The legal Profession & Other Sources of Advice and Funding

The legal Profession & OtherSources of Advice and Funding The Legal Profession

Lesson Objectives • I will be able to describe the qualification, training and work of barristers • I will b able to describe the qualification, training and work of solicitors • I will be able to describe the qualification, training and work of legal executives

Legal Profession • Two main branches – barristers and solicitors • These branches of the traditional ‘lawyer’ have rights of audience (right to appear in and speak on behalf of their clients in court) • There are also legal executives who are usually specialist employees of solicitors • These executives might work in areas such as conveyancing, debt recovery or wills – does not have the same rights of audience

Barristers • Used to be the only profession that had the right to represent clients in the higher courts • England and Wales is divided into regions or ‘circuits’ for the purposes of the administration of justice, and barristers attach themselves to a circuit • Bar Council is the professional body for barristers • Responsible for regulating barristers (setting qualifications and discipline)

Barristers of at least 10 years experience may apply to become Queen’s Counsel (QC) • More important work and are referred to as silks – the gown they wear • Solicitors can also apply to be QC • QC is stepping stone to becoming a judge • QC are made this due to recognition of their outstanding ability • There are also honorary QCs who will not practise but deserve the recognition

Q.C. • May apply after 10 years as a “junior” • About 10% of the Bar “take silk” • QCs usually take on more complicated and high profile cases • They command higher fees • They will usually have a junior to assist • Until 2004 QCs were appointed by LC • But this was seen as too secretive • Also fewer than 10% of QCs are women and very few are from ethnic minorities • As senior judges are usually chosen from QCs this affected the composition of the judiciary • Selection is now by selection panel, chaired by non-lawyer and including other non-lawyers. Selection by interview. Applicants apply, pay £2500 fee and provide references; panel recommends to LC who should be appointed • NB solicitors can also now become QCs

Advantages Conspicuous brand enhancing standing of UK legal services abroad Publicly recognised mark of quality of advocacy Resource for public enquiries Promotes competition – supplements market information Promotes diversity – solicitors and those from ethnic minorities Election now by selection panel Disadvantages (OFT ‘03) QCs do not necessarily offer better service Title is too generic – tells customer nothing about specialisation System focuses on advocacy skills whereas other skills may be relevant, e.g. legal advice, case management No monitoring of quality after becoming QC QCs-Advantages and Disadvantages

Barrister’s Qualification • 3 stages • Academic, vocational, pupillage • Academic – minimum 2:2 at degree level – a qualifying law degree is set out by the Bar Council and Law Society jointly as required by the Courts and Legal Service Act 1990 • This is the minimum law content for a degree course (7 core subjects) • Tort, EU, Equity, Con + Ad (Public), Land, Contract, Criminal • If a degree is not in law or fails to comply, they must do a 1 year conversion • Common Professional Exam (CPE) or Graduate Diploma in Law (GDL) • This is so that when training begins, they all have the same foundation level

Before starting vocational stage they must join one of the 4 Inns of Court: Lincoln’s Inn, Inner Temple, Middle temple, Gray’s Inn • The Inns are societies that provide activities and support for barristers and student barristers • Library, dining facilities, common rooms and gardens • Inns have the power to call a student to the Bar • Admission to an Inn is required before registration on the Bar Vocational Course (BVE) – the main part of the vocational stage of qualifying as a barrister • BE ensures that student barristers acquire all the skills and knowledge of procedure and evidence that will be required for the more specialised training in pupillage • The BE runs for 1 year full time or 2 years part time

Pupillage – the barrister will undertake practical training under supervision of an experienced barrister • Divided into 2 parts – first is non-practising - months where the student will shadow and work with their superior barrister • Second part – with supervisor’s permission, will carry out legal services and have rights of audience in court • There is lots of competition for pupillage and so a mini-pupillage is a useful starting point • Short period of work experience (usually 1-2 weeks) in a set of chambers • Some chambers require applicants to undertake an assessed mini-pupillage as part of their recruitment process • All applicants to the Bar are advised to take at least one mini-pupillage by the Bar Standards Board

To become a barrister Law degree Degree in another subject Non-graduate mature student Common Professional Examination (one-year Law course) Common Professional Examination (two-year Law course) Membership of Inn of Court Attend an Inn – either dine or on course One-year Bar Examination Course One-year Vocational Training course OR Call to the Bar Pupillage: 2 x 6 months Occupation as a non-practising barrister Practise as a barrister

Barrister Training • Once BE is completed, they can be called to the Bar • Usually takes place towards the end of their first 6 months of pupillage • There is a requirement for continuing training and updating as with most professions • Barristers need to update and develop specialist areas of knowledge and improve their skills particularly as there is increasing competition in the market for legal services

