Topic 11 The legal profession. Barristers and solicitors Topic 11 The legal profession: barristers and solicitors

Topic 11

The legal profession

Barristers and solicitors

Topic 11

The legal profession: barristers and solicitors

Topic 11


Barristers and solicitors

• education and training

• work

• complaints

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Education and training

• degree

• vocational course

• training

• further qualifications

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Degree

A student wishing to pursue a career as a

barrister or solicitor may read a degree in any

discipline.

Most take an LLB law degree, but if a student

completes a degree in another subject, there is a

1-year law conversion course called the Common

Professional Examination (CPE).

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Vocational course

A decision must be made between becoming a

solicitor or a barrister, and depending on this

decision there are two different courses that can

be taken:

• Potential solicitors will take the Legal

Practice Course

(LPC).

• Potential barristers will take the Bar

Vocational Course

(BVC).

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Training: solicitors

Solicitors complete a training contract, which

usually involves 2 years’ practical experience in

a solicitor’s office, but it can also be with a

government department, the Crown Prosecution

Service, the Magistrates Court Service or in-

house legal departments. The time is usually

spent working in various departments so that the

trainee gains practical experience in at least

three different areas.

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Training: barristers

Barristers complete a pupillage. This is usually

carried out in chambers and is divided into two

periods of 6 months. A pupil will shadow an

experienced barrister for 6 months and then

undertake his or her own work in their second 6

months. There are a limited number of other places

where pupillage can be carried out, including

working in the European Commission. Once the

pupillage is completed, the barrister needs to

become a permanent member of the chambers or a

‘tenant’.

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Further qualifications

• Solicitors can complete a certificate of

advocacy, which will allow them greater rights of audience in the higher courts.

• Barristers receive on-going training covering

advocacy, case preparation and procedure, professional conduct and ethics.

• Both solicitors and barristers can apply for

the judiciary and the position of Queen’s Counsel.

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Work of solicitors

• There are over 100,000 solicitors in the UK who

are supervised and represented by the Law Society.

• Some solicitors work alone but most work in partnerships, owned and managed by several partners

who take a share of any profits.

• The type of work that a solicitor might do

varies greatly

depending upon the type of firm that they work for. In

addition, most solicitors specialise in a couple of areas

and may know very little about law in other areas.

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Types of law firm

Most law firms can be divided between high street

firms and commercial firms.

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High street solicitors’ firms

High street solicitors’ firms may have several

offices throughout a region. They generally deal

with individual clients and cover criminal law or

civil law or both.

Some will carry out publicly funded work paid for by

legal aid. They may advise and represent a client

who has been charged with a criminal offence. They

may carry out the necessary conveyancing when

someone is buying or selling property or they may

advise on personal injury matters or the mechanics

of drafting a will.

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Commercial solicitors’ firmsCommercial solicitors’ firms often have offices

throughout the world and they tend to work for

businesses rather than individuals and as such

are called on to provide a different range of

services.

Commercial firms may advise clients on

intellectual property matters, mergers and

acquisitions, employment contracts and business

conveyancing.

Commercial lawyers may also represent wealthy

individuals.

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A solicitor’s typical day

• As there is so much variation in the type of work

solicitors carry out,

there is a big difference in the activities that make up

their typical

working days.

• Many solicitors begin by reviewing and responding to the

huge

amount of mail that they receive.

• Some will draft documents such as a contract of employment

or a will.

• Many solicitors spend their days meeting with clients or

negotiating

settlements or attending court.

• Others may draft instructions for a barrister whose

opinion they

require upon a particular matter.

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Employed solicitors

Not all solicitors work in private practice.

Increasing numbers of solicitors are employed

outside solicitors’ firms.

They may work in an in-house legal department for

a large corporation, for the Legal Services

Commission or the Crown Prosecution Service, for

local government or in the Magistrates’ Courts as

clerks.

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Work of barristers

There are about 15,000 barristers in the UK who

are governed and supervised by the Bar Council.

Most of these barristers are self-employed but

share administrative costs by working together in

chambers. A few are sole practitioners.

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Advocacy

Traditionally, barristers have specialised in

advocacy — representing clients in court in both

criminal and civil cases. Barristers will also

have conferences with their clients to discuss

certain aspects of their cases. These conferences

may be before the case goes to court, or in

straightforward cases, a barrister may hold a

pre-hearing conference on the actual day of the

court hearing.

