topic 11 the legal profession. barristers and solicitors topic 11 the legal profession: barristers...
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Topic 11
The legal profession
Barristers and solicitors
Topic 11
The legal profession: barristers and solicitors
Topic 11
The legal profession: barristers and solicitors
Barristers and solicitors
• education and training
• work
• complaints
Topic 11
The legal profession: barristers and solicitors
Education and training
• degree
• vocational course
• training
• further qualifications
Topic 11
The legal profession: barristers and solicitors
Degree
A student wishing to pursue a career as a
barrister or solicitor may read a degree in any
discipline.
Most take an LLB law degree, but if a student
completes a degree in another subject, there is a
1-year law conversion course called the Common
Professional Examination (CPE).
Topic 11
The legal profession: barristers and solicitors
Vocational course
A decision must be made between becoming a
solicitor or a barrister, and depending on this
decision there are two different courses that can
be taken:
• Potential solicitors will take the Legal
Practice Course
(LPC).
• Potential barristers will take the Bar
Vocational Course
(BVC).
Topic 11
The legal profession: barristers and solicitors
Training: solicitors
Solicitors complete a training contract, which
usually involves 2 years’ practical experience in
a solicitor’s office, but it can also be with a
government department, the Crown Prosecution
Service, the Magistrates Court Service or in-
house legal departments. The time is usually
spent working in various departments so that the
trainee gains practical experience in at least
three different areas.
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The legal profession: barristers and solicitors
Training: barristers
Barristers complete a pupillage. This is usually
carried out in chambers and is divided into two
periods of 6 months. A pupil will shadow an
experienced barrister for 6 months and then
undertake his or her own work in their second 6
months. There are a limited number of other places
where pupillage can be carried out, including
working in the European Commission. Once the
pupillage is completed, the barrister needs to
become a permanent member of the chambers or a
‘tenant’.
Topic 11
The legal profession: barristers and solicitors
Further qualifications
• Solicitors can complete a certificate of
advocacy, which will allow them greater rights of audience in the higher courts.
• Barristers receive on-going training covering
advocacy, case preparation and procedure, professional conduct and ethics.
• Both solicitors and barristers can apply for
the judiciary and the position of Queen’s Counsel.
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The legal profession: barristers and solicitors
Work of solicitors
• There are over 100,000 solicitors in the UK who
are supervised and represented by the Law Society.
• Some solicitors work alone but most work in partnerships, owned and managed by several partners
who take a share of any profits.
• The type of work that a solicitor might do
varies greatly
depending upon the type of firm that they work for. In
addition, most solicitors specialise in a couple of areas
and may know very little about law in other areas.
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The legal profession: barristers and solicitors
Types of law firm
Most law firms can be divided between high street
firms and commercial firms.
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The legal profession: barristers and solicitors
High street solicitors’ firms
High street solicitors’ firms may have several
offices throughout a region. They generally deal
with individual clients and cover criminal law or
civil law or both.
Some will carry out publicly funded work paid for by
legal aid. They may advise and represent a client
who has been charged with a criminal offence. They
may carry out the necessary conveyancing when
someone is buying or selling property or they may
advise on personal injury matters or the mechanics
of drafting a will.
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The legal profession: barristers and solicitors
Commercial solicitors’ firmsCommercial solicitors’ firms often have offices
throughout the world and they tend to work for
businesses rather than individuals and as such
are called on to provide a different range of
services.
Commercial firms may advise clients on
intellectual property matters, mergers and
acquisitions, employment contracts and business
conveyancing.
Commercial lawyers may also represent wealthy
individuals.
Topic 11
The legal profession: barristers and solicitors
A solicitor’s typical day
• As there is so much variation in the type of work
solicitors carry out,
there is a big difference in the activities that make up
their typical
working days.
• Many solicitors begin by reviewing and responding to the
huge
amount of mail that they receive.
• Some will draft documents such as a contract of employment
or a will.
• Many solicitors spend their days meeting with clients or
negotiating
settlements or attending court.
• Others may draft instructions for a barrister whose
opinion they
require upon a particular matter.
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The legal profession: barristers and solicitors
Employed solicitors
Not all solicitors work in private practice.
Increasing numbers of solicitors are employed
outside solicitors’ firms.
They may work in an in-house legal department for
a large corporation, for the Legal Services
Commission or the Crown Prosecution Service, for
local government or in the Magistrates’ Courts as
clerks.
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The legal profession: barristers and solicitors
Work of barristers
There are about 15,000 barristers in the UK who
are governed and supervised by the Bar Council.
Most of these barristers are self-employed but
share administrative costs by working together in
chambers. A few are sole practitioners.
