Lecture # 15 Barristers and 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 . . In England and Wales there are two types of (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 , 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 . 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 . 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 . . 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 : Lincoln’s Inn, , 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 . . 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. Pupils may get the chance to appear in small cases themselves during the second half of their pupillage.

©VLC Publishers www.vlc.com.pk Page 4

. Although the step of being 'Called to the Bar' at one of the Inns now takes place on passing the BVC, one can apply for a Practicing Certificate only on successful completion of pupillage. The Practicing Certificate, which gives entitlement to practice as a barrister, is granted by the Bar Council (the statutory body which administers training, qualification and professional standards of the Bar), and is renewed annually. . There is also a requirement that they take part in a programme of continuing education organised by the Bar Council. . During pupillage trainee barristers are paid a small salary by the chambers they are attached to. The minimum amount is £833.33 per month. However, many chambers pay considerably more than that. . Barrister’ work . Barristers practicing at the bar are self-employed, but usually work from a set of chambers where they can share administrative expenses with other barristers. Most sets of chambers are fairly small comprising of about 15-20 barristers. They will employ a clerk as a practice administrator – booking in cases and negotiating fees – and they will have other support staff. . Barristers specialise in representing individuals, companies or institutions in court. These are the people you may think of when you think of lawyers, stood in court, addressing a judge in a wig and gown. This view is mainly correct, one of a barrister’s primary roles if that of advocacy, to speak for the client in proceedings before a court or tribunal. . A barrister will most commonly be instructed by a solicitor to act on behalf of their client to advise on specific legal documents, give their opinion on specific matters, advice on tactics or to attend court for their mutual client. Their role can therefore go beyond just advocacy. If the barrister has the expertise being called upon and the time to carry out the work he is obliged to accept the same from the instructing party. . You may have heard the term ‘brief’ before. This is a document traditionally prepared by a solicitor to instruct a barrister to carry out a certain piece of work or represent a client. . Historically it was rare for a barrister to be instructed by a client directly although now this is occurring more frequently, for example in tax matters barristers are commonly instructed directly. . Some barristers can be extremely specialist in certain areas of work and only carry out work in that area of law. However, some barristers have a wider ranging practice and may take on work from a wide range of disputes. It is possible for a barrister to prosecute in one case and defend in another. . English barristers' principal areas of work are as follows: . giving legal opinions in an area of specialism, including on non-contentious matters (i.e. where there is no dispute) such as advice on drafting a contract, warranty or other project documentation . giving advice on the merits of a case, the relevant issues and evidence needed to pursue it oral and written legal argument and cross-examination of witness of fact and expert witnesses in court proceedings, arbitration and other types of hearing, relating to both UK cases and those in other jurisdictions . advising parties undertaking alternative dispute resolution techniques, such as mediation . acting as mediator to try to achieve settlement between disputing parties . acting as arbitrator in hearing and resolution of disputes ©VLC Publishers www.vlc.com.pk Page 5

. The majority of barristers will concentrate on advocacy, although there are some who specialize in areas such as tax and company law, and who rarely appear in court. . Barristers have rights of audience in all courts in England and wales. Even those who specialize in advocacy will do a certain amount of paperwork, writing opinions on cases, giving advice and drafting documents for use in court. . Barristers Chambers . After successfully completing pupillage, the newly qualified barrister can start practicing. Most choose to go into independent practice at a set of chambers, although a few choose to become employees of companies or organisations like the Crown Prosecution Service (and are referred to as the 'Employed Bar'). Barristers generally work in what is known as ‘chambers’. . A barrister is usually self-employed and works from an office with a group of other barristers, this place is known as the barrister’s chambers. Instead of drawing a salary their income is derived from the fees they earn individually. The costs of administration, the chambers' staff, the library, the computer systems and other related costs of chambers are, however, shared between the barristers. . Barristers can also be employed to work in-house in a legal departments by companies, organisations or government departments. Barristers often have clerks who run their diaries and look after the administrative aspects of the job such as invoicing clients. . Members of chambers are known as 'tenants', and obtaining a 'tenancy' is crucial for a newly qualified barrister. One of the problems facing newly qualified barristers is the difficulty of finding a tenancy in chambers because Competition for tenancy is very much strict: from several hundred applicants for pupillage, most chambers only accept three or four and, at the end of the year's pupillage, typically only one (or exceptionally, two), is offered a tenancy. . The rule on having to practice from chambers has been relaxed, so that it is technically possible for barristers to practice from home. . However, despite the fact that a tenancy in chambers is not essential, it is still viewed as the way to allow a barrister to build a successful practice. . In London, many sets of chambers occupy buildings within or just outside one of the Inns of Court. . Barristers' Chambers in Operation . All chambers are run by a number of different groups, and decisions are made by the barristers themselves working within a committee structure. The selection and training of pupils is the responsibility of the Pupillage Committee. . Long-established features of every barrister’s chambers, the clerks are the best known of all the groups. Primarily responsible for managing the workload of the barristers, the clerks help solicitors or clients to choose the most appropriate barrister for the particular case in question, check his or her availability and arrange fees. They also deal with room bookings for meetings and conferences. For most people, the clerks are the first and ongoing point of contact with chambers. . The actual day-to-day running of chambers is done by an administrative team. Headed by a chief administrator or chief executive, the team deals with building services, information technology,

©VLC Publishers www.vlc.com.pk Page 6

library, finance matters, including collection of fee accounts, and many other aspects of chambers' organisation. . Barristers in Action . In an English case, a barrister will typically undertake work having first been approached by a solicitor who, in turn, has been consulted by the client. The barrister chosen by the solicitor will often meet the client and will continue to discuss with the instructing solicitors throughout. . In non-UK cases, the client's own lawyers will usually continue to handle the work, bringing in the barrister as needed to provide advice and to undertake some or the entire advocacy. . Barristers outside Court . The usual public image of an English barrister is that of an advocate in a court room. Barristers are still required to wear this traditional outfit when appearing in 'open court', although in the many interlocutory hearings and applications which, for example, might be heard in a judge's chambers, greater informality is accepted. . Today, a barrister may well spend little or no time in court. Other methods of dealing with disputes where possible are preferred in the commercial world, and these create considerable demand for advocacy and alternative dispute resolution (ADR) services. Arbitration is the most obvious example. . In mediation and other forms of ADR, barristers are used as advisers to the parties. Increasingly, they also appear as mediators, since their specialist training and experience in identifying key issues and weaknesses in cases and of trying to negotiate settlements with opponents mean that they are particularly well suited to the task. Many undergo further training as accredited mediators. . Barristers assist with adjudication (Judgement) in a similar way. This form of summary decision-making is mandatory in most construction contracts in the UK which has created new demands for legal services. Barristers advise the parties on bringing and resisting claims in adjudication and appear as advocates in adjudication hearings or as the adjudicators themselves. They may also be instructed following an adjudication to enforce the decision or to challenge it in court. . Choice of Barristers . Typically, barristers are chosen by solicitors on the basis of their past experience, the specialism involved, the degree of urgency needed, the case's complexity, the sum in dispute and the client's needs and resources. . Since the leading Chambers do not undertake all types of work, and since most members of any set have their own particular expertise, it is important first to find a set with the appropriate specialism. There are several ways of doing this. . Specialist sets and barristers are listed in the directories (either paper or online) of the specialist Bar Associations. These cover a range of disciplines including, for example, professional negligence, technology and construction and commercial law. The Associations keep their members up to date with law and procedure in their fields and advise government on law reform proposals. . The Bar Council's website, http://www.barcouncil.org.uk, links to the official Bar Directory which allows an advanced search for barristers and/or for Chambers by keywords or area of specialism.

©VLC Publishers www.vlc.com.pk Page 7

. Instructing Barristers . Once a specialist set has been identified it is advisable to obtain details of barristers' experience from their CVs to match them against the features of the case in question. . Even experienced solicitors who know a particular set well will want to speak to the clerks to discuss the critical issues involved (specialism, size/complexity, urgency, client’s needs/ resources). . Other matters need to be considered too: the availability of the barrister(s) identified to meet the client's time-frame, the level of fees payable (which will depend on the seniority and standing of the particular barrister), whether the fees will be on a lump sum or hourly basis and the amount of work required. Arrangements for meetings (called 'conferences') with the barrister and any travel requirements e.g. to a site inspection should be considered early on. . Generally speaking, the earlier the barrister is involved in a dispute the better. That way, the barrister can advise on tactics throughout and can begin to collect evidence and legal material (although much of this may remain in the hands of the instructing lawyers, especially if based outside the UK). . Once the barrister has been instructed the instructing lawyer and the client have access to advice on the matter available as and when they need it. . The Bar Council requires barristers to undergo Continuing Professional Development by which barristers must keep their knowledge up to date throughout their careers. The Bar Council also enforces the Code of Conduct on its members and deals with any complaints and disciplinary matters. All barristers are obliged to have Professional Indemnity Insurance Cover appropriate to their areas of practice. . The best reason for having confidence in a barrister however lies in the careful selection of a barrister with the experience and expertise to deliver the service required. . Direct access . Originally it was necessary for anybody who wished to instruct a barrister to go to a solicitor first. The solicitor would then brief the barrister. . This was thought to create unnecessary expense for clients, as it meant they had to use two lawyers instead of one. As a result of criticism the Bar first of all started to operate a system called Bar Direct under which certain professionals such as accountants and surveyors could brief a barrister direct without using a solicitor. This was extended to other professionals and organizations. . Then in September 2004 the Bar granted direct access to anyone (business or individual). . It is no longer necessary to go to a solicitor in order to instruct a barrister for civil cases. However, direct access is still not allowed for criminal cases or family work. . Cab rank rule . Normally barristers operate what is known as the cab rank rule which they cannot turn down a case if it is on the area of law they deal with and they are free to take the case. . However, where clients approach a barrister direct, the cab rank rule does not apply. . Barristers can turn down a case which would require investigation or support services which they cannot provide.

