"There is little evidence to suggest that the formal division between barristers or solicitors is likely to end… ongoing changes may ultimately prove to have as significant an effect on the legal profession as a formal merger of the two branches. (Malleson, 2007) The provision of legal services in England and Wales involves many different types of personnel such as legal executives, licensed conveyancers, and legal clerks. But the two main providers of legal services are solicitors and barristers, and these are the professions I will be focussing on in my paper.
The distinction between solicitor and barrister is growing ever smaller, and the fusion of the two professions has been spoken of at length in the past. Malleson (2007, p191) argues that due to changes in the two professions in recent times, fusion may no longer be necessary. In recent years, the working practices of both solicitors and barristers have changed significantly, and it is predicted that they will continue to change. Malleson believes that these ongoing transformations in the professions will actually provide a similar, if not more beneficial change to the provision of legal services than an actual merger of the two branches.
This purpose of this paper is to critically analyse Malleson's viewpoint. Firstly, I will describe the functions of both solicitors and barristers, and critically analyse each profession individually, detailing both roles, identifying similarities and exclusive differences. Secondly, I will look at the possibilities of fusing the two professions, analysing the positives and negatives of such action, and will also consider the modernisation of the professions.
Finally, I will form a conclusion as to whether I agree with Malleson, and detail my argument with regards to the merger of the two branches. 2. Provision of Legal Services 2. 1. Solicitors So what is a solicitor, and what role(s) do they perform? It is difficult to define a solicitor as such, due to the wide varying nature of their work. In basic terms, the Collins Gem English Dictionary (2004) define a solicitor as a 'lawyer who advises clients and prepares documents and cases'.
This definition alone points to the fact a solicitors role includes a lot of administrative work. Slapper and Kelly (2000, p826) take the definition a step further and see a solicitor as 'a lawyer who deals with clients direct and when a particular specialism of litigation is required will engage the services of counsel, that is, a barrister'. This immediately shows that there is a distinct line between the two professions, with barristers being deemed as the expert profession. Speak to any barrister, and they would no doubt agree.
The main role of a solicitor is to provide specialist help, advice and guidance on legal issues to clients and a solicitor is generally seen as the first point of contact for anyone seeking legal assistance (Huxley-Binns and Martin, 2005, p298). Solicitor firms range from large national organisations such as Irwin Mitchell's with almost 2000 staff, to small scale, local operations, such as Coates solicitors in Sheffield, with 5 members of staff. Solicitors come under the umbrella of the Law Society, and a solicitor undergoes specific training to join the profession.
The basic training for both solicitors and barristers is the same, with just the vocational qualifications being different – a legal practice course for solicitors, and a bar vocational course for barristers. By both undertaking the same basic training, there is scope to see why a fusion of the professions is thought to be the way forward. The client base of a solicitor can range from members of the public, to businesses, to charities. As mentioned, a solicitor will provide their client with specialised legal assistance and if necessary will represent their client in certain courts.
However, this is where the distinction between a solicitor and a barrister comes into play – only barristers and a select few qualified solicitors are allowed to represent clients in the higher courts. The number of solicitors in England and Wales has increased significantly over the last quarter of a century, with over 97,000 practising as at 2004, and the estimated increase in this figure is approximately 4% per year (Partington, 2006, p240). Partington states that the increase in the required numbers can be attributed to a number of factors, such as economic growth, globalisation, and numerous social changes focussing on citizens rights.
In today's society, the need for legal services will only increase, as public knowledge of services grows due to advertising and media such as the Internet 2. 2. Barristers The Oxford dictionary of Law (2006) defines barristers as 'A legal practitioner admitted to plead at the bar' and states their primary function is to 'act as advocates for parties in courts or tribunals'. This definition is endorsed by Huxley-Binns and Martin (2005, p298) who state that barristers 'provide specialised legal advice…. and conduct advocacy in the courts'.
This clearly shows the two main roles that barristers perform. Barristers have traditionally been seen as the next step up on the legal ladder from a solicitor. This does lead to a belief that barristers feel superior to their 'lower' legal colleagues, and barristers are often criticised for their pompousness and arrogance. Does the separation of the profession contribute to this? As such, yes, but it is more down to the historical operation of the two legal professions – and some barristers are finding it difficult to accept solicitors with higher rights of court.
Barristers can be employed or self-employed. Employed barristers work for either the Crown Prosecution Service (CPS) or directly in solicitors firms. Self employed barristers practice at the Bar and usually work at a set of chambers. The chambers allow administrative duties and expenses to be shared with other barristers. Such chambers are relatively small, with between 15-20 barristers sharing the premises (Martin, 2005, p204). Whilst tenancy at chambers is not mandatory, it is deemed the best way for a barrister to build up a successful practice.
One key difference for a barrister is that they operate under what is known as the cab-rank rule, which in theory means they cannot turn down any case so long as it is in an area they deal with and they are free to take the case. This is covered under section 6 (601 and 602) of the barrister's code of ethics. This rule puts pressure on a barrister, as they have no choice on whether to take a case. For example, there could be moral grounds that they do not wish to take a case? Is this fair? To a certain extent, no.
However, all barristers are aware of this rule when they enter the profession, and the benefit of this rule is it ensures access to justice. There are exceptions to the rule, such as family law cases (section 604. b) where a barrister can reject a case. Also, if a barrister is contacted directly by a client, the cab-rank rule does not apply. Until recently, employed barristers were unable to conduct cases in the Crown, High or appellate courts. Given the fact that employed barristers underwent the same training as self-employed barristers, this was seen to be an unnecessary restriction.
This was rectified by the Access to Justice Act 1999, which allowed employed barristers to keep their rights of audience (Martin, 2005, p205). This was seen as a step in the right direction in modernising the work of barristers, and showed that the profession could change. You could use a similar argument for the fusion of the professions, after all they both perform similar functions – is there a need to have specialised lawyers? This will be covered in more detail in the following section.