THE LEGAL PROFESSION - G151 THE ENGLISH LEGAL SYSTEM

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EDUCATION AND TRAINING OF BARRISTERS

  • Academic :
    • law degree (7 core subjects) or other degree plus Common Profession Examination/Post Graduate Diploma in Law after one year’s extra training on core subjects
  • Vocational:
    • join Inn of Court and dine 12 times or attend residential training courses during Bar Professional Training Course –
    • practical training with emphasis on case preparation, advocacy, negotiation, interviewing skills and drafting opinions
  • Practical:
    • called to the Bar,
    • pupillage of two six-month periods with a pupil master,
    • programme of continuing education organised by the Bar,
    • gaining a tenancy.
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DEALING WITH PROBLEMS/COMPLAINTS AGAINST BARRISTER

  • As there is no contract between the client and the barrister except in situations of direct access the client cannot sue for breach of contract but can sue for negligence regarding written advice, Saif Ali v Sydney Mitchell and Co (1980)
  • They can also be sued for negligent advocacy in court, Hall v Simons (2000)
  • Should complain to Head of Chambers using the complaints procedure
  • Bar Standards Board investigates any alleged breach of the Code of Conduct. It can discipline any barrister who is in breach of the Code. If the matter is serious it will be referred to the Disciplinary Tribunal of the Council of the Inns of Court
  • Complaints are now dealt with by the Office for Legal Complaints set up by the Legal Services Act 2007 who refers all complaints to the Legal Ombudsman
  • The Legal Ombudsman has the power to ask the barrister to apologise to the client, give back any documents the client might need, put things right if more work can correct what went wrong, refund or reduce the legal fees, or pay compensation of up to £30 000.
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THE WORK AND ORGANISATION OF BARRISTERS

Organisation:

  • Controlled by the General Council of the Bar
  • Regulated by the Bar Standards Board
  • All barristers must be a member of one of the four Inns of Court
  • Self employed but usually work from a set of chambers with a clerk to organise the administration
  • Some barristers are employed eg in the Crown Prosecution Service
  • Organised by virtue of the Legal Services Act 2007; Legal Disciplinary Practices and Alternate Business Structures
  • Most will concentrate on advocacy but will also write opinions, give advice and draft documents for use in court
  • Usually work on instruction from a solicitor but there is direct access in civil cases
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THE WORK AND ORGANISATION OF BARRISTERS

Work:

  • Most will concentrate on advocacy
  • Will also write opinions
  • Give advice
  • Draft Documents for use in court
  • Some speicalise in areas such as tax ad rarely appear in court
  • Can apply to become a Queen’s Counsel after ten years.
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THE WORK AND ORGANISATION OF SOLICITERS

Organisation:

  • Represented by the law society
  • Regulated by the Solicitors Regulation Authority
  • Majority work in private practice in a solicitor’s firm as a partner or an assistant solicitor
  • May be employed in local government or by the Crown Prosecution Service
  • Organised by virtue of the Legal Services Act 2007; Legal Disciplinary Practices and Alternate Business Structure
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THE WORK AND ORGANISATION OF SOLICITERS

Work:

  • Meeting with clients and taking instructions and offering advice
  • Drafting legal documents
  • Conveyancing wgich is the transfer of the legal title of property from one person to another, e.g. buying or selling residential property.
  • Wills and probate - dealing with the estate of a deceaced person
  • Matremonial and family matter, e.g. divorse and child custody.
  • Negligence, e.g. personal injury claims.
  • Negotiating on behalf of their clients
  • Advocacy - all solicitors have rights of audience in the lower courts. Under thr Solicitors' Higher Rights of Audience Regulations 2010a solicitor, once admitted to the roll, can apply for theb higher courts qualification
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EDUCATION AND TRAINING OF SOLICITORS

  • Academic:
    • law degree (6 core subjects), or other degree followed by one year conversion course on core subjects (CPE/GDL)
  • Vocational:
    • 2 Stage Legal Practice Course.
    • Stage 1 - core practice areas and course skills.
    • Stage 2 - three elective modules.
    • LPC entails practical training with emphasis on skills such as client-interviewing, negotiation, drafting documents, business management and advocacy
  • Practical:
    • 2 years working in a solicitors’ office, paid but working under supervision
    • This can also be undertaken in the CPS or local authority legal departments
  • Solicitors, once admitted to the roll can apply for the higher courts qualification. There will be the need to complete an assessment designed to measure advocacy competence. Separate awards for criminal and civil advocacy.
  • 20 day Professional Skills Course
  • Continuing education once qualified
  • Must register with SRA.
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IS THE ARGUMENT FOR FUSION STILL JUSTIFIED?

