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Barristers &Solicitors G151 English Legal System LLEGAL PPROFESSION:: BBAARRRRIISSTTEERRSS && SSOOLLIICCIITTOORRSS ((22)) By the end of this unit you should be able to describe [AO1]: 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 Legal Services Act 2007, following the Clementi Review. You will also be able to evaluate [AO2]: The effectiveness of the current provisions on complaints The proposed reforms to the legal system, including complaints, under the Legal Services Act 2007 G151 English Legal System SOLICITORS: COMPLAINTS Grounds for client’s complaint? Either they are dissatisfied with: o the service given or o the amount they have received/asked to pay. Contractual? When you instruct a solicitor, you enter into a with them. It means that if you do not pay, the solicitor has the right to sue for the fees. But it also means that the client may have a right to sue the solicitor for breach of contract! Griffiths v Dawson (1993) White v Jones (1995) – even if you are not directly represented by the solicitor Action for Negligence Clients can also, now, sue for negligence. To prove: they need to show that the solicitor fell below the standards of a reasonable solicitor, and the courts are able to award compensation if the claim succeeds. Hall v Simon (2000) HL decided that immunity from liability was no longer acceptable, and that both barristers and solicitors should be liable for advocacy and written opinions. G151 English Legal System BUT I DON’’T WANT TO GO TO COURT...... I WANT TO COMPLAIN! Stage One: Speak to the solicitor. Why might this not be good enough? Stage Two: Legal Complaints Service What can they do? Has the solicitor breached the code of conduct? Stage Three. : Legal Services Complaints Commissioner & Legal Services Ombudsman G151 English Legal System BARRISTER COMPLAINTS Stage One: Barrister/ Head of Chambers/ Employer Stage Two: Bar Standards Board, OUTCOME? Apologise, Repay fees, Suspend or disbar and Compensate client Want to know what they decide? Take a look at their judgements on www.barstandardsboard.org.uk/complaintsanddiscipline/disciplinaryfindings/?page=1&w=1 Stage Three: Legal Services Ombudsman Bar Council G151 English Legal System BUT I WANNA GO TO COURT!!! FIRSTLY: Can a barrister be sued for breach of contract? Why/ Why not SECONDLY: Can barristers be liable for other negligent actions? Hall v Simons 2000 Saif Ali v Sydney Mitchell & Liability for Co. (1980) negligent work outside Liability for negligence in court? advocacy? You should also note that the complaints procedure will be altered by the Legal Services Act 2007 , following the Clementi Review and there is now a Legal Services Commissioner, whose role is to ensure complaints are investigated thoroughly and properly... they set aims, and can fine if they don’t succeed! G151 English Legal System LEGAL SERVICES ACT 2007 This piece of legislation is coming into power over the next year, and will 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 it. CLEMENTI REVIEW This review was what lead to it in the first place. Read the enclosed articles from the Law Review & Times and answer the following questions: What were the problems with the current system? What were the aims of the review? Which model was recommended? Why did the Bar Council and the Law Society have to separate their regulatory and representative functions? What concerns have been expressed? PROPOSAL ROLL OUT DATE Legal Services Board to supervise the regulation of lawyers by SRA & BRB 2010 New independent ombudsman heading the Office for Legal Complaints. Autumn 2010 Legal Disciplinary Practices (LDP) & Alternative Business Structures 2011/ 2012 [‘Tesco Law’] (ABS) His main recommendations were: 1. there should be a new complaints body which is independent of the professions (Hence the implementation of the OLC) 2. there should be a Legal Services Board (LSB) that regulates all the legal professional bodies (therefore the Bar Council and the Bar Standards Board will be regulated by the Legal Services Board) 3. Legal Disciplinary Practices (LDP’s) should be permitted where there are barristers, solicitors and non- lawyers working together in the same practice 4. 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. G151 English Legal System REVISION QUESTIONS BARRISTERS. 1. How many barristers practice in England and Wales ? 2. What qualifications do you need to train as a barrister? 3. Name the four Inns of Court. 4. What is the name for the vocational training used by barristers? 5. After the vocational training, what barristers who intend to practice do? 6. Are barristers in paid employment or self-employed once qualified? 7. What can a barrister apply to become after 10 years of practice? 8. Who controls barristers? 9. How are barristers paid? 10. What did Saif Ali v Sidney Mitchell & Co (1977) determine? 