1. Outline the qualifications and training required to become a barrister and solicitor, and describe the work each profession carries out.

Transcription

1 AQA LAW - AS EXAMINATIONS Unit 1 - LAW01 - Law Making and the Legal System THE LEGAL PROFESSIONS BARRISTERS and SOLICITORS 1. Outline the qualifications and training required to become a barrister and solicitor, and describe the work each profession carries out. Becoming a solicitor There are more than solicitors practising in England and Wales. Solicitors are controlled by their own professional body, the Law Society. In order to become a solicitor, most people take a university degree, not necessarily in Law. If another degree is taken, for example in History, a further year s study is taken to pass the Graduate Diploma in Law (GDL), formerly known as the Common Professional Examination. The next part of the course is the Legal Practice Course (LPC) which is a one-year full-time course (or 2 years part-time). The LPC includes training in skills such as interviewing clients, negotiation, advocacy and drafting legal documents. The course also includes training in business management such as keeping accounts. Finally, students have to obtain a training contract in a solicitors firm which lasts 2 years. This provides two years of practical experience supervised by an experienced solicitor. After successful completion of the traineeship, the trainee will be admitted as a solicitor by the Law Society, and his or her name will be added to the Roll of Solicitors. It is also possible for mature entrants to qualify as solicitors by first qualifying as Legal Executives and then as fellows of ILEX, after which they take the LPC or the 2 year-traineeship. Even after qualifying, solicitors are required to attend specialised training courses as part of their Continuing Professional Development.

2 The work of solicitors Most solicitors work in private practice in a partnership of solicitors. However, some solicitors may work in the Crown Prosecution Service, or for a Local Authority or for a Government Department. Others may become legal advisers in commercial or industrial businesses. High Street solicitors are often referred to as the General Practitioners of Law. Their work involves conveyancing (transferring property rights) and probate (wills and executing wills), together with giving general legal advice to clients, which could include family law, employment law or setting up companies etc. We should also remember that solicitors work closely with barristers when solicitors instruct them on behalf of their clients, or when solicitors seek specialised advice from the consultants. Most solicitors work within partnership with other solicitors. Over recent years, in both London and large cities, there has been a trend for law firms to merge to create much larger partnerships. This in turn has lead to greater specialisation in the work undertaken by solicitors. Although the work of solicitors is largely non litigious they do not argue their clients cases in open court they do have rights of audience in both county and magistrates courts. In addition, under the Courts and Legal Services Act 1990, solicitors can acquire rights of audience in the higher courts by qualifying as solicitor-advocates. Such solicitor-advocates are eligible to become Queen s Counsel and also to be appointed to higher judicial posts. Under the Access to Justice Act 1999, it is anticipated that all solicitors will be given full rights of audience/advocacy when they have fulfilled the training requirements. Becoming a barrister There are about barristers practising independently in England and Wales. Solicitors are controlled by their own professional body, the General Council of the Bar. Barristers are known collectively as the Bar.

3 Most barristers have taken a university degree. If they have not taken a degree in Law, a further year s study is taken to pass the Graduate Diploma in Law (GDL), formerly known as the Common Professional Examination. All student barristers must join one of the four Inns of Court which are situated near the Royal Courts of Justice in London. They must dine at their Inn of Court a set number of times though this can now be done by weekend residential courses. Student barristers must also pass the Bar Vocational Course (BVC) which provides training in the skills of drafting pleadings, advocacy and negotiation. Having passed the BVC, the student is officially qualified as a barrister and is called to the Bar. The new barrister must then secure pupillage which provides on-the-job training under the supervision of an experienced barrister, the pupil master, for one year. The pupil work shadows the master for six months and is then eligible to appear in court and conduct his/her own cases. During this period, students must also follow a programme of continuing professional education organised by the Bar Council. On completion of the pupillage, the barrister needs to find a tenancy in a set of chambers to practise as an independent barrister. The work of barristers Barristers who practise at the bar are self-employed but usually work from a set of chambers, comprising around 20 barristers. They share administrative expenses and employ a clerk as a practice administrator who books in cases and negotiates fees. They will also employ other support staff. The majority of barristers concentrate on advocacy, representing clients in court, but they also provide specialist advice through counsel s opinion to solicitors. The litigation work of a barrister also includes drafting pleadings prior to the case coming to court. Barristers have rights of audience in all English courts. In the past anyone who wished to instruct a barrister had to go to a solicitor first. The solicitor would then brief the barrister. However, in September 2004 the Bar granted direct access to anyone, business or individual, who wished to engage and instruct a barrister in a civil case. However, direct access is still not allowed in criminal cases or for family work.

