BBaarrrriisstteerrss && SSoolliicciittoorrss:: Training, Work, Regulation & Complaints

By the end of this unit you should be able to describe [AO1]:  How you can become a barrister or and the work undertaken by the separate professions.  How a client can complain about their solicitor and barrister  When a client may take action through the court as a result of the representation  The impact of the changes under the

You will also be able to evaluate [AO2]:  The current provision and operation of the qualifications process.  The effectiveness of the current provisions on complaints  The proposed reforms to the legal system, including complaints, under the Legal Services Act 2007

Homework: You can complete either one of these tasks. The choice is up to you! 1. Produce a handout aimed at Y11s, advising them on the process of becoming a 2. Write a response to Jim below, advising him of the possible routes of complaints and outcomes to expect.

Jim hired Sophie, a solicitor, to represent him in a personal injury case. Sophie advised him that the costs should not be more than £2,000. Jim, having being to a doctor, is told his injuries are much more straightforward, and asks Sophie to settle the case quickly. Sophie, who has already booked to go on holiday, ignores the instruction, and on returning advises Jim that a court case is still the best option, despite the other side offering £5,000. They go to trial, where Jim’s barrister, Rodney turns up late and forgets to submit the relevant medical evidence. As a result, Jim loses his case, and is ordered to pay costs of £25,000.

Key Terms:

Term Means Term Means Advocacy Barrister

Legal Disciplinary Practice Chambers Litigation

Solicitor

Legal Services Solicitor’s Regulation Ombudsman Authority Qualifying Degree in Graduate Diploma of Law Law

Training to be a Barrister or Solicitor: The Academic Stage

So, let’s assume you’ve done your A Levels, gotten good grades, done some work experience, maybe even completed your LNATs and University is the next stage...

Stage One: To Study Law... Or Something else. To be honest, it doesn’t matter which route you take (it’s about half/half for the intake to the professions each year)

However if you complete a Law Degree, it must cover certain key areas (though you’ll probably do other bits and pieces as well!).

The aim is to give the person a basic body of legal knowledge.

Can you find the seven key topics in the wordsearch?

When do you start thinking about practicing law?

What mark should you come out with?

So, I do a degree in something else. What next? Well, you then complete a one year full time, or two year part-time postgraduate course, covering the key areas. It is quite intensive and as it is postgraduate, you will have to fund it if you cannot get sponsorship or a scholarship.

This is known as the Graduate Diploma in Law (GDL)

The average cost is .

Why might a non-law degree be useful to a lawyer?

Training to be a Barrister or Solicitor: The Vocational Stage

This is where the routes split and you have to make a choice... The two route do not overlap, so if you start one and then change your mind and want to switch, it is very difficult!

Solicitor Barrister

Register as a student with the Law Society Join one of the

All four of these are based in London, and you must attend 12 qualifying sessions during the completion of the vocational stage.

What do we mean by a session?

Complete the Legal Practice Course Complete the This again is a postgraduate course – either full or part Bar Practice Training Course time - which needs to be funded from somewhere! A lot of students have sponsorship from the firm that Once more, this is a postgraduate course, which can they eventually want to work for. last 1-2 years, depending on whether it is taken part or full time.

This is especially true of those working for the large Because the majority of barristers are self employed, commercial firms. there are far fewer sponsorship opportunities available.

However, each of the Inns has over £10 million It aims to equip students with the practical information available in sponsorship... just to help! and skills they will need when practicing as a solicitor.

It can cost up to: It can cost up to:

Again, the purpose is to focus on the practical skills of During the course, you must cover four areas, some advocacy, drafting opinions etc. to provide practical details of which are below: training for the next stage...

Case Work Case preparation, and Compulsory Business law & practice Legal research Property law & practice Advocacy Drafting Account Written Core Opinion Writing Professional conduct Work Probate Interpersonal Interviewing clients EU/HR Negotiation and advocacy Skills Skills Interviewing & advising Legal research Legal Civil litigation and advocacy Criminal litigation and advocacy Writing & drafting Knowledge Evidence Elective 3 from a range! Professional Ethics ... 2 choices!