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Written opinions

Barristers write opinions, usually on the

instructions of a solicitor.

Opinions give their views on matters such as the

strengths and weaknesses of a case, how a complex

area of the law relates to a particular case, and

whether evidence is likely to be admissible or

not.

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The ‘cab-rank’ rule

Self-employed barristers work according to the

‘cab-rank’ rule, whereby if they have the time

and skills and are offered a reasonable fee they

must accept the job. This is to avoid situations

where some people may not be able to get a

barrister to represent them.

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Instructing a barrister

It used to be the case that only solicitors could

instruct a barrister, but from 1989, some

professions have been allowed to instruct

barristers directly either for their own needs or

on behalf of their clients.

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Direct access

Barristers can provide direct assistance, but

those seeking such access have to apply for a

licence. Those who are licensed include members

of organisations such as the Chartered Institute

of Building, the Society of Financial Advisors,

the Engineering Council and several accountancy

institutes.

Some groups have direct access without the need

for a licence, including employed barristers and

certain legal advice centres.

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Public accessMembers of the public can, since 2003, go

directly to a barrister in a number of cases,

rather than needing to instruct a solicitor

first. This is known as public access.

Barristers must fulfil certain conditions before

they can accept public access work, including

practising for at least 3 years and attending a

training course.

Public access is allowed in most areas but there

are exceptions, which include some areas of

criminal, family and immigration work.

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Employed barristers

About 3,000 barristers are employed rather than

self-employed.

They work for a variety of organisations

including in-house legal departments, government

departments and advice centres.

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Queen’s Counsel (1)

Barristers may apply to become a Queen’s Counsel.

The system dealing with these applications has

recently changed and has become more transparent

than previous methods, which had been heavily

criticised. Applicants pay a fee of £1,800 initially

and a further £2,250 if successful. They complete a

form giving details of their work and skills and

listing several referees who are familiar with their

work.

After a selection panel has reviewed their

applications, candidates are interviewed.

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Queen’s Counsel (2)

The advantages for those who are successful in

achieving QC status are that they gain an

elevated status among their peers. They can

command much higher fees, often as well as having

a junior barrister to assist them.

They can also wear silk rather than polyester

gowns!

Topic 11


Complaints against solicitors

There are various ways to complain about a

solicitor if a client is dissatisfied with the

service that he or she has received or the amount

that he or she has been asked to pay. These

options include:

• speak to the solicitor

• the Law Society

• Legal Services Ombudsman

• action through the courts

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Speak to the solicitor

The first step in a complaint is to raise the matter

with the solicitor or the firm that they work for.

All firms should have a process in place for dealing

with complaints.

Ideally, the complaint should be made in writing

(the Law Society has a resolution form on its

website that can be printed off and filled in).

The dissatisfied client should explain what the

complaint is about and how he or she would like it

to be resolved. Many complaints are resolved at this

stage.

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The Law Society

If a firm does not reply to a complaint within a

reasonable amount of time or if the complaint has

not been resolved, the next step is for the

client to contact the Law Society. This must be

within the time limits that the Law Society sets

down — usually 6 months. It will investigate the

complaint and has the power to reduce the

solicitor’s bill, order the solicitor to pay

compensation of up to £15,000 or tell him or her

to correct the mistake and meet any costs

incurred.

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Legal Services Complaints Commissioner

The Office of the Legal Services Complaints

Commissioner was set up following the Access to

Justice Act 1999. It works with the Law Society

and represents the interests of consumers to

improve complaints handling.

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Legal Services OmbudsmanIf the client is unhappy with the way that the Law Society has investigated a complaint, he or she can make a final appeal to the Legal Services Ombudsman (LSO), currently Zahida Manzoor. This must be within 3 months of receiving the Law Society’s decision. The LSO will not usually look at the original complaint but rather at how it was dealt with by the Law Society.

The powers of the LSO include recomending that the Law Society reconsider the complaint, formally criticising the Law Society or ordering it to pay compensation.

Topic 11


Action through the courts

A dissatisfied client can sue the solicitor

through the courts for neglience. He or she would

have to prove that the solicitor fell below the

standards of a reasonable solicitor. The courts

are able to award compensation if the client is

successful.

