LEGAL PROFESSION - EVALUATION

In most countries there is a single legal profession: individual lawyers may choose to specialise in advocacy, in working for a single corporate client, or in providing day-to-day legal advice for individuals, but all have esentially the same qualifications and training and the same professional rights. The American lawyer, the French avocat and the German Rechtsanwalt may represent a client in court one day and spend the next dealing with wills or contracts for clients coming into his office. Even in those jurisdictions where there are two or more categories of lawyer, these are generally based on a common professional framework, with some lawyers achieving a higher status through additional training or experience.

In England and Wales (and in the separate Scots legal system) this is not the case: prospective lawyers are expected to decide at an early stage of their training whether they intend to be solicitors or barristers (advocates in Scotland), and that choice largely determines their whole career. It is possible for a barrister to re-train as a solicitor, or vice versa, but that involves two or three years' full-time study with no income and a fresh start on the bottom rung of a new professional ladder.

For many years, therefore, there has been debate as to whether there is value in maintaining the distinction between solicitors and barristers, or whether the two main branches of the profession should be fused . The Law Society has repeatedly suggested that the legal profession should adopt a similar pattern to that of the medical profession, with common training for all to allow them to practise as general lawyers. After a period of experience and a further assessment, those lawyers who wished to specialise (whether in advocacy or in some branch of substantive law) could become consultants (perhaps known as barristers still) and handle the more difficult cases in their specialisms. Such proposals have not been accepted by the Bar, however, and there is little likelihood of any such developments in the near future. If anything, the pressure for change is less now than it was a few years ago, because the government-imposed changes of the 1990s have removed many of the most obvious differences already.

Conveyancing was formerly a solicitors' monopoly, but the Courts and Legal Services Act 1990 set up the Authorised Conveyancing Practitioners Board to develop competition in the provision of conveyancing services and to supervise the activities of authorised practitioners. In fact, most conveyancing is still done by independent solicitors, but their profit margins have been substantially cut and small firms not on the building societies' panels are left out in the cold.

Solicitors also had a monopoly over the provision of probate services, though the individual executor (like the individual house-buyer) had always been able to do his own legal work if he chose. The 1990 Act made provision for suitable people other than solicitors to prepare papers applying for the probate of a will. This has had little effect in practice, though banks and similar institutions, if appointed as executors, can now do the necessary paperwork themselves. Writing a will for another person was never subject to a formal monopoly and was not directly affected by the legislation, but private will-writing firms have mushroomed in the past ten years and now do much work that would formerly have been done by solicitors.

Under the Solicitors Act 1974, only a solicitor was permitted to institute and carry on litigation on behalf of another person, though anyone can litigate on his own behalf. The Access to Justice Act 1999 allowed the Bar Council and the Institute of Legal Executives to grant litigation rights to their members, and expressly granted the same rights to employees of the new Legal Services Commission whatever their professional background.

One of the most important changes was in the extended rights of audience granted to solicitors. Before 1990, only independent barristers (and litigants in person) had rights of audience in the higher courts, but solicitors with appropriate training and experience can now apply for similar rights, and employed advocates (including those employed by the Crown Prosecution Service or the Legal Services Commission) now enjoy the same rights of audience as if they were in private practice.

At the same time, limited rights of audience formerly held only by barristers and solicitors have been extended to others. Legal executives and others acting on the instructions of a solicitor can now appear in most civil proceedings in chambers, and some legal executives have extended rights of audience. Any person has the right to represent a party in civil proceedings allocated to the small claims track, and any person can appear in most tribunals.

Barristers wear wigs and gowns in court, and from 2008 solicitor-advocates have had the same rights. But barristers and judges are gradually giving up wigs in civil trials, though there is a widespread view that their retention in criminal trials lends authority to the court.

Appointment as Queen's Counsel or as a High Court judge was effectively restricted to barristers, although in theory a solicitor who had been appointed a Circuit judge could have been promoted to the High Court. The 1990 Act extended eligibility for both these positions to anyone with appropriate rights of audience. It also allowed the citation in court of law reports prepared by anyone with a High Court right of audience, rather than by a barrister as had previously been the rule.

Before the 1990 Act, barristers had been unable to sue for their fees but had enjoyed immunity from suit in respect of their allegedly negligent presentation of a case in court. The Act allowed a barrister to make a contract for his fees, subject to any professional rules laid down by the Bar Council, and extended to all authorised advocates the barrister's immunity from suit, thereby confirming in statutory form the implications of several judicial decisions. [This immunity was subsequently removed (for all advocates, including barristers) by the Lords' decision in Hall v Simons.]