11. What did Hall v Simons (2000) establish? 12. Can barristers be instructed by anyone other than a solicitor? 13. Can a barrister sue for their fee? SOLICITORS. 1. What qualifications do you need to qualify as a solicitor? 2. Can you name three types of work undertaken by solicitors? 3. What is the name of the organisations which control and govern solicitors? 4. Who investigates complaints against solicitors? 5. Can solicitors be liable for negligent advice and/or advocacy? 6. Can a solicitor appear in both the Magistrates Court and the County Court? 7. What do solicitors need to have rights of audience in higher courts? 8. What changes does the Access to Justice Act 1999 seek to change with regards to rights of audience? PAST QUESTIONS: January 2009 (a) Describe both the training of barristers and how complaints about barristers are made and dealt with. [18] (b) Discuss the advantages and disadvantages of the current system of training barristers. [9] June 2008 (a) Describe the ways in which a client can make a complaint about their solicitor or barrister or otherwise claim compensation. [18] (b) Discuss whether the current system for clients to make such complaints is satisfactory. [9] January 2008 (a) Describe the training of both barristers and solicitors. [18] (b) Discuss the problems associated with training for both barristers and solicitors. [9] June 2007 (a) Describe the training of barristers and solicitors. [18] (b) Discuss the disadvantages of the current system of training barristers and solicitors. [9] G151 English Legal System April 23, 2008 Telecoms chief chosen as first legal regulator David Edmonds, a career civil servant, will take up the role of chairman of the new Legal Services Board on May 1 Frances Gibb, Legal Editor A former telecoms chief has been chosen as the first regulator of the legal profession. David Edmonds, who spent five years as Director General of Telecommunications at Oftel and then two years on the board of Ofcom, will be the first chairman of the new Legal Services Board. Mr Edmonds, 64, takes up his three-year post on May 1. The job was created as part of the reforms of the Legal Services Act 2007 which puts in place a new arch-regular over the legal profession and its current complaints procedures. The Act creates a new Office for Legal Complaints which will administer an ombudsman scheme to deal with all consumer complaints about legal services. It also paves the way for lawyers to set up in partnership with other professionals and to be owned or take investment from outside companies or individuals. The board, which is independent from both Government and the legal profession, is a public body sponsored by the Ministry of Justice. It will become fully operational in early 2010. Mr Edmonds' appointment was made by Jack Straw, the Justice Secretary, after consultation with the Lord Chief Justice of England and Wales, Lord Phillips of Worth Matravers. Mr Edmonds was initially a career civil servant, including a post as private secretary to Sir Ian Bancroft, later Lord Bancroft. He was permanent secretary at the Department of the Environment and rose to be Under Secretary for the Inner Cities Directorate. He spent seven years, from 1984 to 1991, as chief executive of the Housing Corporation, during which time he was an architect of the Housing Act 1988 which radically reformed housing association finance. He then spent the next seven years as a managing director with the NatWest Group with responsibility for the development, operation and management of the group's £2.8 billion property portfolio. His regulatory experience includes five years as Director General of Telecommunications and two years as a founding member of the board of Ofcom. He is currently chairman of the board of NHS Direct. Within legal services, he has served for four years as a commissioner on the Legal Services Commission. Mr Edmonds was educated at Helsby County Grammar School, Chesire and the University of Keele. He enjoys opera, theatre, art, travel, mountain walking and running and golf. Yesterday the Law Society, Bar Council and other groups welcomed the appointment. G151 English Legal System Andrew Holroyd, president of the Law Society, said: "We look forward to working with David Edmonds to help ensure that the regulatory environment enables high quality legal servies to flourish for the benefit of the public and the profession." Tim Dutton, QC, chairman of the Bar Council, said: "We are committed at the Bar to the regulatory objectives and professional principles contained in the Legal Services Act and to providing high quality advocacy and advisory services, through a well-regulated and independent profession." Mr Straw said: "The aims of the organistion are clear: to put the consumer first and to promote competition, innovation and transparency.
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