Transcript The legal Profession & Other Sources of Advice and Funding

The legal Profession & Other
Sources of Advice and Funding
The Legal Profession
Lesson Objectives
• I will be able to describe the qualification,
training and work of barristers
• I will b able to describe the qualification,
training and work of solicitors
• I will be able to describe the qualification,
training and work of legal executives
Legal Profession
• Two main branches – barristers and solicitors
• These branches of the traditional ‘lawyer’
have rights of audience (right to appear in and
speak on behalf of their clients in court)
• There are also legal executives who are usually
specialist employees of solicitors
• These executives might work in areas such as
conveyancing, debt recovery or wills – does
not have the same rights of audience
Barristers
• Used to be the only profession that had the
right to represent clients in the higher courts
• England and Wales is divided into regions or
‘circuits’ for the purposes of the
administration of justice, and barristers attach
themselves to a circuit
• Bar Council is the professional body for
barristers
• Responsible for regulating barristers (setting
qualifications and discipline)
• Barristers of at least 10 years experience may
apply to become Queen’s Counsel (QC)
• More important work and are referred to as
silks – the gown they wear
• Solicitors can also apply to be QC
• QC is stepping stone to becoming a judge
• QC are made this due to recognition of their
outstanding ability
• There are also honorary QCs who will not
practise but deserve the recognition
Q.C.
• May apply after 10 years as a “junior”
 About 10% of the Bar “take silk”
 QCs usually take on more complicated and high profile
cases
 They command higher fees
 They will usually have a junior to assist
• Until 2004 QCs were appointed by LC
 But this was seen as too secretive
 Also fewer than 10% of QCs are women and very few are
from ethnic minorities
 As senior judges are usually chosen from QCs this
affected the composition of the judiciary
 Selection is now by selection panel, chaired by nonlawyer and including other non-lawyers. Selection by
interview. Applicants apply, pay £2500 fee and provide
references; panel recommends to LC who should be
appointed
• NB solicitors can also now become QCs
QCs-Advantages and Disadvantages
Advantages
Disadvantages (OFT ‘03)
• Conspicuous brand •
enhancing standing of
UK legal services
•
abroad
• Publicly recognised
mark of quality of
•
advocacy
• Resource for public
enquiries
• Promotes competition •
– supplements market
information
• Promotes diversity –
solicitors and those
from ethnic minorities
• Election now by
selection panel
QCs do not necessarily offer
better service
Title is too generic – tells
customer nothing about
specialisation
System focuses on advocacy
skills whereas other skills may
be relevant, e.g. legal advice,
case management
No monitoring of quality after
becoming QC
Barrister’s Qualification
• 3 stages
• Academic, vocational, pupillage
• Academic – minimum 2:2 at degree level – a qualifying law
degree is set out by the Bar Council and Law Society jointly as
required by the Courts and Legal Service Act 1990
• This is the minimum law content for a degree course (7 core
subjects)
• Tort, EU, Equity, Con + Ad (Public), Land, Contract, Criminal
• If a degree is not in law or fails to comply, they must do a 1
year conversion
• Common Professional Exam (CPE) or Graduate Diploma in Law
(GDL)
• This is so that when training begins, they all have the same
foundation level
• Before starting vocational stage they must join one of the 4
Inns of Court: Lincoln’s Inn, Inner Temple, Middle temple,
Gray’s Inn
• The Inns are societies that provide activities and support for
barristers and student barristers
• Library, dining facilities, common rooms and gardens
• Inns have the power to call a student to the Bar
• Admission to an Inn is required before registration on the Bar
Vocational Course (BVE) – the main part of the vocational
stage of qualifying as a barrister
• BE ensures that student barristers acquire all the skills and
knowledge of procedure and evidence that will be required
for the more specialised training in pupillage
• The BE runs for 1 year full time or 2 years part time
• Pupillage – the barrister will undertake practical training
under supervision of an experienced barrister
• Divided into 2 parts – first is non-practising - months where
the student will shadow and work with their superior barrister
• Second part – with supervisor’s permission, will carry out legal
services and have rights of audience in court
• There is lots of competition for pupillage and so a minipupillage is a useful starting point
• Short period of work experience (usually 1-2 weeks) in a set of
chambers
• Some chambers require applicants to undertake an assessed
mini-pupillage as part of their recruitment process
• All applicants to the Bar are advised to take at least one minipupillage by the Bar Standards Board
To become a barrister
Law degree
Degree in another subject
Non-graduate mature
student
Common Professional
Examination
(oneyear Law course)
Common Professional
Examination
(two-year Law course)
Membership of Inn of Court
Attend an Inn – either dine or on course