4 Barristers operate what is known as the cab rank rule. This means they must accept a case if it is in the area of law they deal with and if they are free to take the case. However, this only applies in cases where barristers are engaged by solicitors, not where they are approached directly by a client. After at least 10 years experience, a barrister may apply to become a QC, Queen s Counsel. In 2004 it was agreed that appointments as a Queen s Counsel will be made by a selection panel chaired by a non-lawyer and include other non-lawyers among its members. Appointments will no longer be made by the Lord Chancellor. Warning! You must be able to compare and contrast the work of solicitors and barristers. 2. Outline how complaints against solicitors can be dealt with. A solicitor deals directly with clients and enters into a contract with them. This means that if the client does not pay, the solicitor has the right to sue for his fees. It also means the client can sue his solicitor for breach of contract if the solicitor fails to do the work. A client can also sue the solicitor for negligence in and out of court work. This happened in Griffiths v Dawson (1993) where solicitors for the plaintiff had failed to make the correct application in divorce proceedings. As a result the plaintiff lost financially and the solicitors were ordered to pay her 21,000 in compensation. It used to be held that a solicitor presenting a case in court could not be sued for negligence. However, in Hall v Simons (2000), the House of Lords decided that advocates, both solicitors and barristers, can be liable for negligence. 3. Outline how complaints against barristers can be dealt with.

5 When a barrister receives a brief from a solicitor, he does not enter into a contract with their client, and so he cannot sue if his fees are not paid. Similarly, the client cannot sue his barrister for breach of contract. However, barristers can be sued for negligence. Since 1980 it has been held that a barrister can be sued for negligence in respect of any written advice or opinions he provides. In Saif Ali v Sydney Mitchell and Co (1980), a barrister gave the wrong advice about who to sue; as a result the claimant was too late to bring a case against the right person. The court decided the barrister had been negligent. In Hall v Simmons (2000), the House of Lords held that barristers and solicitors can be liable for negligence in their conduct as advocates in court. The Lords pointed out that other professions such as doctors can be sued for negligence. There was no reason why advocates should not be liable in the same way. 4. Outline the training and role of Legal Executives. There are about legal executives working in England and Wales. We can think of legal executives as junior solicitors. Legal executives have developed to fill the need for lawyers with limited but specialized areas of the law such as family law, probate and convincing. Legal executives are professionals. Their governing body is ILEX (the Institute of Legal executives). ILIEX regulates the academic requirements, the training, the qualifications and the operation of their members. To qualify as a legal executive, a trainee must have at least 5 GCSEs though many have A levels and some have degrees. Becoming a legal executive is now the main route for a non-graduate (someone who hasn t taken a degree) to become a solicitor. During their apprenticeship, which takes at least 5 years, a trainee must work under the supervision of a solicitor. During this time they will take appropriate legal courses as well as gaining practice experience alongside qualified solicitors. The training is a combination of self study, evening courses and day release. The employer often helps with the cost of these courses. When they have passed all the required examinations, trainees can apply for admission to ILEX. To apply for full admission to ILEX, candidates must be at least 25 years old and have at least 5 years experience in a legal office.

6 They then work within a partnership of solicitors where they usually specialize in particular areas of the law. Legal executives can go on to become qualified solicitors by taking courses provided by the Law Society. As mentioned, qualifying as a legal executive is now the main route for a non-graduate to become a fully qualified solicitor.

