Transcript Slide 1

English Legal System
The Legal Professions and the
provision of legal services
Solicitors
Barristers
Reforms to the profession
Aims
•
The aims of this lecture are:
1.
To introduce you to the legal professions in
England and Wales;
To describe the functions which barristers and
solicitors fulfil within the legal system;
To look at reforms which have been made to the
provision of legal services by the Courts and Legal
Services Act 1990 and the Access to Justice Act
1999;
To critically evaluate the success of those reforms
and the scope for further reform of the provision of
such services.
2.
3.
4.
Outcomes
•
By the end of this lecture you should be able to:
1.
Describe the current division of the professions in
England and Wales, and describe what someone
working in either of them may do;
Describe the reforms to the provision of legal
services introduced by the Courts and Legal
Services Act 1990 and Access to Justice Act 1999
and critically assess how significant they were;
Describe further developments in the reform of the
professions and state whether you think that these
are desirable.
2.
3.
The Legal Professions and the
provision of legal services
• Two main branches – historically there were
others and still there are notaries, although
these are often qualified solicitors or
barristers
• Solicitors of the Supreme Court of England
and Wales
• Barristers in practice at the Independent Bar
of England and Wales
Solicitors
• Private practice and employed
• Approx 80,000 practising solicitors
• 81% working in private practice
• 19% public sector, commerce and industry
The role of solicitors
• Advising clients direct
• Dealing with non-contentious work, such as probate etc…
• Preparing cases for litigation, issuing proceedings etc…
• Conveyancing – once the sole preserve of solicitors
• The Court and Legal Services Act 1990 allowed for the first time
licensed conveyancers
Structure of private practice
• Solicitors in private practice work in a
partnership or as sole practitioners
• Ranging from hundreds of partners
(nationwide and international firms) to High
Street practices
• Many solicitors are employed by partners
• Solicitors are regulated by the Law Society
Sex Discrimination
• 33.9% of solicitor’s with practising certificates
are women
• 51% of all new solicitors in 1998 were women
• 25% of women solicitors are partners vs 55%
of male solicitors who were partners in 1998
• 10-19 year’s experience 87% of men are
partners vs 63% of women
Sex Discrimination
• Median salary for female partners:
£36,000
• Median salary for male partners:
£51,000
Racial Discrimination
• 6.6.% of solicitors are from an ethnic
minority
Training and Regulation
• In order to become a solicitor in England and Wales, one
must do a law graduate or a degree in another discipline
and the CPE, the academic stage of training
• After this academic stage there follows the one year LPC
and then two years of a training contract
• Alternatively there still exists the possibility of training as
legal executive and qualifying via that route
• Solicitors are regulated by the Law Society of England and
Wales which has offices in Chancery Lane London
The Legal Practice Course
(LPC)
• This is the year of vocational training equivalent to
the BVC for barristers
• It is expensive, as is the BVC, but has always been
more regionally based
• LPC students have to do core areas such as
conveyancing and business accounts
• They also do skills areas similar to barristers such as
interviewing and drafting
Continual Professional
Development
• Both barristers and solicitors must participate
in continuing training
• They must attend a certain number of CPD
every year
• Courses are run by the Inns of Court for
junior barristers and also by universities and
colleges across England and Wales
Barristers (10,000 approx)
• Specialists?
• Advocacy
• Drafting
• Advice/Opinion writing
Sex Discrimination?
• 25% of barristers are women (1998)
• 50% of new barristers are women
(1998)
• 7% of QCs are women (1998)
• 1994 only 8% of applicants for QC were
women but more than 20% succeeded
(higher proportionately than men)
Racial Discrimination?
• Only 1% of QCs (1998)
• Success rate for appointment in 1998:
18.5% vs 12% for non-ethnic minority
Training and Regulation
•
In order to qualify as a barrister you need to do the following:
Either
1.
A lower second class law degree
2.
A lower second class degree in a discipline other than law
and have passed the Common Professional Examination or
Graduate Diploma in Law
After undertaking these you have to do a year on the Bar
Vocational Course, which is the first stage of vocational
training for the Bar
Complete a year of pupillage
The Bar Vocational Course
• This is the first compulsory element of vocational training
for entry to the profession
• The aim of the course has been to focus on the skills that
the barrister needs in practice, along with the substantive
knowledge areas
• The skills taught on the BVC are Advocacy, Drafting,
Opinion Writing, Negotiation and Conferencing
• The substantive knowledge areas cover Criminal and Civil
Procedure, along with the rules of evidence
Criticism of the BVC
•
The BVC has been criticised on a
number of grounds:
1. It is too expensive;
2. It lacks academic rigour;
3. It is centred on the capital where most
providers are based.
