The main task of this paper is two-fold; first, it outlines the structure of the legal profession in the United Kingdom, more specifically England and Wales, and second, it seeks to articulate substantive criticisms on whether the profession [the legal profession, that is] should be fused into one which stands in direct opposition with maintaining two distinct branches of the same profession. On a preliminary note, the legal profession in the United Kingdom is divided into two distinct branches: solicitors and barristers (British Council, 1998).
Each category has its own code of conduct which addresses how its members may broadcast their professional services (Hill, 2003). Solicitors Solicitors assume most of the work in both the courts of magistrates and county. They are responsible for the preparation of cases and also of advocacy. However, their work does not involve court cases only. They are also involved in business-related commercial work such as dealing with commercial transactions, corporate matters, land, share and other property issues (UK Law Online). They also carry out private client work such as conveyancing of houses, making wills and others.
The main role of solicitors is to give specialist legal advice (Online Law Limited). Their job includes representing their clients in court. Solicitors are involved in different kinds of practices namely, private practices, general practices, specialist practices and legal aid practices. In private practice, the solicitor’s firm is in partnership with other solicitors. Most solicitors are involved in this kind of practice. Solicitors in general practice deal with the legal problems of the public such as conveyancing of houses, making and administering wills and investigating claims which arise from injury.
They also handle divorce cases and criminal matters. General practitioners usually work in small or medium-sized firms. As opposed to the general practice, specialist practitioners are usually from large firms with multi-national clients. They handle cases of corporate clients dealing with urgent, multi-million pound cases. Their offices are usually found in major financial and business centres worldwide. Legal aid practitioners also handle cases similar with general practitioners however; their clients are those who cannot normally afford a solicitor’s fees.
Aside from general matters mentioned earlier, they also focus on welfare benefits. They give advice to clients unable to pay their rent and help victims of medical negligence. Other solicitors may involve in in-house counselling giving advices to commercial or industrial organisations, government department or local authority. Other opportunities available for solicitors include the Crown Prosecution Service, Magistrates’ Court Services, charities, voluntary organisations and armed services (Online Law Limited).
The Law Society is responsible for the training and education of solicitors. Trainees usually take a law degree in the form of Common Professional Examination (CPE) or Diploma in Law to qualify as a solicitor. Upon completion of a law degree, the student will then a professional training for solicitors through the Legal Practice Course. Another option would be to qualify as a legal executive but this is a more extensive process. Barristers While solicitors are responsible for the preparation of cases, barristers on the other hand present their cases in court.
Solicitors give more initial advice while a barrister, once instructed by the solicitor, gives a more specialised advice. However, a barrister cannot directly contact their clients. Their messages are passed through the solicitors to the client. Even though the solicitor is the direct contact of the client and initialises the conduct of the case, the barrister can perform an independent judgment of the case. Their main work is in the Crown Court, the High Court in appeal courts. Barristers deal with litigation only. They draft documents related to litigation.
The work of barristers is regulated by the Bar Council (UK Law Online). A Diploma in Law or CPE should be completed to qualify as a barrister along with other requirements. The applicant is required to be a member of an Inn Court. Inn Courts may provide students links with senior barristers. Students must also complete a one-year course, called the Bar Vocational Course (BVC) on debating, mooting, working for Citizen’s Advice Bureau or Free Representation Unit, attending court, marshalling, mini-pupillages and other activities necessary in working as a barrister.
The student is then required to take twelve pupillages split into six-month periods. The first six involves basic work such as observing and assisting the pupilmaster, researches, document writing and document reading. The second six involves a more specialised works in which students handle their own cases. The students then take two more courses, required by the Bar Council, training them in advocacy and managing a practice (Online Law Limited).
History of Competition between the Solicitors and Barristers. Legal professions in UK (more specifically in England and Wales) have undergone several reform movements since around 1980. It began with a report issued by the Royal Commission on Legal Services for England and Wales (Hill, 2003). The issues raised were the preservation of the professional division between barristers and solicitors, preservation of the barristers’ monopoly of right of audience before the high courts, and preservation of the solicitors’ conveyancing monopoly (Hill, 2003).
The Royal Commission recommended that the status quo be maintained which was accepted in 1983 by Prime Minister Thatcher’s government through the Benson Report. However, in 1985, the Administration of Justice Act proposed the removal of the solicitors’ conveyancing monopoly opening a competition between solicitors and licensed conveyancers. Due to this, the Law Society in England and Wales announced that they will lift the traditional restrictions on solicitor advertising and proposed the removal of the barristers’ monopoly of rights of advocacy in the higher courts.
An inquiry was made to review “fundamental issues of what activities require the services of lawyers and on what basis such services ought ideally to be provided” (Hill, 2003) resulting to the publication of three Green Papers in 1989. The Green Papers agreed with the proposal of the Administration of Justice Act on the expansion of the rights to provide conveyancing services. It also suggests the removal of the barristers’ monopoly on the rights of advocacy in courts. Moreover, it suggests that the code on restriction of advertising for barristers should be lifted as with the solicitors.
Although the Green Papers received negative reactions from concerned parties, it subsequently formed the Courts and Legal Services Acts of 1990 which bans advertising as anticompetitive (Hill, 2003). Since monopolies practiced by both parties before the 1990 Courts and Legal Services Acts were abolished and both now exercise the same practices, they are now in constant competition. Moreover their functions now almost coincide with each other since solicitors have also right to advocacy.
Because of this arising competition, the House of Lords passed the Legal Services Bill addressing the issues presented in the Office of Fair Trading (OFT) 2001 report “recommending that rules governing the legal professions should be subject to competition law and that unjustified restrictions on competition be removed” (House of Lords, 2006). A consultation was undertaken and a report was published regarding the competition and reulation of legal services. Fusion of Branches Since the beginning of these reform movements, the two branches have been in conflict.
However, even in the midst of their conflict, legal profession in UK “has stood the test of time” (O’Mahony, 1965). Although divided, legal profession in UK still adequately provides administration of justice. However, to an ordinary individual, division of legal profession may prove to be a problem. Thus, the solicitors and barristers should be fused into one. Fusion of these branches will prove to be efficient because firstly, this will result in the reduction of the costs of litigation. In a single case presented by a client, he needs at least four professional advisers.
Since barristers can never have a direct contact to the client, a solicitor is required to act as a liaison between the two parties. Aside from the solicitor, the barrister should not just be an ordinary counsel. The client will need to have at least two senior counsels and one junior counsel. Because of this, High Court cases are extremely costly. By fusing these two branches into one, strict division between the function of the solicitor and the barrister will be abolished. The client will then need only one practitioner that would both prepare for and present the case to the higher court.
Fusion would also mean less complicated tasks. With the division of functions, the client will first have to meet the solicitor initially, which in turn will brief the barrister before they can present the case to the higher court. If the branches are merged into one, this task will be simplified because the after the client presents the case to his lawyer, the lawyer can then immediately present it to the higher court. Moreover, it is most efficient that the person to present the case to the court is the same person to whom the client confided with for he knows the exact facts of the case.
Another point is that fusing the two branches into one gives the solicitors the same amount qualification for top judicial posts. Top judicial posts are often exclusive for barristers since all those privileged to sit on the Bench are once practising barristers and would obviously choose their ‘brothers at the Bar’ over those they regard as members of the ‘lower’ branch profession. Fusion would then abolish this discrimination and put the solicitors in the same level as the barristers. After all, it is the solicitor who has the true grasp of what the legal problem is all about since it is he who is in direct contact with the client.