7 THE LEGAL PROFESSION - BARRISTERS, SOLICITORS, LEGAL EXECUTIVES LEGAL ADVICE AND FUNDING 1. ADVICE & FUNDING IN CIVIL CASES Typical examination question: Susan has been injured in an accident. Explain how she could get advice about a possible claim for damages/compensation.. Susan could go to her own solicitor for advice but this can be very expensive so she might go a solicitor and ask for LEGAL HELP. If she was accepted, she would get free legal advice. The solicitor would prepare her case for court and he/she might even represent Susan in court. Susan could find a wide variety of leaflets giving her legal information on the Internet. They would direct her to such organisations as the Citizens Advice Bureau. Such organisations provide funds and free legal advice. This support is known as LEGAL AID. Legal Aid can provide general information, advice and legal representation in court. Local solicitors often provide free advice at the CAB without charge. This is called pro bono work, working in the public interest. Susan might also visit a LAW CENTRE if she is the kind of person who would find it hard to use the usual legal system. Law Centres are to be found in poorer areas of large cities with poor public services. They often help people who are unable to secure legal advice elsewhere. However, in a case involving a civil claim for damages, Susan is most likely to seek advice from a local solicitor. 1. Her own solicitor 2. Asking a solicitor for Legal Help 3. Leaflets on the Internet 4. Citizens Advice Bureau 5. Legal Aid 6. Law Centre 7. A solicitor when the case involves damages for a civil offence. 2. GETTING HELP IN FAMILY CASES

8 Typical examination question: Sally and Neil are thinking of getting divorced. From whom might Sally get legal advice and support? Sally might be able to get General Family Help if she can show that she cannot afford to pay a solicitor from her own funds. General family Help covers the cost of preparing Sally s case for court and also offer her legal advice. General Family Help will also cover the cost of starting her legal action and of representing her in court, should this become necessary. Sally may have to go through Family Mediation with Neil. Mediation is aimed at resolving any disputes or arguments between the couple. Legal Aid is provided to pay the cost of an official mediator. Sally and Neil may also be provided with Help With Mediation. This Legal Aid helps to pay for drawing up and varying out any agreements, such as child visitation, that have been reached by the parties during Family Mediation. 1. General Family Help 2. Family Mediation 3. Help With Mediation. 3. CRIMINAL DEFENCE SERVICE Typical examination question: Outline the legal aid available to Adam who has been arrested for a serious criminal offence. The Criminal Defence Service will provide Adam with three types of legal aid/help. He will receive free legal advice at the police station. He will receive advice and assistance before he is charged. And if he is charged with a serious criminal offence he may receive help with representation in court. At the police station Adam will receive an information sheet explaining how he can get legal help. He will also receive advice from a duty solicitor though he can, of course, call on his own solicitor for advice. If he is charged with a serious offence, Adam will need a Representation Order. Serious criminal offences are heard in the Crown Court. A Representation Order will entitle Adam to a defence barrister who will represent him in court. There are no

9 financial conditions to getting a Representation Order in the Crown Court; however, the interests of justice test must be passed. 1. Criminal Defence Service 2. Information sheet explaining how to get legal aid 3. Advice from duty solicitor or from own solicitor 4. A Representation Order 5. Representation Order entitles defendant to a defence barrister 6. interests of justice test must be passed. 4. PRIVATE FUNDING and NO WIN NO FEE Typical examination question: Discuss the advantages and disadvantages of private funding and of what is called no win no fee arrangements. Private funding and no win no fee The costs of carrying out a legal action can be hugely expensive, particularly where the client employs a solicitor. Hourly rates for engaging a solicitor can range from 100 to 400 an hour, depending on the seniority and expertise of the solicitor or adviser. These sums soon make a solicitor s bill mount up, especially when the case drags on for several months. Nowadays many clients are turning towards what are known as conditional fee agreements with their solicitor. These are often known, inaccurately, as no win, no fee agreements. This is where the solicitor makes no charge if the case is lost. However, costs such as court fees and medical reports will still have to be paid by the client even if the case is lost. And if the case is lost, the client will also have to pay the winner s legal costs, which can be very substantial. If the case succeeds, the solicitor charges a success fee on top of his/her hourly rate. The loser may be ordered to pay at least part of these charges, including the success fee. Insurance is normally taken out at the client s expense to cover this risk with an after the event policy. This can provide some peace of mind against the financial costs that arise when a case is lost. THE LEGAL PROFESSIONS - TEST YOURSELF 1. Solicitors and Barristers Qualifications and Training to become a Solicitor

