The legal professions

Transcription

1 11 The legal professions This chapter discusses: solicitors their work, qualifications and training; the handling of complaints against solicitors; barristers their work, qualifications and training; senior barristers, known as Queen s Counsel; the handling of complaints against barristers; the background of barristers and solicitors; attempts to increase diversity in the legal professions through educational reforms; the regulation of the professions; changes to the business structures in which the professions are organised; moves towards fusing the solicitor and barrister professions into a single profession; and legal executives their work, qualifications and training.

2 186 Chapter 11 The legal professions Introduction The British legal profession, unlike that of most other countries, includes two separate branches: barristers and solicitors (the term lawyer is a general one which covers both branches). They each do the same type of work advocacy, which means representing clients in court, and paperwork, including drafting legal documents and giving written advice but the proportions differ, with barristers generally spending a higher proportion of their time in court. In addition, some types of work have traditionally been available to only one branch (conveyancing to solicitors, and advocacy in the higher courts to barristers, for example), and barristers are not usually hired directly by clients a client s first point of contact will usually be a solicitor, who then engages a barrister on their behalf if it proves necessary. As we shall see, though, these divisions are beginning to break down. In the past, the two branches of the profession have been fairly free to arrange their own affairs but, over the past 20 years, this situation has changed significantly with the Government directly and indirectly exercising increased controls over the profession, most recently with the passing of the Legal Services Act Solicitors There are around 120,000 practising solicitors. The solicitor profession has been growing rapidly, so that since 1970 it has more than trebled in size. Their governing body is the Law Society. Until recently, the Law Society acted both as the representative of solicitors and as the solicitor s regulator. A Government-commissioned report by Sir David Clementi (2004) raised concerns that this dual function could cause a conflict of interests with the Law Society putting the solicitor first, rather than the consumer, when making decisions regarding the regulation of the profession. In response to these concerns, in 2005 membership of the Law Society became voluntary and the Law Society decided to separate its representative function from its regulatory function. The profession is now regulated by the Solicitors Regulation Authority. This Authority has seven lay members and nine solicitor members. It deals with all regulatory and disciplinary matters, setting monitoring and enforcing standards for solicitors. Its stated purpose is to set, promote and secure in the public interest standards of behaviour and professional performance necessary to ensure that clients receive a good service and that the rule of law is upheld. As a result of these changes, the Law Society has shifted from being a mandatory governing body for solicitors to a voluntary trade association. It aims to protect and promote solicitors by, for example, lobbying Government. Work For most solicitors, paperwork takes up much of their time. It includes conveyancing (legal aspects of the buying and selling of houses and other property) and drawing up wills and contracts, as well as giving written and oral legal advice. Until 1985, solicitors were the only people allowed to do conveyancing work, but this is no longer the case people

3 Figure 11.1 Growth in the numbers of solicitors with practising certificates Photo 11.1 The Law Society Source: Richard Croft Source: Law Society website. Trends in the solicitors profession, Annual Statistical Report 2008 [ The Law Society Solicitors 187

4 188 Chapter 11 The legal professions from different occupations can qualify as licensed conveyancers, and the service is often offered by banks and building societies. Probate work (which concerns wills) can now also be done by banks, building societies, insurance companies and legal executives, and consequently the proportions of work done by solicitors are changing. Solicitors have traditionally been able to do advocacy work in the magistrates court and the county court, but not generally in the higher courts. This situation was changed by the Courts and Legal Services Act 1990 and the Access to Justice Act These Acts put in place the mechanics for equalising rights of audience between barristers and solicitors. Now all barristers and solicitors acquire full rights of audience when they are admitted to the Roll (an official register of qualified lawyers entitled to practice), though they will only be able to exercise these rights on completion of the necessary training. When undertaking advocacy work, solicitors can, since 2008, wear wigs in court, just like barristers, which reinforces the fact that they are of equal status. There are currently 5,500 solicitor-advocates. Many firms are sending their solicitors on courses, making advocacy training compulsory and designating individuals as in-house advocates. Thus, solicitors are increasingly doing the advocacy work themselves rather than sending it to a barrister. Where Government funding has established fixed fees for work, solicitors are faced with a simple choice: keep the money or give it away. Even those solicitors who do not have full rights of audience can appear in the High Court in bankruptcy proceedings, or to read out a formal, unchallenged statement; and in the Crown Court if the case is an appeal from the magistrates court, or has been committed to the Crown Court for sentence, and they appeared in the same case in the magistrates court. They can also appear before a single judge of the Court of Appeal, and in High Court proceedings held in chambers. Traditionally, an individual solicitor did much less advocacy work than a barrister but, as more solicitors gain the necessary training to become solicitor-advocates, this is changing. In any case, solicitors as a group do more advocacy than barristers, simply because 98 per cent of criminal cases are tried in the magistrates court, where the advocate is usually a solicitor. The amount of advocacy done by solicitors is also growing as a result of the removal of many contract and tort cases from the High Court to the county court, following the Courts and Legal Services Act Solicitors can, and usually do, form partnerships with other solicitors. Alternatively, since 2001, they can form a Limited Liability Partnership. Under an ordinary partnership a solicitor can be personally liable (even after retirement) for a claim in negligence against the solicitor firm, even if he or she was not involved in the transaction giving rise to the claim. Under the Limited Liability Partnership (LLP) a partner s liability is limited to negligence for which he or she was personally responsible. Law firms are increasingly converting into LLPs, though some are reluctant to do so as it would require them to be more open about how much senior staff earn. Solicitors work in ordinary offices, with, in general, the same support staff as any officebased business, and have offices all over England and Wales and in all towns. Practices range from huge London-based firms dealing only with large corporations, to small partnerships or individual solicitors, dealing with the conveyancing, wills, divorces and minor crime of a country town. The top City law firms are known as the Magic Circle and a recent Sweet and Maxwell survey found nearly a quarter of all law students wanted to join one when they qualified, though in practice a much smaller percentage will succeed in doing do. Most law firms are small, with 85 per cent of them having four or fewer