©VLC Publishers www.vlc.com.pk Page 8

. Employed barristers . The employed Bar, which includes those barristers working for the crown Prosecution service CPS, can appear in the Magistrates Court, but used not to be able to conduct cases in the Crown Court, High court or Appellate Courts. . As these barristers will have done exactly the same training as the independent Bar, this was seen as being unnecessary restrictive. . The Access to Justice Act 1999 allowed barristers working for the CPS or other employers to keep their rights of audience. The Act allowed barristers who work in solicitors firms to keep the right to present cases in court.  The Code of Conduct for barristers . The nature of the Code . The barrister Code of Conduct provides with the rules and standards that should inform all the aspects of a practice at the employed bar as well as applying to self-employed barristers. All practicing barristers are subject to the provisions of the Code and should carry out their duties in the manner prescribed within. . It is important to emphasize that the Code is very different in nature from a statute or any other piece of legislation. It differs because it does not prohibit certain actions and then makes them punishable but the Code establishes guidelines for the appropriate performance of the profession. . Further, the Code is not subject to strict rules of interpretation as other legislations. The process of interpreting the provisions should be informed by ethical values. In addition, where the Code permits a variety of responses, the choice between those options should be made in accordance with the person’s inner morality. . The importance of the Code of Conduct . The importance of compliance with the provisions of the Code is emphasized through their impact on the reputation of the profession. Ignoring the provisions not only affects the individual’s reputation and career but it can have far-reaching implications to the established trust in the profession as a whole. . Therefore in practice, the Code is one of the most important texts to comprehend and then apply throughout the career at the Bar. . The essence of the Code . The Code is central to every barrister’s practice providing ethical guidance to the exercise of the profession. Looking at the provisions as a whole, a number of underpinning values could be identified throughout the Code. Those include the achievement of justice, establishment of respect of law and procedure, safeguarding the client’s autonomy and providing for confidentiality and honesty. . The current version of the Code was prepared by the Bar Council and adopted in 2004. . The provision itself is divided into eleven parts dealing with all the matters of importance to a career as a barrister. . Considering the Code itself, Part I deals with preliminary issues such as the enforcement of the Code and rules regarding amendments. Further, it establishes the general purpose of the Code as the

©VLC Publishers www.vlc.com.pk Page 9

provision for rules and standards of conduct applicable to barristers which are appropriate in the interests of justice. . Part II contains the practicing requirements a barrister needs to comply with in terms of right of audience and supply of legal services to the public. . Part III establishes the fundamental principles applicable to all practicing barristers. Those clarify that the overriding duty of a barrister lies with the court, which in turn requires him not to deceive or knowingly mislead the court in the administration of justice. . Part IV and V deal respectively with self-employed and employed barristers in terms the receipt of instructions, fees. . Part VI builds up one the previous two Parts and is concerned with acceptance of instructions. The part contains the ‘cab-rank rule’ establishing that a barrister must accept any instructions appropriate in his field. Further this is done irrespective of the nature of finance of the trial by the client and whether it is public or private. It contains instruction regarding acceptance of cases in unfamiliar practice areas and when a conflict of interest between the barrister and the client may arise. Further, it deals with return of instructions when continuing to act on a case would cause the barrister to be professionally embarrassed. . Part VII lays down the framework regarding the conduct of work in terms of confidentiality duties, drafting documents, conduct with witnesses and conduct in court. It establishes that a barrister need always be courteous in court and to his clients. Further, he should not devise facts to assist his lay client’s case nor is allowed to rehearse, practice or coach a witness prior his appearance at court. . The main framework of the Code is established in Parts I-VII. The remainder of the Code deals with provisions regarding pupils, pupil-supervisors, definitions of the essential terms in the Code. . Failing to comply with the provisions of the Code . A failure to act in accordance with the guidance provided could result in a suit for professional misconduct. Following such proceedings instigated against a barrister if he is found to have acted contrary to the professional Code, then he may be subject to the discretion of a Disciplinary Tribunal. . If a finding of breach is established but the breach is not serious, he could be given a written warning or in some cases fined. It is important to note that a written warning or a fine does not amount to a finding of professional misconduct. . If there have been a number of failures to comply over a period of time, then a further breach will automatically constitute professional misconduct even if the failure on its own would not be sufficient to amount to such misconduct. . All findings of professional misconduct are published on the Bar Standards Board website and also by the Inns of Court.  Complaints about Barristers . The Barristers profession in England and Wales has many of its own rules and regulations regarding good practice. It prides itself of being independent and not having the government or any other authority interfere in its practice. However, what are the processes and procedures when it comes to

©VLC Publishers www.vlc.com.pk Page 10

complaint handling process? The following will show the rules and procedures that one needs to be aware of. . Where a barrister receives a brief from a solicitor he or she does not enter into a contract with his client and so cannot sue if their fees are not paid. . Similarly, the client cannot sue for breach of contract. . However, they can be sued for negligence. . In Saif Ali v Sydney Mitchell and Co (1980) it was held that a barrister could be sued for negligence in respect of written advice and opinions. In that case a barrister had given the wrong advice about who to sue, with the result that the claimant was too late to start proceedings against the right person. . In Hall (a firm) v Simon (2000) the HOL held that lawyers could also be liable for negligence in the conduct of advocacy in court. This decision overruled the earlier case of Rondel v Worsley (1969) in which barristers were held not to be liable because their first duty was to the courts and they must be ‘free to do their duty fearlessly and independently’. . The Law Lords in Hall (a firm) v Simons felt that in light of modern conditions it was no longer in the public interest that advocates should have immunity from being sued for negligence. They pointed out that doctors could be sued and they had a duty to an ethical code of practice and might have difficult decisions to make when treating patients. There was no reason why advocates should not be liable in the same way. . They also pointed out that allowing advocates to be sued for negligence would not be likely to lead to the whole case being re-argued. If an action against an advocate was merely an excuse to get the whole issue litigated again, the matter would almost certainly be struck out as an abuse of process. . Complaints Procedures in Chambers as regards to Clients . Basically whenever a complaint is made to a barrister they must deal with these complaints in a way which is polite, punctual and deals with the relevant issues. Furthermore every Chambers must have its own complaints procedure which must be available to the client should they ask for one. . How Complaints must be handled in Chambers . Requirements according to Annex S of the Code of Conduct: - The most important information is that when barristers are instructing a lay client or a professional they must as soon as possible inform them that a complaints procedure form is available should they request one and that they need not make a complaint through a solicitor but can do so directly (s1 a & b) - Furthermore complaints procedures must be available to professional clients and lay clients as well as any intermediaries. . Response to Clients . According to s 5 a to c of Annex S of the Code of Conduct: - After prompt acknowledgement of complaint the complainant must be given the name and description of the individual within Chambers who will deal with that complaint, be provided with a copy of the complaints procedure form, and be informed of the date when the claimant will further hear from the Chambers.

©VLC Publishers www.vlc.com.pk Page 11

. Accordingly, s 6 a to b of the Code of Conduct, the following needs to be done if a complaint is referred to the Commissioner: - The Head of Chambers must notify the Commissioner after 6 weeks of the referral as regards to the progress or outcome of the consideration of the complaint and when there is no outcome update the Commissioner every 6 weeks until there is an outcome at which point the commissioner must be notified. . Complaints against Barristers through the Disciplinary Tribunal Process . The following information is based on the Bar Standard Board’s ‘Complaints against Barristers’ document and the Annex J- Complaint Rules 2009. . When complaints against a Barrister can be adjudicated using the Disciplinary Tribunal Process? . Complaints about a barrister will only be sent to a Disciplinary Tribunal after there is a thorough investigation which accumulates enough evidence to show a breach of the Code of Conduct so the complaint will be sent for adjudication. . Bar Standard Board . Complaints against barristers are handled by the bar Standards Board. If there was poor service, the Board can order the barrister to pay compensation of up to £5000 to client. . The complaints process is overseen by an independent lay Complaints Commissioner. This system of handling complaints will be replaced by the Office of legal Complaints in late 2010. . Senate of the Inns of court . Barristers can be disciplined by the Senate of the Inns of Court if they fail to maintain the Standards set out in their Code of Conduct. In extreme cases the Senate can disbar a barrister from practicing. . Legal Service Ombudsman . There has been a Legal Service Ombudsman since 1991, whose work involves investigating complaints about all the legal professions. There are comparatively few complaints against barristers and the Ombudsman has found that the bar Council usually handles about 90% of the complaints satisfactorily.

Solicitors

. There are over 110,000 solicitors practicing in England and Wales and they are controlled by their own professional body, the law Society. Of these, 83,000 are in private practice and the remainder is in employed work, such as for local government or the Crown Prosecution Service. . Origin of the Profession . 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.

©VLC Publishers www.vlc.com.pk Page 12

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. . Training . To become a solicitor it is usual to have a law degree, although those with a degree in a subject other than law can do an extra year’s training in core legal subjects, and take the Common Professional Examination CPE or Graduate Diploma in Law GDL. . The next stage is the . This is much more practically based than the previous Law Society Finals course and includes training in skills such as client-interviewing, negotiation, advocacy, drafting documents and legal research. There is also an emphasis on business management, for example keeping accounts. . . Even when this course has been passed, the student is still not a qualified solicitor. He or she must next obtain a training contract under which they work in a solicitors’ firm for two years, getting practical experience. This training period can also be undertaken in certain other legal organizations such as the crown Prosecution Service, or the legal department of a local authority. . During this two year training contract the trainee will be paid, though not at the same rate as a fully qualified solicitor, and will do his own work, supervised by a solicitor. . He will also have to complete a 20-day Professional Skills Course which builds on the skills learnt on the LPC. . At the end of the time, the trainee will be admitted as a solicitor by the law society and his name will be added to the roll (or list) of solicitors. Even after qualifying, solicitors have to attend continuing education courses to keep their knowledge up to date.

