ELS 15 Barristers and Solicitors

Lecture # 15
Barristers and Solicitors

By: Salik Aziz Vaince
[0313-7575311]
 Introduction
 Embarking on a legal career in England and Wales can be, as with other jurisdictions, a lengthy and
complicated process. There are many stages, spanning a period of several years, which need to be
completed in order to become a qualified lawyer.
 In England and Wales there are two types of lawyers (barristers and solicitors) jointly referred to as the
legal profession.
 Most countries do not have this clear cut division among lawyers: a person will qualify simply as a
lawyer, although, after qualifying, it will be possible for them to specialize as an advocate, or in
particular area of law. This type of system is seen in UK in the medical profession, where all those
wishing to become doctors take the same general qualifications. After they have qualified, some
doctors will go on to specialize in different fields, perhaps as surgeons, and will take further
qualifications in their chosen field.
 In England, not only are the professions separate, but there is no common training for lawyers,
although there have been increasing calls for this. As far back as 1971 the Ormrod Committee was in
favour of a common education for all prospective lawyers.
 In 1994 the Lord Chancellor’s advisory committee on legal education, under Lord Steyn, recommended
that, instead of having separate training for barristers and solicitors, ‘the two branches of the
profession should have joint training. All those qualifying would then work for six months or a year at a
solicitors’, with those who wished to become barristers going on to do extra training at the Bar. Yet
despite these recommendations, the training of the two professions remains separate.
 Lawyers in England and Wales can practice as either solicitors or barristers. The top solicitors are often
Partners or Senior Partners in successful law firms, while the leading Barristers become QCs (Queen’s
Counsel), and Judges.
 Generally speaking, solicitors provide a range of legal services to companies, organisations and
individuals on wide range of legal issues, in diverse areas of practice. The work of all solicitors may be
characterized in terms of problem solving. Solicitors help to find solutions to their client’s problems
within the framework of case law, statute and regulations. This skill is a key to the practice of each and
every solicitor. The context of such work, however, varies greatly across the vast array of practice areas
within the profession, depending on the size and type of firm.
 Barristers, on the other hand, usually receive instructions from a solicitor. This difference in roles
means that clients generally have to go through a solicitor to gain access to a barrister. Barristers are
engaged by solicitors on behalf of their clients to provide expert legal opinion or advocacy services.
©VLC Publishers www.vlc.com.pk Page 1

Barristers need to be both legal experts and exceptional advocates. Historically, they have a wider right
of audience than solicitors, although solicitors may now qualify for higher rights of audience.
 Many countries with common law legal systems, such as New Zealand and Pakistan allow for the roles
of barrister and solicitor to be combined into one person.
 The Legal Profession
 Definition
 Defining the term ‘legal profession' is more difficult than one may anticipate. It becomes apparent that
the simplest definition is perhaps the most befitting. The legal profession is a ‘the particular occupation
that is based on expertise in the law and in its applications.'
 A ‘body of individuals who are qualified to practice law in particular jurisdictions.
 The learned occupation of these individuals is to study, promote, uphold and enforce the collection of
rules imposed by the authority. They thus form a ‘legal profession.'
 Who are the Legal Professionals?
 There are essentially two main branches of the legal profession – solicitors and barristers. Solicitors
advise individuals and organisations on legal matters and ensure that their clients act in accordance
with the law.
 There are over 100,000 practicing solicitors within the legal profession in England and Wales, governed
by the Solicitors Regulation Authority.
 Barristers represent clients in court and give specialist opinions on complex legal matters. They
generally receive instructions through solicitors.
 There are around 14,400 practicing barristers within the legal profession in the UK, governed by the
Bar Standards Board.
 The distinction between solicitors and barristers is not as clear-cut as it once was. Following the Court
and Legal Services Act (CLSA) 1990 solicitors have the right to become certified advocates (i.e.
represent clients in court). Commentators suggest that barristers have consequently, lost their
dominance over advocacy in courts. Although solicitors are taking on a more active advocacy role in
the lower courts, barristers still maintain an unrivalled monopoly over the higher courts.
Barrister
 A Barrister also termed as Barrister-at-Law or Bar-at-Law. Barristers have traditionally undertaken

advocacy in the courts and other tribunals, and have provided specialist advice. Barristers are rarely
hired by clients directly but instead are retained (or instructed) by solicitors to act on behalf of clients.
 Today, there are exceptions to these general descriptions. For example, some barristers now rarely
appear in court, and instead spend the majority of their time drafting documents and advising on
contracts. Nevertheless, barristers are still regarded mainly as specialist advocates.

 There are about 14,400 barristers in independent practice in England and wales. Collectively barristers
are referred to as ‘the bar’ and they are controlled by their own professional body – the General
Council of the Bar.
 All barristers must also be a member of one of the four Inns of Court: Lincoln’s Inn, Inner Temple,
Middle temple and gray’s Inn, all of which are situated near the Royal courts of Justice in London.
 How to become a barrister
 Training
 Entry to the Bar is normally degree-based, though there is a non-degree route for mature entrants,
under which a small number of students qualify.
 The first stage of training is the academic stage. This involves studying and obtaining a degree in either
law or any other subject.
 If you study towards a law degree you can proceed directly to the Bar Vocational Course. If you choose
to study any other subject than law you will also have to complete the conversion course called the
Common Professional Examination. This course lasts on year in which you must study certain
compulsory legal subjects, for example EU law, Contract and Tort which you would otherwise study
within your law degree.
 The second stage is the vocational training. For barristers this is known as the Bar Vocational Course
until 2010 and then will be known as the Bar Professional Training Course. This is completed either full
time over one year or part time over two.
 Graduate students without a law degree can take the one year course for the Common professional
Examination (Graduate Diploma in Law) in the core subjects in order to go on to qualify as a barrister.
 All student barristers also have to pass the Bar Vocational course which is being renamed as the Bar
Professional Training Course. On this Course students study:
1. Case preparation legal research 5. Conference skills (interviewing
2. Written skills clients)
3. Opinion writing (giving written 6. Negotiation
advice) 7. Advocacy (speaking in court)
4. Drafting documents such as
claim forms
 Students also study specific areas of law related to their future profession, such as civil litigation,
criminal litigation and the law of evidence.
 All students’ barristers must join one of the four Inns of Court and used to have to dine there 12 times
before being called to the bar.
 Students may also attend in a different way, for example a weekend residential course. This helps
students on the courses outside London as travelling costs are lower.
 The idea behind the rule requiring all trainee barristers to dine was that they met senior barristers and
judges and absorbed the traditions of the profession. In practice, few barristers dine at their Inns and
students are unlikely to meet anyone except other students.

 Once a student has passed the Bar Vocational Course, he or she is then ‘called to the bar’. This means
that they are officially qualified as a barrister. However, there is still a practical stage to their training
which must be completed. This is called pupillage.
 Training routes to become a barrister
Law Degree Non-Law Degree Non-graduate mature student
One year law course two year law course
Common Professional Common Professional
Examination Examination
Membership of an Inn of court, Attend at Inn – either dine or on course
Bar Professional Training Course
Call to the bar
Pupillage 2 x 6 months
Practice as a barrister
 Pupillage
 After the student has passed the Bar Vocational Course there is ‘on the job’ training where the trainee
barrister becomes a pupil to a qualified barrister.
 This is generally in a barristers’ chamber.
 The first six months of this time will be spent non-practicing. You will shadow and assist your
approved supervisor who will be a barrister within the chambers you are working. The second six
months is spent carrying out the work of the barrister under your supervisor’s approval and
permission. This can be with the same barrister for 12 months or with two different pupil masters for
six months each. After the first six months of the pupillage, barristers are eligible to appear in court
and may conduct their own cases.
 The pupil is assigned to a pupil-master or pupil-mistress, who oversees the development of the pupil's
legal skills by giving them drafting work and allowing them to help with research in case preparation.
Pupils may get the chance to appear in small cases themselves during the second half of their
pupillage.

 Although the step of being 'Called to the Bar' at one of the Inns now takes place on passing the BVC,
one can apply for a Practicing Certificate only on successful completion of pupillage. The Practicing
Certificate, which gives entitlement to practice as a barrister, is granted by the Bar Council (the
statutory body which administers training, qualification and professional standards of the Bar), and is
renewed annually.
 There is also a requirement that they take part in a programme of continuing education organised by
the Bar Council.
 During pupillage trainee barristers are paid a small salary by the chambers they are attached to. The
minimum amount is £833.33 per month. However, many chambers pay considerably more than that.
 Barrister’ work
 Barristers practicing at the bar are self-employed, but usually work from a set of chambers where they
can share administrative expenses with other barristers. Most sets of chambers are fairly small
comprising of about 15-20 barristers. They will employ a clerk as a practice administrator – booking in
cases and negotiating fees – and they will have other support staff.
 Barristers specialise in representing individuals, companies or institutions in court. These are the
people you may think of when you think of lawyers, stood in court, addressing a judge in a wig and
gown. This view is mainly correct, one of a barrister’s primary roles if that of advocacy, to speak for the
client in proceedings before a court or tribunal.
 A barrister will most commonly be instructed by a solicitor to act on behalf of their client to advise on
specific legal documents, give their opinion on specific matters, advice on tactics or to attend court for
their mutual client. Their role can therefore go beyond just advocacy. If the barrister has the expertise
being called upon and the time to carry out the work he is obliged to accept the same from the
instructing party.
 You may have heard the term ‘brief’ before. This is a document traditionally prepared by a solicitor to
instruct a barrister to carry out a certain piece of work or represent a client.
 Historically it was rare for a barrister to be instructed by a client directly although now this is occurring
more frequently, for example in tax matters barristers are commonly instructed directly.
 Some barristers can be extremely specialist in certain areas of work and only carry out work in that
area of law. However, some barristers have a wider ranging practice and may take on work from a
wide range of disputes. It is possible for a barrister to prosecute in one case and defend in another.
 English barristers' principal areas of work are as follows:
 giving legal opinions in an area of specialism, including on non-contentious matters (i.e. where there is
no dispute) such as advice on drafting a contract, warranty or other project documentation
 giving advice on the merits of a case, the relevant issues and evidence needed to pursue it oral and
written legal argument and cross-examination of witness of fact and expert witnesses in court
proceedings, arbitration and other types of hearing, relating to both UK cases and those in other
jurisdictions
 advising parties undertaking alternative dispute resolution techniques, such as mediation
 acting as mediator to try to achieve settlement between disputing parties
 acting as arbitrator in hearing and resolution of disputes
 The majority of barristers will concentrate on advocacy, although there are some who specialize in
areas such as tax and company law, and who rarely appear in court.
 Barristers have rights of audience in all courts in England and wales. Even those who specialize in
advocacy will do a certain amount of paperwork, writing opinions on cases, giving advice and drafting
documents for use in court.
 Barristers Chambers
 After successfully completing pupillage, the newly qualified barrister can start practicing. Most choose
to go into independent practice at a set of chambers, although a few choose to become employees of
companies or organisations like the Crown Prosecution Service (and are referred to as the 'Employed
Bar'). Barristers generally work in what is known as ‘chambers’.
 A barrister is usually self-employed and works from an office with a group of other barristers, this
place is known as the barrister’s chambers. Instead of drawing a salary their income is derived from
the fees they earn individually. The costs of administration, the chambers' staff, the library, the
computer systems and other related costs of chambers are, however, shared between the barristers.
 Barristers can also be employed to work in-house in a legal departments by companies, organisations
or government departments. Barristers often have clerks who run their diaries and look after the
administrative aspects of the job such as invoicing clients.
 Members of chambers are known as 'tenants', and obtaining a 'tenancy' is crucial for a newly qualified
barrister. One of the problems facing newly qualified barristers is the difficulty of finding a tenancy in
chambers because Competition for tenancy is very much strict: from several hundred applicants for
pupillage, most chambers only accept three or four and, at the end of the year's pupillage, typically
only one (or exceptionally, two), is offered a tenancy.
 The rule on having to practice from chambers has been relaxed, so that it is technically possible for
barristers to practice from home.
 However, despite the fact that a tenancy in chambers is not essential, it is still viewed as the way to
allow a barrister to build a successful practice.
 In London, many sets of chambers occupy buildings within or just outside one of the Inns of Court.
 Barristers' Chambers in Operation
 All chambers are run by a number of different groups, and decisions are made by the barristers
themselves working within a committee structure. The selection and training of pupils is the
responsibility of the Pupillage Committee.
 Long-established features of every barrister’s chambers, the clerks are the best known of all the
groups. Primarily responsible for managing the workload of the barristers, the clerks help solicitors or
clients to choose the most appropriate barrister for the particular case in question, check his or her
availability and arrange fees. They also deal with room bookings for meetings and conferences. For
most people, the clerks are the first and ongoing point of contact with chambers.
 The actual day-to-day running of chambers is done by an administrative team. Headed by a chief
administrator or chief executive, the team deals with building services, information technology,