The Bar Standards Board has set up an Education and Training Committee – responsible for setting the standards of education and training that people must pass before being able to practise as barristers – together with the further training barristers must complete in their careers • At present, in the first 3 years of practice, a barrister must complete 45 hours of CPD – including at least 9 hours of advocacy training and 3 hours of ethics • After the first 3 years of practice barristers are required to undertake 12 hours of CPD each year under the established practitioners’ programme

Barristers Pay • Bar Council sets a minimum rate to be paid to pupils – 2006-7 this was no less than £833.33 pm (£10,000 pa) plus reasonable travel expenses • Once qualified a barrister will have typical earnings as a self-employed barrister in a range of £25,000 to £150,000 gross within 5 years • There are huge disparities in annual earnings at the Bar with some junior barristers working in criminal law earning as little as £50 per day, and this is before tax deductions and chambers’ charges • Barristers rely on solicitors appointing them to pay the fee – the contract is between solicitor and barrister, not barrister and person he represents • The fee is agreed by their clerk and id often paid at the end of the trial • This means work is done several months before payment • Some solicitors used to be very poor at paying the barrister’s fee • More recently the law Society has made it clear that solicitors should pay promptly • Many young barristers despite this, actually receive little or no income in their first year of practice • Barrister’s clerks were originally paid purely on commission – today the majority of chambers offer a pay package – this is a mixture of salary and bonus based on the income of the barristers • This has to be paid for on a proportional basis by all the barristers in the chamber • This could cost each barrister up to 15% of all earnings

Barrister’s Work • Barristers usually self-employed • Although an increasing number are employed directly by large organisations and some who work in law centres • Barristers can now work for firms of solicitors • Until recently it was not normally possible for members of the public to go directly to a barrister • Barristers were, and still are, normally accessed through a solicitor • However, the Bar Council has relaxed its rules relating to direct access and there are now 3 routes to accessing a barrister

The first is professional client access – where a number of people can instruct barristers on behalf of clients or as a fellow professional • This usually means solicitors but includes many overseas lawyers • The second is public access – where members of the public and commercial and non-commercial organisations are now able to instruct barristers directly on most civil matters • This might be legal advice or involve drafting a document such as a will • Barristers do not have to accept any public access instructions • This is an exception to the ‘cab rank’ rule which is that, subject to having the necessary expertise, a barrister must accept any brief or instructions and act for anyone • However, barristers who are willing in principle to accept public access instructions must observe a non-discrimination rule

Finally, there are licensed access organisations that are suitable to instruct barristers, because they have expertise in particular areas of the law • They can apply to the Bar Council to be licensed to instruct barristers directly in those areas – typical examples of those with licensed access are a firm of clinical negligence insurers and a financial services company

Barristers are specialists, yet have a varied work load including drafting documents and giving legal opinions • Barristers specialising in criminal law are likely to spend a great deal of time in court, whereas civil practitioners will probably attend court less often • With the more increasing use of ADR, barristers may find that some time is spent in preparing and advising on this • The key benefit of the barrister is that he is independent and objective and trained to advise clients on the strengths as well as the weaknesses of their case

Self-employed Usually work from a set of chambers 15-20 barristers; share administrative expenses Employ clerk as practice administrator Booking in cases, negotiating fees Other support staff Finding a tenancy may be difficult May do a third 6-month pupillage, and then “squat” Technically possible to practise from home, but a tenancy is still seen as the way to success Building a reputation is long and hard Young barristers may be poor! Advocacy + Writing opinions, giving advice, drafting documents for use in court But some rarely appear in court Instead specialise in tax law or company law Direct access Since 2004, except for criminal or family law Cab rank rule Except where clients approach barrister direct Rights of audience in any court in England & Wales Practising barristers employed (by CPS or by solicitor) can now keep their rights of audience Barristers’ work: 10 points

Page 116 - figures

Solicitors • The usual first port of call when somebody needs legal advice • Solicitors are the general practitioners of the legal world dealing with all kinds of legal problems • Most solicitors are in private practice – working in firms with hundreds of staff through to a small high street office as a sole practitioner • Solicitors, unlike barristers, can form partnerships • Other solicitors can work in government, law centres, the civil service, commerce and industry

Solicitors Qualification • 3 parts – academic training, vocational training and training contract • 3 starting points • Law degree - Same degree qualifications as barristers – however, to qualify as a solicitor, a person must achieve the required pass mark for each of the foundations of legal knowledge subjects – 40% regardless of the pass mark set by the institution • Degree remains valid for 7 years

Non-law graduate – then completes CPE or GDL • Non-graduate or Institute of Legal Executives (ILEX) – this is not available to a barrister • Non-graduate may be able to undertake a CPE or GDL if that person is a mature student or holds certain other academic or vocational qualifications – must be over 25 and have considerable experience in a suitable area of work and a good general education • Acceptance is at the discretion of the Law Society – also applies to people who hold a non-UK degree