5 Solicitors 189 partners, and nearly half having only one partner. Some solicitors work in law centres and other advice agencies, Government departments, private industry and education rather than in private practice. Those solicitors who are employed in a salaried position to provide legal advice to their employer (such as a private company) are known as in-house lawyers. The number of in-house lawyers has been growing rapidly, so that in 2011 a quarter of all practising solicitors were in-house lawyers. Figures published in the journal Commercial Lawyer in September 2000 show that an elite group of 100 City solicitors working in central London are earning more than 1 million each per year. In 2008, partners in a city law firm charged their clients between 600 and 750 an hour. But these figures have to be seen in the context of a profession that has over 120,000 members. The average annual salary for a solicitor is 51,463. Qualifications and training Almost all solicitors begin with a degree, though not necessarily in law. A number of law schools introduced an admissions test in 2004, the National Admissions Test for Law (LNAT), to help select students onto their law degrees. The test consists of a series of multiple choice comprehension questions and an essay question. The use of aptitude tests for selection purposes is controversial. The arguments in favour of their use are that they are quick and cheap to run and provide additional information about students potential, to distinguish between students who have achieved A grades in all their A levels. Critics point out that they provide only a limited portrait of a candidate s skills and miss out important skills needed in law students such as their level of conscientiousness. Practice and coaching on aptitude tests can increase people s scores significantly which can introduce bias in favour of those from privileged family backgrounds. Although no minimum degree classification is laid down, increased competition for entry to the profession means that most successful applicants now have an upper second class degree, and very few get in with less than a lower second. Students whose degree is not in law have to take a one-year course leading to the Common Professional Examination (CPE). It is possible for non-graduate mature students, who have demonstrated some professional or business achievements, to enter the profession without a degree. They take a broad, two-year CPE course. Only a very small number of people take this route and it is not a route the Law Society encourages they suggest that, for most people, it is worth putting in the extra year to do a law degree and enter in the conventional manner, especially bearing in mind that many universities and colleges now offer mature students law degrees which can be studied part time, so that students do not have to give up paid employment. It is also possible for legal executives (discussed at p. xxx) to become solicitors without first taking a degree course. The next step, for law graduates and those who have passed the CPE, is a one-year Legal Practice Course, designed to provide practical skills, including advocacy, as well as legal and procedural knowledge. Since 2009 the LPC is divided into two stages. Stage one covers the core areas: business law and practice; property law and practice; litigation; professional conduct and regulation; taxation; wills and administration of estates; and skills elements (writing, drafting, interviewing, advising, advocacy and practical legal research). Stage two consists of three vocational electives which can be studied at different institutions if wished. The two stages will normally be completed within a year, but students can take breaks in their studies as long as they complete the course within

6 190 Chapter 11 The legal professions five years. Fees for the LPC are between 5,000 and 9,000, yet both the CPE and the Legal Practice Course are eligible only for discretionary LEA grants, and are not covered by the Government s student loan scheme. The Law Society provides a very small number of bursaries, and has also negotiated a loans scheme with certain high street banks, which offers up to 5,000, that students do not begin paying back until they have finished studying; a few large London firms also offer assistance to those students they wish to attract into employment. The vast majority of students, however, are obliged to fund themselves or rely on loans. After passing the Legal Practice exams, the prospective solicitor must find a place, usually in a firm, to serve a two-year apprenticeship. There can be intense competition for these places, especially in times of economic difficulty when firms are reluctant to invest in training; in , there were only 4,170 traineeships on offer, for the almost 7,000 LPC students. Formally known as articles, the two-year period is now called a training contract, and includes a 20-day practical skills course, building on subjects studied during the Legal Practice Course. The work of a trainee solicitor can be very demanding, and a survey carried out for the Law Society found that a third work more than 50 hours a week. Trainee solicitors should receive a minimum salary of 15,332 outside London and 17,110 in London. In practice, the average salary for a trainee solicitor is 20,925. The Solicitors Regulation Authority has announced that it will abolish the mandatory minimum wage in Instead, trainees could be paid the national minimum hourly rate of 6.08 an hour (approximately 11,000 a year) if a law firm so chose. It is possible to become a solicitor without a degree, by completing the one-year Solicitors First Examination Course, and the Legal Practice Course, and having a five-year training contract. Legal executives (see p. xxx) sometimes go on to qualify in this way. The majority of solicitors qualifying each year are still law graduates in , 64 per cent of those admitted to the Law Society Roll had a law degree, with only 19 per cent being graduates in subjects other than law. However, the Law Society says that the non-law degree and CPE route is becoming more popular, with a third of places on Legal Practice Courses currently being taken by people aiming to qualify this way. Legal academics have expressed some concern about this, but the Law Society points out that, in some years, pass rates for non-law graduates in Solicitors Finals have been higher than those for law graduates. Making up the remaining 17 per cent are Fellows of the Institute of Legal Executives, lawyers from overseas, solicitors transferring from Scotland or Northern Ireland and ex-barristers. All solicitors are required to participate in continuing education throughout their careers. They are required to do 16 hours a year, with the subjects covered depending on each individual s areas of interest or need. Records must be kept of courses attended. Only 25 per cent of the requirements must be spent attending relevant courses. The remainder of the time can be used undertaking a range of other activities, such as carrying out research and watching DVDs or webcasts. The Solicitors Regulation Authority is currently looking at ways to improve the CPD system. While the current system has the benefit of flexibility, it is considering whether compliance should be monitored more closely, whether there should be a shift from the emphasis on the number of hours spent on CPD to the outcomes achieved and whether solicitors should be required to undertake CPD activities in specific topic areas. The aim of any reforms in the system will be to create a scheme that properly helps to maintain and improve solicitors competence, performance and ethical conduct, which is proportionate and targeted.