library, finance matters, including collection of fee accounts, and many other aspects of chambers'
organisation.
 Barristers in Action
 In an English case, a barrister will typically undertake work having first been approached by a solicitor
who, in turn, has been consulted by the client. The barrister chosen by the solicitor will often meet the
client and will continue to discuss with the instructing solicitors throughout.
 In non-UK cases, the client's own lawyers will usually continue to handle the work, bringing in the
barrister as needed to provide advice and to undertake some or the entire advocacy.
 Barristers outside Court
 The usual public image of an English barrister is that of an advocate in a court room. Barristers are still
required to wear this traditional outfit when appearing in 'open court', although in the many
interlocutory hearings and applications which, for example, might be heard in a judge's chambers,
greater informality is accepted.
 Today, a barrister may well spend little or no time in court. Other methods of dealing with disputes
where possible are preferred in the commercial world, and these create considerable demand for
advocacy and alternative dispute resolution (ADR) services. Arbitration is the most obvious example.
 In mediation and other forms of ADR, barristers are used as advisers to the parties. Increasingly, they
also appear as mediators, since their specialist training and experience in identifying key issues and
weaknesses in cases and of trying to negotiate settlements with opponents mean that they are
particularly well suited to the task. Many undergo further training as accredited mediators.
 Barristers assist with adjudication (Judgement) in a similar way. This form of summary decision-making
is mandatory in most construction contracts in the UK which has created new demands for legal
services. Barristers advise the parties on bringing and resisting claims in adjudication and appear as
advocates in adjudication hearings or as the adjudicators themselves. They may also be instructed
following an adjudication to enforce the decision or to challenge it in court.
 Choice of Barristers
 Typically, barristers are chosen by solicitors on the basis of their past experience, the specialism
involved, the degree of urgency needed, the case's complexity, the sum in dispute and the client's
needs and resources.
 Since the leading Chambers do not undertake all types of work, and since most members of any set
have their own particular expertise, it is important first to find a set with the appropriate specialism.
There are several ways of doing this.
 Specialist sets and barristers are listed in the directories (either paper or online) of the specialist Bar
Associations. These cover a range of disciplines including, for example, professional negligence,
technology and construction and commercial law. The Associations keep their members up to date
with law and procedure in their fields and advise government on law reform proposals.
 The Bar Council's website, http://www.barcouncil.org.uk, links to the official Bar Directory which
allows an advanced search for barristers and/or for Chambers by keywords or area of specialism.

 Instructing Barristers
 Once a specialist set has been identified it is advisable to obtain details of barristers' experience from
their CVs to match them against the features of the case in question.
 Even experienced solicitors who know a particular set well will want to speak to the clerks to discuss
the critical issues involved (specialism, size/complexity, urgency, client’s needs/ resources).
 Other matters need to be considered too: the availability of the barrister(s) identified to meet the
client's time-frame, the level of fees payable (which will depend on the seniority and standing of the
particular barrister), whether the fees will be on a lump sum or hourly basis and the amount of work
required. Arrangements for meetings (called 'conferences') with the barrister and any travel
requirements e.g. to a site inspection should be considered early on.
 Generally speaking, the earlier the barrister is involved in a dispute the better. That way, the barrister
can advise on tactics throughout and can begin to collect evidence and legal material (although much
of this may remain in the hands of the instructing lawyers, especially if based outside the UK).
 Once the barrister has been instructed the instructing lawyer and the client have access to advice on
the matter available as and when they need it.
 The Bar Council requires barristers to undergo Continuing Professional Development by which
barristers must keep their knowledge up to date throughout their careers. The Bar Council also
enforces the Code of Conduct on its members and deals with any complaints and disciplinary matters.
All barristers are obliged to have Professional Indemnity Insurance Cover appropriate to their areas of
practice.
 The best reason for having confidence in a barrister however lies in the careful selection of a barrister
with the experience and expertise to deliver the service required.
 Direct access
 Originally it was necessary for anybody who wished to instruct a barrister to go to a solicitor first. The
solicitor would then brief the barrister.
 This was thought to create unnecessary expense for clients, as it meant they had to use two lawyers
instead of one. As a result of criticism the Bar first of all started to operate a system called Bar Direct
under which certain professionals such as accountants and surveyors could brief a barrister direct
without using a solicitor. This was extended to other professionals and organizations.
 Then in September 2004 the Bar granted direct access to anyone (business or individual).
 It is no longer necessary to go to a solicitor in order to instruct a barrister for civil cases. However,
direct access is still not allowed for criminal cases or family work.
 Cab rank rule
 Normally barristers operate what is known as the cab rank rule which they cannot turn down a case if
it is on the area of law they deal with and they are free to take the case.
 However, where clients approach a barrister direct, the cab rank rule does not apply.
 Barristers can turn down a case which would require investigation or support services which they
cannot provide.

 Employed barristers
 The employed Bar, which includes those barristers working for the crown Prosecution service CPS,
can appear in the Magistrates Court, but used not to be able to conduct cases in the Crown Court, High
court or Appellate Courts.
 As these barristers will have done exactly the same training as the independent Bar, this was seen as
being unnecessary restrictive.
 The Access to Justice Act 1999 allowed barristers working for the CPS or other employers to keep their
rights of audience. The Act allowed barristers who work in solicitors firms to keep the right to present
cases in court.
 The Code of Conduct for barristers
 The nature of the Code
 The barrister Code of Conduct provides with the rules and standards that should inform all the aspects
of a practice at the employed bar as well as applying to self-employed barristers. All practicing
barristers are subject to the provisions of the Code and should carry out their duties in the manner
prescribed within.
 It is important to emphasize that the Code is very different in nature from a statute or any other piece
of legislation. It differs because it does not prohibit certain actions and then makes them punishable
but the Code establishes guidelines for the appropriate performance of the profession.
 Further, the Code is not subject to strict rules of interpretation as other legislations. The process of
interpreting the provisions should be informed by ethical values. In addition, where the Code permits a
variety of responses, the choice between those options should be made in accordance with the
person’s inner morality.
 The importance of the Code of Conduct
 The importance of compliance with the provisions of the Code is emphasized through their impact on
the reputation of the profession. Ignoring the provisions not only affects the individual’s reputation
and career but it can have far-reaching implications to the established trust in the profession as a
whole.
 Therefore in practice, the Code is one of the most important texts to comprehend and then apply
throughout the career at the Bar.
 The essence of the Code
 The Code is central to every barrister’s practice providing ethical guidance to the exercise of the
profession. Looking at the provisions as a whole, a number of underpinning values could be identified
throughout the Code. Those include the achievement of justice, establishment of respect of law and
procedure, safeguarding the client’s autonomy and providing for confidentiality and honesty.
 The current version of the Code was prepared by the Bar Council and adopted in 2004.
 The provision itself is divided into eleven parts dealing with all the matters of importance to a career as
a barrister.
 Considering the Code itself, Part I deals with preliminary issues such as the enforcement of the Code
and rules regarding amendments. Further, it establishes the general purpose of the Code as the
provision for rules and standards of conduct applicable to barristers which are appropriate in the
interests of justice.
 Part II contains the practicing requirements a barrister needs to comply with in terms of right of
audience and supply of legal services to the public.
 Part III establishes the fundamental principles applicable to all practicing barristers. Those clarify that
the overriding duty of a barrister lies with the court, which in turn requires him not to deceive or
knowingly mislead the court in the administration of justice.
 Part IV and V deal respectively with self-employed and employed barristers in terms the receipt of
instructions, fees.
 Part VI builds up one the previous two Parts and is concerned with acceptance of instructions. The
part contains the ‘cab-rank rule’ establishing that a barrister must accept any instructions appropriate
in his field. Further this is done irrespective of the nature of finance of the trial by the client and
whether it is public or private. It contains instruction regarding acceptance of cases in unfamiliar
practice areas and when a conflict of interest between the barrister and the client may arise. Further, it
deals with return of instructions when continuing to act on a case would cause the barrister to be
professionally embarrassed.
 Part VII lays down the framework regarding the conduct of work in terms of confidentiality duties,
drafting documents, conduct with witnesses and conduct in court. It establishes that a barrister need
always be courteous in court and to his clients. Further, he should not devise facts to assist his lay
client’s case nor is allowed to rehearse, practice or coach a witness prior his appearance at court.
 The main framework of the Code is established in Parts I-VII. The remainder of the Code deals with
provisions regarding pupils, pupil-supervisors, definitions of the essential terms in the Code.
 Failing to comply with the provisions of the Code
 A failure to act in accordance with the guidance provided could result in a suit for professional
misconduct. Following such proceedings instigated against a barrister if he is found to have acted
contrary to the professional Code, then he may be subject to the discretion of a Disciplinary Tribunal.
 If a finding of breach is established but the breach is not serious, he could be given a written warning
or in some cases fined. It is important to note that a written warning or a fine does not amount to a
finding of professional misconduct.
 If there have been a number of failures to comply over a period of time, then a further breach will
automatically constitute professional misconduct even if the failure on its own would not be sufficient
to amount to such misconduct.
 All findings of professional misconduct are published on the Bar Standards Board website and also by
the Inns of Court.
 Complaints about Barristers
 The Barristers profession in England and Wales has many of its own rules and regulations regarding
good practice. It prides itself of being independent and not having the government or any other
authority interfere in its practice. However, what are the processes and procedures when it comes to

complaint handling process? The following will show the rules and procedures that one needs to be
aware of.
 Where a barrister receives a brief from a solicitor he or she does not enter into a contract with his
client and so cannot sue if their fees are not paid.
 Similarly, the client cannot sue for breach of contract.
 However, they can be sued for negligence.
 In Saif Ali v Sydney Mitchell and Co (1980) it was held that a barrister could be sued for negligence in
respect of written advice and opinions. In that case a barrister had given the wrong advice about who
to sue, with the result that the claimant was too late to start proceedings against the right person.
 In Hall (a firm) v Simon (2000) the HOL held that lawyers could also be liable for negligence in the
conduct of advocacy in court. This decision overruled the earlier case of Rondel v Worsley (1969) in
which barristers were held not to be liable because their first duty was to the courts and they must be
‘free to do their duty fearlessly and independently’.
 The Law Lords in Hall (a firm) v Simons felt that in light of modern conditions it was no longer in the
public interest that advocates should have immunity from being sued for negligence. They pointed out
that doctors could be sued and they had a duty to an ethical code of practice and might have difficult
decisions to make when treating patients. There was no reason why advocates should not be liable in
the same way.
 They also pointed out that allowing advocates to be sued for negligence would not be likely to lead to
the whole case being re-argued. If an action against an advocate was merely an excuse to get the
whole issue litigated again, the matter would almost certainly be struck out as an abuse of process.
 Complaints Procedures in Chambers as regards to Clients
 Basically whenever a complaint is made to a barrister they must deal with these complaints in a way
which is polite, punctual and deals with the relevant issues. Furthermore every Chambers must have its
own complaints procedure which must be available to the client should they ask for one.
 How Complaints must be handled in Chambers
 Requirements according to Annex S of the Code of Conduct:
- The most important information is that when barristers are instructing a lay client or a professional
they must as soon as possible inform them that a complaints procedure form is available should
they request one and that they need not make a complaint through a solicitor but can do so
directly (s1 a & b)
- Furthermore complaints procedures must be available to professional clients and lay clients as well
as any intermediaries.
 Response to Clients
 According to s 5 a to c of Annex S of the Code of Conduct:
- After prompt acknowledgement of complaint the complainant must be given the name and
description of the individual within Chambers who will deal with that complaint, be provided with a
copy of the complaints procedure form, and be informed of the date when the claimant will further
hear from the Chambers.

