentious).

 

10.        One of the most important differences between the solicitor and barrister was that the barrister has exclusive rights of audience in all courts, i.e. from the lowest courts of the Magistrates Court and County Court all the way to the House of Lords, which is the highest court in the country, whilst the solicitors rights of audience were limited to the lower courts (see later).  This practice evolved from an old common law rule that the courts can decide for themselves whom may appear before them, and by convention the higher courts reserved the right for barristers.  Therefore, if a client was to appear in a higher court he had to be represented by a barrister even though the solicitor was competent to conduct the case and had prepared it.  This was an area of great controversy between the solicitor and barrister.

 

The Court & Legal Services Act 1990 abolished the Bar’s exclusive rights of audience to the higher courts.  Now solicitors on obtaining certification can appear in the higher courts.  The first solicitor exercised this right in 1994.

 

11.    The barrister tends to specialise in one or two aspects of law, e.g. tax law, criminal law or commercial law, but many do general work so are not really specialists.

 

          The Bar describes itself as specialist advocates.  But, unlike the medical specialists’ claim to expertise, the Bar is not based on a rigorous programme of extra study and training.  There is much more training in advocacy than there used to be, but even so the newly called barrister has far less claim to the title of specialist advocate than the experienced solicitor.  The barristers’ claim to be a specialist in High Court, Crown Court and Appeal Court advocacy rests on his monopoly of audience in those courts.  Solicitors actually do more advocacy than barristers, though only in the lower courts.  For every person represented in court by a barrister, 9 are represented by solicitors.

 

12.    A barrister can now be sued for negligent conduct of a case in court and for negligent preparation at the pre-trial stage following the landmark House of Lords case of ARTHUR JS HALL & CO v SIMONS [2000]

 

          Prior to this case in RONDEL v WORSLEY [1968], Rondel was convicted of GBH and blamed his barrister, Mr Worsley, who had appeared to be asleep during the course of the trial.  Rondel then sued Worsley, claiming damages.

 

          The Court of Appeal decided that Rondel should win his case because barristers were immune from being sued in respect of conduct in court.  This sets a precedent that applies to later cases.

 

          In SAIF ALI v SYDNEY MITCHELL & CO [1980] it was held that this immunity did not extend to work outside court e.g. preparation, advice etc.

 

ARTHUR JS HALL & CO v SIMONS [2000]

 

Involved 3 cases, one involving a building dispute and two divorce cases where the clients wished to sue in negligence against their solicitors for the negligent conduct of the cases.

 

The question arose as to whether the immunity of an advocate (barrister or solicitor) in respect of the conduct of legal proceedings under RONDEL v WORSLEY and SAIFF ALI v SYDNEY MITCHELL & CO should be maintained?

 

 

The Facts: -

 

Mr Simons said that his solicitor negligently allowed him to become involved in lengthy and expensive litigation when they should have advised him to settle.

 

Mr Barratt said his solicitors negligently advised him to settle his divorced wife’s claim for a share of their home on disadvantageous terms.

 

Mrs Harris had similar complaints re her divorce settlement.

 

The solicitors denied negligence but said that even if they were negligent they could not be sued.  They claimed immunity.

 

Held: - The immunity should no longer be applied thus bringing to an end this exception to the basic premise that there should be a remedy for a wrong.

 

It was no longer in the public interest that the immunity remains.

 

Therefore, arguments re public policy, conflicting cases, cab rank rule etc., were rejected, as they did not justify clients being refused a remedy in negligence against solicitors and barristers. 

 

13.        Since 1989, employed barristers who have done pupillage and who became employed before the 1st January 1989, and are of 5 years standing, can now appear on behalf of their employers as counsel in court, other than courts in which barristers have exclusive rights of audience.  An employed barrister may not offer legal services to the public. 

 

14.   Barristers are not allowed to advertise their services and the fees they charge. 

 

15.   Circuits

 

          The country is divided into 6 circuits, each with its own rules and customs and officers.  A barrister can only be a member of one circuit, but he can appear in a court on another circuit.  The circuit is concerned with the administration of criminal justice in its area, and is concerned with the establishment of new chambers in their area. 

 

16.   Queens Counsel

 

A successful barrister can rise quickly through the ranks of the profession and “take silk” (they wear gowns of silk), (become a QC) after about 15 years in practice.  A QC (Queens Counsel) is a highly successful barrister who is chosen by the Lord Chancellor from a number of applicants.  It is common to apply several times before being appointed.  In 1998 there were 1,006 QC’s and they form the pool from which most High Court judges are drawn.  Taking silk brings increased status, higher fees and the chance to get rid of a heavy load of paperwork.  A QC appearing in court will almost always have a junior helping him, (i.e. any barrister who is not a QC).  The client will, therefore, have to pay for two barristers instead of one.