7 Figure 11.2 Qualifying as a solicitor Solicitors 191 Lord Woolf has observed that the solicitor profession is becoming increasingly polarised depending on the nature of the work carried out, with lawyers working in City firms earning significantly more than those in high street practices. Specialist LPC courses are now being offered for City law firms. Lord Woolf has criticised this development, as he fears it could undermine the concept of a single solicitor profession with a single professional qualification. Such courses may, over time, create a barrier which prevents students from other colleges from entering a big commercial practice. Lord Woolf has observed that, given the quality of the trainees attracted by the City firms, it should be possible for them to provide any enhanced training they require after the end of the Legal Practice Course. Certain lawyers qualified abroad, particularly Europe, and English barristers can convert to become English solicitors by passing the Qualified Lawyers Transfer Scheme (QLTS). In 2009, a quarter of admissions as a solicitor (about 2,000 lawyers) was through the old version of this route. Many of the lawyers entering by this route are employed in international City law firms keen to employ talent from abroad. Applicants under this route must be fully qualified to practise as a lawyer in a country where the role of the lawyer is similar to that of England and Wales. They will have to pass a range of tests to show that they have the same knowledge and skills as lawyers qualified in the English system. Promotion to the judiciary In the past, solicitors were only eligible to become circuit judges, but the Courts and Legal Services Act 1990 has opened the way for them to become judges in the higher courts (see Chapter 10: The judges).

8 192 Chapter 11 The legal professions Topical issue Claims management companies Claims management companies are companies that find people who have a legal problem (for example, by placing adverts on the television and radio asking whether you have suffered an accident in the last three years). They then refer these people to solicitors, who pay the company on average 800 for the referral. Insurance companies have become involved in this business because after a road accident they will have all the victims details and are making billions of pounds in selling this information to lawyers. The Law Society relaxed its restrictions on advertising in 1986, but law firms have been slow to take up this opportunity, relying heavily on the advertising of claims management companies instead. In the past, the payment of referral fees had been banned, but there was a strong suspicion that this ban was being breached in practice. In 2004, the Law Society decided to lift this ban, providing the Law Society an opportunity to control how referral fees were used. Many people who suffer a personal injury respond to an advertisement placed by a claims management company. Personal injury litigation is no longer spread evenl across law firms, but instead a smaller number of law firms are paying the claims management companies to do large quantities of personal injury cases. This has led to investment in computer technology to manage the cases which are more likely to be dealt with by lawyers who are specialists in the field; but there is less face-to-face contact with the client. Conveyancing work is also increasingly reaching lawyers through a referral arrangement. Looking on the positive side, claims management companies can be seen as having successfully broadened access to justice. However, there has been concern that some of these companies have behaved inappropriately, for instance, by encouraging members of the public to start litigation when they do not have a genuine claim, or by pushing people to take out expensive loans to pay for legal insurance premiums they cannot really afford. Most recently, there have been a large number of complaints about the tactics of companies pursuing claims regarding the mis-selling of Payment Protection Insurance. To try to put an end to unscrupulous practices by claims management companies they are now required to have a licence and are regulated by the Claims Management Regulation Unit in the Ministry of Justice in accordance with provisions in Part 2 of the Compensation Act They have to comply with new rules of conduct covering advertising, marketing, soliciting of business and complaints procedures. Any unauthorised provision of claims services is punishable by up to two years imprisonment. There are a number of exceptions from the requirement for authorisation under the 2006 Act to cover professions whose conduct is already regulated, for example, insurance companies and trade unions. Lord Jackson s report into court costs which was published in 2010 recommended that referral fees be banned because he thought they added to the client s legal costs unnecessarily. Lord Young was asked by the Prime Minister to investigate the rise of the compensation culture over the last decade. His report Common Sense, Common Safety (2010) recommended restricting the operation of referral agencies, including controlling the volume and type of advertising. The Law Society would like referral fees

