Criticisms of Lawyers education and training by iamdmx

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									Lawyers
In the UK there are two different types of lawyers.

Solicitors do most of the pre-trial work.
Barristers specialise in advocacy




M Roman                                     2004      Lawyers
Education and Training
Solicitors

Academic stage

A law degree
This is the usual route and normally takes three years at university. The LLB includes
the seven compulsory subjects necessary to progress to the vocational stage.
Or
The Post Graduate Diploma in Law
This is the alternative for those who have a degree in another subject.
25% of solicitors come through this route
If done full time it is an intensive one-year course that covers the compulsory subjects
The Diploma was previously known as the Common Professional Exam (CPE).
Or
The Institute of Legal Executives route
Students must pass a sufficient number of the Part 2 ILEX examinations and have
spent at least 5 years working in a legal office.
They must also be Fellows of the Institute.


Vocational stage

The Legal Practice Certificate (LPC)

Takes one year if done full time
This teaches the more practical skills required by solicitors. Interviewing, negotiation,
advocacy, conveyancing, drafting wills pleadings contracts and other documents.
Basic accounting and business management are also on the syllabus.


Training stage

Training Contract

This is on the job training.
It is usually done in a solicitors office but can also be served in other organisations
such as the CPS or the legal department of a local council.
It lasts for two years although it is possible to do the second year in a different place
than the first
The trainee will be paid a salary and will have his own clients. However a qualified
solicitor will supervise his work
During the two years he will also have to attend about 20 days of Professional skills
training
Once training is complete the trainee is “Entered on to the Rolls” as a qualified
solicitor.



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Barristers

Academic stage

Law degree
Or
Post Graduate Diploma in Law (CPE) one year
For those with degrees in other subjects. Also for some mature students without a
degree but with other suitable qualifications and work experience.

Vocational Stage

Bar Vocational Course. (BVC)

A full time one-year course
Taught practical skills such as writing opinions, legal research and drafting court
documents
Advocacy skills are practiced through role-plays and mock trials.
Before 1997 the BVC could only be done at the Inns of Court in London.
Today there are six other towns including Bristol where the BVC can be studied.
Whilst doing the BVC it is also necessary to dine 12 times at your Inn of Court.
Today these meals are centred around training days
After completing the BVC a barrister is called to the bar and is qualified. However he
cannot practice until completing his training

Training Stage

Pupillage

On the job training as the pupil of a qualified barrister.
A small salary is paid
The first 6 months involve work shadowing.
In the second six months he can take paying clients and can appear in court on his
own.
The pupil must also attend continuing education courses put on by the Bar Council
After a years pupillage a barrister is able to practice




M Roman                                 2004                                  Lawyers
Criticisms of Lawyers education and training

   1. Costs discourage the less well off

Fees for the LPC are around £6000. A similar amount has to be paid for the BVC
course.
On top of this students have to support themselves during that year of full time study.
The less well off will have to give up or take out huge loans.

The position of the would be barrister is even worse because they are paid only about
half of what solicitors get on their training contract.

These factors do a lot to discourage working class students from qualifying.


   2. Post Graduate Diploma (or CPE) is only one year.

The Omrod committee 1971 said that it was not a proper substitute for a law degree
because it was only one year of study. They said that would be lawyers should be
required to do the full degree.
One critic who agreed with this by pointing out that we would not have full
confidence in a doctor who had had only one year of academic study in medicine.


   3. Difficulties in getting Training Contracts and Pupillages.

During the 1990s there was an expansion in the number of universities permitted to
offer LPC and BVC courses.
In consequence the numbers of those seeking training contracts and pupillages have
increased much more rapidly than the places available.
In some years over half of those with an LPC are unable to get training contacts. A
similar problem exists for barristers.

Women ethnic minorities and those from less traditional universities have the most
difficulty in getting places.
There is something wrong with a system that requires students to undertake years of
study and take out loans and then deny them the opportunity of going through to the
final stage in qualifying.




M Roman                                  2004                                  Lawyers
Lawyers Role
Solicitors

Work Organisation
Some solicitors work for the CPS as Crown Prosecutors
Others work as legal advisors for government or local government departments
Some work for large business organisations

The vast majority work in private practice for a firm of solicitors.
Firms vary a lot in size. Some will have just one partner others over a hundred. A
partner is a solicitor who shares in the profits of the firm

Large city firms may just do commercial work that rarely leads to court action. Some
high street firms may specialise in particular types of law whilst others may deal with
a wide range of legal matters.