 Accordingly, s 6 a to b of the Code of Conduct, the following needs to be done if a complaint is referred
to the Commissioner:
- The Head of Chambers must notify the Commissioner after 6 weeks of the referral as regards to the
progress or outcome of the consideration of the complaint and when there is no outcome update
the Commissioner every 6 weeks until there is an outcome at which point the commissioner must
be notified.
 Complaints against Barristers through the Disciplinary Tribunal Process
 The following information is based on the Bar Standard Board’s ‘Complaints against Barristers’
document and the Annex J- Complaint Rules 2009.
 When complaints against a Barrister can be adjudicated using the Disciplinary Tribunal Process?
 Complaints about a barrister will only be sent to a Disciplinary Tribunal after there is a thorough
investigation which accumulates enough evidence to show a breach of the Code of Conduct so the
complaint will be sent for adjudication.
 Bar Standard Board
 Complaints against barristers are handled by the bar Standards Board. If there was poor service, the
Board can order the barrister to pay compensation of up to £5000 to client.
 The complaints process is overseen by an independent lay Complaints Commissioner. This system of
handling complaints will be replaced by the Office of legal Complaints in late 2010.
 Senate of the Inns of court
 Barristers can be disciplined by the Senate of the Inns of Court if they fail to maintain the Standards set
out in their Code of Conduct. In extreme cases the Senate can disbar a barrister from practicing.
 Legal Service Ombudsman
 There has been a Legal Service Ombudsman since 1991, whose work involves investigating complaints
about all the legal professions. There are comparatively few complaints against barristers and the
Ombudsman has found that the bar Council usually handles about 90% of the complaints satisfactorily.
Solicitors
 There are over 110,000 solicitors practicing in England and Wales and they are controlled by their own
professional body, the law Society. Of these, 83,000 are in private practice and the remainder is in
employed work, such as for local government or the Crown Prosecution Service.
 Origin of the Profession
 Historically, the superior courts were based in London the capital city, and in order to dispense justice
throughout the country, a judge and court would periodically travel a regional circuit to deal with
cases that had arisen there. From this emerged a body of lawyers that were on socially familiar terms
with the judges, had training and experience in the superior courts, and had access to a greater corpus
of research material and accumulated knowledge on the interpretation and application of the law.

Some would go "on circuit" with the court to act on behalf of those requiring representation. By
contrast, solicitors were essentially local to one place, whether London or a provincial town.
 Lawyers who practiced in the courts in this way came to be called "barristers" because they were
"called to the Bar", the symbolic barrier separating the public—including solicitors and law students—
from those admitted to the well of the Court. They became specialists either in appearing in court, or
in the process of using the courts, which would include giving oral or written advice on the strength of
a case and the best way to conduct it.
 For those who had the means and preference to engage a solicitor, it became useful, then normal and
then compulsory, for the solicitor in turn to select and engage a barrister to represent the client before
the courts. Likewise, it became either useful or normal (but not compulsory) to engage an appropriate
barrister when highly specialist advice was required. In fact, many barristers have largely "paper
practices" where they rarely or (in some cases) never make court appearances.
 Historically practicing at the bar was a more socially prestigious profession than working as a solicitor.
In the 18th and 19th centuries the bar was one of the limited number of professions considered
suitable for upper class men; politics, the Army and Navy, the established clergy, and the civil and
diplomatic services being the others. Many leading eighteenth and nineteenth century politicians were
barristers; few were solicitors. In the 20th century solicitors closed the gap greatly, especially in terms
of earnings, and by the early 21st century the social gap was far less important than formerly.
 Training
 To become a solicitor it is usual to have a law degree, although those with a degree in a subject other
than law can do an extra year’s training in core legal subjects, and take the Common Professional
Examination CPE or Graduate Diploma in Law GDL.
 The next stage is the Legal Practice course. This is much more practically based than the previous Law
Society Finals course and includes training in skills such as client-interviewing, negotiation, advocacy,
drafting documents and legal research. There is also an emphasis on business management, for
example keeping accounts.
 Training contract
 Even when this course has been passed, the student is still not a qualified solicitor. He or she must next
obtain a training contract under which they work in a solicitors’ firm for two years, getting practical
experience. This training period can also be undertaken in certain other legal organizations such as the
crown Prosecution Service, or the legal department of a local authority.
 During this two year training contract the trainee will be paid, though not at the same rate as a fully
qualified solicitor, and will do his own work, supervised by a solicitor.
 He will also have to complete a 20-day Professional Skills Course which builds on the skills learnt on the
LPC.
 At the end of the time, the trainee will be admitted as a solicitor by the law society and his name will
be added to the roll (or list) of solicitors. Even after qualifying, solicitors have to attend continuing
education courses to keep their knowledge up to date.

 Non-graduate route
 There is also a route under which non-graduates can qualify as solicitors by first becoming legal
executives. This route is only open to mature candidates and takes longer than the graduate route.
 Become a solicitor without a university degree
 Many people consider a career in the law but are put off by the lengthy academic and vocational
training required to become a solicitor or barrister. There is however a way of qualifying as a lawyer
without the need for a university degree.
 This is done by qualifying as a Legal Executive with the Institute of Legal Executives (“ILEX”). Many
people may choose to take this root rather than the traditional roots to qualify as a solicitor as study
can be combined with work and no formal qualifications are required before embarking on an ILEX
course.
 The course also allows you to train ‘on the job’ and receive first hand practical experience of the law
you are studying. It is not however, the easy option, the ILEX route can take a number of years before
qualification.
 ILEX studies can also be carried out by distance learning which may be of use to some students.
 If you become a ‘Fellow of the Institute of Legal Executives’ before you decide to complete the Legal
Practice Course (the vocational course that all potential solicitors must complete) you may be exempt
from the Solicitors Regulation Authority Training Contract, a two year period of training required to
become a solicitor following completion of the Legal Practice Course. The ILEX training route may
therefore be used to enter the final stages of the necessary qualifications to become a solicitor.
 What can legal executives do?
 Qualified and experience Legal Executives are able to carry out much the same work as a solicitor.
Generally Legal Executives work in solicitors firms alongside other lawyers but they can also work in
in-house legal departments for companies, organisations and government departments.
 They can carry out work in a number of areas of the law and its practice, for example, conveyancing,
family matters, probate and litigation.
 Like other lawyers Legal Executives must continue training through continued professional
development.
 Work Experience
 A five year qualifying period of employment must be completed to qualify as a Legal Executive. If you
decide to work in a legal environment whilst completing your studies will count towards this time.
 To become a Fellow of ILEX and have the right to call you a Legal Executive at least two years of
employment must be undertaken after achieving your ILEX qualification.
 Further Development
 Qualified Legal Executives have the ability to offer advice to client and run their own case load. They
can also manage other Executives, possible junior solicitors or other administration staff after they
have gained enough experience. It is possible to become an associate within a law firm and even a
partner.

 ILEX fellows also now have the opportunity to apply for a wide range of judicial posts which would
previously have been limited to qualified solicitors and barristers.
 The Graduate Diploma in Law - GDL CPE or The Law Conversion Course
 GDL is the abbreviation of the term ‘Graduate Diploma in Law’. This is the course which is taken by
graduates of any university degree who wish to become a barrister or solicitor.
 The GDL is the newer version of the traditional Common Professional Examination (CPE) but there is
no real difference between the two. Other courses which offer the same law conversion may be known
as senior status law degrees, postgraduate LLB’s or GDL (graduate diploma).
 Who needs to complete the GDL course?
 If you do not study towards a law degree at university but wish to be a solicitor or a barrister before
you can proceed to the vocational section of your training by completing either the Legal Practice
Course for solicitors or the Bar Vocational Course for barristers, you must first study the GDL.
 This is a postgraduate course and therefore you must have already have obtained an undergraduate
degree in a subject other than law from an institution based in the United Kingdom or a foreign
institution which the governing body, the Solicitors Regulation Authority, considers to be equivalent.
 It may also be possible for a student who holds academic and vocational qualifications to study
towards the GDL if the Solicitors Regulation Authority deems these qualifications to be equivalent to a
degree.
 Another possibility is if the student is over 25 and either a member or fellow of the Institute of Legal
Executives the Solicitors Regulation Authority may allow entry to the GDL.
 Even if you have studied towards a law degree and that degree is not a ‘qualifying law degree’ you
must also complete the GDL. A non-qualifying law degree is a degree in which you study law but do not
complete the required modules in order for the degree to be ‘qualifying’; these modules include
subjects like contract, tort and European Union law.
 How long does the Course last and what do you need to study?
 The GDL will generally last one year full time or two years if studying part time.
 The GDL focus on the seven areas of the law which are the compulsory subjects for a ‘qualifying law
degree’. Typically GDL students will not take many elective modules as all these subjects must be
studied in one year. The seven subjects are:-
1. Contract Law 5. European Union Law
2. Constitutional and Administrative Law 6. Land Law
3. Tort Law 7. Equity and Trusts.
4. Criminal Law
 Whilst studying towards your GDL you will also be given the opportunity to gain general legal analysis
skills and have the chance to study another area of law of your choosing.
 The course usually consist of lectures, tutorials and coursework with examinations being sat either at
the end of the year or half way through the course and then at the end of the year. No matter what the
format of the course a large amount of time will be spend in the lecture theatre or in tutorials, more
than would usually be found in an undergraduate degree.