9 to be banned, arguing that the choice of lawyer should be made according to quality and not according to who has paid the most to a claims management company, while the Solicitors Regulation Authority is opposed to a ban. The Legal Services Board has published a report on the subject entitled Referral fees, referral arrangements and fee sharing (2011) in which it ruled out a complete ban; instead it decided that front-line regulators could impose their own bans if they could provide sufficient evidence to explain their actions. The Board was concerned that a complete ban would push unethical practices underground, with payments being made under the counter. Instead, it is pushing for more openness about the payment of referral fees so that the public understands what is going on the agreements between lawyers and claims managements companies should be in writing and a client should be told how much the law firm paid to have their case and that they could choose a different lawyer to avoid paying that fee. In practice one regulator alone will not choose to ban referral fees as this would place its members at a disadvantage to other professionals with a different regulator. The Government has now decided that referral fees should be banned with the hope that this could reduce the cost of motor insurance, which all car drivers have to pay for. A provision to this effect has been added to the Legal Aid, Sentencing and Punishment of Offenders Act This ban will only apply to the personal injury sector. Some have suggested that it should be extended to, for example, conveyancing, or be a blanket ban on all referral fees. With the move to alternative business structures for lawyers (discussed on p. 209) in 2011, it is likely that claims management companies will increasingly employ lawyers in house so there will be no need for referral fees to be paid. Also, established brands (such as insurance companies) entering into the legal service market as an alternative business structure may not need to use claims management companies because they will have their own developed marketing strategy. Barristers Barristers 193 There are around 15,000 barristers in independent practice, known collectively as the Bar. Its governing body is the Bar Council, which acts as a kind of trade union, safeguarding the interests of barristers. The Bar Council, like the Law Society, has tried to separate its representative functions from its regulatory functions, and has therefore established a Bar Standards Board responsible for regulating the Bar. The Board makes the rules and takes the decisions affecting entry to, training for, and practice at the Bar, including disciplinary issues. Work Advocacy is the main function of barristers, and much of their time will be spent in court or preparing for it. Until the changes made under the Courts and Legal Services Act in 1990, barristers were, with a few exceptions, the only people allowed to advocate in the superior courts the Supreme Court, the Court of Appeal, the High Court, the Crown Court and the Employment Appeal Tribunal. We have seen that this has now changed, and they are

10 194 Chapter 11 The legal professions increasingly having to compete with solicitors for this work. Barristers also do some paperwork, drafting legal documents and giving written opinions on legal problems. Barristers must be self-employed and, under Bar rules, cannot form partnerships, but they usually share offices, called chambers, with other barristers. All the barristers in a particular chambers share a clerk, who is a type of business manager, arranging meetings with the client and the solicitor and also negotiating the barristers fees. Around 70 per cent of practising barristers are based in London chambers, though they may travel to courts in the provinces; the rest are based in the other big cities.a new commercial vehicle in which barristers can work is a ProcureCo (discussed on p. xxx). Not all qualified barristers work as advocates at the Bar. Like solicitors, some are employed by law centres and other advice agencies, Government departments or private industry, and some teach. Some go into these jobs after practising at the Bar for a time, others never practise at the Bar. Traditionally, a client could not approach a barrister directly, but had to see a solicitor first, who would then refer the case to a barrister. In 2004, the ban on direct access to barristers was abolished. Members of the public can now contact a barrister without using a solicitor as an intermediary. Barristers are today able to provide specialist advice, drafting and advocacy without a solicitor acting as a middleman, although the management of litigation will still generally be handled by solicitors. Direct access to the client is permitted where the barrister has been in practice for three years, and has undertaken a short course preparing them for this new mode of operation. Barristers work under what is called the cab rank rule. Technically, this means that if they are not already committed for the time in question, they must accept any case which falls within their claimed area of specialisation and for which a reasonable fee is offered. In practice, barristers clerks, who take their bookings, may manipulate the rule to ensure that barristers are able to avoid cases they do not want to take. The cab rank rule does not apply where a barrister is approached directly by a potential client, rather than being referred by a solicitor. In these circumstances, barristers must follow a principle of nondiscrimination, under which they must not refuse work because of the way it is funded or because the client is unpopular. Barristers pay varies considerably. Average earnings of barristers are apparently very high at 178,000 a year. But those working in the legal aid sector are earning much less than those relying on private clients. The Bar Council has suggested that some recently qualified junior barristers who practise in crime can be earning as little as 10,000 a year and even those with established practices may be earning around 40,000 a year. Qualifications and training The starting point is (at least) an upper second class degree. If this degree is not in law, applicants must do the one-year course leading to the Common Professional Examination (the same course taken by would-be solicitors with degrees in subjects other than law). Mature students may be accepted without a degree, but applications are subject to very stringent consideration, and this is not a likely route to the Bar. All students then have to join one of the four Inns of Court: Inner Temple; Middle Temple; Gray s Inn; and Lincoln s Inn, all of which are in London. The Inns of Court first emerged in the thirteenth century and their role has evolved over time. Their main functions now cover the provision of professional accommodation for barristers chambers