Solicitors cannot form partnerships with other professions such as barristers or
accountants.
This is prohibited by the rules of the Law Society.
S66 of the Courts and Legal Services Act 1990 did allow multi disciplinary
partnerships but it also said that the Law Society could retain its ban if it wished .So
far it has done so.
Multi disciplinary partnerships may benefit the client because they would create a one
stop shop- all the professionals you might need for your problem could be found
under one roof. This would save time and be more efficient.

Types of work
This will vary according to the specialisms of the firm and the individual solicitor.
It may include

Giving legal advice
eg A client wants to know if he has a case worth pursuing

Negotiating settlements
eg Reaching an agreement on who gets the children or how much damages will be
accepted for the injury to his client.

Drawing up legal documents
eg wills, divorce papers, contracts and pleadings.

Conveyancing
This involves the legal requirements of buying and selling land and houses
Solicitors used to have a monopoly on conveyancing but today non-lawyers such as
Licensed Conveyancers, banks and building societies can do it. CLSA1990

Preparing briefs for barristers.
Briefs are files containing all the documents that the barrister may need to fight the
case in court.
A brief may contain witness statements expert reports, photographs etc.


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Some advocacy
All solicitors can advocate in the Magistrates Court and the County Court.
Few have rights of audience in the higher courts
This is why a barrister must usually be hired to advocate in the Crown Court or High
Court.

Solicitors with a Certificate of Advocacy do have full rights of audience in the higher
courts. CLSA 1990.
To get this certificate a solicitor must have at least 3 years advocacy experience in the
lower courts and pass an exam after taking a course in the rules of evidence
By 2000 only 2% of all solicitors had the certificate

S.36 Access to Justice Act 1999 has announced that in the near future all qualified
solicitors will have automatic rights of audience in the higher courts.
This will not happen until the training of solicitors is changed to include more
advocacy skills.




M Roman                                   2004                                  Lawyers
Barristers Role

Work organisation
Employed barristers may work for the CPS, government departments or commercial
organisations.
In the past if they became employed they would lose their rights of audience but
under the Access to Justice Act 1999 this is no longer so.

Self-employed barristers form the vast majority of barristers
They usually work in sets of chambers.
Each has his own room in a building that he shares with other barristers
Most chambers are small and have less than 20 tenants
They share the rent for the building and the costs of the administrative staff.

The clerk of the chambers is the most important member of staff
He does the bookings and negotiates the fees for his barristers –
He is the link between them and the solicitors who want to hire them.

By tradition a barrister should not refuse to represent any client who is prepared to
pay his fees. This Cab Rank Rule ensures that even the most reviled client gets
representation in court.

There is currently a shortage of rooms in chambers
A barrister can work without being in chambers but in practice it is very difficult to
get work without this support.

Clients cannot usually contact a barrister directly.
They must get the solicitor to hire him by contacting the clerk of the chambers.
There are some professional clients who can go direct to a barrister without going
through a solicitor eg accountants and surveyors.
In 2000 the Bar council announced that some other types of clients could also go
direct. These included the police, insurance companies, banks, trade unions, and other
organisations with there own legal advisers.

Barristers cannot form partnerships with solicitors or other professionals.
The AJA 1999 allowed it but it is still prohibited by the Bar Council.

Types of work include

Drafting “pleadings” – documents necessary to bring cases to court

Providing “opinions”

If a solicitor wants expert advise on a particular case he will ask a barrister who
specialises in that branch of law.
He will then do research and prepare a formal opinion. This is a document laying out
the relevant laws and judgements and advising the solicitor as to how he should deal
with the case.
 Some opinions may advise whether to settle or go to court.



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Advocacy in all courts

The barristers virtual monopoly of advocacy in the higher courts will soon be
removed by the new rights of audience for solicitors. –see previous


Queens Counsel
These barristers take on more complicated and high profile cases
They can also charge much higher fees and often take junior barristers (non QCs) into
court with them.
To become a QC you must apply to the Lord Chancellor to “take silk”
It is necessary to have at least 10 years experience as a barrister (or as a solicitor with
an advocacy cert.)
The selection process has been criticised as too secretive and perhaps influenced by
the “old boy network”.
Less than 10% of QCs are women and few are from the ethnic minorities.
This is of particular concern because judges are chosen from QCs




M Roman                                    2004                                   Lawyers
Towards an undivided profession
In recent years the roles of the two professions have become less distinct

Both can now advocate in the higher courts.

The CLSA 1990 gave solicitors the opportunity to do it. The AJA 1999 will soon give
them an automatic right.

Both can do some of the preparatory work

Barristers were permitted to do some pre court work by the AJA 1999
They are likely to do even more of this work in the future because
some types of clients can now go direct to a barrister and in 2002 the Bar Council
announced that it would soon allow other clients direct access


The AJA has permitted multi disciplinary partnerships that could include barristers
becoming partners in solicitors firms.