 Should you study the GDL?
 The GDL is a demanding and intense program as the compulsory subjects that are usually spread over a
three year law degree have to be mastered in one year. However, if you are not sure that law is the
profession you wish to enter and wish to study another degree first this may be the best route for you.
The number of solicitors who have studied the GDL rather than an undergraduate law degree is
increasing and it is often seen as an advantage to the employer to see that an individual has more skills
and knowledge beyond that of the law or legal profession.
 Training routes to become a solicitor
A levels or equivalent A levels or equivalent GCSEs
Institute of Legal Executive

Degree in another subject Professional Diploma
Law Degree
Institute of Legal Executives
Higher Professional Diploma
CPE/GDL (one year law course)
Work for two years in a

Legal practice Course Solicitor’s office
Be a fellow ILEX
Legal Practice Course (must be over 25 years and have
worked for five years in a solicitors
office)
Two years training period

Two years training period Legal Practice Course or
Two years training period and pass
final exam
Qualified as a solicitor Qualified as a solicitor Qualified as solicitor

 Criticism of the training process
 There are several criticisms of the training process.
1. The first of these is a financial problem, in that students will usually have to pay the fees of the
Legal Practice Course and support themselves while doing the course. If they have a degree in a
subject other than law and have had to do the CPE/GDL, they will also have had to pay for that
course. This problem has arisen because, as the LPC is a post-graduate course, students must pay
all the cost. The result of this policy is that students from poor families cannot afford to take the
course and are therefore prevented from becoming solicitors, even though they may have obtained
a good law degree. Other students may take out bank loans, so that although they qualify, they

start the training period with a large debt. In order to overcome this problem a few universities
have started offering four year degree courses, combining a law qualification and a practical
course, so students pay only the university fee. This financial problem is also one faced by
prospective barristers. The problem has increased since universities started charging more a year
and students are already in debt from their degree course. In order to try to help would be
solicitors, the CPE, can be taken as a part-time course over two years, instead of the one year full
time course. Doing the course part time allows students to work as well, easing their financial
problems. Often this work will be as a paralegal in a law firm, so that the student is also getting
practical experience at the same time.
2. A point common to barristers is that non-law graduates do only one year of formal law for the
Common Professional Course. The Ormrod committee which reported on legal education in 1971
thought that the main entry route should be via a law degree, but in practice 25% of solicitor will
not have taken a law degree. One critic posed the question of whether the public would be
satisfied with doctors who have only studied medicine for one year, concentrating on only six
subjects. Yet this is precisely what is occurring in the legal profession.
3. A third problem is one of over-supply, so that not all students who have passed the LPC are able to
obtain a training contract.
 Solicitors work
 The majority of those who succeed in qualifying as a solicitor will then work in private practice in a
solicitors firm. The general position is that solicitors carry out all general legal work except conducting
legal proceedings at court. They are the first person you approach when you have a legal problem.
 However, there are other careers available, and some newly qualified solicitors may go on to work in
the CPS or for a local authority or government department. Other will become legal advisers in
commercial or industrial business.
 A solicitor in private practice may work as a sole practitioner or in a partnership. There are some 8,700
firms of solicitors, ranging from the small ‘high street’ practice to the big city firms.
 The number of partners is not limited, and some of the biggest firms will have over a hundred partners
as well as employing assistant solicitors.
 The type of work done by a solicitor will largely depend on the type of firm he or she is working in.
 A small high street firm will probably be a general practice advising clients on a whole range of topics
such as consumer problems, housing and business matters and family problems.
 A solicitor working in such a practice is likely to spend some of his time interviewing clients in his office
and negotiating on their behalf, and a large amount of time dealing with paperwork. This will include:
• Writing letters on behalf of clients
• Drafting contracts, leases or other legal documents
• Drawing up wills
• Dealing with conveyancing (the legal side of buying and selling flats, houses, office buildings
and land).
 Solicitor’s day to day activities involve meeting with clients, negotiating on their behalf and writing up
and processing all the necessary paperwork. This includes letters on behalf of clients and drawing up
contracts, leases and wills. Another aspect of their job is conveyancing i.e. the legal side of transferring
houses, buildings and land.
 In terms of standing up in court, a solicitor may act for his client in this way, which is known as
advocacy. Some solicitors will specialize in this and spend much of their time in court. A solicitor may
specialise in putting forward the case for their client and questioning witnesses.
 Solicitors can attend and act in certain court proceedings, the courts to which solicitors have ‘rights of
audience’ (can be heard in court) are generally the lower courts such as the Magistrates Court or the
County Court. There is also the opportunity now for qualified solicitors to become Solicitor Advocates
after the competition of a further course, this grants Solicitor Advocates rights of audience in the
higher courts such as the Crown Court and High Court.
 Specializing
 It is possible for a solicitor to deal with a number of different types of law within their day to day work.
Many high street firms have general Practioners who may be drafting a Will in the morning and
attending the police station with their accused client in the afternoon.
 However, after qualifying as a solicitor it is common to choose an area of Specialisation.
 This can be a broad area of Specialisation such as general company and commercial matters or civil
litigation. In the larger firms the solicitors are usually even more specialized to work on a specific area
of the law and if a client requires advice on a different aspect of the law this is deal with by another
department of the firm.
 If you wish to become a solicitor you do not need to decide which area of the law you which to
specialise in until you are completing your training contract or on qualification but it is always useful to
think about the areas of law you are interested in practicing and look at studying modules in these
areas.
 Although some solicitors may be general practitioners handling a variety of work it is not unusual,
even in small firms, for a solicitor to specialize in one particular field.
 The firm itself may only handle certain types of cases (civil cases) and not do any criminal cases, or a
firm may specialize in matrimonial cases.
 Even within the firm the solicitor are likely to have their own field of expertise.
 In large firms there will be an even greater degree of specialization with departments dealing with one
aspect of the law. The large city firms usually concentrate on business and commercial law.
 Amounts earned by solicitors are as varied as the types of firm, with the top earners in big firms on
£500,000 or more, while at the bottom end of the scale some sole practitioners will earn less than
£30,000.
 Conveyancing
 Prior to 1985 solicitors had a monopoly on conveyancing; this meant that only solicitors could deal
with the legal side of transferring houses and other buildings and land.
 This was changed by the Administration of Justice Act 1985 which allowed people other than solicitors
to become licensed conveyancers.

 As a result of the increased competition in this area, solicitors had to reduce their fees, but even so
they lost a large proportion of the work. This led to a demand for wider rights of advocacy.
 The Courts and Legal Services Act 1990 also gave the right of conveyancing (the legal side to buying
and selling property and land) to banks and building societies. This shattered the monopoly hold that
solicitors had maintained on conveyancing until the mid-1980s and thus solicitors had to drop their
fees to remain competitive yet still lost a large proportion of their work.
 Key Alternative Roles for Solicitors
 Roles in-house working as legal counsel for a specific corporate body offering wider legal advice to one
client.
 Public sector roles that support the government functions such as education, welfare and police.
 Education and training as a tutor or lecturer.
 Rights of Advocacy
 All solicitors have always been able to act as advocates in the Magistrates court and the County Courts,
but their rights of audience in the higher courts used to be very limited.
 Normally a solicitor could only act as advocate in the Crown Court on a committal for sentence, or on
an appeal from the magistrates court, and then only if he or another solicitor in the firm had been the
advocate in the original case in the magistrates court.
 Until 1986 solicitors had no rights of audience in open court in the high Court, though they could deal
with preliminary matters in preparation for a case.
 This lack of rights of audience was emphasised in Abse v Smith (1986) in which two members of
parliament were contesting a libel action. They came to an agreed settlement, but the solicitor for one
of them was refused permission by the judge to read out the terms of that settlement in open court.
Following this decision the Lord Chancellor and the senior judges in each division of the HC issued a
practice direction, allowing solicitors to appear in the HC to make a statement in a case that has been
settled.
 Under the Courts and Legal Services Act 1990, a solicitor in private practice now had the right to apply
for a certificate of advocacy that allowed appearance in the higher courts. The solicitor must have
experience of advocacy (from the Magistrates’ and County Courts), take a short training course and
pass examinations on the rules of evidence in order to gain this certificate.
 A solicitor who gains this Certificate of advocacy is granted certain eligibilities. They can be appointed
as Queen’s Counsel and can be appointed to higher judicial posts.
 The Access to Justice Act 1999 meant that solicitors have full rights of audience automatically after
fulfilling training requirements.
 More recently, the division between barristers and solicitors has broken down further. Some firms of
solicitors now employ their own barristers and solicitor advocates may spend a large proportion of
their time in court. The Legal Services Act 2007 outlined a more unified regulatory system and new
structures for cross-profession.

 Regulatory scheme
 Solicitors in England and Wales who wish to practice must pay an annual fee to obtain a Practicing
Certificate. This fee is paid to the Law Society of England and Wales, which represents the profession.
The Solicitors Regulation Authority, though funded by these fees, acts independently of the Law
Society. Together, the two bodies make up the complete system of professional regulation for
solicitors.
 Certificate of advocacy
 The first major alteration to solicitor’s rights of audience came in the Courts and Legal Services Act
1990. Under this Act, a solicitor in private practice had the right to apply for a certificate of advocacy
which enabled him to appear in the higher courts.
 Such a certificate was granted if the solicitor already had experience of advocacy in the Magistrates
Court and the County Court, took a short training course and passed examinations on the rules of
evidence.
 The first certificates were granted in 1994 and by 2009 about 4,500 solicitors had qualified to be an
advocate in the higher courts.
 Solicitors with an advocacy qualification are also eligible to be appointed as Queen’s Counsel and also
to be appointed to higher judicial posts.
 The Access to Justice Act 1999 (s 36) provides that all solicitors will automatically be given full rights of
audience.
 However, new training requirements to allow solicitors to obtain these rights have not yet been
brought in.
 Multi-discipline partnership
 Section 66 of the Courts and legal Services Act 1990 allows solicitors to form partnerships with other
professions, for example, accounts. This would give clients a wider range of expertise and advice in a
‘one-stop-shop’.
 However, the law Society and the Bar Council have rules which prohibit the creation of multi-discipline
partnerships, so that, as yet, ‘one-stop-shop’ are not allowed by the professional bodies that govern
solicitors and barristers. However, this will change under the Legal Services Act 2007.
 The Solicitors’ Code of Conduct
 It is a set of rules and regulations giving guidance on the standard of professional conduct to all
Solicitors in England & Wales, registered European lawyers, registered foreign lawyers and other
recognised bodies.
 These rules and regulations are very specific and give guidance on the Solicitors standards of behaviour
or conduct when carrying out their duty of care to their clients. It is therefore very important to be
aware of those rules. Failure to follow those rules by your solicitor may result in you suing him for
Professional Negligence. You may also decide to complain to Legal Complaints Service. Solicitors are
bound by those rules and there is no excuse for them to fail to follow them. The code contains
guidance to each rule these however do not form a part of the code and are not mandatory