©VLC Publishers www.vlc.com.pk Page 13

. Non-graduate route . There is also a route under which non-graduates can qualify as solicitors by first becoming legal executives. This route is only open to mature candidates and takes longer than the graduate route. . Become a solicitor without a university degree . Many people consider a career in the law but are put off by the lengthy academic and vocational training required to become a solicitor or barrister. There is however a way of qualifying as a lawyer without the need for a university degree. . This is done by qualifying as a with the Institute of Legal Executives (“ILEX”). Many people may choose to take this root rather than the traditional roots to qualify as a solicitor as study can be combined with work and no formal qualifications are required before embarking on an ILEX course. . The course also allows you to train ‘on the job’ and receive first hand practical experience of the law you are studying. It is not however, the easy option, the ILEX route can take a number of years before qualification. . ILEX studies can also be carried out by distance learning which may be of use to some students. . If you become a ‘Fellow of the Institute of Legal Executives’ before you decide to complete the Legal Practice Course (the vocational course that all potential solicitors must complete) you may be exempt from the Solicitors Regulation Authority Training Contract, a two year period of training required to become a solicitor following completion of the Legal Practice Course. The ILEX training route may therefore be used to enter the final stages of the necessary qualifications to become a solicitor. . What can legal executives do? . Qualified and experience Legal Executives are able to carry out much the same work as a solicitor. Generally Legal Executives work in solicitors firms alongside other lawyers but they can also work in in-house legal departments for companies, organisations and government departments. . They can carry out work in a number of areas of the law and its practice, for example, conveyancing, family matters, probate and litigation. . Like other lawyers Legal Executives must continue training through continued professional development. . Work Experience . A five year qualifying period of employment must be completed to qualify as a Legal Executive. If you decide to work in a legal environment whilst completing your studies will count towards this time. . To become a Fellow of ILEX and have the right to call you a Legal Executive at least two years of employment must be undertaken after achieving your ILEX qualification. . Further Development . Qualified Legal Executives have the ability to offer advice to client and run their own case load. They can also manage other Executives, possible junior solicitors or other administration staff after they have gained enough experience. It is possible to become an associate within a law firm and even a partner.

©VLC Publishers www.vlc.com.pk Page 14

. ILEX fellows also now have the opportunity to apply for a wide range of judicial posts which would previously have been limited to qualified solicitors and barristers. . The Graduate Diploma in Law - GDL CPE or The Law Conversion Course . GDL is the abbreviation of the term ‘Graduate Diploma in Law’. This is the course which is taken by graduates of any university degree who wish to become a barrister or solicitor. . The GDL is the newer version of the traditional Common Professional Examination (CPE) but there is no real difference between the two. Other courses which offer the same law conversion may be known as senior status law degrees, postgraduate LLB’s or GDL (graduate diploma). . Who needs to complete the GDL course? . If you do not study towards a law degree at university but wish to be a solicitor or a barrister before you can proceed to the vocational section of your training by completing either the Legal Practice Course for solicitors or the Bar Vocational Course for barristers, you must first study the GDL. . This is a postgraduate course and therefore you must have already have obtained an undergraduate degree in a subject other than law from an institution based in the United Kingdom or a foreign institution which the governing body, the Solicitors Regulation Authority, considers to be equivalent. . It may also be possible for a student who holds academic and vocational qualifications to study towards the GDL if the Solicitors Regulation Authority deems these qualifications to be equivalent to a degree. . Another possibility is if the student is over 25 and either a member or fellow of the Institute of Legal Executives the Solicitors Regulation Authority may allow entry to the GDL. . Even if you have studied towards a law degree and that degree is not a ‘qualifying law degree’ you must also complete the GDL. A non-qualifying law degree is a degree in which you study law but do not complete the required modules in order for the degree to be ‘qualifying’; these modules include subjects like contract, tort and European Union law. . How long does the Course last and what do you need to study? . The GDL will generally last one year full time or two years if studying part time. . The GDL focus on the seven areas of the law which are the compulsory subjects for a ‘qualifying law degree’. Typically GDL students will not take many elective modules as all these subjects must be studied in one year. The seven subjects are:- 1. Contract Law 5. European Union Law 2. Constitutional and Administrative Law 6. Land Law 3. Tort Law 7. Equity and Trusts. 4. Criminal Law . Whilst studying towards your GDL you will also be given the opportunity to gain general legal analysis skills and have the chance to study another area of law of your choosing. . The course usually consist of lectures, tutorials and coursework with examinations being sat either at the end of the year or half way through the course and then at the end of the year. No matter what the format of the course a large amount of time will be spend in the lecture theatre or in tutorials, more than would usually be found in an undergraduate degree.

©VLC Publishers www.vlc.com.pk Page 15

. Should you study the GDL? . The GDL is a demanding and intense program as the compulsory subjects that are usually spread over a three year law degree have to be mastered in one year. However, if you are not sure that law is the profession you wish to enter and wish to study another degree first this may be the best route for you. The number of solicitors who have studied the GDL rather than an undergraduate law degree is increasing and it is often seen as an advantage to the employer to see that an individual has more skills and knowledge beyond that of the law or legal profession. . Training routes to become a solicitor

A levels or equivalent A levels or equivalent GCSEs

Institute of Legal Executive Degree in another subject Professional Diploma

Law Degree Institute of Legal Executives Higher Professional Diploma CPE/GDL (one year law course)

Work for two years in a Legal practice Course Solicitor’s office Be a fellow ILEX Legal Practice Course (must be over 25 years and have worked for five years in a solicitors office)

Two years training period Two years training period Legal Practice Course or Two years training period and pass final exam

Qualified as a solicitor Qualified as a solicitor Qualified as solicitor . Criticism of the training process . There are several criticisms of the training process. 1. The first of these is a financial problem, in that students will usually have to pay the fees of the Legal Practice Course and support themselves while doing the course. If they have a degree in a subject other than law and have had to do the CPE/GDL, they will also have had to pay for that course. This problem has arisen because, as the LPC is a post-graduate course, students must pay all the cost. The result of this policy is that students from poor families cannot afford to take the course and are therefore prevented from becoming solicitors, even though they may have obtained a good law degree. Other students may take out bank loans, so that although they qualify, they

©VLC Publishers www.vlc.com.pk Page 16

start the training period with a large debt. In order to overcome this problem a few universities have started offering four year degree courses, combining a law qualification and a practical course, so students pay only the university fee. This financial problem is also one faced by prospective barristers. The problem has increased since universities started charging more a year and students are already in debt from their degree course. In order to try to help would be solicitors, the CPE, can be taken as a part-time course over two years, instead of the one year full time course. Doing the course part time allows students to work as well, easing their financial problems. Often this work will be as a paralegal in a law firm, so that the student is also getting practical experience at the same time. 2. A point common to barristers is that non-law graduates do only one year of formal law for the Common Professional Course. The Ormrod committee which reported on legal education in 1971 thought that the main entry route should be via a law degree, but in practice 25% of solicitor will not have taken a law degree. One critic posed the question of whether the public would be satisfied with doctors who have only studied medicine for one year, concentrating on only six subjects. Yet this is precisely what is occurring in the legal profession. 3. A third problem is one of over-supply, so that not all students who have passed the LPC are able to obtain a training contract. . Solicitors work . The majority of those who succeed in qualifying as a solicitor will then work in private practice in a solicitors firm. The general position is that solicitors carry out all general legal work except conducting legal proceedings at court. They are the first person you approach when you have a legal problem. . However, there are other careers available, and some newly qualified solicitors may go on to work in the CPS or for a local authority or government department. Other will become legal advisers in commercial or industrial business. . A solicitor in private practice may work as a sole practitioner or in a partnership. There are some 8,700 firms of solicitors, ranging from the small ‘high street’ practice to the big city firms. . The number of partners is not limited, and some of the biggest firms will have over a hundred partners as well as employing assistant solicitors. . The type of work done by a solicitor will largely depend on the type of firm he or she is working in. . A small high street firm will probably be a general practice advising clients on a whole range of topics such as consumer problems, housing and business matters and family problems. . A solicitor working in such a practice is likely to spend some of his time interviewing clients in his office and negotiating on their behalf, and a large amount of time dealing with paperwork. This will include: • Writing letters on behalf of clients • Drafting contracts, leases or other legal documents • Drawing up wills • Dealing with conveyancing (the legal side of buying and selling flats, houses, office buildings and land). . Solicitor’s day to day activities involve meeting with clients, negotiating on their behalf and writing up and processing all the necessary paperwork. This includes letters on behalf of clients and drawing up ©VLC Publishers www.vlc.com.pk Page 17

contracts, leases and wills. Another aspect of their job is conveyancing i.e. the legal side of transferring houses, buildings and land. . In terms of standing up in court, a solicitor may act for his client in this way, which is known as advocacy. Some solicitors will specialize in this and spend much of their time in court. A solicitor may specialise in putting forward the case for their client and questioning witnesses. . Solicitors can attend and act in certain court proceedings, the courts to which solicitors have ‘rights of audience’ (can be heard in court) are generally the lower courts such as the Magistrates Court or the County Court. There is also the opportunity now for qualified solicitors to become Solicitor Advocates after the competition of a further course, this grants Solicitor Advocates rights of audience in the higher courts such as the Crown Court and High Court. . Specializing . It is possible for a solicitor to deal with a number of different types of law within their day to day work. Many high street firms have general Practioners who may be drafting a Will in the morning and attending the police station with their accused client in the afternoon. . However, after qualifying as a solicitor it is common to choose an area of Specialisation. . This can be a broad area of Specialisation such as general company and commercial matters or civil litigation. In the larger firms the solicitors are usually even more specialized to work on a specific area of the law and if a client requires advice on a different aspect of the law this is deal with by another department of the firm. . If you wish to become a solicitor you do not need to decide which area of the law you which to specialise in until you are completing your training contract or on qualification but it is always useful to think about the areas of law you are interested in practicing and look at studying modules in these areas. . Although some solicitors may be general practitioners handling a variety of work it is not unusual, even in small firms, for a solicitor to specialize in one particular field. . The firm itself may only handle certain types of cases (civil cases) and not do any criminal cases, or a firm may specialize in matrimonial cases. . Even within the firm the solicitor are likely to have their own field of expertise. . In large firms there will be an even greater degree of specialization with departments dealing with one aspect of the law. The large city firms usually concentrate on business and commercial law. . Amounts earned by solicitors are as varied as the types of firm, with the top earners in big firms on £500,000 or more, while at the bottom end of the scale some sole practitioners will earn less than £30,000. . Conveyancing . Prior to 1985 solicitors had a monopoly on conveyancing; this meant that only solicitors could deal with the legal side of transferring houses and other buildings and land. . This was changed by the Administration of Justice Act 1985 which allowed people other than solicitors to become licensed conveyancers.