11 Barristers 195 and residential accommodation for judges, discipline, the provision of law libraries and the promotion of collegiate activities. Students take the year-long Bar Professional Training Course (BPTC, previously known as the Bar Vocational Course). Until 1996 this course was only available at the Inns of Court School of Law in London, but can now be taken at eight different institutions around the country. The vocational course was reviewed by the Bar Standards Board which published a report, Entry to the Bar, in 2007 and some changes to the course were made. The course includes oral exercises and tuition in interviewing and negotiating skills and, as with solicitors training, more emphasis has been laid on these practical aspects in recent years. The 2007 report suggested that consideration should be given as to whether students should be required to have a 2:1 degree in order to undertake the course. It also suggested that students should be required to sit an entrance examination checking their aptitude for the barrister profession, by looking in particular at their communication and written skills. This raises the same debates as for the LNAT aptitude test (discussed on p. xxx.) The report recommended that there should be a single, unified final examination, set and marked externally and overseen by a board of examiners, to deal with the perceived differences in standards between different providers. Following this report, the Bar Standards Board stated in 2011 that it intended to introduce an aptitude test and an English language test to reduce the number of students taking the BPTC. Only discretionary Local Education Authority grants are available for this year and the Common Professional Examination, and neither are covered by the Student Loan Scheme. The Inns of Court between them provide around 4 million in sponsorship. Approximately 25 per cent of students will receive assistance from their Inn, with about half of these obtaining a sum of between 3,000 and 6,000. Around 1,400 people take the BPTC each year, and each one has to pay approximately 12,000 for the course alone, and then find living expenses on top. Students have to dine at their Inn 12 times. This rather old-fashioned and much criticised custom stems from the idea that students will benefit from the wisdom and experience of their elders if they sit among them at mealtimes. The dinners are linked to seminars, lectures and training weekends, in order to provide genuine educational benefit. After this, the applicant is called to the Bar, and must then find a place in a chambers to serve his or her pupillage. This is a one-year apprenticeship in which pupils assist a qualified barrister, who is known as their pupil master. In the past funding for pupillage has been a problem. But pupils should now normally be paid a minimum of 10,000 a year. Competition for pupillage places can be fierce, with only 470 pupillage vacancies available each year for the 1,400 students completing the BPTC course. Pupillage is usually done in two six-month blocks, with different pupil masters and usually in different chambers. Pupils are required to take courses on advocacy, advice to counsel and forensic accountancy, as part of the increased emphasis on practical skills. Pupillage completed, the newly qualified barrister must find a permanent place in a chambers, known as a tenancy. This can be the most difficult part, and some are forced to squat remaining in their pupillage chambers for as long as they are allowed, without becoming a full member until they find a permanent place. There are only around 300 tenancies available each year one to every two pupils. In 1993, the Royal Commission on Criminal Justice recommended that barristers should have to undertake further training during the course of their careers, after noting

12 196 Chapter 11 The legal professions that both preparation of cases and advocacy were failing to reach acceptable standards. In response, the Bar Council introduced a continuing education programme. Barristers must now complete a minimum of 45 hours of continuing education in the prescribed subjects by the end of their first three years of practice. They have to study four subjects: Case Preparation and Procedure; Substantive Law or Training relating to Practice; Ethics; and Advocacy Training. The Bar Council has also introduced an established practitioners programme under which all barristers who have been qualified for over three years must undertake each year a minimum of 24 hours study. Promotion to the judiciary Suitably experienced barristers are eligible for appointment to all judicial posts, and the majority of current judges have practised at the Bar (for details of appointments, see Chapter 10: The judges). Queen s Counsel After 10 years in practice, barristers and solicitors may apply to become a Queen s Counsel, or QC (sometimes called a silk, as they wear gowns made of silk). This usually means they will be offered higher-paid cases, and need do less preliminary paperwork. The average annual earnings of a QC are 270,000, with a small group earning over 1 million a year. At the moment most QCs are barristers, though not all barristers attempt or manage to become QCs those that do not are called juniors, even up to retirement age. Juniors may assist QCs in big cases, as well as working alone. Since 1995, solicitors can also be appointed as QCs, but there are currently only ten QCs who come from the solicitor profession. The future of the QC system was put in doubt when the Office of Fair Trading in 2001 suggested the system was merely a means of artificially raising the price of a barrister s services. The Bar Council counter-argued that, actually, the system was an important quality mark which directs the client to experienced, specialist lawyers where required. In the past the appointment process for QCs was similar to that for senior judges, including the system of secret soundings, and with civil servants, a Cabinet Minister and the Queen all involved. In 2003 the appointment process was suspended, following criticism of the QC system. Appointments were recommenced in 2004 but relying on a new appointment process. The Government is no longer involved. Instead, responsibility for appointments has been placed in the hands of the two professional bodies: the Bar Council and the Law Society. They select candidates on the basis of merit, following an open competition. The secret soundings system has been abolished and replaced by structured references from judges, lawyers and clients who have seen the candidate in action. The title of QC has been retained for the time being, though the Law Society would like to see it replaced with another name, to mark a clean break from the past, when the system clearly favoured barristers. Commenting on the new appointment procedures, the Law Society president stated:

13 Topical issue Figure 11.3 Qualifying as a barrister Barristers 197 Consumers can be assured that holders of the QC designation under the new scheme have been awarded it because of what they know not who they know, and that their superior expertise and experience has been evaluated by an independent panel on an objective basis. The current view of the Ministry of Justice is that the badge of QC is a well-recognised and respected kitemark of quality both at home and abroad. The existence of QCs helps to enhance London s status as the centre of international litigation and arbitration. Quality assurance scheme for advocates There has been some concern about the quality of advocacy in the courts. The quality of some solicitor advocates has been questioned, particularly by barristers. Lord Carter produced a report in 2006 in which he stated that market forces alone can no longer be relied upon to eliminate under-performing advocates. The Law Society asked a consultant, Nick Smedley, to undertake a review of this issue (2009). He concluded that the qualification process needed to be tightened up, so that solicitor-advocates received more intense training before they could undertake higher rights of audience. The regulators of the barristers, solicitors and legal executives are together establishing a quality assurance scheme for advocates (QASA) to respond to these concerns. The details of the scheme are currently being finalised and the scheme is expected to be up and running in Initially it will only apply to criminal law advocates. Under the scheme, everybody wishing to undertake criminal law advocacy work (both prosecution and defence) will have to register under QASA. The aim is to systematically assess the quality of advocacy measured by agreed standards regardless of the advocate s previous education and training. Advocates will be accredited at one of four levels. A