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The legal profession: barristers and solicitors
Advocacy
Traditionally, barristers have specialised in
advocacy — representing clients in court in both
criminal and civil cases. Barristers will also
have conferences with their clients to discuss
certain aspects of their cases. These conferences
may be before the case goes to court, or in
straightforward cases, a barrister may hold a
pre-hearing conference on the actual day of the
court hearing.
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The legal profession: barristers and solicitors
Written opinions
Barristers write opinions, usually on the
instructions of a solicitor.
Opinions give their views on matters such as the
strengths and weaknesses of a case, how a complex
area of the law relates to a particular case, and
whether evidence is likely to be admissible or
not.
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The legal profession: barristers and solicitors
The ‘cab-rank’ rule
Self-employed barristers work according to the
‘cab-rank’ rule, whereby if they have the time
and skills and are offered a reasonable fee they
must accept the job. This is to avoid situations
where some people may not be able to get a
barrister to represent them.
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The legal profession: barristers and solicitors
Instructing a barrister
It used to be the case that only solicitors could
instruct a barrister, but from 1989, some
professions have been allowed to instruct
barristers directly either for their own needs or
on behalf of their clients.
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The legal profession: barristers and solicitors
Direct access
Barristers can provide direct assistance, but
those seeking such access have to apply for a
licence. Those who are licensed include members
of organisations such as the Chartered Institute
of Building, the Society of Financial Advisors,
the Engineering Council and several accountancy
institutes.
Some groups have direct access without the need
for a licence, including employed barristers and
certain legal advice centres.
Topic 11
The legal profession: barristers and solicitors
Public accessMembers of the public can, since 2003, go
directly to a barrister in a number of cases,
rather than needing to instruct a solicitor
first. This is known as public access.
Barristers must fulfil certain conditions before
they can accept public access work, including
practising for at least 3 years and attending a
training course.
Public access is allowed in most areas but there
are exceptions, which include some areas of
criminal, family and immigration work.
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The legal profession: barristers and solicitors
Employed barristers
About 3,000 barristers are employed rather than
self-employed.
They work for a variety of organisations
including in-house legal departments, government
departments and advice centres.
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The legal profession: barristers and solicitors
Queen’s Counsel (1)
Barristers may apply to become a Queen’s Counsel.
The system dealing with these applications has
recently changed and has become more transparent
than previous methods, which had been heavily
criticised. Applicants pay a fee of £1,800 initially
and a further £2,250 if successful. They complete a
form giving details of their work and skills and
listing several referees who are familiar with their
work.
After a selection panel has reviewed their
applications, candidates are interviewed.
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The legal profession: barristers and solicitors
Queen’s Counsel (2)
The advantages for those who are successful in
achieving QC status are that they gain an
elevated status among their peers. They can
command much higher fees, often as well as having
a junior barrister to assist them.
They can also wear silk rather than polyester
gowns!
Topic 11
The legal profession: barristers and solicitors
Complaints against solicitors
There are various ways to complain about a
solicitor if a client is dissatisfied with the
service that he or she has received or the amount
that he or she has been asked to pay. These
options include:
• speak to the solicitor
• the Law Society
• Legal Services Ombudsman
• action through the courts
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The legal profession: barristers and solicitors
Speak to the solicitor
The first step in a complaint is to raise the matter
with the solicitor or the firm that they work for.
All firms should have a process in place for dealing
with complaints.
Ideally, the complaint should be made in writing
(the Law Society has a resolution form on its
website that can be printed off and filled in).
The dissatisfied client should explain what the
complaint is about and how he or she would like it
to be resolved. Many complaints are resolved at this
stage.
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The legal profession: barristers and solicitors
The Law Society
If a firm does not reply to a complaint within a
reasonable amount of time or if the complaint has
not been resolved, the next step is for the
client to contact the Law Society. This must be
within the time limits that the Law Society sets
down — usually 6 months. It will investigate the
complaint and has the power to reduce the
solicitor’s bill, order the solicitor to pay
compensation of up to £15,000 or tell him or her
to correct the mistake and meet any costs
incurred.
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The legal profession: barristers and solicitors
Legal Services Complaints Commissioner
The Office of the Legal Services Complaints
Commissioner was set up following the Access to
Justice Act 1999. It works with the Law Society
and represents the interests of consumers to
improve complaints handling.
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The legal profession: barristers and solicitors
Legal Services OmbudsmanIf the client is unhappy with the way that the Law Society has investigated a complaint, he or she can make a final appeal to the Legal Services Ombudsman (LSO), currently Zahida Manzoor. This must be within 3 months of receiving the Law Society’s decision. The LSO will not usually look at the original complaint but rather at how it was dealt with by the Law Society.
The powers of the LSO include recomending that the Law Society reconsider the complaint, formally criticising the Law Society or ordering it to pay compensation.