  • Although the charges under the Courts and Legal Services Act 1990 and the Access to Justice Act 1999 mean a solicitor can take a case from start to finish the LPC and BPTC concentrate on giving training on different aspects of the profession which results in those undertaking the BPTC being given far more advocacy training than those on the LPC. FUSION would result in one course and all students being  equally trained in advocacy.
  • Direct/Public Access has allowed barristers to take a case from start to finish. A barrister is now permitted to be directly approached in respect of all types of cases including  criminal, family and immigration. However, a client  cannot use Direct/Public and receive public funding for their case. Therefore it is still necessary to instruct a solicitor in the first instance for criminal, family and immigration cases where funding is required. Fusion would result in just one 'lawyer' being needed.
  • Both solicitors and barristers can now undertaken the same work yet a decision as to be taken before graduation. Fusion would result in a student being able to experience all aspects of the profession on a training court before making the decision as to which area to specialise in.
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IS THE ARGUMENT FOR FUSION STILL JUSTIFIED?

  • Fusion of the profession is still justified as it would reduce costs in many areas but particularly criminal and family (where legal funding is required). Both these areas have had legal aid cut but still there is a requirement for both a solicitor and barrister to be instructed.
  • Fusion of the profession is still justified as it would also refuse duplication of work again particularly in terms of criminal and family cases where there is only Direct/Public access in respect or private work.
  • The Legal Services Act 2007 enables solicitors and barristers to work together in the same legal business. Therefore there is no longer a requirements to retain separate professions
  • Complaints are now dealt with in a similar way with the Office for Legal Complaints dealing with both professions in the same way again justifying the ARGUMENT to simply have one profession.
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HOW COMPLAINTS ARE DEALT WITH

  • Originally the legal professions had complaints procedures run by their own professional bodies so they were not seen as independent especially as there were some questionable decisions
  • Complaints about solicitors in particular were very confusing as there were many possible avenues
  • The new system is seen as independent which should be an improvement
  • There are disadvantages in using a lawyer' reluctance to start new proceedings, cost, and difficultly in finding another lawyer although the Law Society has a panel. This was not really changed in 2010
  • There were considerable delays in dealing with complaints this should improve with the new simplified system.
  • The Legal Ombudsman originally had very few powers to actually deal with complaints. The extension to these powers has ensured that those who complain are more likely to get an impartial and just decision including a reasonable amount of compensation.
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THE DIFFERENCES BETWEEN SOLICITORS AND BARRISTERS

  • Courts and Legal Services Act 1990 allowed solicitor in private practice to apply for Certificate of Advocacy enabling solicitors to appear in the higher courts. This allows solicitors to represent a client from start to finish and removes the need to instruct a barrister – only one lawyer required. It also reduces costs. Only a few solicitors have this certificate but numbers are increasing 
  • Barristers now have Direct Access. This allows clients in civil cases to have direct access to barristers which removes the need for a client to go through a solicitor. Direct Access allows a barrister to represent a client from start to finish removing the need to be instructed by a solicitor – only one lawyer required. It also reduces costs. There are however some limitations on this, for example, not available for criminal cases 
  • The different vocational courses demonstrate that training is still separate however, the rights of audience practicing certificate is now incorporated in solicitor’s training resulting in the vocational training preparing solicitors to undertake work previously reserved for barristers
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THE DIFFERENCES BETWEEN SOLICITORS AND BARRISTERS

  • Under the Legal Services Act 2007 solicitors and barristers are able to work together in a Legal Disciplinary Practice promoting closer working relationships and a further overlap of work. This allows a practice to diversify the range of legal services provided and allow ‘one stop’ legal practices. This may mean the loss of the ‘cab rank principle’ 
  • Under the Legal Services Act 2007 Alternative Business Structures (ABSs) are allowed. Previously ownership of legal service providers was restricted to lawyers. However the ABS will allow anyone with a licence to operate to open an ABS. This could be, for example, a supermarket (Tesco law). ABSs to employ both solicitors and barristers to work together Bar Standards Board have removed the ban on barristers conducting litigation. This will permit barristers to offer a ‘one-stop shop’ service, including both litigation and advocacy. This will lessen the difference between solicitors and barristers 
  • The complaints procedure has been amalgamated at certain levels – Legal Services Ombudsman and Office for Legal Complaints to be created under the Legal Services Act 2007 which also illustrates a fusing of the professions 
  • As a result of the Certificate of Advocacy there is no longer the monopoly by barristers on senior judicial positions. Both barristers and solicitors can now be appointed as superior judges.
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DIFFICULTLIES OF WORKING AS A BARRISTER

  • Difficulty in finding a training contract prevents many from completing their training however the law degree itself does provide opportunities for work in many other careers
  • Costs put off many able candidates especially with the scarcity of training contracts as large debts accrue with no guarantee of being able to complete the training - aggravated by recession
  • Difficulties lead to only those with financial backing being able to qualify, excluding some of those who are as able as those who can afford it
  • Many newly qualified lawyers have accrued large debts but the ILEX route can overcome this problem and as they are already qualified as a Legal Executive they will probably find it easier to get a training contract
  • CPE criticised as insufficient grounding in law which can make it hard to access good training contracts and jobs
  • CPE covers a lot in one year so can cause student drop out due to challenging workloads but this might be a good preparation for the workload to be expected when qualified.
  • Choice to become a barrister or solicitor has to be made too early
  • Little sign that challenges are deterring people
  • Over supply of candidates at all stages especially post LPC and admission where students have already made a huge financial investment to specialise
  • Increase in part-time and distance learning; bursaries and sponsorships; government apprenticeships; bank loans.
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