The Inns of Court
• Traditionally these trained barristers for practice
• In Tudor times they were described as ‘the third university of
England’ after Oxford and Cambridge
• The common law was not taught at the universities until 19th
century, only the Roman or Civil Law was considered worthy of
study
• All students commencing the BVC must be a member of an Inn
of Court
• There are four Inns, the Middle and Inner Temple, Gray’s Inn
and Lincoln’s Inn
Professional Regulation
• Regulation of professions has increased in recent years
• Traditionally professions have been characterised by selfregulation
• This has become more complex and difficult in modern times
• The Bar Council is the body which both regulates and promotes
the interests of the Independent Bar of England and Wales
• Was not established until the late nineteenth century
Professional Conduct
•
Barristers have to comply with the Bar Code of
Conduct in order to practise in England and Wales.
This governs a variety of matters, but the main
ones can be summarised as follows:
1.
Duties towards clients, both professional and lay clients and
to the court;
The Cab-rank rule;
Regulation of who can practise in a jurisdiction;
Written guidance on the conduct/appropriateness of barristers
engaging in certain conduct.
2.
3.
4.
Liability of Advocates
• It used to be the position that an advocate could not be sued for
his advocacy in the face of the court
• This was established in the case of Rondel v Worsley 1969
• The rationale that the court gave was that there may be a
conflict of interest between the duty to the court and the duty to
the lay/professional client if the barrister could be held liable for
his actions in front of the court
• It was changed in the landmark case of Arthur J S Hall & Co. Ltd
v Simons 2000
Separate branches
• First point of call for someone who needs to instruct a
lawyer will a solicitor
• This has now changed to certain extent with the
introduction of BarDirect, the instruction of barristers
by certain clients directly
• Barristers cannot be solicitors at the same time
• Most judges are former barristers (in 1996 only 72
out of 517 circuit judges were former solicitors)
Reform
• Direct Access to the Bar?
• Rights of audience
• Multi Disciplinary solicitor’s Partnerships
Direct Access to the Bar
• Professional clients
• Others
• Can barristers service clients?
Rights of audience
• Magistrates’ Courts
• Access to Justice Act 1999
– Automatic rights with training
• 200+ solicitor advocates in Dec 94
• 1077 solicitor advocates in Aug 2000
• 341 of these are qualified for civil work
Fusion: Will Barrister’s
chambers disappear?
• City solicitors’ firms take advocacy in-house
• “Members of the public should be educated by us
that the most likely scenario is that they will not need
to go to a barrister” (Mark Humphries, Head of
Advocacy, Linklaters, from “Solicitors on Trial” Law
Society Gazette, 31.8.00)
• “No one in the City calls themselves
solicitors…Solicitors are all referred to as lawyers.
The big international clients can’t understand why we
are bringing in barristers. It’s an unnecessary fee
add-on to them” (John Potts, Managing partner for
litigation, Clifford Chance ibid).
Counter arguments
• Smaller solicitors’ firms
• “To be really good at advocacy you need to do it all
the time, and solicitor-advocates don’t” (Bruce
Houlder QC)
• Can barristers provide a more objective viewpoint?
Multi Disciplinary
Partnerships
• S.66 Courts and Legal Services Act 1990
• Possible advantages of MDPs:
– Freedom of association and consumer choice
– A wider range of services
– Economies of scale
• Possible disadvantages:
–
–
–
–
–
Independence of services
Legal Professional Privilege
Complaints against MDPs harder
Concentration of all the best in one place
Client confidentiality
Summary of lecture
•
You now be able to:
1. Describe the roles of the two branches of
the profession within the English Legal
System;
2. Identify the different models for training
within the English Legal System;
3. Describe areas for further reform of the
professions and critically consider whether
those reforms are desirable.
Further reading on the
professions
• Zander, Cases and Materials on the
English Legal System
• Slapper and Kelly
• Darbyshire On the English Legal
System