Called to the Bar

Now you may call yourself a barrister, but not provide legal services! Training to be a Barrister or Solicitor: The Practical Stage

So, you’ve finally got here... although remember in reality you would have applied for this a long time before. Also, to get here you have been really stubborn, hardworking and done well. After all, only 400 exist for over 2500 applicants!

Again, they are different routes depending on the role you have chosen.

Solicitors Barristers

Complete the Complete the Pupillage

This lasts two years, but may be reduced if you have This is the practical side of your training, under your relevant legal experience. pupil supervisor, and is divided into two distinct sections. This is the practical side of your training, and aims to enable that you gain experience of at least three First Sixth: distinctive substantive areas of English law, including both contentious and non-contentious work, which should be reviewed every 6 months by your training principal.

This means: Including an Advocacy and Training Course, and ending in a Provisional Practice Certificate.

Second Sixth Finally, rather than paying out... you get paid! How much will depend where you go to complete this, with a minimum of £16, 650 outside of London

Where can you complete this? Complete Practice Management Course

Where do these take place? The majority of these take place in Chambers which will specialise in the area of law which you want to Complete the practice. Professional Skills Course However you can also complete it with a range of Three compulsory elements: financial and business other providers e.g. Government Legal Service; CPS etc. skills; advocacy and communication; client care and professional standards ...and be paid the princely minimum of £1200 for the year!

Finally... Admission to the Roll The aim is to get Tenancy

What happens if you don’t get tenancy?

Does it work? Evaluating the Training Process

Think about what you have learnt about the current approach to training barristers and . Then add detail to the points below. This will help to develop your AO2 criticism.

Point Explanation However (stretch yourself) Too many people are allowed on the LPC/BPTC

Not enough funding to help with access

Costs

Outdated recruitment ideas

Not enough practical training

Should be more ‘fusion’ between the in training.

Stretch and Challenge: Using your own research powers, (and maybe www.lawsociety.org.uk) discover what is meant by a Legal Executive, and find out how it is possible to train to be a lawyer without a degree.

Solicitors: Work Consolidation:

They are represented by the Law Society (www.lawsociety.org.uk)

To show your understanding, define and explain each of the following terms:

Term Explanation

Magic circle

High street solicitors’ firm

Probate

Employed solicitor

Preparing instructions

Conveyencing

Commercial firms

Advocacy

Rights of Audience

Solicitor Advocates

Mixed practice

Checking AO1: Write a paragraph below outlining the types of work done by solicitors, using at least five of the terms above.

Developing AO2:What do you think the key skills of a successful solicitor?

Why are have rights of audience caused so much trouble?

A right of audience means the right to appear before and address a

court, including the right to call and examine witnesses

These rights have been the basis of a lot of argument between solicitors and barristers, as barristers have full rights of audience from qualification, whereas solicitors traditionally only could appear in the lower courts (and sometimes not even then!).

So how did these rights develop?

Practice Direction 1986 – Allowing solicitors to appear in the High Court to make a settlement in a settled case

Courts and Legal Services Act 1990 Right to apply for a certificate of advocacy for the higher courts. Need experience of advocacy in MC and CyC, to go on a short training course and pass some examinations on the rules of evidence. 1,400 by end of 2004!

Access to Justice Act 1999.s.36 Solicitors have full rights of audience, although only able to act on them if further training is undertaken and completed (oh... and the regulations haven’t been brought in yet!)

Finally, the Solicitors Higher Rights of Audience Regulations 2010 (from 1/4/2010) mean that they can Apply for Higher Courts (Civil Advocacy) and/or Higher Courts (Criminal Advocacy). This removes the experience requirement – just have to meet the skill level (so even a trainee solicitor can apply). Also applies to barristers transferring professions

So this means that they can obtain higher rights of audience, and become what is known as a solicitor advocate.

AO2 Thinking: why might firms want solicitor advocates?