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The legal profession: barristers and solicitors
Action through the courts
A dissatisfied client can sue the solicitor
through the courts for neglience. He or she would
have to prove that the solicitor fell below the
standards of a reasonable solicitor. The courts
are able to award compensation if the client is
successful.
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The legal profession: barristers and solicitors
Complaints against barristers
Clients with a complaint against a barrister
should speak to their solicitor, if they have
one, to see whether he or she agrees with the
complaint and if he or she can resolve it. Other
options include:
• the Bar Council
• the Complaints Commissioners
• the Legal Services Ombudsman
• action through the courts
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The legal profession: barristers and solicitors
The Bar Council
If the complaint cannot be resolved by a
solicitor, the next step is for the client to
contact the Bar Council. This must usually be
done within 6 months of the complaint arising.
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The legal profession: barristers and solicitors
The Complaints Commissioner
• The Complaints Commissioner oversees the complaints process and investigates any complaints. The current Commissioner is Michael Scott, who is a non-lawyer entirely independent from the Bar Council. • If, after consideration of the complaint, the Commissioner thinks that it might be justified, he will refer it to the Professional Conduct and Complaints Committee (PCC) for its opinion. • If it agrees, the complaint is sent to a disciplinary panel for a final decision as to whether the complaint is justified and, if so, to determine the measures that should be taken.
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The legal profession: barristers and solicitors
Legal Services Ombudsman
As with solicitors, if the client is unhappy with
the way that the Bar Council investigated the
complaint, he or she can make a final appeal to
the Legal Services Ombudsman. The process is the
same for barristers and solicitors.
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The legal profession: barristers and solicitors
Action through the courts
Again, as with solicitors, a dissatisfied client
can sue a barrister through the courts for
negligence.
Barristers used to have immunity from liability,
but that changed in 2000 when the House of Lords
abolished this protection in the case of Arthur
JS Hall and Co. v Simons (2000).
Crown Prosecution Service
Topic 11
The legal profession: Crown Prosecution Service
Topic 11
The legal profession: Crown Prosecution Service
Introduction to the Crown Prosecution Service
The Crown Prosecution Service (CPS) was created
under the Prosecution of Offences Act 1985. Its
main responsibility is prosecuting those charged
with criminal offences. Prior to the setting up
of the CPS, the police used to investigate and
prosecute cases themselves.
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The legal profession: Crown Prosecution Service
The CPS
• role
• deciding whether to prosecute
• staff
Topic 11
The legal profession: Crown Prosecution Service
Role
The CPS works both in offices and in police stations, deciding who to charge and who to release.
If a person is to be charged, it decides what he or she will be charged with. The CPS reviews cases submitted to it and decides whether or not to prosecute. If a prosecution is to go ahead, the CPS prepares and presents the case in court.
The CPS used to employ many barristers to present prosecutions in Crown Court.
Topic 11
The legal profession: Crown Prosecution Service
Deciding whether to prosecute
Decisions on whether to prosecute are based on a two-
stage test in the Code for Crown Prosecutors.
The CPS will first consider whether the evidence
available gives a realistic prospect of conviction in
court and if so, it must then consider whether it is
in the public interest to prosecute. It will take into
account the circumstances of the offence, looking at
the motive behind it and how it was carried out, for
example if a weapon was used or whether the victim was
serving the public. If both tests are satisfied, a
prosecution will go ahead.
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The legal profession: Crown Prosecution Service
Staff
The CPS is headed by the Director of Public
Prosecutions (DPP), currently Ken Macdonald QC.
The DPP reports to the Attorney General,
currently Lord Goldsmith, who is, in turn,
responsible to Parliament.
The CPS has several offices around England and
Wales that deal with around 1.3 million cases a
year, the vast majority of which are in the
Magistrates’ Court. It employs about 7,700 staff,
2,500 of which are lawyers.
Judges
Topic 11
The legal profession: judges
Topic 11
The legal profession: judges
Introduction to judges
• types of judge
• termination
• judicial independence
Topic 11
The legal profession: judges
Types of judge
• Law Lords
• Judges in the Court of Appeal
• High Court Judges
• Circuit Judges
• District Judges
• District Judges (Magistrates’ Court)
• Recorders (part-time judges)
Topic 11
The legal profession: judges
Law Lords
Title: Lords of Appeal in Ordinary/Law Lords
Number: 12
Court: House of Lords and Privy Council
Appointed by: the queen on recommendation of the
prime minister, who has been advised by the Lord
Chancellor
Qualifications: appointed from those who hold high
judicial office, e.g. a judge in the Court of
Appeal, or from those with 15 years’ experience of
supreme courts
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The legal profession: judges
Judges in the Court of Appeal
Title: Lord and Lady Justices of Appeal
Number: 37
Court: Court of Appeal
Appointed by: the queen on recommendation of the prime
minister, who has been advised by the Lord Chancellor;
the Lord Chancellor will have consulted senior members
of the judiciary
Qualifications: the statutory qualification is a 10-year
High Court qualification or being a High Court Judge;
most Court of Appeal judges are promoted from the ranks
of experienced High Court Judges
Topic 11
The legal profession: judges
High Court Judges
Title: Mr or Mrs Justice (Surname)
Number: 112
Court: High Court and serious cases in Crown Court
Appointed by: the queen on advice from Lord
Chancellor.