One-year Vocational Training course
OR
One-year Bar Examination Course
Call to the Bar
Pupillage: 2 x 6 months
Practise as a
barrister
Occupation
as a nonpractising
barrister
Barrister Training
• Once BE is completed, they can be called to the Bar
• Usually takes place towards the end of their first 6
months of pupillage
• There is a requirement for continuing training and
updating as with most professions
• Barristers need to update and develop specialist
areas of knowledge and improve their skills
particularly as there is increasing competition in the
market for legal services
• The Bar Standards Board has set up an Education and
Training Committee – responsible for setting the
standards of education and training that people must
pass before being able to practise as barristers –
together with the further training barristers must
complete in their careers
• At present, in the first 3 years of practice, a barrister
must complete 45 hours of CPD – including at least 9
hours of advocacy training and 3 hours of ethics
• After the first 3 years of practice barristers are
required to undertake 12 hours of CPD each year
under the established practitioners’ programme
Barristers Pay
• Bar Council sets a minimum rate to be paid to pupils – 2006-7 this was no less
than £833.33 pm (£10,000 pa) plus reasonable travel expenses
• Once qualified a barrister will have typical earnings as a self-employed barrister in
a range of £25,000 to £150,000 gross within 5 years
• There are huge disparities in annual earnings at the Bar with some junior
barristers working in criminal law earning as little as £50 per day, and this is
before tax deductions and chambers’ charges
• Barristers rely on solicitors appointing them to pay the fee – the contract is
between solicitor and barrister, not barrister and person he represents
• The fee is agreed by their clerk and id often paid at the end of the trial
• This means work is done several months before payment
• Some solicitors used to be very poor at paying the barrister’s fee
• More recently the law Society has made it clear that solicitors should pay
promptly
• Many young barristers despite this, actually receive little or no income in their
first year of practice
• Barrister’s clerks were originally paid purely on commission – today the majority
of chambers offer a pay package – this is a mixture of salary and bonus based on
the income of the barristers
• This has to be paid for on a proportional basis by all the barristers in the chamber
• This could cost each barrister up to 15% of all earnings
Barrister’s Work
• Barristers usually self-employed
• Although an increasing number are employed directly by large
organisations and some who work in law centres
• Barristers can now work for firms of solicitors
• Until recently it was not normally possible for members of the
public to go directly to a barrister
• Barristers were, and still are, normally accessed through a
solicitor
• However, the Bar Council has relaxed its rules relating to
direct access and there are now 3 routes to accessing a
barrister
• The first is professional client access – where a number of
people can instruct barristers on behalf of clients or as a
fellow professional
• This usually means solicitors but includes many overseas
lawyers
• The second is public access – where members of the public
and commercial and non-commercial organisations are now
able to instruct barristers directly on most civil matters
• This might be legal advice or involve drafting a document such
as a will
• Barristers do not have to accept any public access instructions
• This is an exception to the ‘cab rank’ rule which is that, subject
to having the necessary expertise, a barrister must accept any
brief or instructions and act for anyone
• However, barristers who are willing in principle to accept
public access instructions must observe a non-discrimination
rule
• Finally, there are licensed access organisations
that are suitable to instruct barristers, because
they have expertise in particular areas of the
law
• They can apply to the Bar Council to be
licensed to instruct barristers directly in those
areas – typical examples of those with
licensed access are a firm of clinical negligence
insurers and a financial services company
• Barristers are specialists, yet have a varied work load
including drafting documents and giving legal
opinions
• Barristers specialising in criminal law are likely to
spend a great deal of time in court, whereas civil
practitioners will probably attend court less often
• With the more increasing use of ADR, barristers may
find that some time is spent in preparing and
advising on this
• The key benefit of the barrister is that he is
independent and objective and trained to advise
clients on the strengths as well as the weaknesses of
their case
• Self-employed
• Usually work from a set of chambers
 15-20 barristers; share administrative expenses
• Employ clerk as practice administrator
 Booking in cases, negotiating fees
 Other support staff
• Finding a tenancy may be difficult
Barristers’
work: 10
points
 May do a third 6-month pupillage, and then “squat”
 Technically possible to practise from home, but a tenancy is still seen as
the way to success
• Building a reputation is long and hard
 Young barristers may be poor!
