legal personnel the legal profession barristers … senior branch of the profession 9000 in practice...

Legal Personnel

The Legal Profession

Barristers …Senior Branch of the Profession

9000 in practice in

England & Wales.

Provide advocacy

and written advice.

Barristers Training…

Academic Stage…

Law Degree or any other subject plus CPE or PDL.

Vocational Training…

One year bar course.

Membership of one of 4 Inns – 12 dinners – Call to the Bar.

Practical Training…

Pupillage of 2 x 6mths.

Once qualified –

becomes self-employed.

Can wait for up to 18 months to be paid.

Cannot sue for fees.

Criticism…

This leads to the assumption that Barristers need to come from wealthy middle-class

backgrounds.

The Bar has developed an

aloofness from the general population.

Control Over Barristers

By Bar Council Benchers Who set training and investigate complaints.

Legal Services Ombudsman may investigate complaints about the way the Bar Council

has investigated a complaint.

Paid an ‘Honorarium’

In Rondel v Worsley (1969) - bad advocacy cannot give rise to negligence

actions.

Salif Ali v Sidney Mitchell & Co (1977)

agreed with this, but said that they can be held liable for negligent advice before a court

action.

Hall v Simons 2000http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000720/hall-1.htm

House of Lords asked to decide if a Solicitor and/or Barrister can be liable for negligence

in advocacy and written situations.

(In the Court of Appeal, it had been had held that the solicitors and/or barristers could be

liable for their negligence.)

See following slides for case outline…

Judges arguing for both Civil and Criminal negligence liability …

Lord Steyn & Hoffman.

While Lord Browne-Wilkinson seemed to accept civil and criminal Liability, he

argued that criminal would be struck out unless appeal was first successful.

Lord Hope & Hutton

Civil liability YES – but NO to criminal liability.

Lord Hobhouse rejected Browne-Wilkinson

argument and preferred civil liability only.

Saying NO to Criminal Liability in Negligence

Thus, they are so far equal. However, …

Outcome…Lord Millett – supported liability for negligence in

Civil and Criminal trials – saying formidable safeguards exist because D cannot challenge until the judgement set aside on grounds of an abuse of

process of the court.

Thus, the ratio decidendi of the case is that a barrister and/or solicitor can be liable in

negligence for advocacy or written advice.

Recent Changes…

Since the Court and Legal Services Act 1990

barristers have lost their monopoly over advocacy in higher courts. Now solicitors have a right to become

certified advocates.Can you give examples of higher

courts?

In March 2001 the

Office of Fair Trading

called for the abolition of QC status.

The Bar has also called for barristers to be able to see

clients directly in ‘simple cases’.

Solicitors…

Seen as ‘General Practitioners’.

Prior to the Courts and Legal Services Act they were the only way of approaching

barristers.

Now other professionals, such as accountants, may approach barristers

directly.

Solicitors Training…

They can specialise in one area of law. But they still need a Law Degree or CPE –provides general subject knowledge.

Then must also do the Legal Practice Course (at the College of Law or authorised

University) – then a period of apprenticeship as a Trainee Solicitor (who is paid).

Enrol with the Law Society (Master of the Rolls).

Criticism of Training

Michael Zander argues that both the academic and vocational stages of training should be improved. He argues that Law Degrees should include preliminary training in areas such as drafting documents and developing interview skills.

Criticism of Training

Zander further argues that both pupillage and training contracts can be ‘infinitely variable’ in quality ‘ranging from excellent to deplorable depending on where they are undertaken’.

Criticism of Training

Zander suggests that more integrated training is needed, like that undertaken by medical students, with better links between the academic and vocational stages.

Reform of Training?

The Lord Chancellor’s Advisory Committee (ACLEC) in a 1996 report suggested that the two branches should no longer have separate training programmes at the post-graduate stage, Instead, all students should take a Professional Legal Studies course …

Reform of Training?

This ‘Professional Legal Studies’ course (taken by students after they have a law degree or degree in another subject plus the CPE) would last around 18 weeks. Only then would students decide which branch of the profession to choose – going on to take the ‘Legal Practice Course’ or ‘Bar Vocational Course’.

Funding of Training

Charter 88 argue that students should be funded throughout their legal training – so as to open up the profession to the most able candidates from a variety of backgrounds and regardless of means.

Recent Changes…Now over 1000 certified advocates –

What does that mean?

Which Act of Parliament brought this about?

There are enabling proposals in the Access to Justice Act 1999 to enable all solicitors to

have wider rights of audience.

When training – new solicitors are now given advocacy training.

Who Deals With What (a Solicitor or Barrister)?

A conveyance of land? Dealing with a person accused of a

summary offence?

Dealing with a breach of contract?

Dealing with a Divorce?

Taking an appeal to the House of Lords?

Legal Executives…

Professionals – educated via the Institute of Legal Executives (ILEX).

Need just 5 GCSE’s – practical experience and 5 year training.

Must be supervised by a Solicitor – but they can convert their qualification through a

Law Society Legal Practice Course.

Licensed Conveyancers

Qualification first introduced in 1985 to break Solicitors monopoly on

conveyancing.

Must have some practical experience and take professional exams. Need not be

supervised by a solicitor.

Many now work for banks and building societies - assisting in mortgages and conveyancing (as a result of the provisions of The Courts and Legal

Services Act 1990).

Para-Legals…USA term - often refers to a partly qualified

legal secretary.

In England and Wales Para-Legal Association set up in the late 1980’s – aimed at those who lack the educational qualifications to take the

ILEX course.

Can only work with legally qualified personnel – often doing office work (Local Govt, Commerce

etc) …

Fusion

Fusion used to be a major debate. However, the Courts and Legal Services Act 1990 and the Access to Justice Act 1999 mean that barristers and solicitors can take a case from start to finish.

Fusion

Under the AJA 1999 barristers have a right to do litigation (prelim work in starting a case). Solicitors now have wider rights of advocacy in all courts.

Women and ethnic minorities

Legal profession has an image of being white and male dominated.

However, over half of the entrants to the profession are now women.

Though, only 7% of Q.C.’s are women? Also, only 19% of solicitors partners are women! Why is this?