14 198 Chapter 11 The legal professions Level 1 advocate will be able to undertake work in the magistrates, court and a Level 4 advocate will be able to undertake the most serious cases in the Crown Court. Advocates may progress through the four levels (subject to rights of audience of their professional status) by demonstrating through formal assessments that they meet the required standard for the next level. Advocates who choose to remain at their current level will be required to re-accredit at that level every five years. Assessment will be by continuing professional development tests, independent assessors and judges to determine whether they are competent to act at a certain level. Trained judges in the Crown Courts may assess advocates of their own initiative if they have concerns about performance, and submit such evaluations directly to the regulators for consideration. If there is sufficient evidence to conclude that an advocate is acting above their competence, they can undertake training to address concerns. If a regulator decides that an advocate is not competent, the advocate s accreditation at that level can be removed and, in appropriate circumstances, they can be given accreditation at a lower level. There would be a right to appeal in these circumstances. One area of controversy has been the involvement of judges in this process. Those in favour of judicial involvement point to the benefits of assessing advocates at work in a live situation rather than artificially in an assessment centre. Also, as the judges are already being paid to watch the advocates their involvement would be relatively cheap. Solicitors fear that, as many judges originally trained as barristers, they will favour the Bar. Others have argued that judges should be focusing on determining the innocence or guilt of the defendant before them in court, rather than being distracted by grading the quality of the advocates. Complaints Until recently the individual professions were responsible for dealing with complaints, but these procedures were heavily criticised. Problems with the handling of complaints were highlighted by the fallout from the Coal Health Compensation Scheme. This scheme was set up by the Labour Government in 1999 to compensate miners for respiratory Figure 11.4 Complaint categories investigated by the Ombudsman Source: Annual report of the Legal Services Ombudsman for England and Wales 2010/2011, p. 13

15 Barristers 199 disease and vibration white finger suffered as a result of working for the national coal industry. The scheme was expected to cost the Government 1 billion. Solicitors were criticised for deducting large sums of money as legal fees from money that was intended to be paid to their clients as compensation. In 65 per cent of the cases that had been settled by March 2008, the solicitors legal fees had been greater than the compensation received by the client. Many complaints were made to the Legal Complaints Service but there was criticism of the inconsistent way these complaints were handled. Sir David Clementi (2004) looked at the complaints system and concluded that it favoured the lawyer over the complainant. He recommended establishing a completely independent body that would consider complaints against all lawyers. The position of Legal Ombudsman was therefore created in 2010 to investigate and resolve complaints about the service provided by lawyers, including barristers and solicitors. The Legal Ombudsman provides a free service and is required to look at complaints in a fair and independent way. Complaints should be made to the lawyer first and it is only if the internal complaints handling procedure is unable to resolve the dispute that the complaint should be made to the Legal Ombudsman. Many complaints about lawyers arise from a collision between what lawyers are used to providing and what the modern users of professional services are increasingly accustomed to expect. When investigating a complaint, the key questions the Ombudsman asks are: Was the information the lawyer provided clear? Did the lawyer treat their client fairly? Did the lawyer keep their client advised so that they could make informed decisions? The Ombudsman can recommend any remedy from a simple apology, a refund, or up to 30,000 compensation. It resolves the majority of complaints informally, but where this is not possible the Ombudsman imposes a decision on the parties. The Legal Ombudsman publishes the names of lawyers against whom there has been a pattern of complaints or where this is in the public interest, under a process of naming and shaming. By doing this the Ombudsman is both providing a remedy for the individual who submitted the complaint, but also providing a service to the wider public by providing them with information when choosing which solicitor to instruct. This in turn should act as an incentive for lawyers to maintain high standards. The Legal Ombudsman is, thereby, providing a level of transparency which might be a viable alternative to market-driven developments alternatives such as the controversial Solicitors from Hell website, where some clients chose to publish their complaints damaging some law firms reputations. At the moment only the lawyer s clients can make a complaint to the Legal Ombudsman. The Legal Services Board Consumer Panel has recommended that third parties should also be able to make a complaint, for example, a home owner whose house sale fell through because of delays by the purchaser s lawyer, or where the claimant s lawyer used bullying tactics against the defendant during litigation proceedings. The aim would be to encourage ethical conduct and raise professional standards. At the moment it is difficult for third parties to get a remedy against lawyers. Lawyers can also be sued for negligent work like most other professionals. Following the House of Lords judgment in Arthur JS Hall & Co v Simons (2000) lawyers no longer enjoy any immunity from liability for work connected to the conduct of a case in court. Until that case, barristers enjoyed immunity from liability for negligent work in court. This immunity had been recognised by the courts in the case of Rondel v Worsley (1969). The main justification for the immunity was that a negligence action would effectively result in a retrial of the case that gave rise to the allegation of negligence, which would damage

