Legal Profession. Barristers and Solicitors. Overview of education and training. Criticisms. 1. Cost: legal practice and bar vocational course cost £5,000 for which there is no grant. For those without a law degree, the Common Professional Exam year will cost fees of £5,000. Both the Common Professional Exam and the practice bar vocational year will actually cost £10,000 because students have to keep themselves.???? Such costs will narrow the social base of the legal professional even more (and therefore of the judiciary.) 2. Over-supply: this argument comes somewhat counter to argument 1) in that it is increasingly difficult to find a training place in a solicitors office or a place in chambers for the pupil barrister supply of training places is outstripped by demand. Three fifths failed to gain a training contract. 3. There used to be a lot of criticism that the training was over-theoretical but both courses have been re-structured in recent years to include practical skills needed by a barrister or solicitor – advocacy business skills, inter-personal skills. Solicitor’s Work. The majority of the 60,000 solicitors work in private practices in firms as wither a partner (joint owner of firm) or an assistant solicitor – employed for a salary. Some solicitors are employed by other barristers companies, local authorities, Crown Prosecution Service. Types of work, small firms – multi-purpose Large firms, more specialization. Probate (wills), conveyancing (houses), family law, employment law, divorce, and custody. Conveyancing. Prior to 1985, solicitors had a monopoly on conveyancing, but the ‘administration of justice act 1985 changed this by allowing specialist firms of conveyancers to do it. The Courts and Legal Services Act 1990 extended this right to banks and building societies, this in turn led to a loss of a large proportion of the work of many solicitors which in turn led them to demand wider rights of advocacy. Rights of Advocacy. All solicitors may act as advocates in magistrates’ courts and the county courts, but until the 1980’s they were not allowed to appear in courts higher than this. A solicitor could only appear in a Crown Court on a committal sentence or on appeal from a magistrate’ court. Until 1986 solicitors had no right of audience in the High Court or above. In 1986 ABSE v Smith there was a liable action. The parties had agreed a settlement but the solicitor was refused permission by the judge to read out the terms of the settlement in open court. As a result the Lord Chancellor and the senior judges issued a practice direction allowing solicitors to make statements in a high court case that had been settled. Then, in the Courts and Legal Services Act 1990 to rules were changed to allow solicitors in private practice to apply for a certificate of advocacy which would enable them to appear in the higher courts. A certificate will only be granted if a) the solicitor already has experience of advocacy in the magistrates court and county court, b) the solicitor takes a short training course and passes exams on the ‘rules of evidence’. Th first certificates granted 1994, by 1997 500 solicitors had qualified. Multi-disciplinary partnership Section 66 of the Courts and Legal Services Act 1990 allows solicitors to form partnerships with other professions like accountants. This would give the client a ‘one stop shop’. However both the law society (solicitors) and the Bar Council (barristers) have rules against multi-disciplinary partnerships so none have been formed yet. Complaints against solicitors. 1. It is a contractual relationship so either side can sue, a solicitor can sue for failure to pay fees, and the client can sue if the solicitor fails to do the work properly. 2. The client can also sue for negligence in both work done in court and work done out of court, but where the negligence arises in presenting the case in c9ourt as an advocate the solicitor cannot be sued for negligence. 3. In certain circumstances people other than the client may sue for negligence. White v Jones (1995) 4. Solicitors Complaint Bureau, until 1996 this body was responsible for looking into complaints against solicitors. Most of the cases involved delay and overcharging. The CCB could act as a conciliator – force the solicitor to reduce fees or refund fees and in extreme, take the solicitor to the solicitors disciplinary tribunal of the law society which can strike a solicitor off the law society’s role. However in 1984 the National Consumer Council produced a report on the SCB cataloguing delays, lack of thoroughness and failure to give reasons for decisions. As a result the Law Society abolished the SCB in 1986 and set up the office for the supervision of solicitors whether this will be anymore effective than the SCB remains to be seen as like the SCB it is still funded by the law society. The Legal Services Ombudsman. The CLSA 1990 created this body to hear and examine complaints against solicitors, barristers and licensed conveyancers where the professions own regulatory bodies did not produce a satisfactory answer. He can recommend that the solicitor pay compensation or even that the Law Society should. In 1995, 2,000 complaints to the ombudsman of which 1789 were against solicitors but he only made a recommendation in 200 (10%) of cases. Solicitors. Pros. Dissatisfied clients can complain to the CSS, which is fiercely independent claims, the Law Society. Law Society does have written standards on charging – clients should be given full info. Law Society Harris Poll – 90% of clients are satisfied 2/3 are very satisfied. Those dissatisfied with the CSS can appeal to Legal Services Ombudsman. Law Society president says ‘uplift’ is dying out – about 2 out of 40? Cons. National Consumer Council solicitors are beyond the law. ‘Uplift’ is added to the bill – profit margins. Solicitors use young solicitors and clerks for the basic work, this may be less efficient as it takes more time and therefore costs more. Slow and expensive. 