The English and Welsh legal system still maintains a division between solicitors and barristers who form the largest part of the legal profession in this jurisdiction. Different skills are required for each of them and each has its own path into practice. The submitted article analyses the nature of these two most common legal professions and expands primarily on the scope of their work, qualification requirements and complicated training routes to become fully-qualified solicitors and barristers. Furthermore, it deals with career options pursued by these legal practitioners once they successfully complete their training.
Introduction
The term lawyer is a very general term used to refer to a person whose job is to give advice to people about the law and speak for them in court. On the other hand, it can also be used to refer to a person who has completed a study of law regardless of what he/she actually does as a profession. There are different expressions which can be used to refer to a lawyer dealing with a particular type of work, e.g. counsel (or counsellor, counsellor-at-law, pleader, advocate) refers to a lawyer who pleads cases in court; conveyancer is a lawyer who specialises in the business of conveying property; defence lawyer is a lawyer who represents the defendant, divorce lawyer is naturally a lawyer specialising in actions for divorce or annulment; and a trial lawyer is a lawyer who specialises in defending clients before a court of law.[1]
The legislative framework for the regulation of legal services in England and Wales is set out in the Legal Services Act 2007[2]. Under the Legal Services Act 2007, only individuals and businesses authorised by an „Approved Regulator“ or those exempt from the requirement to be authorised are entitled to provide reserved legal activities. The six reserved legal activities are: the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities, notarial activities and the administration of oaths.
The professionals that can be authorised to carry out reserved legal activities under the Legal Services Act 2007 are solicitors, barristers, legal executives[3], licensed conveyancers[4], patent attorneys, trade mark attorneys, costs lawyers[5], notaries[6], and chartered accountants[7].
Solicitors and barristers form the largest part of the legal profession in England and Wales. Such division should reflect their two broadly different roles within the legal system. To put it simply, solicitors generally handle office work whereas barristers plead cases in court but there can be some overlap. The distinction between these two legal professions was originally based on their roles in the English court system where solicitors were lawyers who were admitted to practise in equity courts, whereas barristers were lawyers who practised in common law courts.
Solicitors
The term solicitor refers to a legal practitioner who is admitted to practice under the provisions of the Solicitors Act 1974[8]. Solicitors form the larger part of the English legal profession. There are approximately 130,000 solicitors on the roll[9] in England and Wales with between 5,000 and 7,000 admitted each year.[10] Solicitors can be organised as sole practitioners, limited companies, partnerships or limited liability partnerships.
The professional body for solicitors in England and Wales is called the Law Society. The Law Society was incorporated by royal charter in 1831 and exists in order to further the professional interests of solicitors and to discharge important statutory functions in relation to the admission to practice, the conduct and discipline of solicitors. It issues annual practising certificates to solicitors (these entitle solicitors to practise) and may strike a solicitor’s name off the roll as well as take other disciplinary action. Furthermore, it is responsible for the examination of intending solicitors and organises educational and training courses through recognised universities. In short, the Law Society exists to help, protect and promote solicitors across England and Wales.[11]
Solicitors provide expert guidance on and undertake work related to the issues people regularly face such as conveyancing or drawing up wills and contracts. Furthermore, solicitors also help businesses with the legal side of commercial transactions and advise people on their rights, ensuring they are treated fairly by public or private bodies. In addition to the foregoing activities, many solicitors undertake legal aid work or spend a portion of their time providing free help to those unable to pay for legal services. As for the clients representation, solicitors can represent clients personally in the lower courts (Magistrates’ courts, County Courts and tribunals) and are also able to represent them in higher courts with specialist training (Crown Court, High Court, Court of Appeal and the Supreme Court).
Once a solicitor qualifies, there is a variety of different career options available. Solicitors can choose to work in private practice. In 2014 there were over 86,000 solicitors in England and Wales who worked in private practices which ranged from sole practitioners to multinational firms with hundreds of partners and offices around the world. In private practice solicitors can be employed at various levels of seniority and one may actually become a partner. There are approximately 16,000 solicitors who are employed by commercial and industrial organisations dealing with their legal business in-house. Around 4,000 solicitors are employed in local government advising on the services the authority provides to the community and around 1,000 solicitors work in the government legal service advising government ministers and implementing government decisions or in the court services. Furthermore, around 2,000 solicitors are employed by the Crown Prosecution Service which prosecutes the majority of criminal cases in England and Wales and advises the police on prosecutions. Other opportunities the solicitors have include the Magistrates‘ Court Service where they advise magistrates on a wide range of matters including, inter alia, family law or criminal law, law centres, charities and armed forces.[12]
In order to qualify as a solicitor in England and Wales, one may follow three different routes – the law graduate route, the non-law graduate route and the Chartered Institute of Legal Executive (CILEx) route. However, in all three routes one could distinguish between two key stages to qualify as a solicitor, the academic stage and the vocational stage.