©VLC Publishers www.vlc.com.pk Page 18

. As a result of the increased competition in this area, solicitors had to reduce their fees, but even so they lost a large proportion of the work. This led to a demand for wider rights of advocacy. . The Courts and Legal Services Act 1990 also gave the right of conveyancing (the legal side to buying and selling property and land) to banks and building societies. This shattered the monopoly hold that solicitors had maintained on conveyancing until the mid-1980s and thus solicitors had to drop their fees to remain competitive yet still lost a large proportion of their work. . Key Alternative Roles for Solicitors . Roles in-house working as legal counsel for a specific corporate body offering wider legal advice to one client. . Public sector roles that support the government functions such as education, welfare and police. . Education and training as a tutor or lecturer. . Rights of Advocacy . All solicitors have always been able to act as advocates in the Magistrates court and the County Courts, but their rights of audience in the higher courts used to be very limited. . Normally a solicitor could only act as advocate in the Crown Court on a committal for sentence, or on an appeal from the magistrates court, and then only if he or another solicitor in the firm had been the advocate in the original case in the magistrates court. . Until 1986 solicitors had no rights of audience in open court in the high Court, though they could deal with preliminary matters in preparation for a case. . This lack of rights of audience was emphasised in Abse v Smith (1986) in which two members of parliament were contesting a libel action. They came to an agreed settlement, but the solicitor for one of them was refused permission by the judge to read out the terms of that settlement in open court. Following this decision the Lord Chancellor and the senior judges in each division of the HC issued a practice direction, allowing solicitors to appear in the HC to make a statement in a case that has been settled. . Under the Courts and Legal Services Act 1990, a solicitor in private practice now had the right to apply for a certificate of advocacy that allowed appearance in the higher courts. The solicitor must have experience of advocacy (from the Magistrates’ and County Courts), take a short training course and pass examinations on the rules of evidence in order to gain this certificate. . A solicitor who gains this Certificate of advocacy is granted certain eligibilities. They can be appointed as Queen’s Counsel and can be appointed to higher judicial posts. . The Access to Justice Act 1999 meant that solicitors have full rights of audience automatically after fulfilling training requirements. . More recently, the division between barristers and solicitors has broken down further. Some firms of solicitors now employ their own barristers and solicitor advocates may spend a large proportion of their time in court. The outlined a more unified regulatory system and new structures for cross-profession.

©VLC Publishers www.vlc.com.pk Page 19

. Regulatory scheme . Solicitors in England and Wales who wish to practice must pay an annual fee to obtain a Practicing Certificate. This fee is paid to the Law Society of England and Wales, which represents the profession. The Solicitors Regulation Authority, though funded by these fees, acts independently of the Law Society. Together, the two bodies make up the complete system of professional regulation for solicitors. . Certificate of advocacy . The first major alteration to solicitor’s rights of audience came in the Courts and Legal Services Act 1990. Under this Act, a solicitor in private practice had the right to apply for a certificate of advocacy which enabled him to appear in the higher courts. . Such a certificate was granted if the solicitor already had experience of advocacy in the Magistrates Court and the County Court, took a short training course and passed examinations on the rules of evidence. . The first certificates were granted in 1994 and by 2009 about 4,500 solicitors had qualified to be an advocate in the higher courts. . Solicitors with an advocacy qualification are also eligible to be appointed as Queen’s Counsel and also to be appointed to higher judicial posts. . The Access to Justice Act 1999 (s 36) provides that all solicitors will automatically be given full rights of audience. . However, new training requirements to allow solicitors to obtain these rights have not yet been brought in. . Multi-discipline partnership . Section 66 of the Courts and legal Services Act 1990 allows solicitors to form partnerships with other professions, for example, accounts. This would give clients a wider range of expertise and advice in a ‘one-stop-shop’. . However, the law Society and the Bar Council have rules which prohibit the creation of multi-discipline partnerships, so that, as yet, ‘one-stop-shop’ are not allowed by the professional bodies that govern solicitors and barristers. However, this will change under the Legal Services Act 2007. . The Solicitors’ Code of Conduct . It is a set of rules and regulations giving guidance on the standard of professional conduct to all Solicitors in England & Wales, registered European lawyers, registered foreign lawyers and other recognised bodies. . These rules and regulations are very specific and give guidance on the Solicitors standards of behaviour or conduct when carrying out their duty of care to their clients. It is therefore very important to be aware of those rules. Failure to follow those rules by your solicitor may result in you suing him for Professional Negligence. You may also decide to complain to Legal Complaints Service. Solicitors are bound by those rules and there is no excuse for them to fail to follow them. The code contains guidance to each rule these however do not form a part of the code and are not mandatory

©VLC Publishers www.vlc.com.pk Page 20

themselves. Understanding those rules may help you control your case and the progress that your solicitor is taking throughout this transaction. . What rules are contained in the conduct . The code of conduct consists of 25 specific rules which are designed to control everyday job of a solicitor. . Rule 1 contains 6 core duties which preserve justice, the rule of law. They keep an eye on solicitors to act with integrity, independence, in the best interests of clients. They preserve a good standard of service and public confidence. . Rule 2 was designed to maintain good relations between the Solicitor and the client. This rule gives guidance on accepting client’s instructions and in what circumstances can a solicitor refuse instructions. (e.g. where it would constitute breach of conduct, duress or undue influence, where instructions are given by someone else not a client and where a solicitor lacks competence). . A solicitor is always under an obligation to fulfil clients objectives therefore must keep his client informed of all steps he is taking or any costs and contingency fees in relation to any transaction he was instructed under. . Rule 3 specifies that a solicitor is not allowed to act for you if there is any conflict of interest which can for instance be if the firm is already acting for a person that you are suing. A solicitor’s duty is to act in the best interests of any client. There are some exceptions which must be carefully assessed before a solicitor can take your instructions, namely if the clients have common interest in the transaction. . Rule 4 Whenever you decide to instruct a solicitor and disclose all facts of your case he is under a duty of confidentiality, on the other hand he has a duty of disclosure with for instance when this is prohibited by law, or you expressly agreed that no duty of disclosure arises or where it is in the interest of prevention of injury being caused. General rule is that duty of confidentiality overrides the duty to disclose. A solicitor has always a duty not to put confidentiality at risk by acting for another client where this information may have to be disclosed as relevant or due to any adverse interest. There are a few exceptions but a solicitor must remember to act reasonably in all the circumstances, and the client should consent. . Rule 11 A solicitors must not knowingly mislead the court, must obey court orders and must not be in contempt of court. A solicitor must not refuse instructions to act on your behalf on the following grounds, if the case is of the nature objectionable to him or his belief and that the source of the financial support is unacceptable to him. While appearing as an advocate he must not say anything scandalous with intent to insult a witness. He has the right to refuse your instructions if you are offering inadequate consideration with respect to the nature of the case, practice and his experience. He is not obliged to act under a conditional fee agreement. . Complaints against solicitors . A solicitor deals directly with clients and enters into a contract with them. This means that if the client does not pay, the solicitor has the right to sue for his fee. It also means that the client can sue his solicitor for breach of contract if the solicitor fails to do the work. ©VLC Publishers www.vlc.com.pk Page 21

. A client can also sue the solicitor for negligence in and out of court work. This happened in Griffith’s v Dawson (1993) where solicitors for the plaintiff had failed to make the correct application in divorce proceedings against her husband. As a result the plaintiff lost financially and the solicitors were ordered to pay her £21,000 in compensation. . Other people affected by the solicitor’s negligence may also have the right to sue in certain circumstances. An example of this was the case of White v Jones (1995) where a father wanted to make a will leaving each of his daughter £9,000. He wrote to his solicitors instructing them to draw up a will to include this. The solicitors received this letter on 17 July 1986 but had done nothing about it by the time the father died on 14 September 1986. As a result the daughter did not inherit any money and they successfully sued the solicitor for the £9,000 they had each lost. . Negligent advocacy . It used to be held that a solicitor presenting a case in court could not be sued for negligence. However, in Hall v Simons (2000), the HOL decided that advocates can be liable for negligence. . Complaints procedure . There have been problems with the complaints procedure operated by the Law Society. One of the main concerns has been that the law society’s main roles are to regulate the solicitor’s profession and to represent solicitors. . By operating its own complaints procedure, there was a conflict between the interest of the solicitor and the interest of the client who was complaining. . The other problem for those complaining about poor service by a solicitor was that the complaints bodies run by the law society have themselves been frequently criticised for delays and inefficiency. . The lowest point was probably in 1996, when a survey found that two out of every three complainants were dissatisfied with the handling of their complaint. . In an effort to improve both independence and efficiency of its complaints procedure, the Law Society has ‘rebranded’ the body responsible for investigating complaints on a number of occasions over the last 20 years. . Making a Complaint about a Solicitor . If you are unhappy with the service you have received from your solicitor, a complaints procedure exists to redress this. . Your solicitor’s complaints procedure . All firms of solicitors in England and Wales will have a complaints procedure. You should ask for the complaints procedure. All firms will have a written complaints procedure and they must give you a copy if you ask for it. . The first step is to complain to your solicitor or to their firm’s complaints handling partner. Most firms will have one. You should not only state what your complaint is but also what you want them to do about it. . Please note that complaints of this sort should not relate to any negligent advice you may have been given by a solicitor. If you believe that you have received negligent advice then you should consult

