Lawyers in the english legal system : Solicitors and Barristers

The lawyers in  the english legal system:

There are 2 categories of lawyers in England: solicitors and barristers.

1. Barristers (called “trial attorneys” in the USA). Barristers have two professional functions: to give legal opinions and to appear in Court to represent their clients. The word originates from the days when there was a wooden bar or railing in court which marked off the area where the judge sat and the lawyer had to stand next to the bar when pleading his case. The expression “to be called to the bar” is commonly used in England to denote someone who has become qualified to act as a barrister. Although the word barrister is not used in the USA, all lawyers in America have to be members of the “bar” and to register with the Bar Association in order to practice. (The Italian word barista, pronounced similarly to « barrister », denotes a person who pours drinks at a different kind of bar.) 2. Solicitors. They handle wills and conveyancing (the transfer of property) and generally perform other legal tasks at their offices. They are not allowed to appear in Court, except in certain cases conducted in the lowest (magistrates’) courts. The work of a solicitor is roughly equivalent to that of a French “notaire”. (In the USA notaries are not lawyers. A notary’s function is to authenticate signatures, a service for which he usually charges $10.)

  • A) Solicitors:

They have a paper work.

1) Areas of work:

=>For a long time, solicitors have a monopoly for different kinds of legal work in England:

Administration of a deceased person’s estate (administration d’Etatd’unepersonnedécédée).

Conveyancing (=transferring title or ownership of a property or land from one person to another) = transfert de propriété.

Conduct of litigation.

These areas of work were reserved to the solicitors.

=>Opening of legal services to other professions:

Administration of Justice Act 1985: LicencedConveyancers, regulated by the Council for LicencedConveyancers.

When they are licensed these people may work in the same area as the solicitors are doing and making the necessary paper work for the transfer of ownership or property. 

Legal Services Act 2007: reserved legal activities to other persons duly authorized by different bodies. According to this act there are reserved legal activities which can only be carried on by authorized…they are specifically mandated to regulate these activities.

Charter institute of patent attorneys which regulate… these legal activities being reserved…

Today the main work of a solicitor isn’t only to drive contract but it is also to conduct in a litigation, to represent the clients before the court. 

2) Appearances in court:

For a very long time, solicitors couldn’t represent their clients before high courts. Solicitor could represent their clients only before Magistrate’s court, county court and on different tribunals. If one of their clients was tried before the high court then the solicitor needed to ask a barrister to do something. That means that the barristers had a monopoly to represent clients before the high court.

– This has changed in 1990 with the Courts and legal Services Act: the monopoly of solicitors has disappeared. They need to complete an advocacy assessment to do something. Moreover there are a separate for right of audience, criminal and civil advocacy.

Only ten percent of the solicitors have today this right of audience.

3) Forms of practice:

Solicitors may practice either as a sole practitioner or in a partnership.

Partnership Act 1890. They gave all the means to practice but the partners remain responsible for their activities but recently the partnership that could be concluded was a partnership regulated by this partnership act of 1890.

Limited liability partnerships act 2000 (société à responsabilitélimitée) :more solicitors to exercise their profession under that kind of partnership.

A solicitor is more specialized or not.

In 2012 = 166 000 solicitors; 10 102 private practice firms.

4) Qualification:

To qualify as a solicitor one most holds a law degree, a graduate diploma in law.

+Legal Practice Course (LPC).

Training contract (2 years) with a firm of solicitors. They may practice 3 different laws during these 2 years.

5) Regulation of the profession:

The law society which was created in 1985 both regulated and represented solicitor’s interests.

This dual role has been criticized. It was said that it wasn’t possible to represent professions and to regulate conflict of interest.

Creation of the Solicitors regulation authority (SRA): the body which regulate the profession.

A code of conduct is published for solicitors: conflict of interest, confidentiality. There is a Solicitor disciplinary tribunal.

  • B) Barristers:

The Barristers may give advices to their clients but one of their main roles is to appear in a court. In a way we could say that the barristers are sort of the elite of the lawyers in England, they are very few. 

= 15 000 barristers.

It reflects the fact that these sorts of lawyers are considered to be the elite of the lawyers.

1) Qualification:

Academic stage (LLB)

Vocational stage: Bar Professional Training Course, it’s organized by the bar and this last usually one year.

Pupillage: one year spent as a pupil in barristers chambers.

Obtain the tenancy in a barrister chamber.

 

Queen’s Counsel (QC) (now also open to solicitors). This is a specific title which was reserved to barristers. Only barrister could be receiving this title. It’s just a specific title which means that you have achieved a good career; it’s a sort of recognition of the ability to work as a barrister. This title is also opened to solicitors.

Judges who are chosen usually are from a QC.

2) Appearance in court:

Monopoly of right of audience until Courts and legal Services Act 1990.

“cab rank” principle: it means that a barrister must take a case no matter how bad the case is. It’s a duty for barristers to accept cases.

Traditionally: no instructions taken directly from the public: the barrister could not be instructed by the public. They received their instructions from solicitors. The law has been changed and

Since 2004: barristers may accept direct instructions.

3) The forms of practice: the Chambers and the Inns of Court :

Most of the barristers are self-employed. 

Self-employed barristers work in “chambers”.They will share chambers, it means that they will share offices and most importantly they will share the clerk.

The clerk in a chamber has abig role since all the cases are send in a chamber to the clerk and the clerk is the person who dispatches the cases to the barristers. He is also responsible for the bills to client. 