themselves. Understanding those rules may help you control your case and the progress that your
solicitor is taking throughout this transaction.
 What rules are contained in the conduct
 The code of conduct consists of 25 specific rules which are designed to control everyday job of a
solicitor.
 Rule 1 contains 6 core duties which preserve justice, the rule of law. They keep an eye on solicitors to
act with integrity, independence, in the best interests of clients. They preserve a good standard of
service and public confidence.
 Rule 2 was designed to maintain good relations between the Solicitor and the client. This rule gives
guidance on accepting client’s instructions and in what circumstances can a solicitor refuse
instructions. (e.g. where it would constitute breach of conduct, duress or undue influence, where
instructions are given by someone else not a client and where a solicitor lacks competence).
 A solicitor is always under an obligation to fulfil clients objectives therefore must keep his client
informed of all steps he is taking or any costs and contingency fees in relation to any transaction he
was instructed under.
 Rule 3 specifies that a solicitor is not allowed to act for you if there is any conflict of interest which
can for instance be if the firm is already acting for a person that you are suing. A solicitor’s duty is to
act in the best interests of any client. There are some exceptions which must be carefully assessed
before a solicitor can take your instructions, namely if the clients have common interest in the
transaction.
 Rule 4 Whenever you decide to instruct a solicitor and disclose all facts of your case he is under a duty
of confidentiality, on the other hand he has a duty of disclosure with for instance when this is
prohibited by law, or you expressly agreed that no duty of disclosure arises or where it is in the interest
of prevention of injury being caused. General rule is that duty of confidentiality overrides the duty to
disclose. A solicitor has always a duty not to put confidentiality at risk by acting for another client
where this information may have to be disclosed as relevant or due to any adverse interest. There are
a few exceptions but a solicitor must remember to act reasonably in all the circumstances, and the
client should consent.
 Rule 11 A solicitors must not knowingly mislead the court, must obey court orders and must not be
in contempt of court. A solicitor must not refuse instructions to act on your behalf on the following
grounds, if the case is of the nature objectionable to him or his belief and that the source of the
financial support is unacceptable to him. While appearing as an advocate he must not say anything
scandalous with intent to insult a witness. He has the right to refuse your instructions if you are
offering inadequate consideration with respect to the nature of the case, practice and his experience.
He is not obliged to act under a conditional fee agreement.
 Complaints against solicitors
 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 fee. It also means that 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 Griffith’s v
Dawson (1993) where solicitors for the plaintiff had failed to make the correct application in divorce
proceedings against her husband. As a result the plaintiff lost financially and the solicitors were
ordered to pay her £21,000 in compensation.
 Other people affected by the solicitor’s negligence may also have the right to sue in certain
circumstances. An example of this was the case of White v Jones (1995) where a father wanted to
make a will leaving each of his daughter £9,000. He wrote to his solicitors instructing them to draw up
a will to include this. The solicitors received this letter on 17 July 1986 but had done nothing about it by
the time the father died on 14 September 1986. As a result the daughter did not inherit any money
and they successfully sued the solicitor for the £9,000 they had each lost.
 Negligent advocacy
 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 HOL decided that advocates can be liable for negligence.
 Complaints procedure
 There have been problems with the complaints procedure operated by the Law Society. One of the
main concerns has been that the law society’s main roles are to regulate the solicitor’s profession and
to represent solicitors.
 By operating its own complaints procedure, there was a conflict between the interest of the solicitor
and the interest of the client who was complaining.
 The other problem for those complaining about poor service by a solicitor was that the complaints
bodies run by the law society have themselves been frequently criticised for delays and inefficiency.
 The lowest point was probably in 1996, when a survey found that two out of every three complainants
were dissatisfied with the handling of their complaint.
 In an effort to improve both independence and efficiency of its complaints procedure, the Law Society
has ‘rebranded’ the body responsible for investigating complaints on a number of occasions over the
last 20 years.
 Making a Complaint about a Solicitor
 If you are unhappy with the service you have received from your solicitor, a complaints procedure
exists to redress this.
 Your solicitor’s complaints procedure
 All firms of solicitors in England and Wales will have a complaints procedure. You should ask for the
complaints procedure. All firms will have a written complaints procedure and they must give you a
copy if you ask for it.
 The first step is to complain to your solicitor or to their firm’s complaints handling partner. Most firms
will have one. You should not only state what your complaint is but also what you want them to do
about it.
 Please note that complaints of this sort should not relate to any negligent advice you may have been
given by a solicitor. If you believe that you have received negligent advice then you should consult

another solicitor and discuss the possibility of pursuing a claim for compensation. All solicitors are
required to have an insurance policy that covers any possible claims for compensation.
 You should not be charged for using your solicitor's complaints service. However, if the complaint is
about a bill and you ask for it to be assessed by a court, then you may need to pay the court fee.
 The Legal Complaints Service (LCS)
 If you are not satisfied with your solicitor’s response then the next step is to contact the LCS. This is a
new service which took over responsibility for complaints about solicitors from the Law Society in
2007. The LCS will have expected you to have used your solicitor’s own complaints procedure first and
will ask for evidence of this.
 It will initially attempt to negotiate a settlement between you and your solicitor, but if unable to,
investigate your complaint itself. It has the power to order the solicitor to reduce the bill and
compensate any financial loss up to £15,000. It can also order compensation for distress and
inconvenience, but this is again up to a maximum of £15,000. If your loss is greater you will need to
take your solicitor to court.
 If you disagree with a decision of the LCS, you can appeal to the Legal Services Ombudsman.
 The Solicitors Regulation Authority (SRA)
 The SRA regulates over 100,000 solicitors in England and Wales. They are the regulatory body of the
Law Society of England and Wales. If your case is serious it will be referred to the SRA which can levy
fines, suspend solicitors, or in bad cases, have them struck off.
 Complaints about bills
 If your complaint is about your bill, the Legal Complaints Service (LCS) has a bill checking service which
is free. It will determine whether your bill is fair and reasonable. However, when a bill relates to court
proceedings you will have to ask the court to assess whether your bill is fair.
 Will the information which I say to my solicitor be disclosed to the other party?
 Is Everything I tell my Solicitor Private and Confidential?
 If you decide to instruct a solicitor in relation to a certain matter you will have to tell your solicitor all
the facts about your case. According to Solicitors’ Code of Conduct your solicitor will be bound by a
duty of confidentiality and he should therefore not make any unnecessary disclosures about your case.
He on the other hand has a duty of disclosure which makes him disclose information if the court so
orders. The court has the power to order which information or documents must be disclosed to the
other party so that justice is done. Therefore your solicitor may be required to disclose and allow for
inspection certain information contained in documents if the court so orders.
 Disclosure of documents
 In the proceedings the parties may be directed or ordered by the court to disclose certain information
e.g. documents about their case to the other party. The fact that one party holds documents which
may be important for the other party does not render them available to the other party. These
documents are only available for inspection in certain circumstances. Disclosure and inspection of
those will help the court clarify the issues, evaluate the case, encourage early settlement of the dispute

between the parties and do justice in the end. General rule is that a party must disclose any document
in his or her possession which falls within the definition of a standard disclosure ordered by court.
 Standard disclosure
 Standard disclosure as defined in Civil Procedure Rules requires a party to disclose certain information,
namely the documents on which he relies and which adversely affect his case, another party’s case or
support another party’s case. He may be required to disclose documents stated in relevant Practice
Direction. The party is required to make a search for those documents and such a search must be
reasonable. The reasonableness element requires a party to take into consideration the complexity
and nature of the case, the amount of documents, importance of the documents, expense involved in
searching for them. There is no need to disclose more than one copy of the document. A document is
defined as anything which can contain some information. E.g. tape recordings, laptops, documents,
discs, databases, deleted emails etc. A party is only required to disclose documents which are or have
been in its control. If during the proceedings the party obtains control of a document which is required
to be disclosed it must disclose it. Therefore it is essential that a party does not create any documents
which would not be helpful to it in the proceedings.
 Inspection of documents
 If it is believed that inspection of certain documents would be disproportionate if allowed, such an
inspection may not be permitted, it would however have to be explained giving reasons why such an
inspection amounts to a disproportionate one. Some documents may not be allowed to be inspected
on the basis of legal advice privilege, litigation privilege, and without prejudice communications,
common interest privilege and privilege against self-incrimination.
 Recent changes
 Following the Clementi Report in 2004, the Law Society created a new complaints procedure. This was
the Consumer Complaints Service. It has since been rebranded as the Legal Complaints Service. This
new body is still not as efficient as it should be.
 The Legal Service Ombudsman’s report for 2008-09 found that only two out of every three of
investigations were handled satisfactorily.
 The Legal Service Ombudsman has pointed out in the past that ‘the overall performance is well short of
where a modern consumer-focused organisation should be’.
 The Legal Service Act 2007
 The Legal Service Act 2007 creates the Office for Legal Complaints. This is completely independent of
the Law Society and any other sector of the legal profession.
 The Office has a non-lawyer as Chairman and the majority of members must also be non-lawyers. This
Office will deal with complaints against solicitor and also all other sectors of the legal profession.
 The Legal Service Complaints Commissioner
 The Access to Justice Act 1999 gave the Lord Chancellor the Power to appoint a Legal Service
Complaints Commissioner.
 The Lord Chancellor did this in September 2003, largely because of the continuing problem with the
way that the Law Society handled complaints against solicitors.

 The Legal Service Complaints Commissioner has the right to investigate the handling of complaints
and to make recommendations about the arrangements for dealing with complaints. He or she can
also impose targets for handling of complaints and, if these are not met, fine the professional body
concerned.
 In 2006 the Legal Service Complaints Commissioner fined the Law Society £250,000 for submitting an
adequate complaints-handling plan for the coming year.
 The post of Legal Service Complaints Commissioner will be abolished when the office for Legal
Complaints is set up in late 2010.
 It will be replaced by Office for Legal Complaints Ombudsman.
 The Legal Service Ombudsman
 Under the Courts and Legal Services Act 1990, the post of Legal Services Ombudsman was created to
examine complaints against solicitors, and also barristers and licensed conveyancers, where the
professions own regulatory bodies did not provide a satisfactory answer.
 Under the Access to Justice Act 1999 the Ombudsman has power to order that the solicitor concerned
should pay compensation or that the Law Society itself should compensate the client.
 Difference between Barristers and Solicitors
 Although a comprehensive knowledge of the law is common to both professions, there are significant
differences between the work done by solicitors and barristers, and between the training systems for
the two professions. The terms Lawyer and Solicitor are interchangeable. There are major differences
between Solicitors and Barristers, however.
 You could draw the medical analogy that a Solicitor is like a General Practitioner and the Barrister is
the Consultant Surgeon. There are many differences, but the gap is narrowing.
 Barristers specialize in courtroom advocacy. It used to be that only Barristers had the right to
represent clients in the higher courts, but now some solicitors may also obtain higher rights of
audience. However, the Bar is still predominantly a referral profession with barristers acting on the
instructions of solicitors rather than dealing with clients directly – although barristers may provide
legal advice to clients when specialist expertise is needed. Barristers are self-employed individual
practitioners who generally work in groups known as chambers.
 Solicitors work directly with clients, providing legal advice. Solicitors can also represent their clients in
the lower courts and some solicitors, who have ‘higher rights of audience’, are permitted to represent
clients in the higher courts. Solicitors can practice alone, in partnership with other solicitors, or be
employed in private practice or in government.
 Barristers automatically have higher rights of audience that is they can appear in the High Court and
Court of Appeal simply because they are Barristers. A Solicitor cannot but one may, with the necessary
experience, become a Solicitor Advocate and gain such higher rights of audience.
 Solicitors are, typically, employed by or are partners in a firm. They may also be employed in-house by
a company. Barristers, on the other hand, are self-employed. They belong to one of the four Inns of
Court and group together in Chambers, but they are all independent and rely upon referrals for work

from Solicitors (and work assigned to them by the clerk of chambers if the solicitor does not specify a
particular barrister when submitting a brief.)
 Barristers do not have clients as such - a solicitor would brief or instruct a barrister to appear in court
or advise on a particular point of law (or indeed the value or 'quantum' of a particular case)
respectively. To do this the solicitor will provide the barrister with a précis of the case, relevant
documents and detailed instructions of what is required of the barrister.
 The difference in the respective fees between the professions is not so glaringly obvious anymore,
except at the much higher levels, such as QC. Solicitor Advocates can, however, become QCs, so this is
again becoming less of a difference.
 Solicitor and Barrister training is the same up to degree level - Law degree or Common Professional
Exam after a degree in a different discipline - but then they diverge. To be a solicitor you would
complete the Legal Practice Course (LPC) which is a one-year intensive course covering the main
practice areas of Drafting, Research, Advocacy, Interviewing and Negotiation (DRAIN skills) as well as
more specific topics such as Conveyancing and Litigation. At this point Barristers do a similar one-year
course called the Bar Vocational Course.
 Thereafter a would-be Solicitor needs to find a Training Contract (formerly known as 'Articles') where
he or she will work in a firm of solicitors as a trainee for 2 years. During this 2 year period he or she will
have to complete further courses such as ethics, management, etc. The Law Society sets a minimum
salary for trainee solicitors, but this is not very high. After the training contract the trainee applies for
admission to the roll and qualifies as a Solicitor.
 A Barrister completes a one-year pupillage after bar finals, essentially shadowing an experienced
Barrister before admission to the bar. An important part of qualifying as a Barrister (believe it or not) is
dinner at the Inns of Court. A pupil Barrister must have dinner at the Inns of Court 24 times (I think
that's the right number) before he or she can be admitted.
 One final and more observable difference is that Barristers wear a wig in court, Solicitors do not. Whilst
this would appear trivial, it is quite a bone of contention, as the Barrister is considered by some to have
an unfair advantage in looking more authoritative (say to a jury) than a Solicitor.
 Comparison of Barrister and solicitors
Barristers Solicitors
Professional body Bar Council Law Society
Basic qualification Law degree or degree in another Law degree or degree in another
subject Plus common professional subject Plus common professional
exam exam
Vocational training Bar Vocational Course Legal practice Course
Practical training Pupillage Training contract
Method of working Self-employed, practicing in Firm of partners or as a sole
chambers practitioner
Rights of audience All courts Normally only County Court and
magistrates court
After Access to Justice Act 1999

