English Legal System Research Paper

The legal profession can be traced back to the twelfth century. It was difficult to differentiate between the two branches but barristers were originally known as Apprentices in law equivalent to today's Junior Counsel. Those who were given rights of audience in the higher courts were known as Sergeants at law a title abolished by the provisions of the Judicature Act (1873). This title would equate to the Queens Counsel of the modern Bar. Solicitors as we know them today were mainly concerned with the preparation of court work and took on many titles.

This is not to say they did not advocate in some of the lower courts. In Common law courts they were known as Attorneys, in Ecclesiastical and Admiralty courts Proctors and in Chancery courts as Solicitors. In 1739 these lawyers grouped together to form "The Society of Gentlemen Practisers in the Courts of Law and Equity" although it was far from representative of all the non-advocates. This society became "The Incorporated Law Society of the United Kingdom" in 1831 and granted a Royal Charter in 1845 to become "The Law Society" by charter in 1903.

The Judicature Act (1873) set the seal on the division of the two professions and merged the titles of Attorneys and Proctors into Solicitor. The division of labour was complete. The distinction between barristers and solicitors has often been compared to that of doctor and consultant. This analogy is somewhat floored. A senior partner in a solicitors firm will know infinitely more than a junior barrister setting out on their career path. Barristers are perceived to the public as bewigged and gowned advocates who appear in court to argue for the defence or prosecution but this is only a part of the barristers remit.

Barristers segregate from solicitors after gaining their degree to take further examinations set by The Bar Council. They then spend a year in pupillage, the first six months of which are unpaid, under the supervision of a qualified barrister of five years standing. Once completed they attain the title of junior counsel. The higher echelons, ten percent of barristers, obtain "silk" by appointment of the Queen on the advice of the Lord Chancellor. This is a reference to the gown worn and they are then known as Queens Counsel.

Barristers who work as advocates are given rights of audience in all courts in England and Wales. They can work for prosecution or defence in criminal cases and plaintiff or defendant in civil matters. Barristers obtain their work from solicitors who prepare briefs, on overview of the case, to be argued in court. They have no direct dealings with the public and must see clients in the company of their solicitor. Briefs can be sent to an individual barrister or a set of chambers where a clerk will distribute them to barristers with relevant knowledge on a cab-rank, first come first serve, basis.

Barristers are obliged to take all briefs within their remit including legal aid work. Barristers also draw up documents and give advice on cases to solicitors, some barristers spending much of their time on such work rarely appearing in court. Although self employed barristers cannot set up partnerships but they do work in chambers with other barristers sharing the cost of secretarial staff and maintenance. Not all barristers work in chambers and there has been a growth in employed barristers who seem to do similar work to employed solicitors, non-contentious and case preparation for their employer.

Barristers cannot sue for their fee but solicitors are obliged to pay them even of they are not paid themselves. Barristers are not liable in the tort of negligence for work done in court or their opinions in cases referred to them by solicitors Rondel-v-Wosley but can be sued for work done in pre trial preparation Saif Ali-v-Sydney Mitchell & Co.. Solicitors are the front line troops in the legal profession. They are the face the public come into contact with when they have legal problems. At the university split solicitors go onto examinations by the Law Society.

After completion they spend two years as articled clerks then become solicitors. Solicitors advise on all legal matters although larger firms tend to specialise in certain areas of the law. They have limited rights of audience in the courts and spend much of their time preparing cases for court and drafting documents. Unlike barristers solicitors can sue for their fees, they can also take or reject any case that comes to them. Solicitors are also employed in organisations ranging from the Crown Prosecution Service to local authorities and increasingly in the private sector.

Almost from the start of the division in the two professions there has been calls for a fusion. In the present economic climate and the spiralling cost of going to the law the advocates of fusion point to the duplication of work in the profession. A solicitor, once they have got to grips with the case, must duplicate a brief for the barrister. They then must accompany their client whilst visiting the barrister in chambers. Once the case has reached the courts the barrister is handed the reins of a case but the solicitor must remain present even though he has no "voice" in the court.

A classic example was recorded in The New Law Journal by Tony Holland. A newspaper was summoned by the judge to appear the next morning in court to answer allegations of contempt. The solicitor, a specialist in this field, asked if he could speak in court to explain there was no contempt under S. 5 of the Contempt Of Court Act. This was not allowed and the hearing had to be conducted with a barrister, with solicitor present, the case lasting two minutes, the total cost doubled [1992] NLJ. 818.