Inns of Court, responsible for “calling” barristers to the Bar: the Inns of Court are 4 in London. They exist for 4 centuries and they are responsible for calling barristers to the Bar.The Inns of Court are a sort of social club in England. During their pupillage the future barristers are ask to a specific amount of dinners to share the social life of the barristers. The Inns provide but also support for students. They may grant scholarship and provide for courses, law education.

4) The regulation of the profession: the Bar Council:

Only one bar council, the authority which regulates the profession. This is moreless the equivalent of the law society for solicitors but unlike the law society, the bar council is the unique body which represents barrister activities. There is a code of conduct for barristers which is written and published by the Bar Council.

In France avocats à la cour (appel) et avocats aux conseils (CE, CDC).

Fusion in the Future? They are some discussions to both professions should be merged into one. 

Since 1960’s: moves towards breaking down the division:

Abolition of solicitor’s monopoly on Conveyancing (1985).

Courts and legal services act 1990: abolition of barrister’s monopoly to represent clients before high court.

Arguments for fusion:

  • Expense, it’s too expensive to have 2 kinds of profession.
  • Inefficiency, it will be more efficient.
  • Waste of talent, 2 professions.

Arguments against fusion:

  • Specialization: job better alone.
  • Importance of good advocacy. Advocacy is very important.
D) sanctions available to the Court :

By adopting theses provisions of arr-ising courts to take sanctions it should also a move from the adversial system to a lord judge sentered system.

  • award of costs : the indemnity rule. This principle was departed from only in exceptional circumstances. Principle that the loser will have to pay always the cost of the winners depending on the behavior of the party who had been at the end. When a party hasn’t complied with court directions for instance when the party hasn’t respect a specific delay then this party will have to pay heavier cost. The winning party will not be awarded the possibility to have the cost by the party.
  • Strike out the claim, or part of it : possibility for the court to have part of it. Possibility for the party to apply for relief for these sanctions. The court may remove strike out the claim or just part of the claim.
  • Another sanction is a particular offence, a contempt of court, very vigorous sanction that a court may about the party. This is a criminal offence. When a person has committed a contempt of… this person will be in prison… this is a particular offence that a court may adopt if one of the parties disobey with the… power to the court to make the reform work and to resolve the pay…

Final remarks :

Has the access to Justice been improved since the implementation of the recommendations of the Woolf report ?

  • a better understanding of the procedure now with the new rules since the rules are written in a simple vocabulary. Change of terminology.
  • The new philosophy entreen in the civil procedural rules as held in changing the way party litigants through the litigation. This adoption explains the change of philosopyand has help understanding. This is the philosophy that we have to access the structural reform that have been adopted.
  • Structural reforms :
  • the 3 tracks : small claim track, the fast track, the multi track. It will depending on the track that the claim will be allocated. To have theses tracks and to have precise directions for these tracks, facilitate procedure to take place and for lawyers. This reform dispatching the claim according to the tracks.
  • The pre-action protocols. Protocols mean a contract model of agreement that parties will agree on just in order to avoid litigation. This has help litigants to resolve their dispute. Statistics : a lot of cases are settled before going to courts, it’s a concrete result that many cases are resolved before going to court thanks to this pre-action protocols.
  • length reduced : reduced thanks to the reform. For the small claim the average is more less than 6 months will be resolved, good time compare with what may happen in France.
  • One remaining problem : the costs. Remaining problem but this problem is going to be removed since there has been some proposal to address this issue of costs.

 

  • lord Justice Jackson: report on access to justice at proportionate cost.
  • Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act).

 Decrease this cost. Costs, the court cost and fees. Asking the lawyers to decrease their fees, to have a lawyer fees. This is something that might have been thought trough. First option isn’t really realistic.

 

Second option is to help parties to pay the cost. At least, the expenses will be held to pay this expenses it will facility the access to justice.

 

How to help litigants to fund their litigation ?

  • legal aid : to finance the civil litigation. The legal aid exists in England but the rules have been changed in june 2013. You really have to be poor to have some legal aid in England, it concerns a few people.
  • Portion of the damages paid the lawyers. No win no fee cases. The rules of the law provide the specific provisions not to enable lawyers to be whatever they want.
    • conditional fee agreements (CFAs)
    • damages based agreements (DBAs) (also called contingency fees).

Conditional fee agreements : they existed before, they exist since the nineties.

  • – The specific definition is that CFAs are a means of funding litigation, usually entered into by claimants, where the lawyer agrees not to take a fee if the claim fails. The lawyers will have work for free if he looses the case.
  • – if claim successful : “success fee”. It’s not depend on the damages. Before a reform in april, the loosing party had to pay this success fee but since this reform the success fee is no order pay by the loosing party. From 1 April 2013, the “success fee” is no longer payable by the losing side.
  • – up to 100% of basic fee. The basic fee being the fee speculated on the hours spend by the lawyers on the case. There are some limits.

Damages-based agreements (DBAs)

  • DBAs are a means of funding litigation: lawyers aren’t paid if they lose a case but may take a percentage of the damages recovered for their client as their fee if the case is successful.
  • Before 1 April 2013, DBAs could not be used in civil litigation (but used in tribunals, employment tribunals).
  • How much? The law provides for a limitation, a maximum percentage that the lawyers can get.
  1. 25% max of damages (excluding damages for future care and loss) in personal injury cases.
  2. 35% of damages on employment tribunal cases.
  3. 50% of damages in all other cases.

 

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