G151 English Legal System Barristers: Work Consolidation

How many barristers are there at the Bar? . They are represented by the Bar Society (www.barcouncil.org.uk)

To show your understanding, define and explain each of the following terms:

Term Meaning

Chambers

Advocacy

Employed barrister

Instructing a barrister

Public Access

Licensed Access

Cab-rank rule

Queen’s Counsel

Developing AO2: What issues does the ‘self employed’ status of barristers raise?

Developing AO2: How have recent reforms allowed the public better access to barristers?

G151 English Legal System Comparing Barristers and Solicitors

Look at the following points,  Firstly allocate each of the first two columns to either barristers (B) or solicitors (S)  Secondly, Match up the pairs and their rebuttal

Have no direct contact with the Can appear in all courts But through access schemes e.g. Bar Direct, they client may be directly approached in certain areas of

the law.

Specialists Office work But increasingly can and do specialise e.g. larger commercial firms

Direct contact with client Cab-rank But increasingly can appear in courts on behalf of clients and depends on their specialism, some

will not appear in court

Individual Client based But they work together with the solicitor who is instructing them on the case, and the chambers

who receive the work

Appear in lower court General Practice But they can avoid this through selection etc.

Work in firms Advocate But higher rights of audience

Introducing Fusion

Should the professions be fused? Look at each of the points below, and explain the reason for or against the fusion

Reason Good or Why But bad? Duplication of work

Fees

Improve levels of advocacy

Lowers the amount of specialism

Second Opinion

G151 English Legal System Complaining about Lawyers This has actually just changed recently.

Firstly, it depends what you want to complain about:

 The service you have received (this may include the bill for solicitors)  Breach of contract  Professional misconduct  Negligence

Breach of Contract When you hire a solicitor, you enter into a contract with them. This means that if they break it, you can sue them.

Griffiths v Dawson

You may also have the right to take action for breach of contract if you are not the client, but are still affected by the actions of the solicitor

White v Jones

However, it also means that if you break it, you can be sued too!

Thinking: How might you break your contract?

What about barristers? Well the short answer is as you do not enter a contract with them, you cannot sue them for breach of contract (also means they can’t sue you for non-payment of fees).

Who should you complain to then?

Negligence: This means that you want to bring a civil case against because they have ‘fallen below the standards of the ordinary, reasonable lawyer’. This may mean that they have not followed your instructions, or failed to file motions in time etc.

The key case here is Hall v Simon which says that both barristers and solicitors can be liable for the work they complete inside of court.

Barristers traditionally had for actions done both within and outside of court. This meant that no matter how bad, no action could be taken against them. It was supposed to give them certainty and security.

However, Saif Ali made it clear that they could be liable for work done outside court e.g. , and as stated above this now includes work done in a courtroom.

The House of Lords’ argument was that if other professionals were liable e.g. , why shouldn’t lawyers be as well?

G151 English Legal System Service Given

This has recently changed as a result of the Legal Services Act 2007 and the changes took place as of January 2011. the changes has essentially got rid of all the separate boards, depending on the lawyer you hired, and created one common process which covers all legal professionals in England and Wales.

Student task: Read the following articles and answer the questions in as much detail as you can, to outline the complaints process for both barristers and solicitors.

1. Who now oversees complaints about lawyers?

2. Who should you complain to first before going to the ombudsman?

3. What are the time limits on making a complaint?

4. What type of thing can you complain about?

5. What sort of thing can’t you complain to them about?

6. What are their powers?

Consolidation: Now use this information to complete a flow diagram outlining the complaints process in the box below.