 

          The proportion of QC’s to juniors is kept at about 10%.  In 2000, there were 1,100 QC’s of which 90 were women.

 

          Applying for silk, however, is a gamble because his clients must be willing to pay not only the higher fees normally paid to QC’s, but also the fee of the junior who would normally appear with him.  Some of those appointed QC’s do not become successful as leaders even though they had highly successful junior practices.  A few fashionable silks in heavy demand can earn considerably more than £100,000 a year.  A handful are reputed to gross over half a million pounds.

 

          At the other end, the Bar complains, barristers doing publicity funded criminal work are poorly paid and the Bar recently took the unprecedented step of taking the Lord Chancellor to court over his decision to limit legal aid fee rises to 5%.  The court was sympathetic to the barristers’ plight, and the case was settled after the Lord Chancellor promised proper negotiations with the Bar on legal aid fees.  A 1985 survey showed average earnings as only £8,620 in 1983/84 for a London Criminal Barrister of 10-15 years experience.

 

          Since 1995, solicitors can also be appointed as QC’s but in 2001, of the 77 new QC’s only one was a solicitor and there are currently only 5 QC’s who come from the solicitors profession.

 

The Commission for Judicial Appointners Report October 2002 by Sir Colin Campbell stated that the system for appointing QC’s lacked transparency and could be helping to perpetuate a white male judiciary drawn from a narrow social group.  

 

17.        The Bar Council is the barristers’ elected representative governing body.  It sets the standards and ethics of professional conduct, the Bars code of conduct and represents generally the interests of its members  -  the nearest equivalent of a Trade Union for barristers.

 

The Council of Legal Education is responsible for educational needs of prospective barristers.

 

          The Senate of the Inns of Court and the Bar is the profession’s overall governing and policy-making body. 

 

 

18.   Complaints & Etiquette

 

          It is the duty of every barrister to comply with the CODE OF CONDUCT OF THE BAR OF ENGLAND AND WALES.

 

          Since 1997 complaints against barristers are made to the Professional Conduct and Complaints Committee (PCCC) and a Complaints Commissioner, who is not a lawyer.  The Commissioner oversees the investigation of complaints.  If there is a prima facie case of misconduct, the Commissioner will refer the matter to the PCCC.  Panels, summary hearings and disciplinary tribunals can order the barrister to repay fees or pay compensation up to £5,000 to a client.

 

         Powers to disbar or suspend a barrister remains with the SENATE DISCIPLINARY TRIBUNAL of the four Inns of Court.

 

         This new system is criticised for lack of sufficient LAY involvement, lack of conciliation and inadequate redress.

 

          Under the Court and Legal Services Act 1990, the Lord Chancellor’s Advisory Committee, on Legal Services and Conduct (ACLEC) gave the Bar Council advice in relation to all aspects of rules of conduct and the Bar Council was expressly required to have regard to that advice when it related to rights of audience. 

 

          The Access to Justice Act 1999, s.35 replaced the ACLEC with the Legal Services Consultative Panel launched at the beginning of 2000.  The Consultative Panel has:

 

(a)   duty to assist in the maintenance and development of standards in education, training and conduct of the legal profession.

 

(b)   Provide Lord Chancellor with information re. legal profession.

 

          All barristers must not engage in conduct, which is “dishonest or otherwise discreditable to a barrister” or “prejudicial to the administration of justice” or “likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute”.

 

          Barristers must comply with the “cab-rank” rule, i.e. subject to them having the necessary expertise they must accept any brief or instructions and act for anyone.

 

          Counsel is under an obligatory duty to conduct his case in a proper manner.  He must dress formally for court appearances and can only meet his client when a solicitor is present (subject to exceptions).  He must inform the court of all the relevant statutes and precedents, and where a legal authority is against his argument, he must not suppress it, though he may attempt to distinguish or criticise it.  He must also ensure that his client has a fair hearing.  If a prosecuting counsel in a criminal case is aware of facts, which support the case for the accused, or lessen the gravity of the offence, he must state them.  Counsel may not plead guilty for a client, but may persuade him to do so if it is in the client’s interest.  The Bar Council exercises tight control over professional conduct of their members. 

 

 

19.    Earnings

 

A barristers earnings will increase depending on his ability and experience.

