The legal profession

[KALKI]

The legal profession

You may have come across the term ‘lawyer’ and wondered exactly which member of the legal profession it refers to. The term applies to solicitors, barristers and judges. Outside the legal profession, it is commonly applied to law academics such as lecturers and researchers. Below we will focus on the work of solicitors, barristers, judges and other key legal personnel.
Solicitors and Barristers
A further question you may have asked yourself is, why does the English legal system need both solicitors and barristers? The simple answer is one of history. Historically, the English legal system has had 2 types of lawyers. Later in this chapter we will consider whether it is logical to maintain this historical division in today’s society. Before that, we will look at the role each plays and the qualifications and training required.


Solicitors
The work of solicitors. Anyone with a legal problem will (in the majority of cases) go to see a solicitor before they do anything else. Depending upon the size of the firm of solicitors, they can potentially deal with anything coming through their doors, ranging from the sale of a house, to a complex murder case. Solicitors do not simply work from an office or see clients and deal with paper work. They need to do legal research in order to advise clients and observe the numerous procedural rules and then, appear in court to represent their client. They have the right to present a case or a trial (known as ‘rights of audience’) before the county courts, the magistrates’ courts and can make certain applications in the Crown Court and High Court. Following the Courts and Legal Services Act 1994 ‘CLSA’, experienced solicitors who have taken on extra special training have rights of audience in the High and crown courts.

Qualifications and training. The usual route for would-be solicitors is as follows:


study for a law degree. This can be completed full time (over 3 years) or part time (over approximately 4-5 years). However, students who already have degrees in subjects other than law can take the Common Professional Examination ‘CPE’ (full time over 1 year and part time over 2 years);

the next step for all is to complete the Legal Practice Course ‘LPC’ (full time over 1 year or part time over 2 years) to learn the various procedural and legal rules which must be observed by solicitors. This course is run by universities throughout the country;

after successfully passing the LPC, students must complete a ‘training contract’, formerly known as ‘articles’. Students spend 2 years learning the skills of the trade in a firm of solicitors;

once the training contract is completed and the necessary professional skills examinations passed, the student applies to the Law Society to be admitted as a solicitor. The student may only refer to himself as a ‘solicitor’ after this stage, and practise once he has obtained a ‘practising certificate’ (from the Law Society). The new solicitors is then employed by firms of solicitors.

Barristers
The work of barristers. Unlike solicitors, barristers cannot advertise for clients. Clients come to barristers through solicitors, who ‘brief’ the barrister for his advice or to represent a client in court - the rules have been relaxed recently so that certain clients (i.e. the CAB) may approach barristers directly.

In the majority of cases, this means that by the time the client actually sees a barrister, the solicitor would have carried out quite a lot of legal preparation in the case. Unlike solicitors, barristers are bound by the ‘cab-rank’ rule which requires them to take any case offered by a solicitor which is within their area of expertise. They cannot choose to take on or refuse a particular case. Barristers may either work from a set of ‘chambers’ or are employed in organisations such as the Crown Prosecution Service and local government. Those working from chambers are self-employed and contribute to costs of running of the chambers.

Barristers have traditionally been seen as specialist advocates, representing clients in the superior courts (that is the Crown Court, High Court and appeal courts). However, while more senior members of the Bar may specialise in certain areas of law, in practice, many junior barristers take on a wide range of work and represent clients in both the superior and inferior courts (that is, the county court and magistrates’ court).

Qualifications and training. After obtaining a law degree (or completing the CPE), students who want to practise in the United Kingdom must:


become a member of one of the 4 Inns of Court;

go on to complete the 1 year, Bar Vocational Course ‘BVC’ to learn the various procedural and legal rules of practice. The BVC was traditionally held at the Inns of Court, School of Law in London. However, it is now being run by certain universities around the country;

during time spent at Bar School, student are required to comply with the outmoded and costly practice of dining 12 times in their Inns of Court;

after successfully passing the BVC and completing 12 meals, the student can be ‘called’ to the Bar, and can call themselves ‘barrister’. However, they are not allowed to practise as a barrister until they have completed a ‘pupillage’ over 12 months, during which time they learn the tricks of the trade.
Arguments for and against a divided legal profession.