will be able to have full advocacy
rights
Relationship with client Normally through solicitor but Contractual
accountants and surveyors can
brief barristers directly
Liability No contractual liability but liable Liable in contract and tort to
for negligence (Hall v Simons) clients may also be liable to others
affected by negligence (white v
Jones )
Number in profession 14,400 110,000
 Legal Advice Privilege
 Legal advice privilege covers confidential communication or discussions between you and your lawyer
for the purpose of giving you or receiving legal advice. Such information will not be allowed for
inspection to the other party. As long as the communication is confidential it will not be allowed for
inspection.
 Litigation Privilege
 Litigation privilege covers any communication between a lawyer and a third party e.g. a witness or a
client and a third party. Such communication is privileged and therefore not available for inspection as
long as it is for the purpose of obtaining legal advice evidence or any information. Without the purpose
of obtaining legal advice such communication will not be privileged.
 Without Prejudice Communications
 This type of communication helps the parties to settle the dispute. The document will normally state in
its heading ‘without prejudice’. Such a document will therefore not be allowed to be inspected by the
other party.
 Common Interest Privilege
 Common interest privilege covers any communication between the client and a third party relating to
the common interest in a matter, this is therefore privileged.
 Privilege against Self-incrimination
 It is a type of a document which would incriminate the party if it was disclosed e.g. any criminal
penalty. This document will also be privileged.
 Procedure
 Each party will be required to make a list of documents which will be sent to the other party. Such a list
must be contained in a specific form. The list must indicate which documents it is intending not to
allow for inspection and on basis of which privilege and whether they are in his possession.
 Where the party has the right to inspect a particular document, that party should give a written notice
of inspection to the other party. If one of the parties disclosed the document it must permit inspection
not more than 7 days after the date of the written notice. Copies of the documents may be requested.
 Information which you will say to your solicitor may or may not be disclosed to the other party
depending on whether a particular document falls within one of the definitions of a privileged
document. It is however essential to notify a client that he should not create any documents which
would adversely affect his case and so that reduce his chances of success in the proceedings if these
had to be disclosed and inspected as duty of disclosure continues throughout the proceedings too.
 Queens Counsel
 Barristers are sometimes referred to as ‘counsel’. It is an interchangeable term. A limited number of
the more experienced and senior barristers are given the position of Queens Counsel which is a sign of
expertise and status. There are only a small number at any given time and many sets of chambers have
a Queens Counsel or ‘QC’s’ as their head of chambers, these barristers being the most senior and
skilled.
 In larger cases, the advocacy team is often led by a Queen’s Counsel (QC). This is a rank to which
senior barristers may be appointed (by an independent commission set up by the UK Government's
Department for Constitutional Affairs with the Bar Council and the Law Society).
 The criteria for appointment as a QC can be summarized as high levels of achievement in the key
elements of advocacy: integrity, understanding of the law, analysis of the case, case presentation,
working with clients and the rest of the team.
 The QC appointment system provides a mark of quality for barristers who achieve the rank of 'silk', the
colloquial term for QCs stemming from their entitlement to wear gowns of silk (unlike the ordinary
material of barristers' gowns). Their gowns are made from silk and this is where their other name
originates, Queens Counsel is sometimes referred to a ‘silks’.
 Of approximately 10,000 barristers in England and Wales, about 10% are QCs. In some of the larger and
more successful sets, particularly in London, the proportion of QCs is as high as 20% of the total
number of members of chambers.
 Barristers: Independence
 The self-employed nature of practice means that extreme independence is at the heart of the ethos of
the Bar. Two barristers from the same chambers can therefore appear against each other in the same
case. To ensure confidentiality, stringent provisions are put in place in such cases. It occasionally
happens that the appointed arbitrator practices from the same chambers as one or more of the
advocates.
 By contrast, there may be barristers from different chambers working together as part of the advocacy
team on a major case. The leader, usually a Queen’s Counsel will want as a junior the best specialist
available, who may be from the same chambers or from another set. Again, the independence of the
Bar means using a barrister from another chambers is not an issue - all which matters is putting
together the best team for the case.
 Barristers and solicitors - the Fusion debate
 Separate professions
 The professions of barrister and solicitor are separate and the work is different. It is wrong to think of
solicitors as some sort of junior barrister, or barristers as trainee solicitors.

 It is not possible to belong to both branches of the legal profession, but it is possible for a barrister to
retrain and become a solicitor, and many often do; similarly solicitors can move in the opposite
direction. By convention solicitors can join Inns of Court, but few do.
 The rank of Queen's Counsel is awarded to solicitors on the same basis as barristers; this is recent
example of a fusion of the two branches of the profession.
 Fusion, in this context means a union resulting from combining or merging elements or parts.
 Legal profession should be similar the medical profession. Common training for all to practice as
general lawyers. After a period, those who wished to specialise could become consultants.
 Pressure for change is less now than a few years ago, because the granting to solicitors of limited rights
of audience has allayed their strongest grievance.
 Alleged advantages of fusion
 Young lawyers would not have to decide which part of the profession to join
 At present, after university young lawyers to be have to decide whether to be a solicitor or barrister,
without experiencing any practical law.
 Eliminate wasted effort and duplication of work
 It is often said that a client explains the case to a solicitor, who then instructs a barrister, the argument
is that if there were only one lawyer there would only be one fee.
 It is has been said that a barrister in charge of the case would be able to deal with the instructions and
evidence better than one who received instructions second hand. This argument is fallacious because
barristers do not receive instructions second hand. They have a client at court from whom they take
instructions.
 In most cases an experienced solicitor will only provide a brief set of instructions because the evidence
itself is self-explanatory. Solicitors will often use their brief to provide their overview of the case but
express a desire to have Counsel's overview.
 There is rarely duplication of work when the instructions are themselves a short and concise summary.
 Alleged disadvantages of fusion
 Independence of the bar
 One of the Bar's most important features is its independence. There are no links between barristers
and anyone else (they are self-employed), their independence ensures they are not subject to
persuasion in the way they view and conduct the case.
 Workings of the Bar
 Although the bar is comparatively small there is not necessarily a 'close working relationships' any
more than there are between solicitors.
 Reluctance to use specialists.
 Most lawyers to become general practitioners, and try to deal with cases himself rather than use an
expert.
 Standards of advocacy would fall
 The standards of advocacy would be put at risk, because of the lack of experience in particular types of
case.

 Professional ethics would be at risk
 The relationship between barristers and judges (whom barristers often wish to become) is of the
highest integrity. There is also close supervision by colleagues and judges.
 Loss of expertise
 Small firms would not have access to the full range of knowledge and experience available at the Bar.
 Best lawyers would join big firms
 The best lawyers would gravitate towards the larger firms, and would not be available to all clients.
Lawyers who wanted to specialise in narrow areas of work would be unable to do so within a single
firm.
 The changing relationship between solicitors and barristers
 In the debate about how the legal regulators should amend practicing rules to allow solicitors and
barristers to operate in the new structures modelled in the Legal Services Act 2007, some predicted
that the reforms could alter forever the identity of lawyers and lead to fusion – ending the distinction
between law firms and chambers. That has not happened, but does slow progress to date rule out
greater upheaval in future?
 The Solicitors Regulation Authority changed the Solicitors Code of Conduct in March 2009 to allow
solicitors to form legal disciplinary practices and permit up to 25% of partners to be non-lawyers. A
month later, the Bar Standards Board followed suit, amending the bar’s rules to enable barristers to go
into partnership with solicitors.
 The Legal Services Act (LSA), according to Bar Council chairman Nick Green QC, has had a positive
impact on the relationship between the two professions, but only in a limited way.
 It has provided the opportunity for closer working relationships, but as the figures show, it is an
opportunity that few have elected to take up. Green puts this down to the nature of the bar as an
independent referral profession, focused on providing specialist advocacy services.
 The LSA, Green believes, is not an irrelevance, but it is not the main driver of change: ‘the main driver
is the legal aid crisis, aggravated by the economic situation caused by the bankers, which will create an
interesting jockeying for position between the bar and solicitors.’
 Growing financial pressures on the bar resulting from the downturn, the falling legal aid budget, and
competition from higher court solicitor-advocates, mean that those barristers who mainly do publicly
funded work are keen to get their hands on the sources of instructions and fees, rather than relying on
referrals from solicitors.
 The solution the bar has come up with is a model procurement company, which has become known as
‘the ProcureCo’. It preserves the traditional chambers structure but allows corporate vehicles to be
added as an adjunct to chambers.
 The model will enable the bar to contract directly with the Legal Services Commission, and then
instruct solicitors to perform the elements of work that chambers do not wish to, or cannot do,
reversing the current referral arrangements.
 According to his analysis, contracts will be awarded on the basis that the bidder can provide the full
range of criminal work, from police station advice to the Crown court, so barristers will need to have

links with solicitors to fulfil this criterion. ‘The bar does lots of Crown court work and solicitors do lots
of police station and magistrates’ court work, so they can work with each other,’ he explains. ‘It’s
complementary in the sense that they might fit together well.’
 According to this view, barristers and solicitors will be bidding against each other for work, but they
will also need each other and will be included in each other’s bids or form panel arrangements. And
there will be cross instruction, so ‘things will not be too different from the way we work now’.
Moreover, the bar could provide a lifeline for small criminal legal aid firms that fail to get contracts
when the LSC next tenders.
 If the coalition pursues the last government’s plans to contract the criminal defence market, over 1,000
firms will be left without contracts, says Green. ‘Some firms that don’t get contracts could join a
ProcureCo.’
 The bar chairman does not see the roles of solicitors and barristers or their relationship changing a
great deal. ‘There will be a greater degree of formality between the relationship and the way work is
procured, but that’s about it,’ he observes.
 He doesn’t believe that is about ‘fusion’, adding: ‘Barristers and solicitors will still do much the same
work they have always done. The bar’s approach will be the same. We will remain advocates but with a
longer litigation tail.’
 Law Society president Linda Lee notes that most legal work is carried out by solicitors and does not
affect the bar. She is in agreement with Green over the limited impact of the LSA. ‘There will be some
barristers employed in solicitors’ firms or who go into partnership with solicitors, but I don’t think the
number of people doing this will increase hugely,’ she says.
 Where this does happen, Lee predicts that the traditional firm model will be preserved, with no
discernible change from the client’s perspective. According to Lee: ‘For clients it won’t look different.
They will still be getting the same service and I don’t think they’ll notice whether it’s from a barrister or
solicitor.’
 Element of competition But the solicitor’s role is changing from the traditional one of calling on the
expertise of the bar when required for specialist work to be undertaken. As solicitors are increasingly
developing their own specialisms, so there is a reduction in the need for them to approach the bar.
 This has created an element of competition between the two professions. But Lee is dubious about
the effectiveness of the bar’s solution or whether they will be able to pull it off: ‘The ProcureCo is an
interesting development. The reputation of chambers will be staked on their contracts and they will
have to ensure the quality of the work they don’t carry out themselves.’ She adds: ‘In addition,
barristers will have to learn how to administer and manage the company – a different skill set from
that needed by independent practitioners.’
 The development, she adds, risks damaging the relationships that sets have with firms and alienating
their existing client base. ‘Essentially, solicitors are clients of the bar. If they see the bar as competing
with them rather than purchasing services from them it will change the relationship.’
 The instability of the legal aid market, she says, adds to the uncertainty of the venture, although she
concedes ‘one or two sets may make a go of it’.