16 200 Chapter 11 The legal professions KEY CASE the certainty and finality of the original verdict. In other words, clients would seek to use litigation against their barrister to reopen indirectly litigation that had already been lost. The immunity of barristers from liability for negligence was dramatically abolished by the House of Lords in Arthur JS Hall & Co v Simons (2000). There was no longer any good reason to treat barristers differently from other professionals their negligence could give rise to liability in tort. Legal Principle Barristers can be liable for negligent work. Background of barristers and solicitors Lawyers have, in the past, come from a very narrow social background, in terms of sex, race and class; there have also been significant barriers to entrants with disabilities. In recent years the professions have succeeded in opening their doors to a wider range of people, so that they are more representative of the society in which they work. White, middle-class men dominate in most professions, excluding many people who would be highly suited to such careers. A narrow social profile created particular problems for the legal professions in the past. First, it meant that the legal professions have been seen as unapproachable and elitist, which put off some people from using lawyers and thereby benefiting from their legal rights (this issue is examined in Chapter 17). Secondly, the English judiciary is drawn from the legal professions and, if their background is narrow, that of the judiciary will be too (this issue is examined in Chapter 10). Increasingly, the professions are becoming representative of the society in which they function. The Ministry of Justice has set up a research project called Barriers leading into law. This project will track 32 law students for a year to help understand the barriers to becoming lawyers faced by people from different backgrounds. Research carried out by InterLaw Diversity Forum (2011) has found a general improvement in attitudes to gay lawyers within the profession. The Legal Services Board has issued a consultation paper in which it has suggested that law firms and barristers chambers should provide published data on the age, race, disability, religion, gender, sexuality, parental status and socio-economic background of every employee. It is hoped that this would provide consumers with better information when selecting a lawyer. Women Women were only allowed to become lawyers with the passing of the Sex Disqualification (Removal) Act 1919, which allowed women to enter all professions. Up to then, the Law Society had been anxious to keep women out to protect the financial interests of the

17 Background of barristers and solicitors 201 existing male solicitors. Thirty-five years later there were still only 350 practising women solicitors. At that time, many male solicitors with their own practices saw training for the legal profession as an easy way to educate and provide for their daughters and their own retirement. Thus these female solicitors tended to work in family firms. The number of women in the professions has increased dramatically since the 1970s. In 1987 women accounted for less than 20 per cent of all solicitors; now 46 per cent of solicitors are women. Today there are more women qualifying for the solicitor profession than men, and 61 per cent of all law students are female. For the barrister profession in 2010, equal numbers of men and women qualified to practise and 35 per cent of barristers are women. The problem now, for women, is less about entry into the professions and more about pay, promotion and working conditions. Female solicitors earn less than male solicitors. Right from the beginning of their career men are earning more than women, with male trainees having a starting salary which is 5.7 per cent more than female trainees. Statistics published by the Law Society show that male solicitors are earning 50 per cent more than female solicitors: on average a male solicitor is earning 60,000 compared with 41,000 for a female solicitor. Fewer women are being promoted to become partners in their law firm. Almost 50 per cent of male solicitors are partners in their firm, compared to only 21 per cent of female solicitors. This cannot simply be explained by the fact that the average age of women solicitors is younger: 88 per cent of male solicitors in private practice with years of experience were partners, compared with 63 per cent of female solicitors with the same experience. There is a similar problem in the barrister profession. In 2010 only ten per cent of Queen s Counsel were women. A growing problem exists of women choosing to leave the profession early. This is either because they find it impossible to combine the demands of motherhood with a legal career or because they are frustrated at the glass ceiling which seems to prevent women lawyers from achieving the same success as their male counterparts. Solicitor firms do not tend to have provisions in place for flexible or part-time working for solicitors. Those that do tend to discourage solicitors from taking advantage of them (Research Study No. 26 of the Law Society Research and Policy Planning Unit (1997)). Research by Insight Oxford (2011) found that the profession s long hours culture disadvantaged those with family responsibilities. The female lawyers questioned stated that the biggest barrier to advancing their career was the mindset and values of the senior partners and there was no real impetus for change from male colleagues. By the ninth year after qualification, 40 per cent of women have left the profession. There is a risk that young women are in effect being employed as cheap, temporary labour. The Law Society has recognised that in order to retain women and to ensure that the investment in their training is not lost, the profession must consider more flexible work arrangements (including career breaks) to allow women (and men) to continue to work alongside caring responsibilities. The solicitor, Elizabeth Cruickshank (2007), has commented: We have been encouraged to think that there would be a trickle up effect because of the sheer numbers of women entering the profession, so that we would no longer be held back by the sticky floor, bump our heads against the glass ceiling or fall off the glass cliff. Reflection shows that apparently the floor, the ceiling and the cliff are still in place and that the trickle upwards is almost inexorably slowed by social gravity.

18 202 Chapter 11 The legal professions Ethnic minorities Again, the picture is improving. The number of solicitors from ethnic minority groups has increased recently. In 2010, 11 per cent of practising solicitors came from an ethnic minority. This compares with 4 per cent in In 2010, 20 per cent of trainee solicitors were from a minority ethnic group. There are still, however, very few male Afro-Caribbean solicitors. As regards the Bar, in 1989, 5 per cent of practising barristers came from an ethnic minority; by 2010 this had increased to ten per cent. This compares favourably with other professions. Regrettably, there have in the past been reports in the media of black candidates doing less well in legal examinations than white candidates, particularly at the Bar. It has been suggested that oral examinations may be particularly vulnerable to subjective marking. The Law Society has recognised that obstacles still exist for ethnic minorities in the solicitor profession. This is because most solicitor firms do not follow proper recruitment procedures, do not have an equal opportunities policy and practice, and the levels of discrimination within society at large are reflected in the perception of solicitors and their clients. Only 23 per cent of black and minority ethnic solicitors are partners in their firms, compared to 39 per cent of white solicitors. Just 3.5 per cent of partners in the top 150 law firms are from an ethnic minority. Research carried out for the Legal Services Commission in 2008 suggests that ethnic minority barristers were earning on average 50,000 less than their white counterparts. Statistics published by the Law Society show that white solicitors are earning 25 per cent more than black solicitors: on average a white solicitor is earning 60,000 compared with 41,000 for a black solicitor. Black solicitors often practice in areas of work such as legal aid and in small law firms which are coming under increased economic pressure, with the risk that they will be forced out of the profession. Figure 11.5 The ethnic origin of solicitors from minority ethnic groups, 2009 Source: Law Society. Fact Sheet: Minority Ethnic Group Solicitors 2009 [ The Law Society

