The Legal Profession in England and Wales

A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law" [1]. Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain stability, and deliver justice. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services. Every country has its own regulation with regards to legal profession. The legal profession in England and Wales is divided between solicitors and barristers. A solicitor gets the facts of the case from the client and briefs a barrister in writing. The barrister then researches, drafts, and files the necessary court pleadings, and orally argues the case. [2]

Origin of the profession

Both barristers and solicitors are trained in law but serve differing functions in the practice of law. Historically, the superior courts were based in London the capital city, and in order to dispense justice throughout the country, a judge and court would periodically travel a regional circuit to deal with cases that had arisen there. From this emerged a body of lawyers that were on socially familiar terms with the judges, had training and experience in the superior courts, and had access to a greater corpus of research material and accumulated knowledge on the interpretation and application of the law. Some would go "on circuit" with the court to act on behalf of those requiring representation. By contrast, solicitors were essentially local to one place, whether London or a provincial town. Lawyers who practiced in the courts in this way came to be called "barristers" because they were "called to the Bar", the symbolic barrier separating the public -- including solicitors and law students -- from those admitted to the well of the Court. They became specialists either in appearing in court, or in the process of using the courts, which would include giving oral or written advice on the strength of a case and the best way to conduct it. For those who had the means and preference to engage a solicitor, it became useful, then normal and then compulsory, for the solicitor in turn to select and engage a barrister to represent the client before the courts. Likewise, it became either useful or normal (but not compulsory) to engage an appropriate barrister when highly specialist advice was required. In fact, many barristers have largely "paper practices" where they rarely or (in some cases) never make court appearances.= Historically practicing at the bar was a more socially prestigious profession than working as a solicitor. In the 18th and 19th centuries the bar was one of the limited number of professions considered suitable for upper class men (politics, the Army and Navy, the established clergy, and the civil and diplomatic services being the others). Many leading eighteenth and nineteenth century politicians were barristers; few were solicitors. In the 20th

century solicitors closed the gap greatly, especially in terms of earnings, and by the early 21st century the social gap was far less important than formerly.

Key differences between barristers and solicitors

Until recently, the most obvious differences between the two professions was that, firstly, only barristers had exclusive and wide rights of audience (that is, a right to plead) in all courts in England and Wales, and secondly, only solicitors could be directly engaged for payment by clients. However, the boundary between barristers and solicitors has evolved. In England today, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts. Barristers have full rights of audience to appear in all courts, from highest to lowest. Solicitors, on the other hand, have traditionally only been able to appear as advocates in the inferior courts (that is, the magistrates' and county courts) and tribunals. Indeed the bulk of such work continues to be handled by solicitors. Under section 17 of the Courts and Legal Services Act 1990, solicitors with appropriate advocacy experience are entitled to acquire higher "rights of audience", enabling them to appear in the superior courts. Solicitors who attain these rights are known as solicitor-advocates. However, in practice few exercise the option to do so, and solicitors continue to engage a specialist advocate or adviser from the Bar (that is, a barrister). Barristers often have a more specialized knowledge of case-law and precedent. When a solicitor in general practice is confronted with an unusual point of law, they sometimes seek the "opinion of counsel" on the issue.[3] Until 2004, barristers were prohibited from seeking or accepting "instructions" (that is, being hired) directly by the clients whom they represent. The involvement of a solicitor was compulsory. The rationale was that solicitors could investigate and gather evidence and instructions and filter them - according to the interests of the client - before presenting them to the barrister; in return the barrister, being one step removed from the client, could reach a more objective opinion of the merits of the case, working strictly from the evidence that would be admissible in court. In addition, being less involved in the current affairs of clients, including many matters that might never come to court, barristers had more time for research and for keeping up to date with the law and the decisions (precedent) of the courts. Theoretically, this prohibition has been removed. In certain areas (but not crime or conveyancing), barristers may now accept instructions from a client directly ("Direct Access"). However, a barrister cannot undertake any work that requires him to hold funds on behalf of their client, something only a solicitor may do. A barrister is in principle required to act for any client offering a proper fee, regardless of the attractions or disadvantages of a case, if he is available to take the case and feels competent to handle the work. In most cases a barrister would be obliged, under what is known as the "cab rank rule", to accept instructions for a case in an area in which they held themselves out as practicing, at a court at which they normally appeared and at their usual rates.[4][5]