The majority of solicitors qualify by the law graduate route which starts with completing a qualifying law degree (lasting three years full-time). The qualifying law degree involves studying seven foundations of legal knowledge – contract, tort, criminal law, equity and trusts, EU law, property law, constitutional and administrative law. Having completed such law degree, the intending solicitor has to take the Legal Practice Course which can be studied in two stages with the first stage covering the core practice areas of litigation (business law, property law and litigation) and also dealing with professional conduct and regulation, taxation, wills and administration of estates, and the second stage encompassing vocational electives such as employment law, family law and commercial property law. The Legal Practice Course is offered by a number of colleges and universities and can be taken as either a full-time or a part-time course.
The next step to qualify as a solicitor is to complete a practise-based training which is also known as a period of recognised training (usually lasting 2 years but can be reduced provided that one has gained suitable and relevant previous legal experience) and can take place either after completing the Legal Practice Course or while completing this course. This part enables the intending solicitors to apply, under supervision, the skills and knowledge they acquired during the academic and vocational stages and one is required to gain experience in at least three different areas of law and practice. This training can be undertaken in private practice (which most trainees actually do) but it can also be undertaken within local and central government, commerce and industry, the Crown Prosecution Service, the Magistrates‘ Court Service or other approved organisations.[13]
Trainees normally also take the Professional Skills Course during the period of recognised training which must be completed by them as well to qualify as a solicitor. This course consists of electives and three compulsory core areas – financial and business skills, advocacy and communication skills, client care and professional standards.
Once the intending solicitor has successfully completed the qualifying law degree, Legal Practice Course, Professional Skills Course and period of recognised training, he or she can apply to the roll of solicitors in England and Wales which entitles him or her to practice as a solicitor.
The non-law graduate route which can also be referred to as the conversion course route is usually followed by 20% of solicitors. Naturally, the beginning of this route starts with completing a degree in any subject (three years full-time) and is followed by a one year full-time Common Professional Examination or Graduate Diploma in Law. The aim of this intensive conversion course is to prepare non-law graduates (whether they studied in the UK or not) for the Legal Practice Course. The course is built around the core curriculum and assessment requirements of the qualifying law degree and is offered by many academic institutions as a one year full-time or two year part-time course. The next steps on this non-law graduate route are the same as in the case of a law graduate route, i.e. completing Legal Practice Course, period of recognised training, Professional Skills Course and finally being admitted to the roll.
Barristers
A barrister is a legal practitioner admitted to plead at the Bar who must be a member of one of the four Inns of Court by whom he is called to the Bar when admitted to the profession. Barristers have been providing expert advice and advocacy since the 13th century. Advocacy is a key element of the job as a barrister and therefore the primary function of barristers is to act as advocates[14] for parties in courts or tribunals but they can also undertake work such as writing of opinions and some of the work preparatory to a trial. A barrister may only act upon the instructions of a solicitor (there are some exceptions to this, though) and solicitors are also responsible for the payment of the barrister’s fee. Solicitors have good working relationships with barristers and are usually likely to be able to identify the most suitable barrister to deal with a client’s case. If such identified barrister is available and there are no conflicts of interest, then such barrister is under a duty to take on the pertinent case (under the so called cab rank rule[15]).
Both barristers and solicitors enjoy a right of audience. The right of audience is defined as the right to appear before and address a court including the right to call and examine witnesses.[16] Barristers have the full right of audience in all courts unlike solicitors who traditionally only appeared in tribunals, coroners courts, magistrates‘ courts, county courts, the Family Court and European Courts, but may now obtain higher rights of audience in the Crown Court, High Court, Court of Appeal and Supreme Court.
A limited number of senior barristers (of at least ten years‘ practice) receive silk which means that they become Queen’s Counsels (QC) as a mark of their outstanding ability and are normally instructed in very serious or complex cases.
The route which needs to be taken in order to become a practising barrister in the UK starts with the completion of a qualifying law degree or a conversion course in case of non-law graduates.