 Chair of the Bar Standards Board Lady Deech acknowledges the distinct roles of barristers and
solicitors and, although the boundaries are becoming more ‘fluid’, she says both branches of the
profession share common causes. ‘They are both concerned with the issues around legal aid, getting
the best young people into the professions, and the impact of the recession,’ she notes.
 Deech does not see the LSA or the regulatory changes that followed it leading to fusion, as ‘neither the
Solicitors Regulation Authority nor the BSB want that’. She adds: ‘There are some solicitors who do
advocacy and some barristers who are employed in firms, but there remain two core roles.’ Solicitors,
she says, are ‘more in charge of affairs and negotiation and providing general all-purpose help’.
 Barristers, meanwhile, are ‘independent advocates with special responsibilities to ensure they take the
next case that comes along, to safeguard the rule of law, and to train future judges’.
 There is, Deech accepts, a certain amount of overlap where solicitors do advocacy and barristers do
employed work, and she expects this to grow along with the number of entities in which barristers
and solicitors work together. It is partly for this reason that she would like to see a single
comprehensive postgraduate legal training course covering every lawyer activity, from advocacy, to
practice management and ethics.
 This would prepare the future generation of lawyers for practice in any type of legal entity and mean
that students would not have to decide so early in their studies which career path to follow, explains
Deech.
 On this point Deech’s counterpart at the, Charles Plant, is in agreement. ‘There should be a common
legal education, particularly to enable young people to make career choices later than they have to
now,’ says Plant. ‘It doesn’t mean there’d be fusion of the professions but it would help young lawyers
move from one area of the profession to the other.’
 In structural terms, Plant envisages a situation where barristers and solicitors are increasingly likely to
go into partnership together.
 He explains: ‘You have a situation where it’s arguable that there are too many lawyers. Every lawyer
needs to ask themselves the question whether they could have a more rewarding career if they went
into a partnership structure.’ The roles played by these two types of lawyer would vary, he says. ‘There
may be solicitors who want to do more advocacy and barristers who want to do more of the case
preparation.’
 Going into partnership with solicitors, according to Plant, would be advantageous for barristers,
improving their career prospects. The bar, he argues, is ‘over worked’ and solicitors have developed
the advocacy skills that were once the preserve of the bar, so solicitors are less reliant on the services
of their barrister colleagues. He adds: ‘The bar’s role as a referral profession works well among the top
level, but once you get outside that it’ll increasingly come under attack as solicitors expand their role.’
 The jury remains out, then, on the precise extent of the impact that the LSA will eventually have on
relations between these two groups of learned friends. But all seem agreed that the economic
challenges facing the publicly funded sector of both professions are providing the greatest catalyst for
change at present. Whether that will lead to increased competition and friction between barristers and
solicitors, or whether it will see the fostering of unity and closer cooperation also remains to be seen.

 United front
 One example of barristers and solicitors coming together to promote unity and understanding can be
seen in a pioneering move by Birmingham Law Society (BLS). President Dean Parnell invited all 162
barristers at the city’s second largest set, St Philips Chambers, to become members of the local law
society. And they did. Barristers have been permitted to join BLS for some years, but this is the first
time in its 191-year history that an entire set of chambers has signed up.
 Parnell is also keen to have barristers and chambers’ employees on BLS’s committees. He explains why:
‘The challenges anticipated by the Legal Services Act and other economic pressures mean that
different arms of the legal profession will need to work more closely together. We want to make the
local legal community more cohesive so firms and chambers don’t feel isolated. If we can improve the
networks and lines of communication we can face the threats together.’
 St Philips Chambers’ chief executive Chris Owen observes: ‘The profession has changed a lot since I
became an articled clerk in 1968. Among other things, the LSA will mean we all have to operate more
cooperatively than we have done hitherto.’
 Explaining why his set joined BLS, he adds: ‘Local bars and solicitors should work more closely together.
It’s a good way to gain greater understanding and it Make less mysterious the relationship between
the bar and solicitors. It’s about getting rid of the "them and us" view – if that ever existed.’
 Solicitors and barristers – two sides of the same coin
 The legal profession in England and Wales is divided into two: solicitors and barristers.
 There are various claimed advantages for our separated system, but in recent years the line between
the two has become increasingly blurred. Solicitors have gained rights of audience in higher courts,
and barristers are now allowed to take instructions direct from the public. Is it time, then, for the two
sides of the profession to be fused into one?
 Let us look briefly at some of the pros and cons of fusion (there are many more arguments than I could
go through here).
 None of these arguments are new – I can recall them being raised many years ago. Indeed, the issue of
fusion was considered by the Benson Commission back in 1979. The Commission considered the
arguments and came to the firm recommendation that the profession should not be fused.
 So, has anything changed to alter that recommendation? If we think as a solicitor, I suppose that direct
access to barristers appears to be the biggest recent change, and not just because it poses a threat to
solicitors’ businesses. It is something that involves the public directly, and therefore appears to be a
fundamental change in the way the ‘system’ works –although the number of barristers offering direct
access outside of the big cities seems quite small.
 However (and this must be confusing for the public), there remain certain things that direct access
barristers cannot do. In particular, they cannot correspond with the court and the other party, as a
solicitor could do. The clients therefore have to do this work themselves as a litigant in person. To the
public, this may seem a slightly absurd restriction – why not go the whole take more than one's share,
and let barristers do what solicitors can do?

 But if you do that, then surely it is only fair that solicitors should be allowed to do what barristers can
do (provided they have the necessary expertise)? And if that is the case, then there is no longer any
need for the two parts of the profession to be separated.
 Of course, there are reasons why barristers are not allowed to do things that solicitors can do. In
particular, barristers do not have the infrastructure of solicitors’ firms, with their support staff and
procedures to protect clients and their money. If there is to be fusion, then barristers will either have
to set up this infrastructure themselves, or join solicitors’ firms (as a number have already done – in
January 2012 there were already 62 mixed solicitor/barrister practices).
 Case Laws
Abse v Smith [1986] CA [Solicitors – barristers – rights of audience]

Judge Leonard refused to allow an apology to read in court by a solicitor, because
he was not a barrister or a litigant in person, and was not an emergency.
Held: The trial judge was correct, ruling upheld.
Bache v Essex CC (2000) [Legal Profession – rights of audience – Employment Tribunals a statutory
CA exception]
C appeared before an employment tribunal represented by a lay person. The
representative persisted in raising irrelevant matters so the tribunal directed C to
represent herself.
Held: There is a statutory right for a party to be represented in an employment
tribunal by a person (qualified or lay) of his or her choice. The tribunal can insist
on proper behaviour, but cannot restrict the exercise of this right.
Boardman v Phipps [Solicitors – relationship with clients is fiduciary]

[1967] HL D the solicitor to trustees who held a block of shares in a company. To improve
the company's financial position, D bought further shares which produced a profit
for the beneficiaries of the trust.
Held: D held his shares on a constructive trust, since the information and the
opportunity to purchase them had come to D by virtue of his position.
D had acted entirely in good faith, and the beneficiaries had not suffered any loss
by his action, equity insists that those who make use of a fiduciary position to
make a profit should be liable to account for that profit.
Clarkson v Gilbert [Rights of audience – non lawyers – husband for wife - strict rules in family
[2000] CA proceedings should not apply to a close relatives]
C a founder member of psychotherapists training and
accreditation organisation was suspended by the organisation. C alleged
conspiracy and inducement to breach contracts
The husband of the C wished to represent his wife. He had completed academic
and vocational training for the bar but had not been called, and so had no rights of
audience. Lord Woolf distinguished this case on its facts from the Dr. Pelling saga
(see D v S), where Dr Pelling regularly represented men who wanted access to
their children. By regularly so acting Dr Pelling bypassed the legislative framework.

The husband argued that there were two grounds why he should be granted rights
of audience: first, the claimant's ill health (an angina attack); and secondly, her
lack of means.
"Now that legal aid is not available as readily as it was in the past means that
there are going to be situations where litigants are forced to bring proceedings in
person when they will need assistance. However, if they are litigants in person they
must, in my judgment, establish why they need some other person who is not
qualified to appear as an advocate on their behalf. In the ordinary way it will be for
them to satisfy the court that that is appropriate. If somebody's health does not, or
may not, enable them to conduct proceedings themselves, and if they lack means,
those are the sort of circumstances that can justify a court saying that they should
have somebody who can act as an advocate on their behalf.
I regard it as the obligation of someone who wishes to have an unqualified
advocate to appear for them, to make out a case for this to be done...In the normal
way it should be for the claimant to do that...So the court saw (C) (Professor
Clarkson) in a private room when she was able, in the presence of counsel and
solicitors for the defendants, and in the presence of her husband, to explain to us
personally her reasons for wanting to have the assistance of her husband. She
having done that, my conclusion here is that this appeal should be allowed.
I am satisfied that there would be a danger of Professor Clarkson being deprived of
her right to have the case conducted before the courts in a way which would
enable her claims to be investigated if she did not have the assistance of her
husband as an advocate…On that basis I would allow the appeal."
Copeland v Smith [Barristers – professional code – action by Bar Council]

[2000] CA C claimed compensation following a road accident. In a preliminary hearing the
issue of whether his claim was out of time was discussed. Neither barrister drew
the judge's decision to a decision of the Court of Appeal that would have settled
the matter conclusively. The case had appeared in the Weekly Law Reports four
months before the hearing.
Held: The barristers did not discharge their duty properly to the court in that they
appeared to be unaware of the existence of that authority.
It is the duty of an advocate to draw the judge's attention to authorities which are
in point, even if they are adverse to that advocate's case.
D v S [1997] CA [Barristers, solicitors - Lay Representatives – rights of audience]

D had been excluded from the home he shared with his partner and children. He
asked to be represented by Dr. Pelling, a leading member of Families Need Fathers
a pressure group. Dr Pelling was not legally qualified but had considerable
experience of this area of law and charged about one-tenth as much as a solicitor.
Held: Refusing to exercise its discretion to grant Dr Pelling a right of audience the
court could see considerable arguments to the effect that the law as it now
existed was inappropriate and should be relaxed, but the spirit of the Act was
clearly against any general relaxation at present.
D lost (see R v Bow County Court ex parte Pelling)

Donovan [Solicitors – duty to their clients]
v Gwentoys [1990] HL D solicitors failed to act quickly enough for C who had a negligence claim, and she
failed to recover damages.
Held: The other party would be in difficulty if asked to respond to a six year old
claim which they had no chance to investigate
Action was therefore struck out, but C might have a claim in negligence against
her solicitor for failing to act within the limitation period.
Edmonds v [Legal Personnel – Barristers - Minimum wage; Pupillage]