Manner of work
Barristers work in two main contexts: in self-employed practice (formerly known as "independent practice") or in "employed" practice. Most barristers are in self-employed practice, but operate within the framework of a set of Chambers. Under a tenancy agreement, they pay a certain amount per month ("rent") or a percentage of their incomes, or a mixture of the two, to their chambers, which provides accommodation, clerical support and clerking (the crucial function of booking, sometimes of finding, work). The Head of Chambers, usually a Queen's Counsel or a "senior junior", may exercise a powerful influence on the members and all members will offer informal help and guidance to each other. However they are not liable for each other's business (as partners are), and members of the same set of chambers may indeed appear on opposite sides in the same case. Each barrister remains an independent practitioner, being solely responsible for the conduct of his own practice and keeping what he earns. He does not receive a salary from anyone. A barrister in independent practice will be instructed by a number of different solicitors ("professional clients") to act for various different individuals, government departments, agencies or companies ("lay clients"). Barristers used to have a major role in trial preparation, including drafting pleadings and reviewing evidence. In modern times, it is relatively common for a barrister to only receive a "brief" from an instructing solicitor to represent a client at trial a day or two before the hearing.[6] In contrast, an "employed" barrister is a barrister who works as an employee within a larger organization either in the public or private sector. For example, employed barristers work within government departments or agencies (such as the Crown Prosecution Service), the legal departments of companies and in some cases for firms of solicitors. Employed barristers will typically be paid a salary, and in most circumstances may only do work on behalf of their employer, rather than accepting instructions on behalf of third parties (such as their employers' customers). Nevertheless they remain subject to the Bar Council's Code of Professional Conduct, and their advice is entitled to professional privilege against disclosure. New entrants to the employed bar must have completed pupillage in the same way as those in independent practice. The Bar Council produces exhaustive guidance regulating the way in which both groups operate, although in 2006 some of the regulatory authority was passed over to the independent Bar Standards Board. In December 2004 there were just over 11,500 barristers in independent practice , of whom about ten percent are QCs. Many barristers (about 2,800) are employed in companies as in-house counsel, or by local or national government or in academic institutions. Traditionally, firms of solicitors can only be owned by solicitors. The government is considering allowing anyone to be able to have a share in the ownership and control of a law firm. This has led to fears that the professional duty of confidentiality a solicitor owes to their client will be threatened. The fear is that a solicitor will be required to share confidential information with the organizations and individuals who acquire control of their firm even though those organizations and individuals will not be bound by the professional duty of confidentiality and may use their knowledge of the client's confidential affairs to their own advantage. This is

often referred to as "Tesco law", as legal services would be offered directly to the public by solicitors owned and controlled by non-solicitors, and it is companies such as the major UK supermarkets (the foremost in this area being Tesco itself) that have expressed a particular interest in owning solicitors to complement their moves into the already deregulated financial services markets.

Appearance and forms of address

The appearance and form of address of a barrister is bound by a number of conventions. A barrister's appearance in court depends on whether the hearing is "robed" or not. In England and Wales criminal cases in the Crown Court are almost invariably conducted wearing robes, but there is an increasing tendency in civil cases to dispense with them. The vast majority of County Court hearings are now conducted without robes, although they continue to be worn in High Court proceedings. At a robed hearing, barristers wear a horsehair wig, an open black gown, dark suit and a shirt, with strips of white cotton called 'bands' or 'tabs' worn over a winged collar, instead of a tie. Female barristers wear either the same shirt, or a special collar which includes the bands and tucks inside a suit jacket. QCs wear slightly different silk gowns over short embroidered black jackets and striped trousers. By contrast, solicitors wear a gown, wing collar and bands but no wig. The question of barristers' and judges' clothing in the civil courts is currently the subject of review, and there is some pressure to adopt a more "modern" style of dress, with Europeanstyle gowns worn over lounge suits. In court, barristers refer to each other as "my learned friend". Historically, this is a sign of mutual respect for the common heritage and position they occupy. It is also a reminder of the time when the Bar was small enough for all practitioners to know each other personally, which to some extent is still true; in an earlier generation, barristers would not shake hands or address each other formally. When appearing in court against a solicitor-advocate, even one exercising rights of audience in the higher courts, the barrister typically will refer to his opponent as "my friend", that is to say without the "learned" honorific.

Regulation
Beginning in January, 2006, standards for admission to the bar and disciplinary proceedings are administered by the Bar Standards Board (BSB), a regulatory board of the General Council of the Bar. The BSB is not legally separate from the General Council of the Bar, but is set up so as to be independent of it. Previously, barristers were governed by the General Council of the Bar and the individual Inns of Court. There are four Inns, all situated in the area of London close to the Law Courts in the Strand. Gray's Inn is off High Holborn, Lincoln's Inn off Chancery Lane, the Middle and Inner Temples, situated between Fleet Street and the Embankment.

The Inns bear more than a passing physical resemblance to Oxford and Cambridge colleges, with communal dining halls and libraries as well as living and working rooms. Solicitors in England and Wales are regulated by the Solicitors Regulation Authority, an independently administered branch of the Law Society of England and Wales and, in order to become a solicitor, must have passed the Academic and Vocational stages of training. Moreover, solicitors must pay the Law Society of England and Wales a practicing fee each year in order to keep practicing. If they do not do this they are 'non-practicing' and may not give legal advice to the public (although they can start practicing again at will, unlike those who have been struck off the roll).