 

In 1999, a survey found that 1 in 4 QC’s earned fees more than £266,000 per annum and at least 20 earned fees in excess of £1 Million.

 

But 1 in 4 of barristers in their first 5 years of practice earned less than £17,000.
 

 

SOLICITORS

 

A solicitor (so called because in days gone by his function was to solicit his clients interests by offering bribes to dilatory court officials).

 

(a)     A solicitor is a lawyer available to help with any kind of legal advice.  If a person needs legal advice, he must first go to a solicitor or a barrister.

 

(b)     As at July 2000, there were 100,957 solicitors on the Roll of which 75,503 held practicing certificates and they can be found in offices in most towns all over the country.  There has in recent years been a trend for the number of size of practices to increase.  Since 1968, membership of the Law Society, which is the professions governing body has increased by 230%.

 

(c)     Matters they commonly deal with are: -

 

Buying and selling houses (conveyancing)  In 1969 solicitors derived 50% of their income from conveyancing.  Today it’s only 12%

Drawing up a will

Representing clients in Magistrates’ Court or County Court

Divorce matters

Accident claims

Probate matters – dealing with the estate of a deceased person

Consumer matters

Tenancy agreements

Partnership agreements, formation of companies etc.

 

(d)     A solicitor qualifies by first having a law degree and then attending Law College for one year on the Legal Practice Course (LPC).  Fees are around £5,000 yet both the CPE and the LPC are eligible only for discretionary LEA groups, and are not covered by the Government’s student loan scheme.  The Law Society provides some bursaries and has also negotiated a loans scheme with certain high street banks which offer up to £5,000 repayable after the student has finished studying.  A few large London firms also offer assistance to those students they wish to attract into employment but most students have to fund themselves. This is followed by a training contract (formerly known as Articles) (type of apprenticeship) lasting a further 2 years.  During this time he is known as a trainee solicitor and is paid a salary of at least £12,000 per annum in London and £10.850 in the provinces.  The training contract includes a 20-day practical skills course, building on subjects studied during the LPC.

 

          The work of a trainee solicitor can be very demanding and a recent survey carried out by the Law Society found that a third worked more than 50 hours a week.

 

          N.B.  A person with a non-legal degree needs to complete an extra year at Law College and pass the Common Professional Examination.

 

          After completing the LPC and Articles the trainee solicitor may apply to the Law Society to be “admitted” to the profession.  All newly qualified solicitors must undergo regular continuing education to update their knowledge and improve expertise. 

 

(e)     Once qualified, he must decide whether to enter private practice or enter industry, local authorities or the Civil Service.

 

          He can join a partnership, but cannot set up on his own until he has been admitted for 3 years.  Since 2001, solicitors can form a Limited Liability Partnership where he is only liable for his own negligent acts and not for the firm as a whole.

 

(f)      All solicitors are required to participate in continuing education throughout their careers.  They must do 16 hours a year, with the subjects covered depending on each individual’s area of interest or need.  Records must be kept of courses attended.

 

(g)   Solicitors have a duty to offer competent advice and to keep their clients confidences and act honourably.  He has a duty to the court as well as to his client and he must do nothing to mislead the court.

 

(h)     With the growing complexity of areas of law the tendency is for the solicitor to specialise in certain areas of law, e.g. conveyancing, criminal law, civil litigation.  The solicitor is, therefore, also becoming a specialist in a limited field.

 

(i)      His most important privilege is that he cannot be forced to disclose  -  even to the court  -  anything that his client has told him while seeking legal advice.

 

(j)      A client who feels that his solicitor has overcharged him may have that bill ‘taxed’ by the court or apply to the Law Society for a remuneration certificate.

 

(k)   Solicitors now have a limited right to advertise.

 

(l)   Solicitors have a right of audience to conduct cases in Tribunals, Magistrates’ Court and County Court, and were in 1986 given a limited right of audience in the High Court, and can appear in appeals to the Crown Court from the Magistrates’ Court or on committal for sentence.  Extended rights were given under the Court & Legal Services Act 1990 and Access to Justice Act 1999 (see later).

 

(m)        Until recently, the less profitable work such as divorce and crime and county court litigation was heavily subsidised by conveyancing, which traditionally provided 50% of the average firms income.  But moves in Parliament to smash the solicitors monopoly on conveyancing work and open it up to non-lawyers  -  culminating in legislation  -  have resulted in fierce competition in the conveyancing market and brought fees down sharply.  Their monopoly on probate work has also been lost and banks and building societies, insurance companies etc. can now also offer probate services.