One has to complete the Bar Professional Training Course next to obtain the required set of legal skills which can be done either full-time or part-time. The full-time course runs for one academic year; the part-time course for two years. The said course may be taken once the academic requirements have been successfully completed. This course is designed primarily to ensure that students acquire skills, knowledge of procedure and evidence and competence to prepare them for the more specialised training of pupillage. There currently are six Bar Professional Training Course providers.
At this stage, an intending barrister is also required to join one of the four Inns of Court[17] and undertake a number of qualifying sessions. Anyone wishing to join the Bar must join one of the Inns first which are responsible for „calling barristers to the Bar“. Admission to an Inn is required before registration on the Bar Professional Training Course, although many undergraduates join before this stage in order to participate in activities, use the library, or start their qualifying sessions. The Inn represents a professional association of barristers which provides support for barristers and students through a range of educational activities, lunching and dining facilities. They also provide a number of grants and scholarships for the various stages on the way to becoming a barrister. A student’s choice of Inn does not affect the area of law in which they wish to practise or their choice of pupillage and it is usually a matter of personal choice. Students are required to complete 12 qualifying units in order to be called to the Bar. These units, also known as qualifying sessions, are educational and collegiate activities arranged by the Inn(s) for the purpose of preparing Bar Professional Training Course students for practice. These sessions used to be known as „dining sessions“ which traditionally focused on dining with senior practitioners and also provided networking opportunities and sharing of best practice. There currently are four Inns of Court: Gray’s Inn, Lincoln’s Inn, Inner Temple and Middle Temple. After successful completion of the Bar Professional Training Course and the Inns qualifying requirements, the intending barrister is called to the Bar and can describe himself or herself legitimately as a barrister.
The next stage (and the final stage of qualifying as a barrister) in this route is known as pupillage which is a kind of legal apprenticeship. Pupillage is undertaken at a set of barristers‘ chambers or another approved legal environment and is split into two periods of six months each, known as the „first six“ (non-practising period of pupillage) and „second six“ (practising period of pupillage). Students may apply for pupillage once they have successfully completed their Bar Professional Training Course and they must start their pupillage within five years of passing the Bar Professional Training Course. During the non-practising period, pupils shadow their pupil supervisor and they may not accept any instructions, except for noting briefs, where they have the permission of their pupil supervisor or head of chambers. During this time, pupils must also complete the Pupils Advocacy Course. If they complete this period satisfactorily, they will be given a certificate from their pupil master which will allow them to work on their own during the „second six“ (the practising period). During that time they will start to take on cases and clients of their own and may represent them in court and are thus entitled to supply legal services and exercise rights of audience provided that they have the permission of their pupil supervisor or head of chambers. The practising period must commence no later than 12 months after the completion of the non-practising period. At the end of the practising period, pupils must submit a certificate from their pupil supervisor certifying that the practising period has been satisfactorily completed.
Once the pupillage has been completed, one is eligible for tenancy, i.e. a permanent place in a set of chambers. However, there is no guarantee that one will be admitted to the chambers where he/she undertook pupillage.
In terms of the professional career pursued by already qualified barristers, about 80% of barristers are self-employed. The rest are employed in industry, commerce or central or local government. The majority of barristers work in specialist legal departments, advising only the organisation for which they work, i.e. they act as in-house counsels, while others work in solicitors firms, advising clients directly. Self-employed barristers work in offices called “chambers”, which they may share with other barristers. Once they complete their training, barristers apply for a permanent position known as “tenancy” in a set of chambers. Today, with the increasing globalisation of legal services, barristers practise internationally in numerous other ways, such as in international commercial arbitrations or international human rights tribunals.
Conclusion
The organisation of the legal profession in the jurisdiction of England and Wales is, as one can see above, rather complex. Unlike e.g. in Slovakia, there are two main branches of the legal profession – barristers and solicitors. Having introduced the scope of work of both of these legal professions above, we could generally describe solicitors as being “legal generalists” and barristers as being “specialists”. A similar parallel could be drawn between a general practitioner and a medical specialist.
Generally, solicitors undertake work such as advising individuals and organisations on legal matters and ensure that their clients act in accordance with the law. They are more likely the first point of call for clients requiring legal advice and have thus a more direct contact with their clients. Barristers represent clients in court and give specialist opinions on complex legal matters. They generally receive instructions through solicitors. If one is involved in litigation and the matter is proceeding to court, the solicitor will recommend and eventually instruct a barrister.