1995 the Law Society had 20,000 complaints mostly about cost, costs are often proportion to damages awarded. Solicitors charge by the hour – less efficient solicitors could therefore end up costing more. Many calculations are £100 an hour even in poorer areas. Law Society Harris Poll 10% dissatisfied. Some early signs that OSS will be no different from to the SCB. Rise in people representing themselves. Despite the Law Society written advice on charging many times give us information about costs in advance. A few do. The Law Solicitor rules do not make a solicitor outline costs until after he has been ‘instructed’. Barristers. Known collectively as ‘the Bar’. Professional body is Bar Council (equivalent to solicitors’ law society.)The general council of the Bar runs the profession. A barrister must also be a member of an Inn of Court: Lincoln’s, Inner Temple, Middle Temple, Gray’s. All in London. Training. See diagram on sheet 136. Until 1997 only the Inns of Court School (Bar School) could run the Bar Vocational course, but from September 1997 six other bodies have been validated, including, Nottingham, Bristol and Cardiff. This will b better for students who do not wish to spend their years in London, but they will have to join on eof the four inns of Court. However it is no longer compulsory to attend Inns Dinners. Students can instead do a weekend residential course at their Inn. Such changes will, in a minor way, increase access to the profession, but may also further exacerbate problems of over supply. Until recently, many ‘pupils’ had to pay for the privilege of pupilage. This has largely gone, but not all chambers will pay a salary and those who do pay, pay a small one. Barrister’s Work. Self-employed. They work from a set of chambers. Each chamber employs a clerk as a practice administrator, booking cases and negotiating fees. It is often difficult for a newly qualified barrister to find a tenancy in chambers. However, it is possible for a barrister to practice from home. The majority of barristers concentrate on advocacy. They have rights of audience in all courts in England and Wales. They will also write opinions for solicitors. Only certain categories of client can go to a Barrister direct – people living abroad, surveyor’s firms, and accountants. Other people have to go through a solicitor who will charge the client the Barrister’s fee and then recompense the Barrister. Some Barristers are employed by firms or mostly by the Crown Prosecution Service. Under current rules employed Barristers are not allowed to appear in the Crown, or higher courts. Barristers claim this protects their independence, and the independence of the courts. Critics claim that it is wasteful for the CPS to have to ‘hire Barristers to do advocacy work when they have their own ‘ in home’ Barristers. The Lord Chancellor is currently looking at this – January 1999. Queen’s Council. After ten years a Barrister or a solicitor with an advocacy certificate can apply to the Lord Chancellor to become a Queen’s Counsel (or Q.C). About 10% of the Bar are Q.C.’s – the rest are known as ‘juniors’. Q.C.’s take the most important cases and can charge higher fees (they often have a supporting junior). The process of selection is secretive and unsuccessful candidates are never told why. Less than 10% of Q.C.’s are women and very few are from ethnic minorities. This has a knock on effect on the composition of the judiciary; especially the senior judiciary which is mostly composed of Q.C.’s. The amount a Barrister earns seems to be a key consideration in awarding Q.C.’s and some critics argue that the whole Q.C. system should be abolished since it simply a ‘licence to print money’ for 10% of elite Barristers. Supporters say it is a good way of distinguishing the elite of the profession so solicitors know who to go with difficult cases. Legal Profession Training: Barristers Common Practice Exam – Bar Vocational Course – Called into the Bar (pupilage) Solicitors. Legal Practice Course – Common Entrance Exam - Training Contract – Practicing Certificate. Criticisms 1) Cost: Narrow Social Base of Professions and Judiciary. 2) Over-supply 3/5 fail to gain a contract. 3) Used to be theoretical but now it is much more practical. Solicitors. In a firm, local authorities, Crown Prosecution Service. Probate – wills. Conveyancing. Family – divorce. Employment – custody. Administration of justice act 1985 – specialist firms for conveyancing. Courts and Legal Service Act (1990) – extended right to banks and building societies. Argued of their right of advocacy. ABSE v Smith (1986) solicitor not allowed to read terms of settlement in an open court. Practice Direction from the Lord Chancellor to make statements from a high court case that had to be settled. Courts and Legal Services Act (1990) Private Practice Solicitors can apply for a certificate if they: Have had rights in Crown or County Court or has a ‘rules of evidence exam’. Multi Disciplinary Partnership Courts and Legal Services Act (1990) – solicitors to from partnerships with other professions ‘one stop shop’. None yet because the Bar and the Law Society disapprove. Complaints. 1) Clients can sue for incompetence. 2) Can sue for work done in court and but not for advocacy negligence. Saif Ali v Sydney Mitchell and co (1990) – now in Courts and Legal Services Act. 3) Certain circumstances, other people other than the client can sue. White v Jones (1995) 4) Solicitors complaints body till 1986 – delay and overcharging were the main complaints. However, delays, lack of thoroughness, failure to give reasons, the office of supervision of solicitors are still funded by the Law Society. Legal Services Ombudsman. Pros. ‘Uplift’ is dying out – president of the law society. Written standards on charging – clients could be given info. Dissatisfied clients can complain to CSS – independent. Harris Poll – 90% of the customers are satisfied. Cons. Despite Law Society written advice on charging not many do so. The Law Society rules do not make a solicitor outline costs until after he has been ‘instructed’. And even one third do not even after instructions. 1995, the Law Society had 20,000 complaints mostly about cost, and the costs are often out of proportion of the damages awarded. Many calculations are £100 an hour. Slow and expensive. Uplift added – this increases the solicitors profit. The National Consumer Council says that solicitors are beyond the law. Solicitors use young solicitor’s clerks for the basic work. Which may be less efficient and cost more. Barristers. Inns of court. Lincoln, Inner Temple, Middle Temple, Gray’s. All situated in London Until 1997, only Inns of Court could run vocational course, but now, Bristol, Nottingham and also Cardiff. It is also no longer compulsory to attend the Inns dinners. Work: they are self-employed from chambers or home and only certain people can go straight to a barrister. People who are living abroad, surveyors firms, accountants. Q.C’s: after ten years they can apply to become a Q.C. it is been said that Q.C.’s have a licence to print money.
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