Solicitors (other than employed solicitors) can and do deal directly with the public; barristers (under Bar Council rules) cannot. This has already changed in part - barristers can now take instructions directly from certain professionals such as accountants, or from certain advice agencies, and new rules introduced in 2004

allow experienced barristers (with some additional training) to give advice (but not representation) directly to members of the public.

Solicitors are predominantly general practitioners, while barristers are specialists. Barristers are still largely specialists, but the difference is lessening as many solicitors (and some whole firms, especially in the commercial field) choose to specialise in particular areas of law. This trend is accelerated by the new legal aid rules, under which Community Legal Service and Criminla Defence Service contracts are granted only for the particular areas of law in which the contracting firm has the requisite level of expertise. Legal executives have always been specialists, of course, though at a lower level of expertise than barristers.

Barristers are primarily advocates, but solicitors are primarily office-workers. Many barristers are advocates, but others are primarily advisors and consultants and nearly all spend a substantial amount of their time on advisory work. Equally, while many solicitors are still primarily office-workers, many have always done some low-level advocacy (particularly in the magistrates' courts) and some now practise in the higher courts too.

Solicitors work all over the country while barristers work mainly in London. This too is changing: the largest solicitors' firms are almost all based in London, and barristers are increasingly to be found in provincial towns as civil work moves to the County courts.

Barristers, solicitors and legal executives undergo different training in the vocational and professional stages, to reflect the different requirements of their jobs. Legal executives are the most different: they are not required to have a degree and commonly train while working. There are no plans for changes here, but it would not be difficult to devise a new qualification structure if a unified profession became a reality.

Barristers work almost entirely as individuals; solicitors work mainly in partnerships or as employees; legal executives are nearly always employed by solicitors. Barristers are paid a fee per case; solicitors in partnership take a share in the firm's profits; employed barristers, assistant solicitors and legal executives are paid a salary. This could change if necessary.

Barristers are bound by the "cab-rank" rule; solicitors can choose their clients. In theory this is a significant difference, but as most solicitors will accept any client willing to pay an appropriate fee, and as most barristers can find ways of puting off clients they are reluctant to accept, the practical difference is small.

One advantage of a fused legal profession (in which the distinction between barristers and solicitors was eliminated) would be the elimination of the wasted effort and duplication of work in the present system, where a lay client explains the case to a solicitor who then explains it to a barrister. On the other hand, two heads may be

better then one, and an independent barrister looking at the case with a fresh mind may spot things that the solicitor had missed.

Fusion would (hopefully) reduce the cost to the lay client by eliminating the fee of a second lawyer, particularly where a solicitor is required to sit behind the barrister with litle to do throughout a long trial. But the solicitor's fee would no doubt increase if he did the advocacy as well as the preparation, as would the barrister's if he had to meet the office costs of the preparatory work.

Another advantage of fusion would be the improved quality of representation if the lawyer presenting the case in court had learned the facts at first hand from the client, at an early stage in proceedings. Such a change would reduce the risk of the lawyer's overlooking or misunderstanding an important piece of evidence, though the general lawyer's lack of advocacy experience might counteract this apparent advantage.

Fusion would reduce the problem (currently quite common) of a barrister's finding himself booked to appear in two different cases at the same time; a Crown Court survey by the National Audit Office in 1997 found that three-quarters of all prosecution briefs accepted by barristers were returned shortly before the trial, usually because the barrister concerned found himself double-booked.

Finally, fusion would allow individual lawyers to develop their talents in whichever direction they chose after gaining some experience, rather than forcing a choice at the beginning of their training.

On the other hand, one disadvantage might be the loss of the close working relationship between a comparatively small number of specialists at the Bar, thereby (so it is said) endangering standards of professional conduct because of the lack of effective supervision. It might also lead to lower standards of advocacy because of the general lawyer's comparative lack of courtroom experience, though this might be counterbalanced by the advocate's better knowledge of a case she had handled from the beginning.

Fusion would force most lawyers to become general practitioners, particularly in the early stages of their career when they might prefer to concentrate on one particular type of case, and would make it difficult for experienced lawyers to specialise in narrow areas of work, in which a single firm would not be able to attract enough business to support a member doing only that. It would encourage lawyers to deal with cases themselves rather than call in an expert from a rival firm, would deprive small firms and their clients of access to the wide range of knowledge and experience currently available at the Bar.

The Legal Services Act 2007 makes provision for new Alternative Business Structures, providing cost-effective and consumer-friendly legal services by bringing together lawyers (and non-lawyers) of different kinds. Such ABSs might be owned

and managed by non-lawyers (hence the press label of "Tesco law"), but are not likely to appear before 2010 at the earliest.

Tesco Law- The Times Online

esonline.co.uk/tol/business/law/article1087184.ece

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