ILEX – person must pass equivalent examinations in the foundations of legal knowledge and a further legal subject • Provided this person is an ILEX Member or Fellow, these examinations can be taken within the ILEX framework • This route may also exempt an ILEX member who wants to become a solicitor from needing to undertake a training contract

The second part is vocational training, which is common to all those seeking to qualify as a solicitor, whichever route they started from • This is the Legal Practice Course (LPC) – which provides the professional training for a solicitor • The main purpose of the course is to learn how to apply the law to the needs of clients • At the end of the LPC, a trainee solicitor will be able to enter a training contract with the necessary knowledge and skills to undertake appropriate tasks under proper supervision during the training contract – the course includes legal knowledge, skills and ethics

The LPC has some compulsory areas of study: • Business law and practice • Property law and practice • Civil and criminal litigation • There are also topics known as pervasives which appear throughout the course at appropriate times. These include: • Probate and administration • Professional conduct and client care and financial services • Revenue law and Solicitors’ and Business accounts • EU law and Human Rights • There are also some optional or elective topics which vary depending on the potential solicitor’s interests and the specialisms of the institution offering the course • The skills needed to be a solicitor are also part of the course and include practical legal research, writing and drafting documents, advocacy and interviewing • The course can be taken on a full or part-time basis with a number of providers across England and Wales

The final part is the training contract – this is a period of practice-based training • The idea is that the trainee will gain practical training under supervision, and learn to apply a range of skills through working in a solicitor’s office or the legal department of another organisation • As with a barrister’s pupillage, trainees are paid with minimum amounts set • This is normally 2 years full-time work but can be part-time over a longer period

On a training contract, the trainee solicitor will work in at least 3 areas of law, such as: • Personal injury law • Conveyancing • Company law • Environmental law • Criminal litigation • These areas will depend on the nature of the firm or organisation and the interests of the trainee • Skills are developed through working on clients’ cases, although with close supervision • The trainees’ work will be regularly reviewed and as time goes on the trainee will deal with clients and learn to handle cases without supervision • On completion of these 3 parts of training, the trainee will be admitted as a solicitor and will get their practising certificate • This license to work as a solicitor must be renewed annually

To become a solicitor 4 GCSEs A levels or equivalent A levels or equivalent Institute of Legal Executives Part I & Part II Exams Degree in another subject Law degree Work for two years in a solicitor’s office Common Professional Examination (one-year Law course) Be admitted as a Fellow of the Institute of Legal Executives (must be over 25 years and have worked for 5 years in a solicitor’s office) Legal Practice Course (one year) Two year training period Legal Practice Course (one year) Legal Practice Course (one year) OR two-year training period AND pass final exams Two-year training period Qualified as a solicitor Qualified as a solicitor Qualified as a solicitor NB How many years for each pathway?

Solicitors Training • There is a requirement for CPD to be undertaken • Designed to ensure they are up to date with law and other essential matters • The Solicitors Regulation Authority requires that all solicitors complete at least 16 hours of CPD activities a year. Examples could be: • Tax law update • Study of the latest anti-money-laundering regulations • Solicitors’ new code of conduct • In addition, new solicitors must complete the Law Society’s Management Course Stage 1 by the end of their third year in practice – this is a 1 day course that deals with basic aspects of management that are essential to a solicitor

Solicitors Work • Work in a wide range of roles and areas • Over 68,00 ( vast majority) work in private practice (a firm such as you see on the high street) • These range from sole practitioners to multinational firms with hundreds of partners and offices across the world • Most solicitors in private practice work with individual clients: the general public and local businesses • A solicitor in a large firm will usually carry out work that is quite specialised • By contrast, one in a small firm may be involved in a great range of activities • Solicitors deal with a vast range of legal problems such as helping to buy and sell property, personal injury claims, advising on matrimonial problems such as divorce, or financial disputes between partners and immigration problems • They also represent people in court or instruct a barrister to represent them

Solicitors do more work in court than is often imagined – in civil matters they represent their clients at most interlocutory hearings – that is hearings before trial • They also usually appear in court in enforcement proceedings, such as repossession cases • In criminal cases, they often represent their client in the Magistrates’ Court – this is the typical function of a duty solicitor – who will be the representative who usually makes a defendant's first bail application