19 Class Background of barristers and solicitors 203 The biggest obstacle to a career in law now seems to be a person s social background. Law degree students are predominantly middle class, with less than one in five coming from a working class background. In 2009, an official report, Unleashing Aspiration: The Final Report of the Panel on Fair Access to the Professions, identified that lawyers were increasingly coming from wealthy families. Lawyers born in 1958 tended to come from families whose income was 40 per cent higher than average. Lawyers born in the 1970s grew up in households whose income was 64 per cent higher than average, so the problem is getting worse rather than better, with even average middle-class students finding it difficult to build a career in law. A 1989 Law Society Survey found that over a third of solicitors had come from private schools, despite the fact that only 7 per cent of the population attend such schools. In recent years, more lawyers have been educated in the state sector, but this progress could soon be reversed. This is because the lack of funding for legal training has made it very difficult for students without well-off parents to qualify, especially as barristers. Research carried out by Louise Ashley (2010) of City University London has concluded that part of the problem for working-class candidates is that law firms tend to recruit applicants on the basis of how they look and sound. Law firms believe that clients have difficulty in assessing the quality of the legal advice they have received. They therefore consider that portraying a high class image is important to convincing the client that they have received a good quality service. The research suggests that this attitude might be misguided because it is restricting the firm to a limited range of candidates which have copy-cat skills that only attract one segment of the market. If the firms diversified their recruitment this could be a means of diversifying their market. One possible source of change for the future is the number of part-time law degrees and Legal Practice Courses now available to mature students, who tend to come from a much broader range of backgrounds than those who attend university straight from school. Students on part-time courses can support themselves by continuing to work while they study in the evenings and at weekends. Disability Much attention has been paid to the under-representation of working-class people, ethnic minorities and women in the legal profession, but disabled people are less often discussed. Skill as a lawyer requires brains, not physical strength or dexterity, yet it seems there are still significant barriers to entry for disabled students, particularly to the Bar. Part of the problem is simply practical: a quarter of court buildings are over 100 years old and were never designed to offer disabled access. Most now have rooms adapted for disabled people, but need notice if they are to be used, which is hardly feasible for junior barristers, who often get cases at very short notice. The other main barrier is effectively the same as that for ethnic minorities, working-class people and women: with fierce competition for places, traditional applicants have the advantage. Steps are being taken to address the problems of disabled applicants to the Bar. In 1992, the Bar s Disability Panel was established. This offers help to disabled people who are already within the profession or are hoping to enter it, by matching them to people who have overcome or managed to accommodate similar problems. The Inner Temple

20 204 Chapter 11 The legal professions Topical issue also gives grants for reading devices, special furniture and other aids, with the aim of creating a level playing field for disabled and able-bodied people. Legal Education and Training Review In 2011 a Legal Education and Training Review (LETR) was established by the Solicitors Regulation Authority (SRA), the Bar Standards Board (BSB) and ILEX Professional Standards (IPS). The Review is looking at the education and training requirements of the legal professions for the provision of legal services in England and Wales. The legal services sector is experiencing an unprecedented degree of change. LETR is intended to ensure that the future system of legal education and training will be effective and efficient in preparing legal service providers to meet the needs of consumers. It is looking at all stages of legal education and training, including the academic stage of qualification at University, professional training and continuing professional development post qualification. The primary objective of the Review is to ensure that England and Wales have a legal education and training system which protects and promotes the interests of consumers and to ensure an independent, strong, diverse and effective legal pro fession. The final report with its key recommendations is expected to be published in December It will be for each front-line regulator to decide what action to take in response to the review recommendations. It is possible that this review could recommend a common system of education and training for solicitors and barristers. This would facilitate movement between the two professions and avoid specialisation in the early years of qualifying. The Legal Services Consumer Panel has criticised the general practitioner style of training for lawyers in its submission to LETR: The GP-style qualification model fails to respond to a market which is hugely varied in terms of its provider base and range of activities. It is impossible for a single qualification to prepare an individual for the sheer diversity of roles they might, perhaps much later, come to occupy. It is in danger of providing adequate preparation for nothing instead of providing a readiness to tackle anything the principle to which it aspires. The Panel has argued that a modular approach to qualification should be taken, where those approved to practise would gain a limited permission to provide certain legal services, but authorisation to provide others would be granted separately on the completion of further training. The Consumer Panel would like to see a single regulatory badge under which the professional titles of solicitor and barrister would lose meaning. While the professional titles have powerful brand appeal for consumers and strongly influence their choice of legal adviser, they create misleading distinctions between regulated providers. For example, a solicitor is likely to be seen by the average consumer wishing to buy a home as being more qualified than a licensed conveyancer for this task, but both have demonstrated they are sufficiently competent to perform the role. This review is the final stage in a long discussion on the future of legal education and training. There has been particular concern that the current arrangements favour applicants from wealthy backgrounds who can afford to undertake the lengthy and expensive training process. The Law Society has observed: