1(A) The English legal profession is atypical of the majority of the rest of the world due the fact that is divided. Unlike countries such as the USA where they have just one lawyer known as an advocate, in England we have two different types, each with different roles and responsibilities within the system. The principal distinguishing factor between them is that solicitors primarily do the paperwork whereas the role of barristers is mainly concerned with advocacy. The profession has been separated in such a way ever since the nineteenth century as a result of an agreement with the Bar.
Solicitors were given the job of direct client contact and the writing of all legal documents in exchange for barristers to have the exclusive rights of audience in the higher courts and eligibility to become senior judges. 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 faces the public comes 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. 1(B) The first step towards an attempt at equality for solicitors and barristers came in 1969 when the Law Society argued for rights of audience in the higher courts. However, their plea was essentially unsuccessful as the Beeching Report recommended that this should only be allowed if there were insufficient numbers of barristers, and even then this right could only been permitted by the Lord Chancellor in certain circumstances.
As from 1972, due to a Practice Direction from the Lord Chancellor's Department, if solicitors have appeared on behalf of a client in the magistrate's court they are entitled to appear in appeals of committals for sentencing from the magistrate's to the Crown Court. In 1985 the Lord Chancellor's Department, via a Practice Direction, made it possible for solicitors to appear in the Supreme Court in certain circumstances; formal/unopposed proceedings and when judgements are given in open court.
In 1986 it was proposed in the Law Society's document Lawyers and the Courts: Time For Some Changes that all lawyers should complete two or three years work based training called 'general practice and only after this go on to specialise and choose whether or not to train as barristers. During this period they would all have rights of audience in the lower courts and tribunals, but after this initial training all lawyers would have rights of audience according to their competence. Therefore the Bar would become an organisation of advocates with specialist skills instead of just barristers, however the Bar Council rejected the idea.
The Courts and Legal Services Act 1990 (CSLA i?? 90) has been one of the most significant features of the history of the movement to merge the two legal professions. It brought about numerous changes; certain professional clients now have direct access to barristers, there is access to higher levels of judiciary for solicitors, formations of partnerships between lawyers and members of other professions are permitted and there are extended rights of audience to "suitably qualified persons". Traditionally lawyers were not allowed to form partnerships with members of other professions but the CSLA i?? 90 allows this to happen.
However the Law Society and Bar Council are entitled to form their own regulations about this matter. The current situation is that neither of them has permitted partnerships and the Bar is particularly opposed to them. Additionally in 1992, Committee recommendations introduced that solicitors can now appear for either prosecution or defence in the higher courts by obtaining a Solicitor's Advocate Qualification. This was a fundamental change as it meant that it is now possible for solicitors to gain rights of audience in the higher courts and thus lessening the gap between solicitors and barristers.
Up until 1996 clients could only indirectly access barristers through their solicitors, but in 1996 there was a slackening of this rule. The Bar Council made it so appropriately trained Citizens Advice Bureau's, instead of solicitors, can prepare cases for barristers for members of the general public. Opportunities to gain rights of audience were further extended in 1997 to solicitors employed in industry and other organisations as opposed to just law firms.
Nevertheless there were various limitations; they are not permitted to appear for prosecution in criminal court cases committed for trial in Crown Court, in civil cases in higher courts or for local authorities in care proceedings. In 1998 the Lord Chancellor promised plans to allow all barristers and solicitors to appear in any court. This announcement was due to his belief that rules regarding rights of audience were still too limiting and the CSLA i?? 90 had failed to dispense a satisfactory choice of legal service providers. His criticisms and recommendations were presented in his report to Parliament, "Modernising Justice".
The Lord Chancellor's plans were implemented by the Access To Justice Act 1999 (ATJ i?? 99). The main points being that solicitors will have automatic rights of audience but are required to undergo training in order to use them, the procedure for approving rights of audience is now simplified and with Parliamentary endorsement the Lord Chancellor has the power to change excessively restrictive rules. The reason for power being passed to the Lord Chancellor is to ensure that the legal professions are unable to prevent development and reform by clinging on to restrictive regulations.
The amalgamation of the two legal professions would have major repercussions and there are coherent arguments both for and against it. The most significant advantage for the general public is that it would be considerably cheaper; instead of having to pay for both a solicitor and a barrister, clients would only have to pay fees for one lawyer. Michael Zander demonstrates this concept well; "To have one taxi metre running is less expensive than to have two or three.
" Expenses for the Legal Aid fund would be dramatically reduced by i?? 1m per year, as suggested by the Legal Aid Scrutiny Report. Solicitors would benefit as they would earn more then they do currently but barrister's earnings would most definitely fall, which would obviously be a disadvantage for them. In the present system the client cannot directly contact or choose their barrister, it is done on their behalf by their solicitor. This means that the client rarely has any knowledge about the abilities and skill of their barrister.
An advantage of fusion would be that clients are able to choose barristers themselves and do not have to make do with the one they would otherwise acquire through their solicitor. Another current problem, highlighted by research by Bottoms and McLean, is the fact that in 96% of cases with guilty pleas and 79% of cases with not guilty pleas the clients don't even see their barrister until the morning of the trial. As a result this could mean that principal points might be overlooked or misunderstood. Merging the legal professions would combat these problems of inefficiency within the system.