Businesses need help and advice in areas such as employment law, contracts and property leases • Bigger clients may be involved in company mergers and acquisitions • Some firms of solicitors have offices overseas which may involve advising local clients on English, EU or foreign law or representing a UK person or business abroad • The vast range of work is affected by the public perception of what amounts to a legal matter that a solicitor should be dealing with – e.g. if a person has a problem with the HMRC, a decision has to be made whether to go to a solicitor, an accountant or other adviser • Other solicitors work directly for large businesses such as banks and multi-national companies • Others work for local authorities or central government • Others work for the Court Service, CPS as a court clerk, for a charity, the armed forces or in a law centre

Private practice in a solicitors’ firm (the majority) [8700 firms] - Sole practitioner (rare on qualifying) - very specialised, e.g. simply conveyancing For an existing partnership (small firm, maybe half a dozen partners) - several kinds of work, e.g. criminal and family, or conveyancing and probate, or consumer problems and housing Interviewing clients Negotiating on their behalf, e.g. writing letters; drafting contracts, leases, etc.; drawing up wills; conveyancing Litigation (representing clients in court or tribunal) For an existing partnership (large firm, no limit to no. of partners, even >100) - very specialised, usually commercial and business law, each solicitor dealing in only one aspect of it Crown Prosecution Service – prosecuting criminal actions in court Local government – land law; employment law; Children Act 1989… National government department – education law; environment law,,, Legal advisers in commerce or industry (business) – business law Solicitors’ work

Special notes • Conveyancing: • The “bread and butter” of many firms • But since the Administration of Justice Act 1985 solicitors no longer have a monopoly – licensed conveyancers including barristers • Advocacy: • Solicitors could always speak in magistrates’ and county courts • But now they may : • speak in High Court (Abse v Smith (1986) + Practice Direction); • Appear in higher courts if they gain a “certificate in advocacy” (Courts & Legal Services Act 1990); • Be appointed QC (Access to Justice Act 1999) • Multi-discipline partnerships: • Solicitors may form parterships with e.g. accountants (Courts & Legal Services Act 1990). Allowed by law • But at first not by Bar Council and Law Society. This should change following the Legal Services Act 2007 • See now theLegal Services Act 2007 (slide 11.8)

Background page 119

Legal Executives • These are members of ILEX which was set up in 1963 with the support of the Law Society • The aim was to provide a professional body recognising the work done by non-solicitors working in a solicitor’s office • They are qualified lawyers specialising in a particular area of law and have at least 5 years experience of working under supervision of a solicitor • There are currently around 22,000 legal executives who are members of ILEX • Their status as professionals is recognised throughout the legal profession and the courts • Whilst their right to appear in court is limited, Fellows of ILEX with more than 4 years’ post-qualification experience are equated with similarly experienced solicitors in terms of assessment costs in court cases

Legal Executives Qualification • Most trainee legal executives combine study for the ILEX qualification with practical experience of working in a law firm or legal department, usually being given day release from work to study • There are many starting points for qualifying as a legal executive, the routes varying depending on existing qualification – the usual minimum is 4 GCSEs at grade C or above, including English language

There are 3 types of membership: • The first is a student membership where academic training is started by taking a series of courses covering a range of the areas of law and legal practice encountered in the legal profession • The second type is membership – students apply for enrolment into this grade of ILEX on successful completion of both parts of the ILEX Professional Qualification in Law • This takes on average 4 years part-time study to complete • Finally there is Fellowship – to achieve the full qualification of Fellow, Members of ILEX must have 5 years qualifying employment under the supervision of a solicitor, including a minimum of two years after passing all the examinations

Legal Executives Training • For all ILEX Fellows, CPD is compulsory • Systematic maintenance, improvement and extension of professional and legal skills and personal qualities are required on a continuing basis • Each year a Fellow is required to complete a minimum of 12 hours CPD, rising to 16 hours from 2008 • Members will also be required to undertake CPD: 8 hours from 2008 • At least half the requirement must be met through events relating to their specialist area of work • Failure to comply with these requirements is a breach of ILEX regulations and may result in disciplinary action

Legal Executives Work • Legal executives specialise in a particular area of law such as Conveyancing, wills, matrimonial matters or general litigation • Their day-to-day work is similar to that of a solicitor earning fees for the firm of solicitors for whom they work • Quite often all the work on a particular matter will be handled by a legal executive rather than a solicitor • Legal executives are usually expert in one field of work and concentrate exclusively on that type of work

Legal executives • Work in solicitors’ firms as assistants • Must pass Parts I and II examinations of ILEX • Must also have worked in a solicitors’ or similar firm (e.g. CPS) for five years • Will deal with straightforward cases • May even head his/her own department, e.g. probate • Have limited rights of audience in court, e.g. making applications in county court where the case is not defended • ILEX would like these rights of audience extended re: • matters dealt with by district judges at the county court; • applications to magistrates’ courts in cases started by complaint or application, including family proceedings and licensing and gaming applications; • conducting cases in tribunals

The legal Profession & Other Sources of Advice and Funding