Law :: Barristers and Solicitors

Lawyer is the generic name given to our legal profession. There are two main branches of the profession, Solicitors and Barristers. An emerging branch is that of the Legal Executives, who do very similar work to solicitors. The main differnce between the main two branches is that solicitors usually work from behind a desk giving advice etc to the general public. Barristers work in the court room as an advocate representing people during their trial. In summary solicitors prepare the case and barristers present the case in court. However, as you will discover this is a very general description and there are many exceptions and some would say there has been a merging of the two professions over the years and solicitors and barristers now carry out very similar work.

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The vast majority of solicitors work in private practice for a solicitors' firm, however, there are other organisations/careers open to a qualified solicitor;

• Crown Prosecution Service (CPS)
• Local Authority Legal Department
• Government Legal Department
• Legal Advisors in Commercial Organisations

For those working in private practice the type of work they would carry out would be be among the following depending on the type of solicitors' firm they work for;

• writing letters on behalf of clients
• advising clients on consumer or housing rights
• advising clients on family law - divorce, access to children etc
• drafting contracts and other legal documents
• drawing up wills
• advising clients in matters of business
• conveyancing - this is the legal side of buying and selling houses
• representing clients in court - usually the Magistrates' and County Courts

Many solicitors specilise in one particular area of law and would therefore only deal with that type of case, for example, a criminal solicitor or a solicitor who only deals with divorce and family law cases

Solicitors Rights of Advocacy All qualified soliciotrs have always been able to represent clients in the Magistrates and County Courts, however, their rights of audience in the higher courts have, in the past, been very limited. Under the Courts and Legal Services Act 1990 a solicitor in private practice can now apply for a Certificate of Advocacy which enables them to appear in the higher courts. To obtain this certificate the solicitor would have to take additional examinations. Under the Access to Justice Act 1999, s36, all solicitors will automatically be given full rights of audience in the future. However the new training requirements have yet to be introduced to make this change possible.

Other people affected by the negligent work of a solicitor may also be able to sue. This was seen in White v Jones (1995) where a father wanted to make a will leaving £9,000 to each of his two daughters. The father sent these instructions in a letter to his solicitors in the July, unfortunately the solicitors did nothing by the time the father died in the September. As a result the daughters did not inherit any money and they successfully sued the solicitor for the £9,000 they had each lost as a result of the solicitors' negligence in not drawing up the new will as instructed. Following the case of Hall v Simons (2000) solicitors can also be sued for negligent work in court when acting as an advocate. Other complaints against solicitors are dealt with by the Legal Complaints Service which is governed by the Legal Services Complaints Commissioner.

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Barristers are usually self-employed working in chambers. They share administrative costs and employ a clerk who books in cases and negotiates fees on their behalf. A tenancy in chambers is no longer essential however it is still seen as the way to allow a barrister to build a successful practice. The majority of barristers concentrate on advocacy, having full rights of audience in all courts in England and Wales. A small percentage of barristers rarely appear in court as an advocate and specialise in areas such as tax or company law. All barristers will spend some of their time writing opinions on cases, giving advice and drafting documents for use in court. Originally anyone who wished to instruct a barrister would have to go to a solicitor first. Since September 2004 it is possible to instruct a barrister direct withour the need to go through a solicitor first in all civil cases. However, in criminal cases direct access is still not allowed and a client must first instruct a solicitor who will engage a barrister on their behalf. Barristers normally work on what is known as the cab rank rule, under this rule they cannot turn down a case if it is on an area of law they normally deal with and they are free to take the case on. However, where clients approach the barrister direct the cab rank rule doesn't apply. Some barristers are employed by other organisations, such as, the Crown Prosecution Service (CPS), others are resisdent in a firm of solicitors and some big commericial organisations employ full time barristers.

Barristers can be sued for negligent work. In Saif Ali v Sydney Mitchell and Co (1980) it was held that barristers can be sued for negligence in respect of written advice and opinions. As discussed earlier following the case of Hall v Simons (2000) barristers can also be sued for negligent advocacy work in court. Complaints against barristers are dealt with by the Bar Standards Board. The board can order a barrister to pay compensation of up to £5,000 to a client. The complaints process is overseen by an independent Lay Complaints Commissioner

Should the professions of solicitor and barrister be fused into one? The advantages of fusion

• Reduced costs as only one lawyer would have to be instructed
• Less duplication of work
• More continuity as the same person would be dealing with the case throughout

The disadvantages of fusion

• A decrease in the specialist skills of advocacy
• Loss of availability of advice from independent specialists at the bar
• Less objectivity in consideration of a case (currently the barrister provides a second opinion)
• Loss of the cab rank system

However these arguments for and against fusion are now less relevant since the changes made by the Courts and Legal Services Act 1990 and the Access to Justice Act 1999 which mean solicitors and barristers can now take on a case from start to finish.