 

(n)          The Law Society

 

This is the professions governing body and its powers are ruled by Solicitors Act 1974, also controls education and discipline of solicitors and acts on behalf of the profession as a whole.

 

(o)   Complaints against solicitors can be made to the Office for the Supervision of Solicitors (OSS), The Legal Ombudsman or by an action in negligence.  

 

 

 

The Office for the Supervision of Solicitors (OSS)

 

The OSS was set up in 1996 following disquiet and criticism of the previous system for handling complaints against solicitors.

 

It was designed to be more efficient and customer friendly.

 

          It includes a Remuneration Certificate Department, which carries out free reviews of solicitor’s bills. 

         

          The Compensation Fund was set up in 1941 to protect clients from dishonest solicitors.  The fund is supervised by the OSS.  For misconduct OSS can take internal disciplinary proceedings or prosecute for serious offences before the solicitors disciplinary tribunal.  For inadequate professional services the OSS can award compensation for up to £1,000.

 

          Under the new OSS practice members of the public will receive an initial response, to a complaint, within 24 hours.  But the OSS have a poor record in resolving complaints with any speed.  At present there is a backlog of over 17,000 complaints.

 

          A new system to deal with complaints was announced in June 1999, which included: -

 

          Improved management and case filtering procedures, more staff.  Clients dissatisfied with the OSS can ask the Legal Services Ombudsman to review the service they have received.

 

          The OSS is funded by The Law Society so there still remains a question mark about the independent of the OSS.  The Consumers’ Association magazine ‘Which?’ has criticised the OSS for not being sufficiently independent of the profession and suggests that complaints against solicitors should be handled by a completely independent organization.  This view was echoed by the new Legal Services Ombudsman, Ann Abraham. 

 

          N.B. Since 1991, solicitors firms have their own in-house complaints procedure and attempts to resolve any dispute must first be made under this route.  They will deal with most minor complaints.

 

Read: - ‘The OSS – Congratulations!?!’, New Law Journal, May 21 1999, pg 743-745.

 

The rules governing conduct of solicitors are set out in ‘The Guide to the Professional Conduct of Solicitors’.  This guide aims to provide “a clear and helpful source of reference for solicitors during the day to day conduct of their practice”. 

 

(p)     As solicitors feel threatened by some of the changes, so some are making a bid to extend their work by making inroads into the monopoly previously enjoyed by barristers over rights of audience in the higher courts.  Solicitors have unlimited rights of audience in the Magistrates and County Courts with limited rights in the Crown Court.  In 1986, they gained limited rights of audience in the High Court following the case of : 

 

 

ABSE v SMITH [1986]

 

          Widespread publicity surrounded this case when Cyril Smith MP attempted to have the terms of the settlement of a libel action brought against him by 25 other MP’s, read to the High Court by his solicitor.

 

          This act did not require the skills of an advocate and Mr Smith’s solicitor took the view that it would be unnecessarily expensive to brief counsel for the task.

 

          Leonard J. Held: - he had no authority to allow a solicitor to appear before him, save in an emergency, and the Court of Appeal agreed.

 

          However, it was acknowledged that the rule might be changed by the judges of the Supreme Court acting as a collegiate body.  Accordingly on the 9th May 1986, a Practice Direction was issued by the judges of the High Court and Court of Appeal permitting solicitors to appear in the High Court in FORMAL or UNOPPOSED proceedings.

 

          This case paved the way to opening up the rights of audience for solicitors.  The Court & Legal Services Act 1990 finally established a solicitors right to exercise rights of audience in the higher courts.  To do so a solicitor must attend a course and obtain certification and the procedure was complex and slow so was reformed in the Access to Justice Act 1999.

 

          In 1994, the first few solicitors were licensed to appear in the Crown Court, and/or High Court and by 2000 approximately 1,000 solicitors obtained certification.  In 1997, CPS lawyers gained the right to appear in the Crown Court.  There are currently over 1,000 solicitor advocates.  Many firms are sending their solicitors on courses making advocacy training compulsory and designating them as in-house advocates. 

 

In 2000, the biggest firms in London paid newly qualified solicitors up to £45,000 per annum and partners profits were between £332,000 up to £1 Million per annum. 

 

Solicitors firms are becoming bigger with greater specialisation and solicitors are therefore becoming more specialised than barristers.

 

Solicitors are tending to do more of the specialised work previously done by barristers and having guided extended rights of audience has meant that the barristers work has shrunk. 

 

Legal Services Ombudsman

 

Established in 1990.  Its role is to oversee the handling of complaints by the professional regulatory bodies and offers the final appeal for complaints against lawyers.