©VLC Publishers www.vlc.com.pk Page 22

another solicitor and discuss the possibility of pursuing a claim for compensation. All solicitors are required to have an insurance policy that covers any possible claims for compensation. . You should not be charged for using your solicitor's complaints service. However, if the complaint is about a bill and you ask for it to be assessed by a court, then you may need to pay the court fee. . The Legal Complaints Service (LCS) . If you are not satisfied with your solicitor’s response then the next step is to contact the LCS. This is a new service which took over responsibility for complaints about solicitors from the Law Society in 2007. The LCS will have expected you to have used your solicitor’s own complaints procedure first and will ask for evidence of this. . It will initially attempt to negotiate a settlement between you and your solicitor, but if unable to, investigate your complaint itself. It has the power to order the solicitor to reduce the bill and compensate any financial loss up to £15,000. It can also order compensation for distress and inconvenience, but this is again up to a maximum of £15,000. If your loss is greater you will need to take your solicitor to court. . If you disagree with a decision of the LCS, you can appeal to the Legal Services Ombudsman. . The Solicitors Regulation Authority (SRA) . The SRA regulates over 100,000 solicitors in England and Wales. They are the regulatory body of the Law Society of England and Wales. If your case is serious it will be referred to the SRA which can levy fines, suspend solicitors, or in bad cases, have them struck off. . Complaints about bills . If your complaint is about your bill, the Legal Complaints Service (LCS) has a bill checking service which is free. It will determine whether your bill is fair and reasonable. However, when a bill relates to court proceedings you will have to ask the court to assess whether your bill is fair. . Will the information which I say to my solicitor be disclosed to the other party? . Is Everything I tell my Solicitor Private and Confidential? . If you decide to instruct a solicitor in relation to a certain matter you will have to tell your solicitor all the facts about your case. According to Solicitors’ Code of Conduct your solicitor will be bound by a duty of confidentiality and he should therefore not make any unnecessary disclosures about your case. He on the other hand has a duty of disclosure which makes him disclose information if the court so orders. The court has the power to order which information or documents must be disclosed to the other party so that justice is done. Therefore your solicitor may be required to disclose and allow for inspection certain information contained in documents if the court so orders. . Disclosure of documents . In the proceedings the parties may be directed or ordered by the court to disclose certain information e.g. documents about their case to the other party. The fact that one party holds documents which may be important for the other party does not render them available to the other party. These documents are only available for inspection in certain circumstances. Disclosure and inspection of those will help the court clarify the issues, evaluate the case, encourage early settlement of the dispute

©VLC Publishers www.vlc.com.pk Page 23

between the parties and do justice in the end. General rule is that a party must disclose any document in his or her possession which falls within the definition of a standard disclosure ordered by court. . Standard disclosure . Standard disclosure as defined in Civil Procedure Rules requires a party to disclose certain information, namely the documents on which he relies and which adversely affect his case, another party’s case or support another party’s case. He may be required to disclose documents stated in relevant Practice Direction. The party is required to make a search for those documents and such a search must be reasonable. The reasonableness element requires a party to take into consideration the complexity and nature of the case, the amount of documents, importance of the documents, expense involved in searching for them. There is no need to disclose more than one copy of the document. A document is defined as anything which can contain some information. E.g. tape recordings, laptops, documents, discs, databases, deleted emails etc. A party is only required to disclose documents which are or have been in its control. If during the proceedings the party obtains control of a document which is required to be disclosed it must disclose it. Therefore it is essential that a party does not create any documents which would not be helpful to it in the proceedings. . Inspection of documents . If it is believed that inspection of certain documents would be disproportionate if allowed, such an inspection may not be permitted, it would however have to be explained giving reasons why such an inspection amounts to a disproportionate one. Some documents may not be allowed to be inspected on the basis of legal advice privilege, litigation privilege, and without prejudice communications, common interest privilege and privilege against self-incrimination. . Recent changes . Following the Clementi Report in 2004, the Law Society created a new complaints procedure. This was the Consumer Complaints Service. It has since been rebranded as the Legal Complaints Service. This new body is still not as efficient as it should be. . The Legal Service Ombudsman’s report for 2008-09 found that only two out of every three of investigations were handled satisfactorily. . The Legal Service Ombudsman has pointed out in the past that ‘the overall performance is well short of where a modern consumer-focused organisation should be’. . The Legal Service Act 2007 . The Legal Service Act 2007 creates the Office for Legal Complaints. This is completely independent of the Law Society and any other sector of the legal profession. . The Office has a non-lawyer as Chairman and the majority of members must also be non-lawyers. This Office will deal with complaints against solicitor and also all other sectors of the legal profession. . The Legal Service Complaints Commissioner . The Access to Justice Act 1999 gave the Lord Chancellor the Power to appoint a Legal Service Complaints Commissioner. . The Lord Chancellor did this in September 2003, largely because of the continuing problem with the way that the Law Society handled complaints against solicitors.

©VLC Publishers www.vlc.com.pk Page 24

. The Legal Service Complaints Commissioner has the right to investigate the handling of complaints and to make recommendations about the arrangements for dealing with complaints. He or she can also impose targets for handling of complaints and, if these are not met, fine the professional body concerned. . In 2006 the Legal Service Complaints Commissioner fined the Law Society £250,000 for submitting an adequate complaints-handling plan for the coming year. . The post of Legal Service Complaints Commissioner will be abolished when the office for Legal Complaints is set up in late 2010. . It will be replaced by Office for Legal Complaints Ombudsman. . The Legal Service Ombudsman . Under the Courts and Legal Services Act 1990, the post of Legal Services Ombudsman was created to examine complaints against solicitors, and also barristers and licensed conveyancers, where the professions own regulatory bodies did not provide a satisfactory answer. . Under the Access to Justice Act 1999 the Ombudsman has power to order that the solicitor concerned should pay compensation or that the Law Society itself should compensate the client.  Difference between Barristers and Solicitors . Although a comprehensive knowledge of the law is common to both professions, there are significant differences between the work done by solicitors and barristers, and between the training systems for the two professions. The terms Lawyer and Solicitor are interchangeable. There are major differences between Solicitors and Barristers, however. . You could draw the medical analogy that a Solicitor is like a General Practitioner and the Barrister is the Consultant Surgeon. There are many differences, but the gap is narrowing. . Barristers specialize in courtroom advocacy. It used to be that only Barristers had the right to represent clients in the higher courts, but now some solicitors may also obtain higher rights of audience. However, the Bar is still predominantly a referral profession with barristers acting on the instructions of solicitors rather than dealing with clients directly – although barristers may provide legal advice to clients when specialist expertise is needed. Barristers are self-employed individual practitioners who generally work in groups known as chambers. . Solicitors work directly with clients, providing legal advice. Solicitors can also represent their clients in the lower courts and some solicitors, who have ‘higher rights of audience’, are permitted to represent clients in the higher courts. Solicitors can practice alone, in partnership with other solicitors, or be employed in private practice or in government. . Barristers automatically have higher rights of audience that is they can appear in the High Court and Court of Appeal simply because they are Barristers. A Solicitor cannot but one may, with the necessary experience, become a Solicitor Advocate and gain such higher rights of audience. . Solicitors are, typically, employed by or are partners in a firm. They may also be employed in-house by a company. Barristers, on the other hand, are self-employed. They belong to one of the four Inns of Court and group together in Chambers, but they are all independent and rely upon referrals for work

©VLC Publishers www.vlc.com.pk Page 25

from Solicitors (and work assigned to them by the clerk of chambers if the solicitor does not specify a particular barrister when submitting a brief.) . Barristers do not have clients as such - a solicitor would brief or instruct a barrister to appear in court or advise on a particular point of law (or indeed the value or 'quantum' of a particular case) respectively. To do this the solicitor will provide the barrister with a précis of the case, relevant documents and detailed instructions of what is required of the barrister. . The difference in the respective fees between the professions is not so glaringly obvious anymore, except at the much higher levels, such as QC. Solicitor Advocates can, however, become QCs, so this is again becoming less of a difference. . Solicitor and Barrister training is the same up to degree level - Law degree or Common Professional Exam after a degree in a different discipline - but then they diverge. To be a solicitor you would complete the Legal Practice Course (LPC) which is a one-year intensive course covering the main practice areas of Drafting, Research, Advocacy, Interviewing and Negotiation (DRAIN skills) as well as more specific topics such as Conveyancing and Litigation. At this point Barristers do a similar one-year course called the Bar Vocational Course. . Thereafter a would-be Solicitor needs to find a Training Contract (formerly known as 'Articles') where he or she will work in a firm of solicitors as a trainee for 2 years. During this 2 year period he or she will have to complete further courses such as ethics, management, etc. The Law Society sets a minimum salary for trainee solicitors, but this is not very high. After the training contract the trainee applies for admission to the roll and qualifies as a Solicitor. . A Barrister completes a one-year pupillage after bar finals, essentially shadowing an experienced Barrister before admission to the bar. An important part of qualifying as a Barrister (believe it or not) is dinner at the Inns of Court. A pupil Barrister must have dinner at the Inns of Court 24 times (I think that's the right number) before he or she can be admitted. . One final and more observable difference is that Barristers wear a wig in court, Solicitors do not. Whilst this would appear trivial, it is quite a bone of contention, as the Barrister is considered by some to have an unfair advantage in looking more authoritative (say to a jury) than a Solicitor.  Comparison of Barrister and solicitors

Barristers Solicitors Professional body Bar Council Law Society Basic qualification Law degree or degree in another Law degree or degree in another subject Plus common professional subject Plus common professional exam exam Vocational training Bar Vocational Course Legal practice Course Practical training Pupillage Training contract Method of working Self-employed, practicing in Firm of partners or as a sole chambers practitioner Rights of audience All courts Normally only County Court and magistrates court After Access to Justice Act 1999

©VLC Publishers www.vlc.com.pk Page 26

will be able to have full advocacy rights Relationship with client Normally through solicitor but Contractual accountants and surveyors can brief barristers directly Liability No contractual liability but liable Liable in contract and tort to for negligence (Hall v Simons) clients may also be liable to others affected by negligence (white v Jones ) Number in profession 14,400 110,000  Legal Advice Privilege . Legal advice privilege covers confidential communication or discussions between you and your lawyer for the purpose of giving you or receiving legal advice. Such information will not be allowed for inspection to the other party. As long as the communication is confidential it will not be allowed for inspection. . Litigation Privilege . Litigation privilege covers any communication between a lawyer and a third party e.g. a witness or a client and a third party. Such communication is privileged and therefore not available for inspection as long as it is for the purpose of obtaining legal advice evidence or any information. Without the purpose of obtaining legal advice such communication will not be privileged. . Without Prejudice Communications . This type of communication helps the parties to settle the dispute. The document will normally state in its heading ‘without prejudice’. Such a document will therefore not be allowed to be inspected by the other party. . Common Interest Privilege . Common interest privilege covers any communication between the client and a third party relating to the common interest in a matter, this is therefore privileged. . Privilege against Self-incrimination . It is a type of a document which would incriminate the party if it was disclosed e.g. any criminal penalty. This document will also be privileged. . Procedure . Each party will be required to make a list of documents which will be sent to the other party. Such a list must be contained in a specific form. The list must indicate which documents it is intending not to allow for inspection and on basis of which privilege and whether they are in his possession. . Where the party has the right to inspect a particular document, that party should give a written notice of inspection to the other party. If one of the parties disclosed the document it must permit inspection not more than 7 days after the date of the written notice. Copies of the documents may be requested. . Information which you will say to your solicitor may or may not be disclosed to the other party depending on whether a particular document falls within one of the definitions of a privileged document. It is however essential to notify a client that he should not create any documents which