The OFT report said that this would improve the service to the client
If the Law Society and the Bar Council change their rules on this then the dividing
line between barristers and solicitors will become even more blurred.

The consequence of these changes and proposals may be that more and more cases
will be taken from start to finish by just one lawyer.
The fusion of the professions may not be far away


Will the changes benefit clients?

Arguments for

More efficient
The flow of paperwork between chambers and solicitors offices would cease.
The repetition involved in having to get a second lawyer to be familiar with the case
would be avoided

More continuity
The trial lawyer will have a better grasp of the information that he needs to win his
case. If he has taken the case from start to finish he will know his case and his client
very well.

More commitment
The trial lawyers familiarity with his client might also make him more committed to
winning the case than a remote barrister. Under the divided system barristers often
don’t meet the client until the morning of the trial.




M Roman                                   2004                                   Lawyers
Reduced costs
One Lawyer should cost less than two. Less repetition should also make it cheaper.


Against

Loss of the cab rank rule
If barristers are no longer independent and self-employed they will be free to reject
some clients. Some clients may find be left without anyone to represent them.

A decline in the standard of advocacy.
If lawyers divide their time between office and court work their performance in court
may become less skilled. The quality of today's barristers owes much to the fact that
they spend nearly every day in court.

Loss of objectivity
At present the barrister provides the solicitor with a valuable second opinion.
It might also be an advantage to the client that the barrister doesn’t know him because
help him to see the case through the eyes of the judge or jury.
A lawyer who is over familiar with his case and his client may be less able to see its
weaknesses




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Lawyers -Complaints and discipline

Solicitors

The client has a number of options

The Office for the Supervision of Solicitors
The OSS has some lay members but most members are solicitors
It is financed by the law society

Minor complaints are sent to the firms involved in the hope that the clients problem
can be dealt with by the firms own in house complaints procedure

More serious complaints are investigated by regional offices of the OSS.
They will try to help the firm and the client to reach some agreement.
In some case they may order a solicitor to reduce his bill, put right mistakes that he
has made and even order that compensation be paid.

The OSS has been criticised by the Consumer Association for not being independent
enough. It is dominated by solicitors who may be inclined to sympathise with those in
their profession rather than support complaining clients.
The OSS are also criticised for the delays in dealing with complaints.


Solicitors Disciplinary Tribunal
The OSS will send cases here if they have found evidence of serious professional
misconduct.

The client can also contact the SDT directly but most go through the OSS
The SDT has the power to fine suspend or even strike an offending solicitor from the
Rolls.


Legal Services Ombudsman
This post was created by the Court s and Legal Services Act 1990
The Ombudsman is completely independent of the law Society

A client can only go here if he has a complaint about the way that the OSS reached its
decision. If the decision was made using the correct procedures then his complaint
will be rejected even if he thinks the wrong decision was reached.

Where the LSO upholds the complaint he can order the offending solicitor or the Law
Society to pay compensation


A civil action

Breach of contact
if the solicitor has not carried out work that he had promised to do



M Roman                                   2004                                  Lawyers
Negligence
if the solicitor has not taken reasonable care in his work
In Griffiths v Dawson 1993 a client was awarded over £20,000 when she lost out
financially because her solicitor failed to file the appropriate divorce papers.

Non-clients can also sue for negligence
In White v Jones 1995 a client instructed his solicitor to draw up a will leaving large
sums to his two daughters. He did nothing for two months. In the meantime the client
died and because of the solicitors carelessness there was no will. His daughters who
would have benefited from the will then successfully sued in negligence

It is now also possible to sue a solicitor for a negligent performance in court. Hall v
Simons 2000.



Barristers

Here the clients options are more limited

The Bar Council
This is the barristers governing body.
Complaints can be made directly to the council.
There is no equivalent to the law societies OSS.
Instead the Bar council has its own Lay Complaints Commissioner.
The Council can order that compensation be paid to the complainant


The Senate of the Inns of Court
This organisation represents the Inns who run the education and training of barristers
It has the power to discipline those who fall below the standards set out in its Code of
Conduct.
In extreme cases it can disbar- stop a barrister from practicing.


The Legal Services Ombudsman
Deals with complaints about the way the Bar Council has dealt with a complaint.
Operates according to the same principles as when it is dealing with complaints
against the OSS – see previous.


A civil action in Negligence
A barrister can be sued for careless work.
It is only since Hall v Simons 2000 that the client has been able to sue barristers for
negligently presenting their case in court.
Prior to this case advocates could only be sued for giving negligent advice or opinions

NB A barrister cannot be sued for breach of contract because he does not have a
contract with his client.



M Roman                                   2004                                   Lawyers

								
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