Describe the present organisation of the legal profession (Solicitors, Barristers and Judges). To what extent is this form of organisation capable of satisfying the legitimate expectations of those using or involved with the legal profession. In order to address this question I endeavour describing the present organization of the legal profession namely the roles of Solicitors, Barristers and Judges, and the ways in which they interlink with one another within the legal system. In turn I will assess whether the present organisation is capable of satisfying the legitimate expectations of those using or involved with the legal profession.
There are many differences between the English Legal System which derives from the common law, and law operating in other countries. For example with that of Roman law which is the system adopted by the majority of countries in Europe. Primarily it is imperative to appreciate that the legal profession can be divided up under two main headings namely, Solicitors and Barristers. Each group has its own duties and functions and its own controlling body. The two professions are separate and distinct, different governing bodies control them, their qualification requirements are different and their traditions are different.
One cannot be both a Solicitor and a Barrister. Out of the two, the Barrister is the 'senior' profession, although many solicitors are reluctant to admit this For a person to become qualified as a solicitor, they must, hold a 'qualifying' degree, have passed a one year postgraduate Legal Practices Course, have entered into a training contract with a firm of Solicitors for two years, complete a 20 day Professional Skills course during the training period and have satisfied the Law Society as to their good character and suitability to practice as a Solicitor.
Whereas for a person to become qualified as a barrister, they must hold a 'qualifying' honors Degree and join one of the four Inns of Court. There is a requirement to take and pass the Bar Vocational Course ( a one year course similar in nature to the Legal Practices Course required for trainee Solicitors). Once this has been completed, the student qualifies as a Barrister and is 'called to the Bar'. However, before they can appear in Court on behalf of a client, they must undergo a one year 'pupilage' to a barrister of at least five years' standing.
They must then obtain a 'seat' in a set of Chambers. There are currently about 96,000 practicing solicitors in England and Wales. Their duties and functions are wide and varied and most of their income is derived from a number of duties which may include conveyancing: which is the work undertaken to transfer the legal estate in land, drawing up wills, divorce settlements, civil litigation etc… However in relation to Barristers the profession is quite small with only some 8,000 practicing Barristers and it is still dominated by males, although women Barristers are increasing in numbers steadily.
The main function of the Barrister is to act as advocate, to represent clients in court. Whereas solicitors act on behalf of clients in the lower courts, barristers tend to act in the higher courts and have almost exclusive rights to do so at this level. They have automatic rights of audience in all courts from the day they enter the profession. For this reason, there are times when barrister representation is essential and such representations form the bulk of their work. They also have other duties which may include for example drafting legal documents in court proceedings (called 'Statements of Case').
Solicitors have automatic right of audience to conduct cases in Tribunals, Magistrates' Court and County Court, and were in 1986 given a limited right of audience in the High Court, and can appear in appeals to the Crown Court from the Magistrates' Court or on committal for sentence. Extended rights were given under the Court and Legal Services Act 1990 and Access to Justice Act 1990. However, the only way to qualify for rights of audience in the higher courts will now be via a 'development' route which involves a compulsory training course, followed by knowledge and skills assessments.
An 'experience' period will also be necessary, evidenced by a portfolio of cases and advocacy experience over a 12 month period. This change is as a result of the provisions under The Access to Justice Act 1999. On this basis, all Solicitors can have full rights of audience. Solicitors are governed by the Law Society which controls such areas as qualification, admittance to the Roll of Solicitors, supervision of the accounts of solicitors, grievance procedures against solicitors, and discipline. The Bar Council is the barrister's governing body. It was formed in 1894.
Its purpose is to maintain the standards and independence of the bar. It also deals with questions of professional etiquette, but it has no disciplinary powers. Disciplinary powers lie with the 'Senate of the Inns of Court' which has the power to disbar a barrister. Solicitors limit their firms liability in many instances since law does not permit solicitors to incorporate themselves. The majority of solicitor practices as a result operate as partnerships, thus this has the added advantage of several areas of expert advice being immediately available.
Aswell as this each partner can specialise in one branch of the law. Similarly by law, barristers are not permitted to incorporate themselves, nor may they enter into a partnership. Thus, they work by themselves and for themselves and for this reason, similarly many specialise in a limited branch of the law. In respect to possible claims against a solicitor for negligence all solicitors are obliged to take out a professional indemnity insurance policy.
There is also a necessary requirement to pay into the Law Society's Compensation Fund which was set up to repay the Clients of Solicitors who have been fraudulent or dishonest. Previously solicitors had limited immunity from such claims but this was only in circumstances where litigation work was being carried out which should have been carried out by a barrister as illustrated in the case of Saif Ali -v- Sydney Mitchell (1978 ) where it was held that this immunity did not extend to work outside court e. g. preparation, advice.
This has now changed, however, and the House of Lords abolished advocates immunity from negligence, as illustrated in (Arthur J. S. Hall & Co. -v- Simons) In respect to the position of Barristers in relation to claims of negligence on the grounds of "public policy" it used to be that a barrister (and a solicitor) couldn't generally be held liable in negligence for the manner in which he conducted a court case or for any matters connected with a case before it reaches the court.
However, on matters of a non-litigious nature, liability could attach as illustrated in the case of Rondel -v- Worsley (1967), and Saif Alli -v- Sydney Mitchell and Co. (1978). The reasons given were that if a Barrister could be sued for negligence, it would mean a retrial of the original case.
This would open the door to every dissatisfied litigant and lead to a multitude of pointless actions. However, this has changed due to the landmark House of Lords decision in Arthur J. S. Hall & Co.-v- Simons (2000) where it was held that a barrister can now be sued for negligent conduct of a case in court and for negligent preparation at the pre-trial stage The ways in which the two roles of Solicitor and Barrister interlink with one another can be shown since it is not permissible for a private individual to approach a barrister directly. What must happen is that a solicitor must introduce the client to the barrister. In a way, this works to the client's advantage, for he does not have to search around for a barrister who specialises in the particular area upon which he needs advice.