©VLC Publishers www.vlc.com.pk Page 27

would adversely affect his case and so that reduce his chances of success in the proceedings if these had to be disclosed and inspected as duty of disclosure continues throughout the proceedings too.  Queens Counsel . Barristers are sometimes referred to as ‘counsel’. It is an interchangeable term. A limited number of the more experienced and senior barristers are given the position of Queens Counsel which is a sign of expertise and status. There are only a small number at any given time and many sets of chambers have a Queens Counsel or ‘QC’s’ as their head of chambers, these barristers being the most senior and skilled. . In larger cases, the advocacy team is often led by a Queen’s Counsel (QC). This is a rank to which senior barristers may be appointed (by an independent commission set up by the UK Government's Department for Constitutional Affairs with the Bar Council and the Law Society). . The criteria for appointment as a QC can be summarized as high levels of achievement in the key elements of advocacy: integrity, understanding of the law, analysis of the case, case presentation, working with clients and the rest of the team. . The QC appointment system provides a mark of quality for barristers who achieve the rank of 'silk', the colloquial term for QCs stemming from their entitlement to wear gowns of silk (unlike the ordinary material of barristers' gowns). Their gowns are made from silk and this is where their other name originates, Queens Counsel is sometimes referred to a ‘silks’. . Of approximately 10,000 barristers in England and Wales, about 10% are QCs. In some of the larger and more successful sets, particularly in London, the proportion of QCs is as high as 20% of the total number of members of chambers.  Barristers: Independence . The self-employed nature of practice means that extreme independence is at the heart of the ethos of the Bar. Two barristers from the same chambers can therefore appear against each other in the same case. To ensure confidentiality, stringent provisions are put in place in such cases. It occasionally happens that the appointed arbitrator practices from the same chambers as one or more of the advocates. . By contrast, there may be barristers from different chambers working together as part of the advocacy team on a major case. The leader, usually a Queen’s Counsel will want as a junior the best specialist available, who may be from the same chambers or from another set. Again, the independence of the Bar means using a barrister from another chambers is not an issue - all which matters is putting together the best team for the case. . Barristers and solicitors - the Fusion debate . Separate professions . The professions of barrister and solicitor are separate and the work is different. It is wrong to think of solicitors as some sort of junior barrister, or barristers as trainee solicitors.

©VLC Publishers www.vlc.com.pk Page 28

. It is not possible to belong to both branches of the legal profession, but it is possible for a barrister to retrain and become a solicitor, and many often do; similarly solicitors can move in the opposite direction. By convention solicitors can join Inns of Court, but few do. . The rank of Queen's Counsel is awarded to solicitors on the same basis as barristers; this is recent example of a fusion of the two branches of the profession. . Fusion, in this context means a union resulting from combining or merging elements or parts. . Legal profession should be similar the medical profession. Common training for all to practice as general lawyers. After a period, those who wished to specialise could become consultants. . Pressure for change is less now than a few years ago, because the granting to solicitors of limited rights of audience has allayed their strongest grievance. . Alleged advantages of fusion . Young lawyers would not have to decide which part of the profession to join . At present, after university young lawyers to be have to decide whether to be a solicitor or barrister, without experiencing any practical law. . Eliminate wasted effort and duplication of work . It is often said that a client explains the case to a solicitor, who then instructs a barrister, the argument is that if there were only one lawyer there would only be one fee. . It is has been said that a barrister in charge of the case would be able to deal with the instructions and evidence better than one who received instructions second hand. This argument is fallacious because barristers do not receive instructions second hand. They have a client at court from whom they take instructions. . In most cases an experienced solicitor will only provide a brief set of instructions because the evidence itself is self-explanatory. Solicitors will often use their brief to provide their overview of the case but express a desire to have Counsel's overview. . There is rarely duplication of work when the instructions are themselves a short and concise summary. . Alleged disadvantages of fusion . Independence of the bar . One of the Bar's most important features is its independence. There are no links between barristers and anyone else (they are self-employed), their independence ensures they are not subject to persuasion in the way they view and conduct the case. . Workings of the Bar . Although the bar is comparatively small there is not necessarily a 'close working relationships' any more than there are between solicitors. . Reluctance to use specialists. . Most lawyers to become general practitioners, and try to deal with cases himself rather than use an expert. . Standards of advocacy would fall . The standards of advocacy would be put at risk, because of the lack of experience in particular types of case.

©VLC Publishers www.vlc.com.pk Page 29

. Professional ethics would be at risk . The relationship between barristers and judges (whom barristers often wish to become) is of the highest integrity. There is also close supervision by colleagues and judges. . Loss of expertise . Small firms would not have access to the full range of knowledge and experience available at the Bar. . Best lawyers would join big firms . The best lawyers would gravitate towards the larger firms, and would not be available to all clients. Lawyers who wanted to specialise in narrow areas of work would be unable to do so within a single firm.  The changing relationship between solicitors and barristers . In the debate about how the legal regulators should amend practicing rules to allow solicitors and barristers to operate in the new structures modelled in the Legal Services Act 2007, some predicted that the reforms could alter forever the identity of lawyers and lead to fusion – ending the distinction between law firms and chambers. That has not happened, but does slow progress to date rule out greater upheaval in future? . The Solicitors Regulation Authority changed the Solicitors Code of Conduct in March 2009 to allow solicitors to form legal disciplinary practices and permit up to 25% of partners to be non-lawyers. A month later, the Bar Standards Board followed suit, amending the bar’s rules to enable barristers to go into partnership with solicitors. . The Legal Services Act (LSA), according to Bar Council chairman Nick Green QC, has had a positive impact on the relationship between the two professions, but only in a limited way. . It has provided the opportunity for closer working relationships, but as the figures show, it is an opportunity that few have elected to take up. Green puts this down to the nature of the bar as an independent referral profession, focused on providing specialist advocacy services. . The LSA, Green believes, is not an irrelevance, but it is not the main driver of change: ‘the main driver is the legal aid crisis, aggravated by the economic situation caused by the bankers, which will create an interesting jockeying for position between the bar and solicitors.’ . Growing financial pressures on the bar resulting from the downturn, the falling legal aid budget, and competition from higher court solicitor-advocates, mean that those barristers who mainly do publicly funded work are keen to get their hands on the sources of instructions and fees, rather than relying on referrals from solicitors. . The solution the bar has come up with is a model procurement company, which has become known as ‘the ProcureCo’. It preserves the traditional chambers structure but allows corporate vehicles to be added as an adjunct to chambers. . The model will enable the bar to contract directly with the Legal Services Commission, and then instruct solicitors to perform the elements of work that chambers do not wish to, or cannot do, reversing the current referral arrangements. . According to his analysis, contracts will be awarded on the basis that the bidder can provide the full range of criminal work, from police station advice to the Crown court, so barristers will need to have

©VLC Publishers www.vlc.com.pk Page 30

links with solicitors to fulfil this criterion. ‘The bar does lots of Crown court work and solicitors do lots of police station and magistrates’ court work, so they can work with each other,’ he explains. ‘It’s complementary in the sense that they might fit together well.’ . According to this view, barristers and solicitors will be bidding against each other for work, but they will also need each other and will be included in each other’s bids or form panel arrangements. And there will be cross instruction, so ‘things will not be too different from the way we work now’. Moreover, the bar could provide a lifeline for small criminal legal aid firms that fail to get contracts when the LSC next tenders. . If the coalition pursues the last government’s plans to contract the criminal defence market, over 1,000 firms will be left without contracts, says Green. ‘Some firms that don’t get contracts could join a ProcureCo.’ . The bar chairman does not see the roles of solicitors and barristers or their relationship changing a great deal. ‘There will be a greater degree of formality between the relationship and the way work is procured, but that’s about it,’ he observes. . He doesn’t believe that is about ‘fusion’, adding: ‘Barristers and solicitors will still do much the same work they have always done. The bar’s approach will be the same. We will remain advocates but with a longer litigation tail.’ . Law Society president Linda Lee notes that most legal work is carried out by solicitors and does not affect the bar. She is in agreement with Green over the limited impact of the LSA. ‘There will be some barristers employed in solicitors’ firms or who go into partnership with solicitors, but I don’t think the number of people doing this will increase hugely,’ she says. . Where this does happen, Lee predicts that the traditional firm model will be preserved, with no discernible change from the client’s perspective. According to Lee: ‘For clients it won’t look different. They will still be getting the same service and I don’t think they’ll notice whether it’s from a barrister or solicitor.’ . Element of competition But the solicitor’s role is changing from the traditional one of calling on the expertise of the bar when required for specialist work to be undertaken. As solicitors are increasingly developing their own specialisms, so there is a reduction in the need for them to approach the bar. . This has created an element of competition between the two professions. But Lee is dubious about the effectiveness of the bar’s solution or whether they will be able to pull it off: ‘The ProcureCo is an interesting development. The reputation of chambers will be staked on their contracts and they will have to ensure the quality of the work they don’t carry out themselves.’ She adds: ‘In addition, barristers will have to learn how to administer and manage the company – a different skill set from that needed by independent practitioners.’ . The development, she adds, risks damaging the relationships that sets have with firms and alienating their existing client base. ‘Essentially, solicitors are clients of the bar. If they see the bar as competing with them rather than purchasing services from them it will change the relationship.’ . The instability of the legal aid market, she says, adds to the uncertainty of the venture, although she concedes ‘one or two sets may make a go of it’. . ©VLC Publishers www.vlc.com.pk Page 31