G151 English Legal System Got a legal complaint? Now you can take it to the new legal ombudsman A new legal ombudsman service is being launched on Wednesday with powers to investigate clients' complaints

People who are dissatisfied with the service they have indifferent and occasionally shoddy legal practice, I have seen received from their lawyer can, from this Wednesday, countless examples of really committed and skilled lawyers complain to a legal ombudsman. The ombudsman can going the extra mile for their clients. That was certainly true compel all regulated lawyers to comply with its at Shelter. investigations, and has the power to impose penalties ranging from apologising to a client, through to paying up to "It was also true, for example, of the solicitor my brother £30,000 compensation. used in his divorce, who truly sought to understand and deliver on my brother's desire ... not to do any further Former Shelter chief executive Adam Sampson, who will head damage to his relationship with his wife and protect his the legal ombudsman, anticipates getting about 100,000 relationship with his kids. letters and calls a year, of which he expects 20,000 to be eligible for investigation. "I saw how hard she worked and the result of all her efforts. There are shoddy lawyers out there but we mustn't give the Clients must first complain to the lawyer involved within a impression that we think that they represent the majority. year of discovering the problem. For example, if a solicitor has made a mistake in conveyancing that is only revealed "We are on nobody's side and do not come to this with when the homeowner comes to sell his property, he will have prejudices in favour or against." a year from that point to make his grievance known. However, the one area where Sampson does expect to The lawyer has eight weeks to respond. If they fail to do that, disagree with some lawyers is customer service: he has or the response is not considered appropriate, the client can already received letters complaining about lawyers being take the complaint to the ombudsman. Sampson hopes that rude and patronising to clients. "For some it will not be at the all complaints will be dealt with within three months. forefront of their minds that they are there to provide customer service. But it's not just about getting the right The service will not handle complaints about wills or "no win, result; it's about getting the right service and result." no fees" firms if the work has been done by people who are not qualified as solicitors. However, a client can complain Cases may also not always be as straightforward as they about teams working on their case: this means that if a client seem. While working as a probation officer, Sampson once raises a complaint about a solicitor, but on investigation the saw a barrister slamming down photos on the table in front ombudsman thinks the problem has been caused by a of a paedophile client while shouting "look what you've done barrister, the barrister's name can be added to the complaint. ... you've got to plead guilty".

Sampson describes the previous procedure for making Despite the nature of the crime, Sampson says this did not complaints as "bewildering and very inefficient". Until now, warrant the treatment he witnessed – but he admits that the eight professional bodies – ranging from the Law Society to evidence may have been such that it was unlikely the client the Association of Law Costs Draftsmen – have dealt with the would be found not guilty. The barrister may have already clients of different kinds of legal representatives, from advised her client, in a reasonable way, that pleading guilty notaries and patent lawyers through to barristers. Worse still, was the best way to minimise his sentence. Shouting may complaints have been handled by the profession itself. have been a last resort to convince him to take the right action. "That whole rather rickety edifice is being swept away and replaced with a much simpler system," Sampson said. Sampson says he is unlikely to have many cases like this The 2007 legislation that has paved the way for the creation crossing his desk: "What we will really be looking at will be of the legal ombudsman stipulates that, to maintain the the service provided by high street lawyers to 'ordinary' independence of the service, neither the ombudsman nor the people, and issues will relate to mainstream legal services chairman should be a trained lawyer. such as conveyancing, probate and divorce."

But while Sampson is not legally qualified, he is married to a While he admits the £30,000 maximum for redress is not criminal barrister and has worked alongside the legal high, he believes most cases will relate to small amounts of profession for much of his career, first as a probation officer money. in London, then deputy director of the Prison Reform Trust moving on to become assistant prisons ombudsman in 1994. ■ For further information visit www.legalombudsman.org.uk; tel 0300 555 0333 or email enquiries@legalombuds The experience of working alongside lawyers will, he says, man.org.uk enable him to be impartial. "Along with seeing some