A few other countries have a divided legal profession, but others manage just as well with only one type of lawyer. So why do we carry on this tradition? Historically, arguments for the division have centred around the general view that barristers provide a specialist service in advocacy and knowledge of specific areas of law, a service which is somehow better than that provided by solicitors. In fact, some students have commented that barristers are more superior to solicitors and hold the mistaken belief that barristers go through more intensive specialist training. Some members of the Bar have argued that someone has to be a specialist in particular areas of law. Owing to the nature of the work of solicitors, they are not always able to divide their time between seeing clients in the office, attending court and preparing for complex trials in the superior courts. A barrister does have time to prepare more expertly for trials, thus saving time, effort and keeping costs to the minimum. The division is therefore necessary, even though it leads to a duplication in work and 2 sets of legal fees. However, it is arguable these assumption can no longer be held for the following reasons:


while there are senior barristers who are exceptional when it comes to advocacy in trials, the majority of junior barristers spend quite a lot of their time in the inferior courts learning how to become good advocates. It is now acknowledged that solicitors with several years experience also become experienced in advocacy and trial work and may be better at it than some junior barristers. Since the CLSA 1994 (see 2. above), ‘solicitor advocates’ have made inroads into the monopoly held by barristers in the superior courts (see above);

training in advocacy is not limited to barristers. The BVC does include training in advocacy, but this is a skill which must be developed by the individual once they have completed the course. The LPC has remedied some of the failings of its predecessor, (the Law Society Finals) and also includes training in advocacy. Therefore, the new breed of solicitor receives some advocacy training;

senior solicitors can also become specialists in a particular area of work. Larger firms of solicitors can afford to allocate a solicitor to one speciality. In order to cut down on their costs, more are taking advantage of their greater rights of audience and dealing with cases from start to finish rather than briefing a barrister;

we have seen that the BVC and LPC are taken over 1 year, so it cannot be argued that barristers receive more intensive training than solicitors at this stage. Further, solicitors spend 2 years in various departments of a firm of solicitors learning the ropes. Barristers only spend 12 months learning their trade, and are expected to be ready to ‘stand on their feet’ or advocate in court in the second 6 months of pupillage.

Judges
The work of judges. In order to make sure the English legal has a fair system of justice, judges are independent, or are not influenced when making decisions by the Crown or the government. Acting in this independent role, they carry out the following functions:


they ensure proper procedures are followed in court hearings and trials;

when presiding over a trial, they will listen to the factual and legal arguments presented by solicitors and barristers. In civil cases, the judge act as both judge and jury, making decisions on both the facts involved and the law. In criminal cases, they only explain the law to the jury. The jury is then responsible for deciding whether the offender is guilty or not guilty based on the facts of case and the explanation of the law they receive from the judge;

they interpret laws;

in criminal cases, they alone are responsible for sentencing offenders;

in all cases, they have the power to hold someone in ‘contempt of court’. Contempt of court may arise where someone refuses to comply with an order made by the judge or carries out a radical act in court, like calling the judge names. It is punishable by a fine or imprisonment.
How does someone become a judge? All judges are appointed by the Queen after consulting with representatives of her government. In order to become a judge of the superior courts, the individual must have experience as a barrister. For example, to become a High Court judge, a minimum of 10 years experience is required. For the appeal courts, a minimum of 15 years is required. In the inferior courts, judges may come from the ranks of solicitors and barristers who have experience as either solicitors/barristers.

Types of judges. In the House of Lords, judges are known as Lords of Appeal in Ordinary. In the Court of Appeal, they are known as Lord Justice of Appeal. In the High Court, they are called High Court Judge. In the Crown and County Court, they are called Circuit Judge.
Recorders are also Crown Court judges. Stipendiary’s work in the Magistrates’ Court.


Other legal Personnel
Legal Executives. These individuals work alongside solicitors, preparing routine legal work, taking instructions from clients and sometimes taking notes in Crown Court. The more experienced they are, the more responsibilities they are given in the firm. Some go on to take the Institute of Legal Executives examinations, and after that, go on to take the LPC and qualify as solicitors.

Para Legals.
Again, they work alongside solicitors, providing a support service, such as taking instructions from clients. No qualifications are required to work as a para legal, but most firms do look for people with previous experience in the legal profession. Solicitors’ clerks play a similar role