. Chair of the Bar Standards Board Lady Deech acknowledges the distinct roles of barristers and solicitors and, although the boundaries are becoming more ‘fluid’, she says both branches of the profession share common causes. ‘They are both concerned with the issues around legal aid, getting the best young people into the professions, and the impact of the recession,’ she notes. . Deech does not see the LSA or the regulatory changes that followed it leading to fusion, as ‘neither the Solicitors Regulation Authority nor the BSB want that’. She adds: ‘There are some solicitors who do advocacy and some barristers who are employed in firms, but there remain two core roles.’ Solicitors, she says, are ‘more in charge of affairs and negotiation and providing general all-purpose help’. . Barristers, meanwhile, are ‘independent advocates with special responsibilities to ensure they take the next case that comes along, to safeguard the rule of law, and to train future judges’. . There is, Deech accepts, a certain amount of overlap where solicitors do advocacy and barristers do employed work, and she expects this to grow along with the number of entities in which barristers and solicitors work together. It is partly for this reason that she would like to see a single comprehensive postgraduate legal training course covering every lawyer activity, from advocacy, to practice management and ethics. . This would prepare the future generation of lawyers for practice in any type of legal entity and mean that students would not have to decide so early in their studies which career path to follow, explains Deech. . On this point Deech’s counterpart at the, Charles Plant, is in agreement. ‘There should be a common legal education, particularly to enable young people to make career choices later than they have to now,’ says Plant. ‘It doesn’t mean there’d be fusion of the professions but it would help young lawyers move from one area of the profession to the other.’ . In structural terms, Plant envisages a situation where barristers and solicitors are increasingly likely to go into partnership together. . He explains: ‘You have a situation where it’s arguable that there are too many lawyers. Every lawyer needs to ask themselves the question whether they could have a more rewarding career if they went into a partnership structure.’ The roles played by these two types of lawyer would vary, he says. ‘There may be solicitors who want to do more advocacy and barristers who want to do more of the case preparation.’ . Going into partnership with solicitors, according to Plant, would be advantageous for barristers, improving their career prospects. The bar, he argues, is ‘over worked’ and solicitors have developed the advocacy skills that were once the preserve of the bar, so solicitors are less reliant on the services of their barrister colleagues. He adds: ‘The bar’s role as a referral profession works well among the top level, but once you get outside that it’ll increasingly come under attack as solicitors expand their role.’ . The jury remains out, then, on the precise extent of the impact that the LSA will eventually have on relations between these two groups of learned friends. But all seem agreed that the economic challenges facing the publicly funded sector of both professions are providing the greatest catalyst for change at present. Whether that will lead to increased competition and friction between barristers and solicitors, or whether it will see the fostering of unity and closer cooperation also remains to be seen. . ©VLC Publishers www.vlc.com.pk Page 32

. United front . One example of barristers and solicitors coming together to promote unity and understanding can be seen in a pioneering move by Birmingham Law Society (BLS). President Dean Parnell invited all 162 barristers at the city’s second largest set, St Philips Chambers, to become members of the local law society. And they did. Barristers have been permitted to join BLS for some years, but this is the first time in its 191-year history that an entire set of chambers has signed up. . Parnell is also keen to have barristers and chambers’ employees on BLS’s committees. He explains why: ‘The challenges anticipated by the Legal Services Act and other economic pressures mean that different arms of the legal profession will need to work more closely together. We want to make the local legal community more cohesive so firms and chambers don’t feel isolated. If we can improve the networks and lines of communication we can face the threats together.’ . St Philips Chambers’ chief executive Chris Owen observes: ‘The profession has changed a lot since I became an articled clerk in 1968. Among other things, the LSA will mean we all have to operate more cooperatively than we have done hitherto.’ . Explaining why his set joined BLS, he adds: ‘Local bars and solicitors should work more closely together. It’s a good way to gain greater understanding and it Make less mysterious the relationship between the bar and solicitors. It’s about getting rid of the "them and us" view – if that ever existed.’ . Solicitors and barristers – two sides of the same coin . The legal profession in England and Wales is divided into two: solicitors and barristers. . There are various claimed advantages for our separated system, but in recent years the line between the two has become increasingly blurred. Solicitors have gained rights of audience in higher courts, and barristers are now allowed to take instructions direct from the public. Is it time, then, for the two sides of the profession to be fused into one? . Let us look briefly at some of the pros and cons of fusion (there are many more arguments than I could go through here). . None of these arguments are new – I can recall them being raised many years ago. Indeed, the issue of fusion was considered by the Benson Commission back in 1979. The Commission considered the arguments and came to the firm recommendation that the profession should not be fused. . So, has anything changed to alter that recommendation? If we think as a solicitor, I suppose that direct access to barristers appears to be the biggest recent change, and not just because it poses a threat to solicitors’ businesses. It is something that involves the public directly, and therefore appears to be a fundamental change in the way the ‘system’ works –although the number of barristers offering direct access outside of the big cities seems quite small. . However (and this must be confusing for the public), there remain certain things that direct access barristers cannot do. In particular, they cannot correspond with the court and the other party, as a solicitor could do. The clients therefore have to do this work themselves as a litigant in person. To the public, this may seem a slightly absurd restriction – why not go the whole take more than one's share, and let barristers do what solicitors can do?

©VLC Publishers www.vlc.com.pk Page 33

. But if you do that, then surely it is only fair that solicitors should be allowed to do what barristers can do (provided they have the necessary expertise)? And if that is the case, then there is no longer any need for the two parts of the profession to be separated. . Of course, there are reasons why barristers are not allowed to do things that solicitors can do. In particular, barristers do not have the infrastructure of solicitors’ firms, with their support staff and procedures to protect clients and their money. If there is to be fusion, then barristers will either have to set up this infrastructure themselves, or join solicitors’ firms (as a number have already done – in January 2012 there were already 62 mixed solicitor/barrister practices).  Case Laws

Abse v Smith [1986] CA [Solicitors – barristers – rights of audience] Judge Leonard refused to allow an apology to read in court by a solicitor, because he was not a barrister or a litigant in person, and was not an emergency. Held: The trial judge was correct, ruling upheld.

Bache v Essex CC (2000) [Legal Profession – rights of audience – Employment Tribunals a statutory CA exception] C appeared before an employment tribunal represented by a lay person. The representative persisted in raising irrelevant matters so the tribunal directed C to represent herself. Held: There is a statutory right for a party to be represented in an employment tribunal by a person (qualified or lay) of his or her choice. The tribunal can insist on proper behaviour, but cannot restrict the exercise of this right.

Boardman v Phipps [Solicitors – relationship with clients is fiduciary] [1967] HL D the solicitor to trustees who held a block of shares in a company. To improve the company's financial position, D bought further shares which produced a profit for the beneficiaries of the trust. Held: D held his shares on a constructive trust, since the information and the opportunity to purchase them had come to D by virtue of his position. D had acted entirely in good faith, and the beneficiaries had not suffered any loss by his action, equity insists that those who make use of a fiduciary position to make a profit should be liable to account for that profit.

Clarkson v Gilbert [Rights of audience – non lawyers – husband for wife - strict rules in family [2000] CA proceedings should not apply to a close relatives] C a founder member of psychotherapists training and accreditation organisation was suspended by the organisation. C alleged conspiracy and inducement to breach contracts The husband of the C wished to represent his wife. He had completed academic and vocational training for the bar but had not been called, and so had no rights of audience. Lord Woolf distinguished this case on its facts from the Dr. Pelling saga (see D v S), where Dr Pelling regularly represented men who wanted access to their children. By regularly so acting Dr Pelling bypassed the legislative framework.

©VLC Publishers www.vlc.com.pk Page 34

The husband argued that there were two grounds why he should be granted rights of audience: first, the claimant's ill health (an angina attack); and secondly, her lack of means. "Now that legal aid is not available as readily as it was in the past means that there are going to be situations where litigants are forced to bring proceedings in person when they will need assistance. However, if they are litigants in person they must, in my judgment, establish why they need some other person who is not qualified to appear as an advocate on their behalf. In the ordinary way it will be for them to satisfy the court that that is appropriate. If somebody's health does not, or may not, enable them to conduct proceedings themselves, and if they lack means, those are the sort of circumstances that can justify a court saying that they should have somebody who can act as an advocate on their behalf. I regard it as the obligation of someone who wishes to have an unqualified advocate to appear for them, to make out a case for this to be done...In the normal way it should be for the claimant to do that...So the court saw (C) (Professor Clarkson) in a private room when she was able, in the presence of counsel and solicitors for the defendants, and in the presence of her husband, to explain to us personally her reasons for wanting to have the assistance of her husband. She having done that, my conclusion here is that this appeal should be allowed. I am satisfied that there would be a danger of Professor Clarkson being deprived of her right to have the case conducted before the courts in a way which would enable her claims to be investigated if she did not have the assistance of her husband as an advocate…On that basis I would allow the appeal."

Copeland v Smith [Barristers – professional code – action by Bar Council] [2000] CA C claimed compensation following a road accident. In a preliminary hearing the issue of whether his claim was out of time was discussed. Neither barrister drew the judge's decision to a decision of the Court of Appeal that would have settled the matter conclusively. The case had appeared in the Weekly Law Reports four months before the hearing. Held: The barristers did not discharge their duty properly to the court in that they appeared to be unaware of the existence of that authority. It is the duty of an advocate to draw the judge's attention to authorities which are in point, even if they are adverse to that advocate's case.

D v S [1997] CA [Barristers, solicitors - Lay Representatives – rights of audience] D had been excluded from the home he shared with his partner and children. He asked to be represented by Dr. Pelling, a leading member of Families Need Fathers a pressure group. Dr Pelling was not legally qualified but had considerable experience of this area of law and charged about one-tenth as much as a solicitor. Held: Refusing to exercise its discretion to grant Dr Pelling a right of audience the court could see considerable arguments to the effect that the law as it now existed was inappropriate and should be relaxed, but the spirit of the Act was clearly against any general relaxation at present. D lost (see R v Bow County Court ex parte Pelling)

©VLC Publishers www.vlc.com.pk Page 35

Donovan [Solicitors – duty to their clients] v Gwentoys [1990] HL D solicitors failed to act quickly enough for C who had a negligence claim, and she failed to recover damages. Held: The other party would be in difficulty if asked to respond to a six year old claim which they had no chance to investigate Action was therefore struck out, but C might have a claim in negligence against her solicitor for failing to act within the limitation period.

Edmonds v [Legal Personnel – Barristers - Minimum wage; Pupillage] Lawson. (2000) (CA) D, the head of barristers' chambers, "employed" a pupil barrister. D argued that C's acceptance of an unpaid pupillage was not a binding apprenticeship and that C was therefore not a worker entitled to the national minimum wage. D said the arrangement was educational in nature, not commercial, and that it was not enforceable due to a lack of consideration. Held: C was not an apprentice nor a "worker" within the meaning of the National Minimum Wage Act 1998, because there had been no expectation upon her to do any work for D or do anything other than further her own training. But a binding contract did exist. D won.

