The present divided legal profession only dates from the 19th century when the Bar agreed to give all conveyancing work and all direct access to clients to the solicitors, in return for sole rights of audience in the higher courts and the sole rights to become judges for barristers. However, since the late 1960s, there have been a series of moves towards breaking down the division. 1969: In its submission to the Royal Comm.
On Assizes and Quarter Session, the Law Society argued for rights of audience in the Crown Court, but the Commission's report (the Beeching Report) recommended only that solicitors should be allowed to advocate in areas where there were insufficient barristers. 1972: A Practice Direction from the Lord Chancellor's Dept. stated that solicitors could appear in appeals or committals for sentencing from the Magistrates' to the Crown Court where they had appeared for that client in the magistrates' court. 1979: The Law Society lobbied the Royal Comm.
On Legal Services for Crown Court rights of audience in either-way offences and for limited rights in the High Court. The Bar Council opposed these, arguing that not only could this lead to a reduction in standards of advocacy, but it would be financially disastrous for the junior Bar. The Commission recommended no change in rights of audience – though its decision was made only by an 8 – 7 majority. It did recommend, however, that solicitors should be allowed to deal with formal or unopposed petitions.
1985: In Abse v Smith, the then Liberal MP Cyril Smith challenged a judge's ruling that his solicitor could not read out a seven-line statement in the High Court. Although this ruling was upheld, a later Practice Direction permitted solicitors to appear in the Supreme Court in formal or unopposed proceedings, and when judgment is given in open court. 1986: The Law Society document Lawyers and the Courts: Time for Some Changes proposed that all lawyers should undergo the same training, work 2-3 years in 'general practice' and then choose to go on to train as barristers if they wanted to and were competent.
While in 'general practice', lawyers would have rights of audience in the lower courts and tribunals. The Bar Council unsurprisingly rejected these ideas. At this time the Legal Aid Scrutiny Board suggested allowing solicitors to appear for Guilty pleas in the Crown Court; this would save i?? 1m on legal aid. 1987: The Govt's White Paper on Legal Aid rejected this proposal. 1988: The Marre Committee was set up by the Bar Council and the Law Society to examine inter alia the structure of the legal profession.
It largely recommended maintaining the status quo, but did recommend that rights of audience in the Crown Court be extended to solicitors recommended by a Rights of Audience Board, and that barristers should be allowed to take instructions directly from professions other than solicitors. 1989: The Lord Chancellor published 3 Green Papers, and the White Paper – Legal Services – a Framework for the Future which adopted recommendations from the Green Papers and from the Civil Justice Review.
This formed the basis of The Courts and Legal Services Act 1990 which contains major changes in the provision of legal services. Courts and Legal Services Act 1990: Main Provisions 1. Direct access to barristers by certain professional clients. 2. Access to the higher levels of the judiciary for solicitors. 3. Rights of audience in all courts should be extended to 'suitably qualified' persons, not necessarily barristers or solicitors. The rights of audience held by barristers and solicitors prior to Dec.
1989 are deemed to have been granted by the Bar Council and the Law Society respectively, but any extension of these require to be considered by the Lord Chancellor's Advisory Committee, and then have to be approved by the LC. and the 4 senior judges – LCJ, MR, Vice-Chancellor and President of the Family Div. The Act states that the general objective is that there should be a wider choice of people providing legal services, and that rights of audience and litigation should only be determined by reference to education, training and membership of a professional body.
It is thought that accountants, property surveyors and tax specialists might be awarded rights of audience. In 1992 the Advisory Committee recommended that experienced solicitors should be given extended rights of audience after a short training course. They would then be given an advocacy certificate, allowing them to appear for either party in the High Court, and for the defence in the Crown Court. Solicitors holding advocacy certificates would be required to follow the 'cab-rank' rule.
Note that these recommendations excluded solicitors employed in industry etc. on the grounds that they were not sufficiently independent. In 1996 there were about 400 solicitor-advocates who received rights of audience in either the High Court (civil) or Crown Court (criminal); of these, about 90 obtained rights of audience in both, but it is noteworthy that most of these were former barristers who had re-trained as solicitors.
Finally note that there is still considerable opposition to the grant of rights of audience in the Crown Court to both solicitors and barristers employed by the CPS – cf position in Scotland where advocates (barristers) employed by the Crown Office themselves prosecute in all serious criminal cases. 4. The Act also deals with the problems of multi-disciplinary and multi-national partnerships. Hitherto solicitors have not been allowed to form partnerships with members of other professions.
The RCLS considered this position and approved of it, arguing that if solicitors formed partnerships with, say, estate agents could result in such firms being absorbed into large firms of estate agents with a consequent restriction in the choice of legal services in rural areas. The Law Society is also not keen on this idea as it is concerned about maintaining the independence of the solicitor's position in view of possible conflicts of interest that could arise.
The Act provides something of a compromise, abolishing the outright restrictions on multi-disciplinary practices while at the same time allowing the Law Society to make rules controlling their operation. Provision of Conditional Fee agreements whereby both barristers and solicitors may undertake litigation on the basis that if they lose the case, they may not charge the client for the work done; however, if successful, they may charge up to twice the usual fee.
This came into effect in 1995, but such agreements may only apply to cases involving personal injury, insolvency or applications to the European Court of Human Rights. The vexed problem of the loser having to pay the winner's costs is largely resolved by the provision of insurance arranged by the Law Society. The Law Society has also drawn up a model agreement whereby solicitors agree that their fee will be no higher than 25% of the client's damages award.