G151 English Legal System

apologising to you; How do I complain to the Legal Ombudsman? • doing more work if this can correct what went wrong; Take a look at our leaflet Here to help (pdf opens in a • refunding or reducing your legal fees, or, in a few new window). If you have a complaint that you think we cases; can deal with, or want to know more, please contact us. • paying compensation if you have lost out or been You can either phone us to explain what your compliant badly treated (up to £50,000). is about or complete our online complaint form, which will be sent to us automatically. The other option is to If you decide that my lawyer should pay me download our complaint form and fill this in by hand. compensation, how much can I expect to get? Details of what to do with this information once it's filled This all depends on what went wrong and what kind of in are shown on the form. additional expense or inconvenience you've had to put up with as a result. Compensation probably won't be seen as the best solution in most cases. And most How do I make sure my complaint is taken seriously? compensation amounts are likely to be a lot lower than Most of us contact lawyers at difficult times in our lives. the maximum. But we can't say in advance what this So when things go wrong it can be very frustrating. figure will be. It will all depend on the circumstances of Following a few simple steps at the beginning can help each complaint. There is no hard and fast rule, but we sort things out before they start to look too daunting. think awards at the top of the scale (£30,000) are going to be quite unusual. • First of all, contact your lawyer and tell them what's wrong. If they can't help straight away, ask for details of how to complain to them using their own Who can I complain about? complaints procedure. Every lawyer should have Legal service customers can complain if they are not such a procedure in place. satisfied with a service they have received from a lawyer in England or Wales – that's any lawyer, from solicitors • It's always best to follow this procedure through to and barristers to legal executives and trademark the end and to put your concerns in writing. Keep a attorneys. copy of your notes or letters for future reference.

• If you're not sure about what to do, contact us. What can I complain about? You can complain to us if you are not satisfied with the service you've received from a lawyer or law firm you What can the Legal Ombudsman do for me? hired to provide legal services to help with things like: We have official powers to receive and investigate  • buying and selling a house or property complaints about lawyers in England and Wales. This is a • family law such as divorce free service to consumers. Our job is to look at • wills complaints in a fair and independent way – we will not • personal injury take sides. We try to resolve any problems informally, by • intellectual property getting both sides to agree the best way forward. But we • criminal law can also insist on lawyers doing the right thing to resolve • civil litigation things if needs be. • immigration • employment issues These are just examples. If something you're worrying What sort of solutions can the Legal Ombudsman about isn't listed here, please contact us. come up with? If we agree there has been a problem with your lawyer's service, we can ask the lawyer and law firm to put things What happens if I have already complained to right by: another body? If you have already complained about a lawyer in England and Wales you should continue dealing with • returning any documents you may need; whoever is handling your complaint at the moment. We G151 English Legal System have been dealing with all new complaints since 6 October 2010. If you're not sure what to do, please Plus, you should come to us within 6 months of receiving contact us and we'll do our best to help. a final response from your lawyer after complaining to them. Suppose you complained to your lawyer about the problem at the end of November and they responded Can you help me with my court case? with a final offer to sort things out at the end of January. No. The Legal Ombudsman is here to resolve complaints If you're still not happy with what they offered, you about the service provided by lawyers. We can't give would have until the end of July to bring your complaint legal advice or advise on court procedures. Her to us. Majesty's Courts Service provides information on the courts system and how to deal with cases. You can see Normally, your complaint needs to fall inside both rules this guidance through the HMCS website. (launches if we're going to investigate it. website in new window)

Are there any time limits set on when I can make a complaint to you? Yes - there are two relevant time limits: the '12 month rule' and the '6 month rule'. Generally speaking, your complaint should be brought to us no later than 12 months from when the problem occurred or from when you should reasonably have become aware of the problem. Suppose the problem occurred, or you became aware of the problem, at the end of September. You should bring your complaint to us before the end of the following September.

G151 English Legal System Professional Misconduct

Each profession has their own separate board which covers professional misconduct. You can complain to them, even if you are not their client.

What do you think counts as professional misconduct?

Solicitors: Barristers Solicitors Regulation Authority Bar Standards Board

Deal with breaches of ‘principles’ Deal with professional misconduct

How do you complain? How do you complain?

Powers? Powers  Fine  fine a barrister;  Impose controls on practise certificate  give written advice;  Impose conditions  reprimand a barrister; and/or  Rebuke  order a barrister to attend  Close the firm  on the Chair for advice to be given.  Order re-payment

Refer to Solicitors Disciplinary Tribunal refer to the Council of the Inns of Court

Powers? Powers?  Strike off roll  Disbarred  Suspend from roll  Fined  Unlimited fine  Suspended  Suspend from Legal Aid Work  Conditions  Advise/reprimand.