Foster v Alfred Truman [Legal personnel - solicitors and barristers - solicitor can rely on advice of QC (a firm) (2003) QBD unless it is obviously wrong] D a high street solicitor acted for Mrs. Foster who was suing a former firm of solicitors, the action failed because D failed to realise it was time barred. Held: A high street solicitors’ duty of care did not require them to examine documents which had been available to leading counsel (QC) in order to ascertain the reliability of counsel’s opinion, and they were entitled to rely on that advice without taking such steps. Where such advice was incorrect a cause of action did not lie against the solicitor. Much would depend on the complexity of the matter in hand, the more complex the matter, the greater reliability could be placed on the advice received. It was important that solicitors were able to make use of a specialist bar, and in doing so the public interest was served.

Hall v Simons [2000] HL [Barristers – immunity against being sued in negligence lost] This case was part of three conjoined appeals heard at the same time because they involved the same point of law, namely immunity from suit by solicitors and barristers. The case involved negligent advice. Held: Rondel v Worsley had not been wrongly decided in its time, but the world was different then. The courts now can strike out claims which have no real chance of success. This is also the case where an action appears to be an abuse of the legal process. This includes which attempt to re litigate the first case. Lawyers not the only professionals who have to balance their duty to an individual

©VLC Publishers www.vlc.com.pk Page 36

client and a code of ethics. It is essential to the proper administration of justice that barristers should be prepared to defend even the mostunsavoury characters, who might well wish their lawyers to use all possible means, ethical or not, to secure their acquittal. These characters may wish to sue if they are acquitted on appeal. Immunity from suit removed Comment: The apparent position of advocates has been altered by Moy v Pettmann Smith

Hesford v Bar Council [Barristers – professional code – action by Bar Council - conflict between (1999) TLR Jonathan barrister’s professional and parliamentary duties] Parker J D a barrister returned a brief so he could attend and vote in the House of Commons, this breached the Bar's professional code. Held: Affirming the decision but substituting a reprimand for the "wholly disproportionate" three-month suspension originally imposed.

McKenzie v McKenzie [Barristers, solicitors - Lay Representatives – rights of audience] [1970] CA A husband represented himself in a divorce case. His former solicitors sent a young Australian barrister not qualified to practice in England to sit beside him and offer advice. The judge told the barrister he must not take part in the case, so the barrister left the court. The husband lost so he appealed. Held: Quoting from Lord Tenterden CJ 150 years earlier, said that any person, whether a professional man or not, may attend court as a friend, may take notes, and may quietly offer suggestions and give advice. Appeal allowed

Moy v Pettmann Smith Barristers - immunity from suit of negligence (A Firm) & Anor (2005) [Barristers – loss of immunity against being sued in negligence weakened] HL A barrister did not advise her client of specific risks regarding the settlement of a personal injury claim at the door of the court. The client received substantially less damages as a result because of a procedural decision by the judge. The barrister judged the chances to be 50/50, but she did not give that advice, nor other advice she could have given. She simply told him that in her judgment he would “beat the payment into court” that is get more compensation than was offered, though she also told him that he could take the offer and avoid the risks.

Held: The barrister was not negligent. The principle that an advocate is liable to his client for professional negligence in Arthur JS Hall v Simons [2002] HL should not stifle the manner in which they conduct litigation and advise their clients. This might lead to defensive advocacy, where barristers would hedge their opinions with qualifications and be reluctant to give clients the advice which they require in their best interests. Whilst a doctor's patient has a right to be appropriately warned of risks, a

©VLC Publishers www.vlc.com.pk Page 37

barrister's client only has a right to "clear and readily understood advice", not the reasoning behind it. Lady Hale said that the courts "have not yet developed a clear set of principles governing the terms in which an advocate's advice should be given". Barrister won

R v Bow County Court [Barristers, solicitors - Lay Representatives – rights of audience] ex parte Pelling [1999] F applied for a court order in respect of his children and wished to be CA accompanied at a hearing in chambers by Dr. Pelling acting as a McKenzie friend, but Dr Pelling was refused access. Dr Pelling's application for judicial review was dismissed, and his appeal failed. Held: In proceedings open to the public, whether in court or in chambers, a litigant in person should be allowed the assistance of a McKenzie friend unless the judge is satisfied that fairness and the interests of justice do not require it. The same is true in principle in private proceedings, but here the nature of the proceedings might make such assistance undesirable. For example, a particular friend might seek to adopt an adversarial approach inappropriate in family proceedings, and a person like Dr Pelling frequently acted as a McKenzie friend might be tempted to conduct the case himself rather than remain in the role of an assistant. Dr Pelling excluded

Re a Solicitor [1974] CA [Solicitors – supervision by Law Society – duty to clients] Two solicitors accepted substantial legacies under wills they had drafted without first ensuring that their clients received independent advice. Held: It is not enough, merely to advise the client to obtain such advice: a solicitor in this position must insist that the client is independently advised and must decline to act if the client refuses. Solicitors struck off by the Disciplinary Committee of the Law Society.

Rondel v Worsley [1967 [Barristers – immunity to suit] ] HL C caused grievous bodily harm and at court gave a "dock brief" to a barrister D. C was convicted, but complained that D had not asked all the questions he had suggested, and had not challenged the prosecution's statement that the injuries were inflicted with a knife. Held: C's civil action for negligence could not be sustained: a barrister's immunity was justified by public policy. C lost Comment: This case now overruled by Hall v Simons.

Ross v Caunters [1979] [Solicitors – duty to their clients] Ch Div Megarry VC D a solicitor prepared a will for a client and sent it to him for signature. D failed to warn the client that his signature should not be witnessed by the spouse of a beneficiary, and subsequently did not notice that this had actually happened. Held: D liable to pay damages to the disappointed beneficiary.

©VLC Publishers www.vlc.com.pk Page 38

Rougemont v Pilbrow ( [Solicitors – relationship with legal executives] 1999) CA D a client of C a firm of solicitors asked for an appointment but was seen by a woman who was neither a solicitor nor a qualified legal executive. D was not aware of this. D subsequently refused to pay C's bill. Held: The advice D received had been up to the standard expected of a competent solicitor, but this was not enough. D had contracted for legal services provided by a solicitor which he did not receive; therefore C had failed to perform their contract. D won

Saif Ali v Sydney [Barristers – immunity to suit – now overruled] Mitchell [1978] HL D a barrister gave negligent advice to C concerning as to who should be joined as defendant in a civil action. Held: The immunity conferred by Rondel v Worsley extends to pre-trial work if and only if it is so intimately connected with the conduct of the case in court as to amount to a preliminary decision about it. C won

Sally Clark The Times, [Solicitors – regulation by Law Society] 25th May 2001 A solicitor convicted of murdering her two sons, was suspended indefinitely by the Solicitors' Disciplinary Tribunal after hearing her appeal on video from prison. It is believed to be the first time the tribunal had not struck off a solicitor for such a serious offence. Subsequently Ms Clark was cleared of both murders by the Court of Appeal.

Thai Trading [Legal Aid – lawfulness of CFA’s] v Taylor (1998) CA C supplied a carved bed. D paid the deposit but no more, claiming the bed was unsatisfactory. C sued for the balance due. D counterclaimed for the return of her deposit. D was represented by a solicitor - her husband - on a "no win no fee" basis, and won. C appealed against the order for costs. Held: Affirming the order, and distinguishing Wallersteiner v Moir there can be no objection to an arrangement whereby a solicitor agrees to forego his costs if he loses, as long as he does not seek to recover more than his ordinary profit costs and disbursements if he wins.

Wallersteiner v Moir (N [Lawyers earnings - position of CFA’s] o.2) [1975] CA D defended a complex case for over 10 years. C had been refused legal aid because he stood to gain very little from the action, and had little money. He sought s contingency fee arrangement with his lawyers. Held; An arrangement whereby is paid more for winning than for losing, is illegal as contrary to public policy. C's problems could be met by giving him an indemnity against the company for any costs not ultimately met by D.

White v Jones [1995] [Solicitors – duty to their clients] HL D a solicitor was asked to prepare a will, but negligently failed to do so before the testator died. Two claimants who should have received legacies under the will

©VLC Publishers www.vlc.com.pk Page 39

sued D in negligence. Held: Had the error been discovered before the testator's death it could easily have been put right and (whether it was or not) no action would lie, but here there was no one else able to take action. D lost

Wintle v Nye [1959] HL [Solicitors – relationship with clients] D a solicitor received more than £100,000 under a complex will he had prepared for an elderly lady. Held: While there was no law preventing such a thing, it created a grave suspicion? D was under an exceptionally heavy burden of proof - which he had not met - to show that he had not unduly influenced the testatrix. The will was set aside.  Class Activity . Explain the differing training and roles of barristers and solicitors and the concept of independence. . Discuss on the overlap between the professions. . Students prepare letters of advice to learners wishing to enter the legal professions, covering the above issues. . Conduct a mock trial by giving students the role barristers and solicitors. . Discussion among students about the selection of legal profession (barrister or solicitor), and the reasons of their choice.  Past paper questions . Q1. To what extent do you think that the roles of the solicitor and the barrister have merged into one? Analyse whether it is better to have a fused legal profession or two separate roles. [October/November 2006] . Q2. Lawyers may be called to the Bar or admitted as solicitors. Do you perceive any deficiencies in the way in which lawyers obtain professional qualifications? To what extent have recent years seen an overlap between the two professions? [May/June 2008] . Q3. To be a barrister or solicitor? These days, the question is harder than ever’. Assess critically whether the existence of a divided legal profession can still be justified. Does the present system present any problems for a student wishing to embark on a legal career? [May/June 2010] . Q4. ‘Opportunities for solicitors have improved greatly in recent years.’ Discuss whether professional opportunities for solicitors have increased as their role has become more integrated with that of barristers. To what extent has there been fusion between the two branches of the legal profession? [October/November 2012] . Q5. ‘The job of a barrister and a solicitor within the English Legal System is essentially the same.’ Discuss the truth of this statement. [May/June 2013] . Q6. Compare the training and role of barristers and solicitors. How far is it true to say that the two professions are now identical? [May/June 2014]

©VLC Publishers www.vlc.com.pk Page 40