Lecture # 15 Barristers and Solicitors By: Salik Aziz Vaince
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Lecture # 15 Barristers and Solicitors By: Salik Aziz Vaince [0313-7575311] Introduction . Embarking on a legal career in England and Wales can be, as with other jurisdictions, a lengthy and complicated process. There are many stages, spanning a period of several years, which need to be completed in order to become a qualified lawyer. In England and Wales there are two types of lawyers (barristers and solicitors) jointly referred to as the legal profession. Most countries do not have this clear cut division among lawyers: a person will qualify simply as a lawyer, although, after qualifying, it will be possible for them to specialize as an advocate, or in particular area of law. This type of system is seen in UK in the medical profession, where all those wishing to become doctors take the same general qualifications. After they have qualified, some doctors will go on to specialize in different fields, perhaps as surgeons, and will take further qualifications in their chosen field. In England, not only are the professions separate, but there is no common training for lawyers, although there have been increasing calls for this. As far back as 1971 the Ormrod Committee was in favour of a common education for all prospective lawyers. In 1994 the Lord Chancellor’s advisory committee on legal education, under Lord Steyn, recommended that, instead of having separate training for barristers and solicitors, ‘the two branches of the profession should have joint training. All those qualifying would then work for six months or a year at a solicitors’, with those who wished to become barristers going on to do extra training at the Bar. Yet despite these recommendations, the training of the two professions remains separate. Lawyers in England and Wales can practice as either solicitors or barristers. The top solicitors are often Partners or Senior Partners in successful law firms, while the leading Barristers become QCs (Queen’s Counsel), and Judges. Generally speaking, solicitors provide a range of legal services to companies, organisations and individuals on wide range of legal issues, in diverse areas of practice. The work of all solicitors may be characterized in terms of problem solving. Solicitors help to find solutions to their client’s problems within the framework of case law, statute and regulations. This skill is a key to the practice of each and every solicitor. The context of such work, however, varies greatly across the vast array of practice areas within the profession, depending on the size and type of firm. Barristers, on the other hand, usually receive instructions from a solicitor. This difference in roles means that clients generally have to go through a solicitor to gain access to a barrister. Barristers are engaged by solicitors on behalf of their clients to provide expert legal opinion or advocacy services. ©VLC Publishers www.vlc.com.pk Page 1 Barristers need to be both legal experts and exceptional advocates. Historically, they have a wider right of audience than solicitors, although solicitors may now qualify for higher rights of audience. Many countries with common law legal systems, such as New Zealand and Pakistan allow for the roles of barrister and solicitor to be combined into one person. The Legal Profession . Definition . Defining the term ‘legal profession' is more difficult than one may anticipate. It becomes apparent that the simplest definition is perhaps the most befitting. The legal profession is a ‘the particular occupation that is based on expertise in the law and in its applications.' . A ‘body of individuals who are qualified to practice law in particular jurisdictions. The learned occupation of these individuals is to study, promote, uphold and enforce the collection of rules imposed by the authority. They thus form a ‘legal profession.' Who are the Legal Professionals? . There are essentially two main branches of the legal profession – solicitors and barristers. Solicitors advise individuals and organisations on legal matters and ensure that their clients act in accordance with the law. There are over 100,000 practicing solicitors within the legal profession in England and Wales, governed by the Solicitors Regulation Authority. Barristers represent clients in court and give specialist opinions on complex legal matters. They generally receive instructions through solicitors. There are around 14,400 practicing barristers within the legal profession in the UK, governed by the Bar Standards Board. The distinction between solicitors and barristers is not as clear-cut as it once was. Following the Court and Legal Services Act (CLSA) 1990 solicitors have the right to become certified advocates (i.e. represent clients in court). Commentators suggest that barristers have consequently, lost their dominance over advocacy in courts. Although solicitors are taking on a more active advocacy role in the lower courts, barristers still maintain an unrivalled monopoly over the higher courts. Barrister . A Barrister also termed as Barrister-at-Law or Bar-at-Law. Barristers have traditionally undertaken advocacy in the courts and other tribunals, and have provided specialist advice. Barristers are rarely hired by clients directly but instead are retained (or instructed) by solicitors to act on behalf of clients. Today, there are exceptions to these general descriptions. For example, some barristers now rarely appear in court, and instead spend the majority of their time drafting documents and advising on contracts. Nevertheless, barristers are still regarded mainly as specialist advocates. ©VLC Publishers www.vlc.com.pk Page 2 . There are about 14,400 barristers in independent practice in England and wales. Collectively barristers are referred to as ‘the bar’ and they are controlled by their own professional body – the General Council of the Bar. All barristers must also be a member of one of the four Inns of Court: Lincoln’s Inn, Inner Temple, Middle temple and gray’s Inn, all of which are situated near the Royal courts of Justice in London. How to become a barrister . Training . Entry to the Bar is normally degree-based, though there is a non-degree route for mature entrants, under which a small number of students qualify. The first stage of training is the academic stage. This involves studying and obtaining a degree in either law or any other subject. If you study towards a law degree you can proceed directly to the Bar Vocational Course. If you choose to study any other subject than law you will also have to complete the conversion course called the Common Professional Examination. This course lasts on year in which you must study certain compulsory legal subjects, for example EU law, Contract and Tort which you would otherwise study within your law degree. The second stage is the vocational training. For barristers this is known as the Bar Vocational Course until 2010 and then will be known as the Bar Professional Training Course. This is completed either full time over one year or part time over two. Graduate students without a law degree can take the one year course for the Common professional Examination (Graduate Diploma in Law) in the core subjects in order to go on to qualify as a barrister. All student barristers also have to pass the Bar Vocational course which is being renamed as the Bar Professional Training Course. On this Course students study: 1. Case preparation legal research 5. Conference skills (interviewing 2. Written skills clients) 3. Opinion writing (giving written 6. Negotiation advice) 7. Advocacy (speaking in court) 4. Drafting documents such as claim forms . Students also study specific areas of law related to their future profession, such as civil litigation, criminal litigation and the law of evidence. All students’ barristers must join one of the four Inns of Court and used to have to dine there 12 times before being called to the bar. Students may also attend in a different way, for example a weekend residential course. This helps students on the courses outside London as travelling costs are lower. The idea behind the rule requiring all trainee barristers to dine was that they met senior barristers and judges and absorbed the traditions of the profession. In practice, few barristers dine at their Inns and students are unlikely to meet anyone except other students. ©VLC Publishers www.vlc.com.pk Page 3 . Once a student has passed the Bar Vocational Course, he or she is then ‘called to the bar’. This means that they are officially qualified as a barrister. However, there is still a practical stage to their training which must be completed. This is called pupillage. Training routes to become a barrister Law Degree Non-Law Degree Non-graduate mature student One year law course two year law course Common Professional Common Professional Examination Examination Membership of an Inn of court, Attend at Inn – either dine or on course Bar Professional Training Course Call to the bar Pupillage 2 x 6 months Practice as a barrister . Pupillage . After the student has passed the Bar Vocational Course there is ‘on the job’ training where the trainee barrister becomes a pupil to a qualified barrister. This is generally in a barristers’ chamber. The first six months of this time will be spent non-practicing. You will shadow and assist your approved supervisor who will be a barrister within the chambers you are working. The second six months is spent carrying out the work of the barrister under your supervisor’s approval and permission. This can be with the same barrister for 12 months or with two different pupil masters for six months each. After the first six months of the pupillage, barristers are eligible to appear in court and may conduct their own cases. The pupil is assigned to a pupil-master or pupil-mistress, who oversees the development of the pupil's legal skills by giving them drafting work and allowing them to help with research in case preparation.