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Complaints against barristers

Clients with a complaint against a barrister

should speak to their solicitor, if they have

one, to see whether he or she agrees with the

complaint and if he or she can resolve it. Other

options include:

• the Bar Council

• the Complaints Commissioners

• the Legal Services Ombudsman

• action through the courts

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The Bar Council

If the complaint cannot be resolved by a

solicitor, the next step is for the client to

contact the Bar Council. This must usually be

done within 6 months of the complaint arising.

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The Complaints Commissioner

• The Complaints Commissioner oversees the complaints process and investigates any complaints. The current Commissioner is Michael Scott, who is a non-lawyer entirely independent from the Bar Council. • If, after consideration of the complaint, the Commissioner thinks that it might be justified, he will refer it to the Professional Conduct and Complaints Committee (PCC) for its opinion. • If it agrees, the complaint is sent to a disciplinary panel for a final decision as to whether the complaint is justified and, if so, to determine the measures that should be taken.

Topic 11


Legal Services Ombudsman

As with solicitors, if the client is unhappy with

the way that the Bar Council investigated the

complaint, he or she can make a final appeal to

the Legal Services Ombudsman. The process is the

same for barristers and solicitors.

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Action through the courts

Again, as with solicitors, a dissatisfied client

can sue a barrister through the courts for

negligence.

Barristers used to have immunity from liability,

but that changed in 2000 when the House of Lords

abolished this protection in the case of Arthur

JS Hall and Co. v Simons (2000).

Crown Prosecution Service

Topic 11

The legal profession: Crown Prosecution Service

Topic 11


Introduction to the Crown Prosecution Service

The Crown Prosecution Service (CPS) was created

under the Prosecution of Offences Act 1985. Its

main responsibility is prosecuting those charged

with criminal offences. Prior to the setting up

of the CPS, the police used to investigate and

prosecute cases themselves.

Topic 11


The CPS

• role

• deciding whether to prosecute

• staff

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Role

The CPS works both in offices and in police stations, deciding who to charge and who to release.

If a person is to be charged, it decides what he or she will be charged with. The CPS reviews cases submitted to it and decides whether or not to prosecute. If a prosecution is to go ahead, the CPS prepares and presents the case in court.

The CPS used to employ many barristers to present prosecutions in Crown Court.

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Deciding whether to prosecute

Decisions on whether to prosecute are based on a two-

stage test in the Code for Crown Prosecutors.

The CPS will first consider whether the evidence

available gives a realistic prospect of conviction in

court and if so, it must then consider whether it is

in the public interest to prosecute. It will take into

account the circumstances of the offence, looking at

the motive behind it and how it was carried out, for

example if a weapon was used or whether the victim was

serving the public. If both tests are satisfied, a

prosecution will go ahead.

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Staff

The CPS is headed by the Director of Public

Prosecutions (DPP), currently Ken Macdonald QC.

The DPP reports to the Attorney General,

currently Lord Goldsmith, who is, in turn,

responsible to Parliament.

The CPS has several offices around England and

Wales that deal with around 1.3 million cases a

year, the vast majority of which are in the

Magistrates’ Court. It employs about 7,700 staff,

2,500 of which are lawyers.

Judges

Topic 11

The legal profession: judges

Topic 11


Introduction to judges

• types of judge

• termination

• judicial independence

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Types of judge

• Law Lords

• Judges in the Court of Appeal

• High Court Judges

• Circuit Judges

• District Judges

• District Judges (Magistrates’ Court)

• Recorders (part-time judges)

Topic 11


Law Lords

Title: Lords of Appeal in Ordinary/Law Lords

Number: 12

Court: House of Lords and Privy Council

Appointed by: the queen on recommendation of the

prime minister, who has been advised by the Lord

Chancellor

Qualifications: appointed from those who hold high

judicial office, e.g. a judge in the Court of

Appeal, or from those with 15 years’ experience of

supreme courts

Topic 11


Judges in the Court of Appeal

Title: Lord and Lady Justices of Appeal

Number: 37

Court: Court of Appeal

Appointed by: the queen on recommendation of the prime

minister, who has been advised by the Lord Chancellor;

the Lord Chancellor will have consulted senior members

of the judiciary

Qualifications: the statutory qualification is a 10-year

High Court qualification or being a High Court Judge;

most Court of Appeal judges are promoted from the ranks

of experienced High Court Judges

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High Court Judges

Title: Mr or Mrs Justice (Surname)

Number: 112

Court: High Court and serious cases in Crown Court

Appointed by: the queen on advice from Lord

Chancellor.

