The Legal Profession

“A distinctive feature of the English legal system is the division of the legal profession into two separate branches – solicitors and barristers. This precise division is unknown outside Britain and the Commonwealth. Elsewhere all practitioners are described as “lawyers”, a word which has no particular application in England. The division of the legal profession dates back to about 1340, the time at which professional advocacy evolved. […]

Thus the separation of the legal profession has an historical foundation as has the nature of the respective functions which barristers and solicitors perform. These structures, functions and divisions are, however, increasingly undergoing both challenge and change.

Barristers are still primarily advocates, although many barristers in fact spend most of their time engaged in “paper-work” such as the drafting of pleadings, divorce petitions, complex settlements and opinions on specialised matters such as taxation and company law.

Solicitors deal with the preparatory stages of litigation such as the preparation of evidence, interviewing witnesses, issuing writs and, usually, conducting interlocutory proceedings. Solicitors have had a right of audience in most courts and tribunals; this has not in the past extended to the Court of Appeal or to most proceedings in open court (as opposed to chambers) in the High Court, and rights of audience in the Crown Court are limited to such proceedings as the Lord Chancellor may direct. In addition solicitors deal with a large number of non-litigious matters such as the drafting of wills, the supervision of trusts and settlements, the administration of estates and conveyancing.

There are other distinctions between the two branches of the profession. Solicitors may enter into partnerships, barristers may not. Barristers appear in court (other than magistrates’ courts) in wig and gown; solicitors appear in gown in certain courts, notably the county court, but are never bewigged. Solicitors are instructed by their clients directly; barristers are generally instructed by a solicitor and not by a lay client direct.

• A distinctive feature of the English legal system is the division of the legal profession into two separate branches: solicitors and barristers. Elsewhere, all practitioners are described as “lawyers”.

• This separation has a historical foundation

• Barristers are primarily advocates;many barristers spend most of their time engaged in “paper-work”- the drafting of pleadings, divorce petitions, complex settlements and opinions on specialised matters: taxation and company law

• Solicitors deal with the preparatory stages of litigation: the preparation of evidence, interviewing witnesses, issuing writs and conducting interlocutory proceedings

• Solicitors also deal with a large number of non-litigious matters: the drafting of wills, the supervision of trusts and settlements, the administration of estates and conveyancing

• Solicitors may enter into partnership, barristers may not

• Barristers appear in court in wig and gown; solicitors appear in gown in certain courts, but are never bewigged

• Solicitors are instructed by their clients directly; barristers are generally instructed by a solicitor and not by a lay client directly

SOLICITORS

• The controlling body in the case of solicitors is The Law Society

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• Membership of the Society is voluntary, although the vast majority of solicitors currently in practice are, in fact, members of the Society

• The Society is governed by the President, Vice-President and a Council of not more than 70 members (the latter being elected for a period of five years)

• The objects of the Society: promoting professional improvement and facilitating the acquisition of legal knowledge

• Notwithstanding its voluntary composition, the Law Society has important regulatory powers in respect of all solicitors

• it may make “training regulations” about education and training for persons seeking to be admitted or to practice as solicitors

BARRISTERS

• General organisation of the Bar

• The Inns of Court

• Persons may only practise as counsel in England if they have been “called to the Bar” of one of the 4 Inns of Court: Lincoln’s Inn, the Inner Temple, the Middle Temple and Gray’s Inn

• the Inns’ jurisdiction is derived from the judges and is subject to control by the judges

• they have a disciplinary power in relation to the practising members of the Bar

• In the Inns of Court there are 3 classes of members: benchers (the governors of the Inn), barristers (called by the benchers) and students who are admitted to membership by the benchers

• No person under the age of 21 can be called to the Bar

• Before a barrister can practise he must serve a pupillage under a senior member of the Bar for not less than 12 months

Relationship between counsel and client

• Members of the Bar may enter into agreements with solicitors; barristers are entitled to a fee

• Counsel are immune from being sued in contract for professional negligence, because such actions could only be based on contract and clients may not enter directly into a contractual relationship with barristers

• Counsel’s immunity also relies upon grounds of public policy and upon long usage from which the public interest did not require a departure

The Grounds of Public Policy are:

• Independence: if a barrister is to be able to do his duty fearlessly and independently he must not be subject to the threat of an action for negligence

• Professional obligation to act: a barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts.

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• The “cab-rank” principle operates at the Bar: barristers are obliged to accept any brief in an area in which they practice provided they are available, and a proper fee is offered

• Duty to the court: it is a mistake to suppose that a barrister is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He owes allegiance to a higher cause: the cause of truth and justice. He must disregard the most specific instructions of his client, if they conflict with his duty to the court

• Protraction of litigation: if a barrister could be sued for negligence, it would mean a retrial of the original case and would open the door to any disgruntled client

Professional conduct

• The duties of solicitors towards their clients is governed by statute and by their code of professional conduct

• In the case of barristers the obligations are governed solely by self-imposed standards

• The rules are enforceable by complaint to the Bar Council followed by disciplinary proceedings before a Disciplinary Tribunal which may result in the barrister being fined, disbarred or suspended from practising by his Inn of Court

• The most important rule of conduct is that, subject to a few exceptional cases, counsel may accept instruction only from solicitors or other approved professional persons, and not from a client direct

LAW OFFICERS

• they are the legal advisers of the Crown

• they are the Attorney-General ( = the head of the English Bar) and the Solicitor-General

• they may not engage in private practice while they hold office

The Attorney-General

• Political duties: advising government departments, answering questions in the House of Commons

• he represents the Crown in certain civil proceedings and in trials for treason or other important offences with a political or constitutional element

• he appears on behalf of a section of the public

(in cases of public nuisance, where the rule is that an ordinary member of the public cannot sue)

The Solicitor-General

• His position is basically that of the Attorney-General’s deputy

• He may exercise any power vested by statute in the Attorney-General if the office of the Attorney-General is vacant, the A-G is unable to act through illness or the A-G authorises the Solicitor-General to act

The Director of Public Prosecution

• He is a barrister or solicitor of not less than 10 years’ standing appointed by the A-G

• He is the head of the Crown Prosecution Service

• His duties:

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• to take over the conduct of all criminal proceedings instituted on behalf of a police force

• to institute and conduct criminal proceedings where the importance and difficulty of the case makes it appropriate that the Director should institute the proceedings

• the giving of advice to police forces on all matters relating to criminal offences

• to appear in certain appeals

• The Crown Prosecution Service = a national organisation with offices in regional centres

• Crown Prosecutors are legally qualified, aided by support stuff, and have similar rights of audience as solicitors have

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