• Advocacy
 + Writing opinions, giving advice, drafting documents for use in court
• But some rarely appear in court
 Instead specialise in tax law or company law
• Direct access
 Since 2004, except for criminal or family law
• Cab rank rule
 Except where clients approach barrister direct
• Rights of audience in any court in England & Wales
 Practising barristers employed (by CPS or by solicitor) can now keep their
rights of audience
• Page 116 - figures
Solicitors
• The usual first port of call when somebody needs
legal advice
• Solicitors are the general practitioners of the legal
world dealing with all kinds of legal problems
• Most solicitors are in private practice – working in
firms with hundreds of staff through to a small high
street office as a sole practitioner
• Solicitors, unlike barristers, can form partnerships
• Other solicitors can work in government, law centres,
the civil service, commerce and industry
Solicitors Qualification
• 3 parts – academic training, vocational training and
training contract
• 3 starting points
• Law degree - Same degree qualifications as barristers
– however, to qualify as a solicitor, a person must
achieve the required pass mark for each of the
foundations of legal knowledge subjects – 40%
regardless of the pass mark set by the institution
• Degree remains valid for 7 years
• Non-law graduate – then completes CPE or
GDL
• Non-graduate or Institute of Legal Executives
(ILEX) – this is not available to a barrister
• Non-graduate may be able to undertake a CPE
or GDL if that person is a mature student or
holds certain other academic or vocational
qualifications – must be over 25 and have
considerable experience in a suitable area of
work and a good general education
• Acceptance is at the discretion of the Law
Society – also applies to people who hold a
non-UK degree
• ILEX – person must pass equivalent
examinations in the foundations of legal
knowledge and a further legal subject
• Provided this person is an ILEX Member or
Fellow, these examinations can be taken
within the ILEX framework
• This route may also exempt an ILEX member
who wants to become a solicitor from needing
to undertake a training contract
• The second part is vocational training, which is
common to all those seeking to qualify as a solicitor,
whichever route they started from
• This is the Legal Practice Course (LPC) – which
provides the professional training for a solicitor
• The main purpose of the course is to learn how to
apply the law to the needs of clients
• At the end of the LPC, a trainee solicitor will be able
to enter a training contract with the necessary
knowledge and skills to undertake appropriate tasks
under proper supervision during the training contract
– the course includes legal knowledge, skills and
ethics
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The LPC has some compulsory areas of study:
Business law and practice
Property law and practice
Civil and criminal litigation
There are also topics known as pervasives which appear
throughout the course at appropriate times. These include:
Probate and administration
Professional conduct and client care and financial services
Revenue law and Solicitors’ and Business accounts
EU law and Human Rights
There are also some optional or elective topics which vary
depending on the potential solicitor’s interests and the
specialisms of the institution offering the course
The skills needed to be a solicitor are also part of the course
and include practical legal research, writing and drafting
documents, advocacy and interviewing
The course can be taken on a full or part-time basis with a
number of providers across England and Wales
• The final part is the training contract – this is a
period of practice-based training
• The idea is that the trainee will gain practical
training under supervision, and learn to apply
a range of skills through working in a
solicitor’s office or the legal department of
another organisation
• As with a barrister’s pupillage, trainees are
paid with minimum amounts set
• This is normally 2 years full-time work but can
be part-time over a longer period
• On a training contract, the trainee solicitor will work in at least
3 areas of law, such as:
• Personal injury law
• Conveyancing
• Company law
• Environmental law
• Criminal litigation
• These areas will depend on the nature of the firm or
organisation and the interests of the trainee
• Skills are developed through working on clients’ cases,
although with close supervision
• The trainees’ work will be regularly reviewed and as time goes
on the trainee will deal with clients and learn to handle cases
without supervision
• On completion of these 3 parts of training, the trainee will be
admitted as a solicitor and will get their practising certificate
• This license to work as a solicitor must be renewed annually
To become a solicitor
A levels or equivalent
A levels or
equivalent
Degree in another subject
Law degree
Legal Practice Course
(one year)
Two year training
period
Qualified as a
solicitor
Common Professional
Examination
(oneyear Law course)
4 GCSEs
Institute of Legal Executives Part I
& Part II Exams
Work for two years in a solicitor’s
office
Be admitted as a Fellow of the
Institute of Legal Executives (must
be over 25 years and have worked
for 5 years in a solicitor’s office)
Legal Practice Course (one
year)
Two-year training period
Qualified as a solicitor
NB How many years for each pathway?