Education and training

Prospective barristers must first complete the academic stage of their legal education by obtaining a qualifying law degree but many undertake a one year law course having initially graduated in a subject other than law. This conversion course used to be known as a CPE (Common Professional Examination) or PGDL (Postgraduate Diploma in Law), and is now known simply as a GDL: a Graduate Diploma in Law. The student then joins one of the Inns of Court and takes the bar vocational course (BVC) at one of the accredited providers. On successful completion of the BVC student barristers are called to the bar by their respective inns and are elevated to the degree of "Barrister-at-law". However, before they can practise independently they must first undertake twelve months of pupillage. The first six months of this period is spent shadowing more senior practitioners, after which pupil barristers may begin to undertake some court work of their own. Following successful completion of this stage, most barristers then join a set of Chambers, a group of counsel who share the costs of premises and support staff whilst remaining individually self-employed. For solicitors the most common methods of qualification are a normal undergraduate law degree, or a degree in any subject followed by a one year course formerly called the Common Professional Exam and recently renamed the Post-Graduate Diploma in Law (PgDip Law). Other routes, for example, spending time as a clerk to magistrates, or passing exams set by the Institute of Legal Executives (ILEX) are possible. Up to this point a barrister and solicitor have the same education. Thereafter they split. Solicitors study a one year course called the Legal Practice Course and then must undertake two years apprenticeship with a solicitor, called the training contract (but still widely referred to as 'articles' as in 'articled clerk' by older members of the profession). Once that is complete, the student becomes a solicitor and is 'admitted to the roll'. The 'roll' is a list of people qualified to be a solicitor and is kept on behalf of the 'Master of the Rolls' whose more important job is that he is the head of the Court of Appeal of England and Wales. Solicitors who are being disciplined by the Law Society can be suspended from the roll under Section 12 of the Solicitors Act 1974 or even struck off, which prevents them acting as a solicitor. A small proportion of solicitors in England and Wales are licensed by the Archbishop of Canterbury (originally on behalf of the Pope) after further study and examination to practice

as Notaries Public. An alternative route to this work, in and around the City of London, is through the Worshipful Company of Scriveners.

Justifications
The reasons for a split profession are normally historical, however a number of reasons are still advanced for maintaining split professions: Having an independent barrister reviewing a cause of action gives the client a fresh and independent opinion from an expert in the field, something that rarely happens in jurisdictions with fused professions. Having recourse to all of the specialist barristers at the bar enables smaller firms, who could not maintain large specialist departments, to compete with larger firms. A barrister acts as a check on the solicitor conducting the trial; if it becomes apparent that the claim or defense has not been properly conducted by the solicitor prior to trial, the barrister can (and usually has a duty to) advise the client of a separate possible claim against the solicitor. Having trials conducted by experienced specialist advocates makes for smoother, more professionally run trials.

Against that, a number of disadvantages are put forward:

A multiplicity of legal advisors leads to higher costs (something that caused no small amount of concern to Sir David Clementi in his review of the English legal profession). As barristers are dependent upon solicitors for referrals of work, it is open to question how willing barristers are to criticize those who instruct them to the client. Barristers are sometimes criticized for being "over-specialized" and not having sufficient general expertise outside of their fields in some highly specialized fields, such as intellectual property law or tax law.

Summary
We have looked at the different aspects of barristers and solicitors, including, their training, what they specialize in, their controlling bodies, and their manner of work. We can now see how their roles are different. Solicitors have a wider knowledge of the law, so that they can advise a range of people on what they should do. Whereas a barrister specializes in one subject and in advocacy, so that he is competent in presenting the case in court. We have also looked at the different training that they go through. We can see that the first very basic stage is the same, and then it changes, however both training courses include practical training. Many people think that barristers and solicitors are either very similar, or that barristers are higher up then solicitors. However, as we can see they are different, and specialize in different subjects, and when asked a barrister will prepare written advice for solicitor. So although, they are both in the legal profession, and have similar training, and

possibly help each other with certain parts of cases, they do play different roles in their profession. Although there are many arguments for the split profession I believe that there should be a single branch because it would be easier for the client to work with a single lawyer. It would also be easier for a law graduate because he wouldnt need to decide if he wants to be a barrister or a solicitor on such an early stage.

Footnotes
[1]

Henry Campbell Black, Black's Law Dictionary, 5th ed. (St. Paul: West Publishing Co., 1979), 799. See Abel, England and Wales, 56 and 141.

[2]

[3]

In insurance contracts there is often the requirement to seek the expert opinion of counsel where the policy contains what is known as "a QC clause".
[4]

R.E. Megarry, Lawyer and Litigant in England (London: Stevens and Sons, 1962), 32.

[5]

Maureen Paton, "Cab-rank exits," The Times, 9 October 2001, 1. This brief article explains the uneasy tension between solicitors and barristers, and the loopholes that have developed. For example, a barrister need not accept a case if the fee is too low or the barrister is just too busy.
[6]

Part of this is cost. Barristers are entitled to a "brief fee" when a brief is delivered, and this represents the bulk of their fee in relation to any trial. They are then usually entitled to a "refresher" for each day of the trial after the first. As many trials settle in the last few days before the hearing, many solicitors seek to save costs by delaying delivery of the brief until the last possible moment .

References
Online sources
Wikipedia, the free encyclopedia http://www.barstandardsboard.org.uk/ http://www.barcouncil.org.uk/

Printed sources

Henry Campbell Black, Black's Law Dictionary, 5th ed. (St. Paul: West Publishing Co., 1979) Richard L. Abel, The Legal Profession in England and Wales (London: Basil Blackwell, 1989)