 

The number of cases being accepted for investigation by the Ombudsman is at an all-time high investigating 1,658 complaints concerning solicitors and barristers between 1998 and March 1999.

 

If dissatisfied with the way the professional body has handled the complaint he or she can recommend the body reconsider the complaint and/or order compensation to be paid.  In 1998, one or both of these measures occurred in 1/3rd of the cases.
 

Towards a Joint Legal Profession

 

 

The Royal Commission on Legal Services in 1979 (Benson) rejected suggestions that the present legal profession should be fused into a joint profession.  But there are many good arguments in favour of fusion. 

 

Many observers believe that a single legal profession, without the strict separation of the roles of barristers and solicitors, which exist at present, would mean that clients would receive a better service at a fairer price.  The system of using two lawyers  -  a solicitor to deal with the early stages of a case, followed by a barrister to appear and speak for the client at the court hearing  -  can mean the duplication of work and additional unnecessary expense.  A second expert, the barrister, entering the scene at a late stage, allows for errors, and some clients are unhappy about the way their cases are handled by barristers whom they do not meet until just before the trial, after many months of building up relation of trust with a solicitor. 

 

ARGUMENTS FOR AND AGAINST THE UNIFICATION OF THE LEGAL PROFESSION

 

1.      Against Unification

 

(a)   SPECIALISATION

 

The present system permits specialisation.  A small body of experts are available to a larger body of practitioners (solicitors).  The barrister need only concern himself with the organisation of the facts and the delivery of his case in court.  He is not distracted by outside matters.  The solicitor provides him with all the information he requires.  If lawyers, and particularly barristers, take on other duties this expertise will be severely diluted. 

 

(b)   AVAILABILITY

 

Under the existing system the whole Bar is available to solicitors looking for a suitable barrister to represent his client.  In theory, at least, a barrister can be brought from any part of the country.  This enables the client to have an opportunity of getting the most suitable advocate for his cause.  If these barristers were absorbed into solicitors’ practices, then they would only be available to clients in areas where they chose to take up practice.  A client would have to be satisfied with the firm’s own advocate, as a law practice would be unlikely to give away custom to a rival firm.  The outcome would be that the client had less choice and less chance of hiring the best lawyer for his case. 

 

(c)   DETACHMENT

 

Personal involvement of the barrister with the client is often an undesirable state of affairs.  A detached barrister concentrates upon the legal issues and facts which are made available to him.  He does not get sidetracked by personal involvement.  The greater part of the personal conduct is left to the solicitor.  This again is said to lead to greater efficiency. 

 

(d)   WORKED WELL FOR CENTURIES

 

The system has worked well for hundreds of years; there is no reason to change. 

 

(e)   EFFICIENCY

 

The present system isolates the barrister from the telephone and constant interruptions of his time.  He is free to prepare his case for court unhindered. 

 

(f)      OTHER COUNTRIES

 

Some other countries have adopted our legal system and accepted the principle of a two-tier profession.  They would not have done so if they had not seen merit in it.

 

In most continental countries there are at least two types of lawyers  -  notaries and advocates.  In the USA they ………. profession of “Attorneys and Counsellors at Law”, but in larger American firms a distinction is made between “court and office” lawyers. 

 

(g)   EXPERTISE

 

Those who prosper at the Bar do so at the judgement of solicitors who are well able to judge the skills.  The client is protected from his ignorance of the skills of the various barristers or lack of them.  By this method only the most able survive.  Many qualify, but few succeed in becoming established.  The poor advocates are forced to give up.

 

 

(h)        It enables a relatively small Bar to become known, and to develop a mutual confidence in the Bench.

 

 

2.      For Unification

 

(a)   EXPENSE

 

Fusion should bring about a reduction in costs.  At present (except for Magistrates and County Courts), the employment of both a solicitor and a barrister is essential, and if a barrister is required in the lower courts (above) then once again a solicitor is necessary.  This involves the payment of two fees and is very costly.  If one lawyer was free to handle the whole case then costs must fall.  NOTE:  This argument does not mean that costs can be halved, because the work formerly performed by the two lawyers would have to be paid for, but it is realistic to assume that some reduction in costs would occur. 

 

(b)     TIME

 

Fusion would save a lot of time.  The present procedure required all matters to be communicated to the barrister via the solicitor.  The client cannot even see the barrister unless taken to his office by the solicitor.  These practices are directly responsible for long delays, which are not necessary and would not happen if one lawyer could conduct the whole case. 

 

(c)   I