However, the distinction between solicitors and barristers is ceasing to be as “clear-cut” as it once was. Following the Court and Legal Services Act 1990, even solicitors have the right to become advocates, i.e. represent clients in court, and some commentators thus suggest that barristers have consequently lost their dominance over advocacy in courts. However, we could argue that solicitors take on a more active advocacy role in the lower courts and barristers still maintain their monopoly over the higher courts.
Author: Mgr. Lucia Smolková, Ústav cudzojazyčnej právnej komunikácie, Právnická fakulta, Univerzita Komenského v Bratislave
Bibliography
Black’s Law Dictionary, 7th edition. St. Paul: West Group, 1999, 2052 s.
CHROMÁ, M.: Anglicko – český právnický slovník. Praha: LEDA, 1997. 341 p.
KUMMEROVÁ, S. et al.: Legal English. Fundamental Terms and Topics. Revised edition. Bratislava: Bratislavská vysoká škola práva, 2009. 392 p. ISBN: 978-80-89363-20-9
Oxford Dictionary of Law, 6th edition, Oxford University Press. 624 p.
http://www.legislation.gov.uk/ukpga/1974/47/pdfs/ukpga_19740047_en.pdf
http://www.sra.org.uk/home/home.page
https://www.barstandardsboard.org.uk/media/1813606/bsb_handbook_13_december_2016.pdf
https://www.barstandardsboard.org.uk/qualifying-as-a-barrister/
https://www.city.ac.uk/law/careers/become-a-lawyer/becoming-a-barrister
http://www.legislation.gov.uk/ukpga/2007/29/pdfs/ukpga_20070029_en.pdf
[1] Information available at: http://www.thefreedictionary.com/lawyer.
[2] To access this Act, go to: https://www.legislation.gov.uk/ukpga/2007/29/contents.
[3] Legal executives specialise in a particular area of law. The everyday work of a legal executive is similar to that of a solicitor and they have the option to become solicitors in one or two years after becoming practising fellows of the Chartered Institute of Legal Executives and usually are exempt from the training contract graduates must complete to qualify as solicitors.
[4] A licensed conveyancer is a specialist legal professional that deals with property transactions.
[5] Costs lawyers ensure that a firm’s clients are properly charged for work undertaken on the client’s behalf. They can represent clients in court when there is an issue over costs.
[6] Notaries are lawyers appointed by the Archbishop of Canterbury. Notaries authenticate and certify signatures and documents.
[7] The title „chartered accountant“ indicates that the person has undertaken a minimum of three years training, passed a series of examinations in financial management, auditing, business strategy and taxation, and committed to continuing professional development to keep their skills up to date.
[8] To access this Act, go to:http://www.legislation.gov.uk/ukpga/1974/47/pdfs/ukpga_19740047_en.pdf.
[9] Roll of solicitors is a list of all solicitors (qualified lawyers) in England and Wales.
[10] Figures obtained from a document prepared by the Law Society titled „Preparing students for the solicitors‘ profession – a guide to qualification and the profession” as of March 2011 (revised in October 2014). This document is also available at: http://www.lawsociety.org.uk/law-careers/becoming-a-solicitor/.
[11] For more information about the Law Society, visit its website at: http://www.lawsociety.org.uk/.
[12] All figures provided in this paragraph have been obtained from a document prepared by the Law Society titled: “Becoming a solicitor. Start planning your future today.” published in January 2016 and available at: http://www.lawsociety.org.uk/.
[13] It is recommended that an intending solicitor starts applying for training positions already in the second year of his or her undergraduate studies since competition for these training positions is very strong.
[14] The term advocate can be understood in two different ways. It is firstly and primarily used to refer to a person who exercises a right of audience and argues a case for a client in legal proceedings. Secondly, the term is also used in Scotland to refer to a member of the Faculty of Advocates which is the professional organisation of the Scots Bar.
[15] The cab bank rule laid down in the Bar Standards Board Handbook states that once a barrister receives instructions from a professional client and the instructions are appropriate taking into account the barrister’s experience, seniority and field of practice, the barrister must accept these instructions irrespective of the identity of the client, the nature of the case to which the instructions relate, whether the client is paying privately or is publicly funded and any belief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client. However, there are several exceptions when the foregoing rule does not apply, e.g. the potential liability for professional negligence in respect of the particular matter could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for a barrister to accept or accepting the instructions would require a barrister to do any foreign work.
[16] The definition provided by the Legal Services Act 2007 (paragraph 3, Schedule 2 thereto).
[17] These institutions of considerable antiquity have historically been responsible for legal education.