Legal Practice Course (one
year)
OR
two-year training period
AND pass final exams
Qualified as a
solicitor
Solicitors Training
• There is a requirement for CPD to be undertaken
• Designed to ensure they are up to date with law and other
essential matters
• The Solicitors Regulation Authority requires that all solicitors
complete at least 16 hours of CPD activities a year. Examples
could be:
• Tax law update
• Study of the latest anti-money-laundering regulations
• Solicitors’ new code of conduct
• In addition, new solicitors must complete the Law Society’s
Management Course Stage 1 by the end of their third year in
practice – this is a 1 day course that deals with basic aspects
of management that are essential to a solicitor
Solicitors Work
• Work in a wide range of roles and areas
• Over 68,00 ( vast majority) work in private practice (a firm such as you see
on the high street)
• These range from sole practitioners to multinational firms with hundreds
of partners and offices across the world
• Most solicitors in private practice work with individual clients: the general
public and local businesses
• A solicitor in a large firm will usually carry out work that is quite
specialised
• By contrast, one in a small firm may be involved in a great range of
activities
• Solicitors deal with a vast range of legal problems such as helping to buy
and sell property, personal injury claims, advising on matrimonial
problems such as divorce, or financial disputes between partners and
immigration problems
• They also represent people in court or instruct a barrister to represent
them
• Solicitors do more work in court than is often
imagined – in civil matters they represent
their clients at most interlocutory hearings –
that is hearings before trial
• They also usually appear in court in
enforcement proceedings, such as
repossession cases
• In criminal cases, they often represent their
client in the Magistrates’ Court – this is the
typical function of a duty solicitor – who will
be the representative who usually makes a
defendant's first bail application
• Businesses need help and advice in areas such as employment
law, contracts and property leases
• Bigger clients may be involved in company mergers and
acquisitions
• Some firms of solicitors have offices overseas which may
involve advising local clients on English, EU or foreign law or
representing a UK person or business abroad
• The vast range of work is affected by the public perception of
what amounts to a legal matter that a solicitor should be
dealing with – e.g. if a person has a problem with the HMRC, a
decision has to be made whether to go to a solicitor, an
accountant or other adviser
• Other solicitors work directly for large businesses such as
banks and multi-national companies
• Others work for local authorities or central government
• Others work for the Court Service, CPS as a court clerk, for a
charity, the armed forces or in a law centre
Solicitors’ work
 Private practice in a solicitors’ firm (the majority) [8700 firms] • Sole practitioner (rare on qualifying) - very specialised, e.g. simply
conveyancing
• For an existing partnership (small firm, maybe half a dozen partners) several kinds of work, e.g. criminal and family, or conveyancing and
probate, or consumer problems and housing
 Interviewing clients
 Negotiating on their behalf, e.g.