10 1. How many solicitors are there practising in England and Wales? 2. Solicitors are controlled by which professional body? 3. What do most solicitors take after A levels? 4. If the first degree is not in Law, what diploma must be taken? 5. Describe in detail the nature of the Legal Practice Course. 6. Describe the nature and purpose of a solicitor s training contract. 7. When and how is a trainee solicitor admitted to the profession? 8. What must solicitors continue to do throughout their careers? The Work of Solicitors 1. Where do most solicitors work? 2. Name for other situations in which solicitors may work. 3. What do you understand by the phrase High Street solicitors? 4. Why are solicitors often referred to as the GPs on the legal profession? 5. Describe the range of work carried out by High Street solicitors. 6. Explain two ways in which solicitors work with barristers. 7. What development has led to greater specialization amongst solicitors? 8. Explain the work of solicitors is largely non litigious. 9. Explain advocacy/rights of audience 10 In relation to solicitors, explain the significance of the Courts and Legal Services Act Then, In relation to solicitors, explain the significance of the Access to Justice Act Qualifications and Training to become a Barrister 1. How many barristers are there practising in England and Wales? 2. Barristers are controlled by which professional body? 3. Explain the meaning of called to the Bar. 4. What do most barristers take after A levels? 5. If the first degree is not in Law, what diploma must be taken? 6. What must all student barristers join? For what purpose? 7. What does the Bar Vocational Course provide? 8. What does being called to the Bar indicate? 9. Describe in detail the nature and purpose of pupillage. 10 On successful completion of pupillage, what must the new barrister secure? The Work of Barristers 1. Describe a set of chambers and how it operates. 2. Explain a barrister s rights of audience/advocacy. 3. What is counsel s opinion?

11 4. What does the litigation work of a barrister include? 5. Describe the changes to access to a barrister introduced in September Explain in detail the cab rank rule for barristers. 7. Why would a barrister wish to become a Queen s Counsel? 8. Who formerly appointed all Queen s Counsels? 9. Who now appoint Queen s Counsels? 10 Why do you think this change was introduced? 2. Complaints against Solicitors 1. Why can solicitors and clients sue each other? 2. What would a solicitor sue for? 3. On what grounds would a client sue? 4. Explain in detail the significance of Griffiths v Dawson (1993). 5. Explain in detail the significance of Hall v Simmons (2000). 3. Complaints against Barristers 1. Why cannot a barrister sue a solicitor if his fees are not paid? 2. Why cannot a client sue his barrister for breach of contract? 3. Explain in detail the significance of Saif Ali v Sydney Mitchell and Co (1980). 4. Explain in detail the significance of Hall v Simmons (2000). 5. On what grounds did the Lords justify this decision? 4. Training and Role of Legal Executives 1. How many Legal Executives are there working in England and Wales? 2. Why has the need for Legal Executives developed in recent years? 3. Legal Executives are controlled by which professional body? 4. Under whose supervision must they work? 5. Outline in detail the qualifications required by a Legal Executive. 6. Outline the salary range for LEs. 7. What three elements may their training involve? 8. Name three areas in which a LE might specialise. 9. Name two requirements for full admission to ILEX. 10 How may a Legal Executive become a solicitor?