Qualifications: they must have a right of audience in
relation to all proceedings in the High Court for 10
years, or have been a Circuit Judge for at least 2
years; once appointed, they are assigned to a
Division of the High Court — the Chancery Division,
the Queen's Bench Division, or the Family Division.
Topic 11
The legal profession: judges
Circuit Judges
Number: 636 and 42 Deputy Circuit Judges who sit part
time in retirement
Court: Circuit Judges are assigned to a particular
circuit and may sit at any of the Crown and County
Courts on that circuit; they can hear both criminal and
civil cases
Appointed by: the queen on the recommendation of the Lord
Chancellor
Qualifications: 10-year Crown Court or 10-year County
Court qualification or to be the holder of one of a
number of other judicial offices for at least 3 years
Topic 11
The legal profession: judges
District Judges
Number: 412, and 744 Deputy District Judges
Court: on appointment, a District Judge is
assigned to a particular circuit and may sit at
any of the County Courts or District Registries
of the High Court in that circuit; a District
Registry is part of the High Court, situated in
various places in England and Wales
Appointed by: the Lord Chancellor
Qualifications: 7-year general qualification
Topic 11
The legal profession: judges
District Judges (Magistrates’ Court)
Number: 128, and 167 Deputy District Judges
(Magistrates’ Court)
Court: District Judges (Magistrates’ Court) hear
cases in Magistrates’ Courts; they are paid and
deal with the full range of cases and usually hear
the longest and most complicated cases; they can
either sit alone or with lay magistrates
Appointed by: the Lord Chancellor
Qualifications: 7-year general qualification
Topic 11
The legal profession: judges
Recorders (part-time judges)Number: 1,404
Court: Recorders may sit in both the Crown and County
Courts;most begin in the Crown Court, although after about
2 years and further training, they may sit in the County
Courts; a Recorder must sit for at least 15 days a year
but not normally for more than 30 days
Appointed by: the queen on the recommendation of the Lord
Chancellor
Qualifications: the statutory qualification for appointment
as a Recorder is a 10-year Crown Court or 10-year County
Court qualification
Topic 11
The legal profession: judges
Termination
A judge’s appointment can be terminated in four
different
ways:
• resignation
• retirement
• removal due to infirmity
• dismissal
Topic 11
The legal profession: judges
Resignation
Judges may resign at any time. This has been used
in the past as a way of getting rid of judges
without having to dismiss them, by giving them an
opportunity to resign instead.
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The legal profession: judges
Retirement
The usual retirement age for judges is 70.
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The legal profession: judges
Removal due to infirmity
This method is used if a judge is incapacitated,
usually through ill health, and is unable to
resign.
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The legal profession: judges
Dismissal
Judges are given security of tenure during good
behaviour.
Following the Act of Settlement 1700, the Law
Lords, Lords Justices of Appeal and High Court
Judges can only be removed by the queen on the
petition of both Houses of Parliament.
Circuit Judges and other judges can be removed by
the Lord Chancellor for incapacity or
misbehaviour.
Topic 11
The legal profession: judges
Judicial independence
Great weight is given to the notion of judicial
independence, and it is central to the theory of
the separation of powers. The idea behind it is
simple, namely that judges should operate free
from pressure, whether it be applied by the
government, political parties or anyone else.
Without pressure, judges are free to make
independent and impartial decisions, without fear
of reprisal.
Topic 11
The legal profession: judges
Measures to ensure judicial independence
1. Security of tenure
2. Legal action against judges
3. Judicial salaries
4. Unable to take part in party politics
Topic 11
The legal profession: judges
Security of tenure
It is very difficult to dismiss a member of the
judiciary. This is to ensure that he or she acts
without fear of losing his or her job at the
hands of the government or other bodies.
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The legal profession: judges
Legal action against judges
Judges cannot be sued for anything done in their
judicial role.
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The legal profession: judges
Judicial salaries
These are paid out of the consolidated fund and
are not voted upon by Parliament, so judges will
not be tempted to find in favour of the
government in order to secure a pay rise.
Equally, judges can act without fear of a wage
cut if they make unpopular decisions.
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The legal profession: judges
Unable to take part in party politics
Full-time judges must refrain from active
political
involvement.