Lawson. (2000) (CA) D, the head of barristers' chambers, "employed" a pupil barrister. D argued that
C's acceptance of an unpaid pupillage was not a binding apprenticeship and that C
was therefore not a worker entitled to the national minimum wage. D said the
arrangement was educational in nature, not commercial, and that it was not
enforceable due to a lack of consideration.
Held: C was not an apprentice nor a "worker" within the meaning of the National
Minimum Wage Act 1998, because there had been no expectation upon her to do
any work for D or do anything other than further her own training. But a binding
contract did exist.
D won.
Foster v Alfred Truman [Legal personnel - solicitors and barristers - solicitor can rely on advice of QC
(a firm) (2003) QBD unless it is obviously wrong]
D a high street solicitor acted for Mrs. Foster who was suing a former firm of
solicitors, the action failed because D failed to realise it was time barred.
Held: A high street solicitors’ duty of care did not require them to examine
documents which had been available to leading counsel (QC) in order to ascertain
the reliability of counsel’s opinion, and they were entitled to rely on that advice
without taking such steps.
Where such advice was incorrect a cause of action did not lie against the solicitor.
Much would depend on the complexity of the matter in hand, the more complex
the matter, the greater reliability could be placed on the advice received. It was
important that solicitors were able to make use of a specialist bar, and in doing so
the public interest was served.
Hall v Simons [2000] HL [Barristers – immunity against being sued in negligence lost]
This case was part of three conjoined appeals heard at the same time because
they involved the same point of law, namely immunity from suit by solicitors and
barristers.
The case involved negligent advice.
Held: Rondel v Worsley had not been wrongly decided in its time, but the world
was different then. The courts now can strike out claims which have no real
chance of success.
This is also the case where an action appears to be an abuse of the legal process.
This includes which attempt to re litigate the first case.
Lawyers not the only professionals who have to balance their duty to an individual

client and a code of ethics.
It is essential to the proper administration of justice that barristers should be
prepared to defend even the mostunsavoury characters, who might well wish
their lawyers to use all possible means, ethical or not, to secure their acquittal.
These characters may wish to sue if they are acquitted on appeal.
Immunity from suit removed
Comment: The apparent position of advocates has been altered by Moy v
Pettmann Smith
Hesford v Bar Council [Barristers – professional code – action by Bar Council - conflict between
(1999) TLR Jonathan barrister’s professional and parliamentary duties]
Parker J D a barrister returned a brief so he could attend and vote in the House of
Commons, this breached the Bar's professional code.
Held: Affirming the decision but substituting a reprimand for the "wholly
disproportionate" three-month suspension originally imposed.
McKenzie v McKenzie [Barristers, solicitors - Lay Representatives – rights of audience]

[1970] CA A husband represented himself in a divorce case. His former solicitors sent a
young Australian barrister not qualified to practice in England to sit beside him
and offer advice.
The judge told the barrister he must not take part in the case, so the barrister left
the court. The husband lost so he appealed.
Held: Quoting from Lord Tenterden CJ 150 years earlier, said that any person,
whether a professional man or not, may attend court as a friend, may take notes,
and may quietly offer suggestions and give advice.
Appeal allowed
Moy v Pettmann Smith Barristers - immunity from suit of negligence

(A Firm) & Anor (2005) [Barristers – loss of immunity against being sued in negligence weakened]
HL A barrister did not advise her client of specific risks regarding the settlement of a
personal injury claim at the door of the court. The client received substantially
less damages as a result because of a procedural decision by the judge.
The barrister judged the chances to be 50/50, but she did not give that advice, nor
other advice she could have given. She simply told him that in her judgment he
would “beat the payment into court” that is get more compensation than was
offered, though she also told him that he could take the offer and avoid the risks.
Held: The barrister was not negligent.

The principle that an advocate is liable to his client for professional negligence in
Arthur JS Hall v Simons [2002] HL should not stifle the manner in which they
conduct litigation and advise their clients.
This might lead to defensive advocacy, where barristers would hedge their
opinions with qualifications and be reluctant to give clients the advice which they
require in their best interests.
Whilst a doctor's patient has a right to be appropriately warned of risks, a

barrister's client only has a right to "clear and readily understood advice", not the
reasoning behind it.
Lady Hale said that the courts "have not yet developed a clear set of principles
governing the terms in which an advocate's advice should be given".
Barrister won
R v Bow County Court [Barristers, solicitors - Lay Representatives – rights of audience]

ex parte Pelling [1999] F applied for a court order in respect of his children and wished to be
CA accompanied at a hearing in chambers by Dr. Pelling acting as a McKenzie friend,
but Dr Pelling was refused access. Dr Pelling's application for judicial review was
dismissed, and his appeal failed.
Held: In proceedings open to the public, whether in court or in chambers, a
litigant in person should be allowed the assistance of a McKenzie friend unless the
judge is satisfied that fairness and the interests of justice do not require it.
The same is true in principle in private proceedings, but here the nature of the
proceedings might make such assistance undesirable. For example, a particular
friend might seek to adopt an adversarial approach inappropriate in family
proceedings, and a person like Dr Pelling frequently acted as a McKenzie friend
might be tempted to conduct the case himself rather than remain in the role of an
assistant.
Dr Pelling excluded
Re a Solicitor [1974] CA [Solicitors – supervision by Law Society – duty to clients]

Two solicitors accepted substantial legacies under wills they had drafted without
first ensuring that their clients received independent advice.
Held: It is not enough, merely to advise the client to obtain such advice: a solicitor
in this position must insist that the client is independently advised and must
decline to act if the client refuses.
Solicitors struck off by the Disciplinary Committee of the Law Society.
Rondel v Worsley [1967 [Barristers – immunity to suit]

] HL C caused grievous bodily harm and at court gave a "dock brief" to a barrister D. C
was convicted, but complained that D had not asked all the questions he had
suggested, and had not challenged the prosecution's statement that the injuries
were inflicted with a knife.
Held: C's civil action for negligence could not be sustained: a barrister's immunity
was justified by public policy.
C lost
Comment: This case now overruled by Hall v Simons.
Ross v Caunters [1979] [Solicitors – duty to their clients]

Ch Div Megarry VC D a solicitor prepared a will for a client and sent it to him for signature. D failed to
warn the client that his signature should not be witnessed by the spouse of a
beneficiary, and subsequently did not notice that this had actually happened.
Held: D liable to pay damages to the disappointed beneficiary.

Rougemont v Pilbrow ( [Solicitors – relationship with legal executives]
1999) CA D a client of C a firm of solicitors asked for an appointment but was seen by a
woman who was neither a solicitor nor a qualified legal executive. D was not
aware of this. D subsequently refused to pay C's bill.
Held: The advice D received had been up to the standard expected of a competent
solicitor, but this was not enough. D had contracted for legal services provided by
a solicitor which he did not receive; therefore C had failed to perform their
contract.
D won
Saif Ali v Sydney [Barristers – immunity to suit – now overruled]

Mitchell [1978] HL D a barrister gave negligent advice to C concerning as to who should be joined as
defendant in a civil action.
Held: The immunity conferred by Rondel v Worsley extends to pre-trial work if and
only if it is so intimately connected with the conduct of the case in court as to
amount to a preliminary decision about it.
C won
Sally Clark The Times, [Solicitors – regulation by Law Society]

25th May 2001 A solicitor convicted of murdering her two sons, was suspended indefinitely by the
Solicitors' Disciplinary Tribunal after hearing her appeal on video from prison. It is
believed to be the first time the tribunal had not struck off a solicitor for such a
serious offence.
Subsequently Ms Clark was cleared of both murders by the Court of Appeal.
Thai Trading [Legal Aid – lawfulness of CFA’s]

v Taylor (1998) CA C supplied a carved bed. D paid the deposit but no more, claiming the bed was
unsatisfactory. C sued for the balance due. D counterclaimed for the return of her
deposit. D was represented by a solicitor - her husband - on a "no win no fee"
basis, and won. C appealed against the order for costs.
Held: Affirming the order, and distinguishing Wallersteiner v Moir there can be no
objection to an arrangement whereby a solicitor agrees to forego his costs if he
loses, as long as he does not seek to recover more than his ordinary profit costs
and disbursements if he wins.
Wallersteiner v Moir (N [Lawyers earnings - position of CFA’s]

o.2) [1975] CA D defended a complex case for over 10 years. C had been refused legal aid
because he stood to gain very little from the action, and had little money.
He sought s contingency fee arrangement with his lawyers.
Held; An arrangement whereby the lawyer is paid more for winning than for
losing, is illegal as contrary to public policy. C's problems could be met by giving
him an indemnity against the company for any costs not ultimately met by D.
White v Jones [1995] [Solicitors – duty to their clients]

HL D a solicitor was asked to prepare a will, but negligently failed to do so before the
testator died. Two claimants who should have received legacies under the will

sued D in negligence.
Held: Had the error been discovered before the testator's death it could easily
have been put right and (whether it was or not) no action would lie, but here
there was no one else able to take action.
D lost
Wintle v Nye [1959] HL [Solicitors – relationship with clients]

D a solicitor received more than £100,000 under a complex will he had prepared
for an elderly lady.
Held: While there was no law preventing such a thing, it created a
grave suspicion? D was under an exceptionally heavy burden of proof - which he
had not met - to show that he had not unduly influenced the testatrix.
The will was set aside.
 Class Activity
 Explain the differing training and roles of barristers and solicitors and the concept of independence.
 Discuss on the overlap between the professions.
 Students prepare letters of advice to learners wishing to enter the legal professions, covering the
above issues.
 Conduct a mock trial by giving students the role barristers and solicitors.
 Discussion among students about the selection of legal profession (barrister or solicitor), and the
reasons of their choice.
 Past paper questions
 Q1. To what extent do you think that the roles of the solicitor and the barrister have merged into one?
Analyse whether it is better to have a fused legal profession or two separate roles.
[October/November 2006]
 Q2. Lawyers may be called to the Bar or admitted as solicitors. Do you perceive any deficiencies in the
way in which lawyers obtain professional qualifications? To what extent have recent years seen an
overlap between the two professions? [May/June 2008]
 Q3. To be a barrister or solicitor? These days, the question is harder than ever’. Assess critically
whether the existence of a divided legal profession can still be justified. Does the present system
present any problems for a student wishing to embark on a legal career? [May/June 2010]
 Q4. ‘Opportunities for solicitors have improved greatly in recent years.’ Discuss whether professional
opportunities for solicitors have increased as their role has become more integrated with that of
barristers. To what extent has there been fusion between the two branches of the legal profession?
[October/November 2012]
 Q5. ‘The job of a barrister and a solicitor within the English Legal System is essentially the same.’
Discuss the truth of this statement. [May/June 2013]
 Q6. Compare the training and role of barristers and solicitors. How far is it true to say that the two
professions are now identical? [May/June 2014]

ELS 15 Barristers and Solicitors

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ELS 15 Barristers and Solicitors

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Lecture # 15

Barristers and Solicitors

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 A Barrister also termed as Barrister-at-Law or Bar-at-Law. Barristers have traditionally undertaken

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Law Degree Non-Law Degree Non-graduate mature student

One year law course two year law course

Common Professional Common Professional

Membership of an Inn of court, Attend at Inn – either dine or on course

Bar Professional Training Course

Call to the bar

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A levels or equivalent A levels or equivalent GCSEs

Institute of Legal Executive

Work for two years in a

Two years training period

Qualified as a solicitor Qualified as a solicitor Qualified as solicitor

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Abse v Smith [1986] CA [Solicitors – barristers – rights of audience]

Boardman v Phipps [Solicitors – relationship with clients is fiduciary]

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Copeland v Smith [Barristers – professional code – action by Bar Council]

D v S [1997] CA [Barristers, solicitors - Lay Representatives – rights of audience]

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Edmonds v [Legal Personnel – Barristers - Minimum wage; Pupillage]

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McKenzie v McKenzie [Barristers, solicitors - Lay Representatives – rights of audience]

Moy v Pettmann Smith Barristers - immunity from suit of negligence

Held: The barrister was not negligent.

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R v Bow County Court [Barristers, solicitors - Lay Representatives – rights of audience]

Re a Solicitor [1974] CA [Solicitors – supervision by Law Society – duty to clients]

Rondel v Worsley [1967 [Barristers – immunity to suit]

Ross v Caunters [1979] [Solicitors – duty to their clients]

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Saif Ali v Sydney [Barristers – immunity to suit – now overruled]

Sally Clark The Times, [Solicitors – regulation by Law Society]

Thai Trading [Legal Aid – lawfulness of CFA’s]

Wallersteiner v Moir (N [Lawyers earnings - position of CFA’s]

White v Jones [1995] [Solicitors – duty to their clients]

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Wintle v Nye [1959] HL [Solicitors – relationship with clients]