G151 English Legal System

Further Reform of the Legal Profession & impact of Legal Services Act 2007

This piece of legislation is starting to come into power now, and may revolutionise the legal system over the next few years... so keep an eye out!

Anyway, first things first: You need to know a couple of things about the back ground to it, as it comes out of a report called the Clementi Review

His main recommendations were:

1. There should be a new complaints body which is independent of the professions (Hence the implementation of the LSO) 2. Legal Disciplinary Practices (LDP’s) should be permitted where there are barristers, solicitors and non-lawyers working together in the same practice 3. Non-lawyers would be allowed to own and manage LDP’s, but there would be safeguards to make sure that they were ‘fit to own’ such a practice.

What’s happened as a result then?

PROPOSAL ROLL OUT DATE to supervise the regulation of lawyers by SRA & BRB 2010 (in effect!)

New independent ombudsman heading the Office for Legal Complaints. Got it!

The representative and regulatory functions are to be separated. Done!

Legal Disciplinary Practices (LDP) & Alternative Business Structures [‘Tesco Law’] Starting to be set up... the Co-Op (ABS) was the first!

Student task:

Read the following article.

What is meant by Tesco Law?

What are the arguments for and against the change to the current structure? Aim for at least three for each side.

G151 English Legal System

From The Times May 12, 2009 Lawyers’ baked-bean protest over government plans for ‘Tesco Law’

Frances Gibb, Legal Editor

The first signs of a fight-back against reforms that will enable supermarkets and other stores to offer customers legal services came yesterday with a “baked beans” protest by solicitors.

The lawyers handed out free cans of beans from shopping trolleys outside the High Court, warning that Government plans for the “Big Bang” in legal services was a recipe for disaster.

The reforms, under the Legal Services Act 2007, have become known as “Tesco law”. They will enable big companies such as supermarkets or motoring organisations to own law firms or employ lawyers and offer legal services directly to their customers.

Yesterday’s protesters, who waved placards saying “No to Tesco law”, staged the demonstration with cans of beans bearing the message: “Legal services by supermarkets is as ridiculous as lawyers selling beans.” The lawyers have united under the brand name QualitySolicitors.Com which has attracted 100 law firm members and which they plan to market to rival moves by chain stores or any other newcomers to the legal market.

Clare Magill, head of commercial law at Wolferstans, Plymouth, said: “My very real concern is that the public is at risk in the current marketplace.

“There is a plethora of non-lawyer websites which either claim to match consumers with the best lawyer for their needs, or which direct the consumer to a firm which has paid for the referrals, irrespective of whether or not the solicitor is the best for the client.

“Consumers will be at risk, using legal representatives hundreds of miles away, at best with little understanding of local issues and often with expertise in areas irrelevant to their needs,” she added.

In defence of the Government plans to allow non-legal bodies such as the Co-op or the RAC to offer legal services, Bridget Prentice, the Constitutional Affairs Minister, said: “I don’t see why consumers should not be able to get legal services as easily as they can buy a can of beans.”

But Craig Holt, a London barrister who opposes the changes, said: “My very real concern is that the public are at grave risk here.

“People have a natural inclination to use services provided by names that are familiar to them, even if that may not provide the best source of help for them.

“Allowing the likes of Co-op, Tesco and the AA to provide legal services is a reciple for disaster and a move that demonstrates utter contempt for the consumer of legal services.

“Services by these brands will inevitably be provided by unqualified call-centre staff, probably outside the UK, overseen by an inadequate number of in-house solicitors.

“Tesco law will represent a disaster for consumers of legal services in the UK.

“This is combined with a Government that is intent on reducing legal aid to the point where almost no lawyer will be able to undertake legal aid work and people will be left having to represent themselves.”

Mr Holt said: “It is widely predicted that as a result of these changes, over a third of all law firms will disappear. Some towns will simply have no solicitors in them.” G151 English Legal System Applying the Law:

For each of the following scenarios, explain whether or not you have an action and why.

If you are aiming for the top (A-B), you should be able to support your explanation with reference to statute or case to illustrate.