Qualifications: they must have a right of audience in

relation to all proceedings in the High Court for 10

years, or have been a Circuit Judge for at least 2

years; once appointed, they are assigned to a

Division of the High Court — the Chancery Division,

the Queen's Bench Division, or the Family Division.

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Circuit Judges

Number: 636 and 42 Deputy Circuit Judges who sit part

time in retirement

Court: Circuit Judges are assigned to a particular

circuit and may sit at any of the Crown and County

Courts on that circuit; they can hear both criminal and

civil cases

Appointed by: the queen on the recommendation of the Lord

Chancellor

Qualifications: 10-year Crown Court or 10-year County

Court qualification or to be the holder of one of a

number of other judicial offices for at least 3 years

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District Judges

Number: 412, and 744 Deputy District Judges

Court: on appointment, a District Judge is

assigned to a particular circuit and may sit at

any of the County Courts or District Registries

of the High Court in that circuit; a District

Registry is part of the High Court, situated in

various places in England and Wales

Appointed by: the Lord Chancellor

Qualifications: 7-year general qualification

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District Judges (Magistrates’ Court)

Number: 128, and 167 Deputy District Judges

(Magistrates’ Court)

Court: District Judges (Magistrates’ Court) hear

cases in Magistrates’ Courts; they are paid and

deal with the full range of cases and usually hear

the longest and most complicated cases; they can

either sit alone or with lay magistrates

Appointed by: the Lord Chancellor

Qualifications: 7-year general qualification

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Recorders (part-time judges)Number: 1,404

Court: Recorders may sit in both the Crown and County

Courts;most begin in the Crown Court, although after about

2 years and further training, they may sit in the County

Courts; a Recorder must sit for at least 15 days a year

but not normally for more than 30 days

Appointed by: the queen on the recommendation of the Lord

Chancellor

Qualifications: the statutory qualification for appointment

as a Recorder is a 10-year Crown Court or 10-year County

Court qualification

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Termination

A judge’s appointment can be terminated in four

different

ways:

• resignation

• retirement

• removal due to infirmity

• dismissal

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Resignation

Judges may resign at any time. This has been used

in the past as a way of getting rid of judges

without having to dismiss them, by giving them an

opportunity to resign instead.

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Retirement

The usual retirement age for judges is 70.

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Removal due to infirmity

This method is used if a judge is incapacitated,

usually through ill health, and is unable to

resign.

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Dismissal

Judges are given security of tenure during good

behaviour.

Following the Act of Settlement 1700, the Law

Lords, Lords Justices of Appeal and High Court

Judges can only be removed by the queen on the

petition of both Houses of Parliament.

Circuit Judges and other judges can be removed by

the Lord Chancellor for incapacity or

misbehaviour.

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Judicial independence

Great weight is given to the notion of judicial

independence, and it is central to the theory of

the separation of powers. The idea behind it is

simple, namely that judges should operate free

from pressure, whether it be applied by the

government, political parties or anyone else.

Without pressure, judges are free to make

independent and impartial decisions, without fear

of reprisal.

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Measures to ensure judicial independence

1. Security of tenure

2. Legal action against judges

3. Judicial salaries

4. Unable to take part in party politics

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Security of tenure

It is very difficult to dismiss a member of the

judiciary. This is to ensure that he or she acts

without fear of losing his or her job at the

hands of the government or other bodies.

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Legal action against judges

Judges cannot be sued for anything done in their

judicial role.

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Judicial salaries

These are paid out of the consolidated fund and

are not voted upon by Parliament, so judges will

not be tempted to find in favour of the

government in order to secure a pay rise.

Equally, judges can act without fear of a wage

cut if they make unpopular decisions.

Topic 11


Unable to take part in party politics

Full-time judges must refrain from active

political

involvement.

Documents

Topic 11 The legal profession. Barristers and solicitors Topic 11 The legal profession: barristers and solicitors