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writing letters;
drafting contracts, leases, etc.;
drawing up wills;
conveyancing
 Litigation (representing clients in court or tribunal)
• For an existing partnership (large firm, no limit to no. of partners, even
>100) - very specialised, usually commercial and business law, each
solicitor dealing in only one aspect of it
 Crown Prosecution Service – prosecuting criminal actions in court
 Local government – land law; employment law; Children Act 1989…
 National government department – education law; environment law,,,
 Legal advisers in commerce or industry (business) – business law
Special notes
• Conveyancing:
 The “bread and butter” of many firms
 But since the Administration of Justice Act 1985 solicitors no
longer have a monopoly – licensed conveyancers including
barristers
• Advocacy:
 Solicitors could always speak in magistrates’ and county courts
 But now they may :
 speak in High Court (Abse v Smith (1986) + Practice Direction);
 Appear in higher courts if they gain a “certificate in advocacy”
(Courts & Legal Services Act 1990);
 Be appointed QC (Access to Justice Act 1999)
• Multi-discipline partnerships:
 Solicitors may form parterships with e.g. accountants (Courts &
Legal Services Act 1990). Allowed by law
 But at first not by Bar Council and Law Society. This should
change following the Legal Services Act 2007
 See now the Legal Services Act 2007 (slide 11.8)
• Background page 119
Legal Executives
• These are members of ILEX which was set up in 1963 with the
support of the Law Society
• The aim was to provide a professional body recognising the
work done by non-solicitors working in a solicitor’s office
• They are qualified lawyers specialising in a particular area of
law and have at least 5 years experience of working under
supervision of a solicitor
• There are currently around 22,000 legal executives who are
members of ILEX
• Their status as professionals is recognised throughout the
legal profession and the courts
• Whilst their right to appear in court is limited, Fellows of ILEX
with more than 4 years’ post-qualification experience are
equated with similarly experienced solicitors in terms of
assessment costs in court cases
Legal Executives Qualification
• Most trainee legal executives combine study for the
ILEX qualification with practical experience of
working in a law firm or legal department, usually
being given day release from work to study
• There are many starting points for qualifying as a
legal executive, the routes varying depending on
existing qualification – the usual minimum is 4 GCSEs
at grade C or above, including English language
• There are 3 types of membership:
• The first is a student membership where academic
training is started by taking a series of courses
covering a range of the areas of law and legal
practice encountered in the legal profession
• The second type is membership – students apply for
enrolment into this grade of ILEX on successful
completion of both parts of the ILEX Professional
Qualification in Law
• This takes on average 4 years part-time study to
complete
• Finally there is Fellowship – to achieve the full
qualification of Fellow, Members of ILEX must have 5
years qualifying employment under the supervision
of a solicitor, including a minimum of two years after
passing all the examinations
Legal Executives Training
• For all ILEX Fellows, CPD is compulsory
• Systematic maintenance, improvement and extension of
professional and legal skills and personal qualities are
required on a continuing basis
• Each year a Fellow is required to complete a minimum of 12
hours CPD, rising to 16 hours from 2008
• Members will also be required to undertake CPD: 8 hours
from 2008
• At least half the requirement must be met through events
relating to their specialist area of work
• Failure to comply with these requirements is a breach of ILEX
regulations and may result in disciplinary action
Legal Executives Work
• Legal executives specialise in a particular area of law
such as Conveyancing, wills, matrimonial matters or
general litigation
• Their day-to-day work is similar to that of a solicitor
earning fees for the firm of solicitors for whom they
work
• Quite often all the work on a particular matter will be
handled by a legal executive rather than a solicitor
• Legal executives are usually expert in one field of
work and concentrate exclusively on that type of
work
Legal executives
• Work in solicitors’ firms as assistants
• Must pass Parts I and II examinations of ILEX
• Must also have worked in a solicitors’ or similar firm
(e.g. CPS) for five years
• Will deal with straightforward cases
• May even head his/her own department, e.g. probate
• Have limited rights of audience in court, e.g. making
applications in county court where the case is not
defended
• ILEX would like these rights of audience extended re:
 matters dealt with by district judges at the county court;
 applications to magistrates’ courts in cases started by
complaint or application, including family proceedings and
licensing and gaming applications;
 conducting cases in tribunals