Private and Public Practice
The Legal Profession
Text 1: Practice and Study of Law
1. Pre-reading tasks
1. Scan the first section of the text and answer this question: which three branches of the legal profession does it mention?
2. Read the first section and next to each paragraph write its topic in the margin, for example: 'the main division', 'barristers', etc.
3. Read the rest of the text and answer the questions: a) what is legal aid; b) what three stages are necessary to pass in order to enter the profession of lawyer?
Barristers and Solicitors
A lawyer is a member of the legal profession who has become officially qualified to act in legal matters. In most countries there is only one legal profession: all the lawyers receive roughly the same professional education and qualifications, and do legal work according to their specialisation and choice. A distinctive feature of the legal profession in England and Wales is that it is divided into two branches: barristers and solicitors. They have different legal training and different qualifications, and do different types of work. Barristers are 'courtroom lawyers' concerned with advocacy in court, arguing cases in front of the judge, and solicitors mainly deal with legal work out of court. No one can practise both as a barrister and a solicitor at the same time, but it is possible to be doubly qualified or to transfer from one branch to the other. This division is almost unique to the British Isles: Scotland too has a division into advocates and solicitors, but many Commonwealth countries have not followed Britain in this respect, and some, like Australia, have removed the division.
The two types of lawyer in England differ in several important respects. Barristers have rights of audience (rights to appear) in any court in the land and are known collectively as the Bar. They do not have to work entirely for the defence or for the prosecution but may alternate between the two, appearing in one case on the side of the defence and in another on the side of the prosecution. All professional barristers are self-employed and usually work out of chambers, offices which they share for convenience, and have their work organised by the same clerk. A barrister's clerk arranges court appearances and conferences (meetings) between clients, solicitors and barristers. He also negotiates the barristers' fees. Generally, a barrister undertakes no work except through a solicitor, however a small number of specialist barristers do not go into court at all, advising professional people, such as accountants, on legal matters and writing opinions at the request of solicitors on difficult and complicated areas of the law. As a general rule, clients do not have direct access to barristers, without seeing a solicitor first, and they do not pay the barrister directly but through a solicitor. A document of instructions prepared by a solicitor for a barrister to follow in court is known as a brief. It usually contains an outline of the case, the evidence and proof available, and statements or interviews of witnesses.
Solicitors' work covers a much broader range: they advise commercial and private clients on business and property matters; they investigate and prepare cases which they then hand to barristers; they also deal with litigation which is settled out of court. Until quite recently, solicitors had the right of audience only in lower courts, where they could represent clients themselves, without the help of a barrister. Now solicitors can qualify for rights of audience in the higher courts; they are then called solicitor-advocates (this route is particularly favoured by City lawyers). Solicitors are employed often by industry or local authorities but usually they work in partnerships with other solicitors. A firm of solicitors would normally consist of partners, those who take part in management and have a share in profits, and associates, who are salaried employees without these rights. There are a great many firms, ranging from small one-man practices to large city practices employing hundreds of partners and associates. Solicitors by far outnumber practising barristers: at present there are over 100,000 solicitors as against some 11,000 barristers. The reason for this is obvious: only rarely will a citizen be faced with civil or criminal proceedings and require the services of the barrister, but many often have to consult a lawyer to prevent matters going wrong, for example, when setting up a business or making a will, or buying or selling property. When a client goes to see a solicitor and tells him what he requires, this is called giving a solicitor instructions.
A solicitor appearing in court must wear a gown, and so must a barrister appearing in a civil case;' in a criminal case a barrister wears a gown and a wig. Some barristers carry the letters 'QC' ('Queen's Counsel') after their name. They wear a silk gown instead of a stuff gown; hence, the phrase 'taking the silk'. In court, they appear as 'leading counsel' and are usually assisted by a junior (ordinary) counsel. QCs are expected to handle the most serious and difficult cases, and their fees are generally higher. The rank of QC dates back to the sixteenth century, and originally they were barristers selected to serve as counsel to the Crown. Nowadays, despite their title, they may appear on behalf of any person and conduct cases for or against the Crown. Solicitors with full rights of audience can also apply to become Queen's Counsel. After 10 or 15 years of practice barristers may become judges; solicitors of 10 years may also become judges but in lower courts. There have been discussions from time to time concerning merging the two professions but it does not seem likely that there will be a fusion.
There is, however, a certain breed of lawyer who regard themselves as a third branch of the legal profession: these are legal executives, who work in exactly the same way as many solicitors but who are not qualified solicitors, and subsequently cannot become partners in a legal practice. This route into the legal profession is taken by clerks working in firms of solicitors, who study while they are working. They take their qualifications at the Institute of Legal Executives (ILEX), and only Fellows of ILEX may describe themselves as 'legal executives'.
The general public usually refers to all people working in legal affairs as lawyers. An American will say 'I'm going to see my lawyer' but an Englishman will say I'm going to see my solicitor'. In the United States lawyers call themselves attorneys. In court, trial lawyers are referred to as 'counsel for the defence' and 'counsel for the prosecution'. The word counsel (US also counsellor) may be used as a vocative: a judge may say 'Counsel, approach the bench' if he wants to speak to one or both counsel in private. Solicitors who do mainly advisory work may be called legal advisers. There are other legal professionals with important public duties, such as notaries, who have the legal power to make a signed statement or document official.
Fees
'A rich lawyer, a poor lawyer and Santa Claus are walking along the street. They see a five-pound note. Which one picks it up? Obviously, the rich lawyer - because the other two don't exist!'
In the popular view, both barristers and solicitors are seen as devious legal practitioners who lead a wealthy and secure life. This may largely be true, but barristers in their early years have to undertake a broad range of work until they develop expertise, and since they are paid a fee for each piece of work, their earnings, particularly in the early years, are less secure than a solicitor's. If a barrister does not receive payment for his work, he cannot take action in court to obtain it. A solicitor, unlike a barrister, may sue for his fees.
The legal fees in any court case are called the costs of the case. The general principle is that the loser pays the costs of the winner. However, often litigants cannot afford to pay the costs; they may in this case apply for legal aid. If they qualify for it (if their income is below a certain level), the State will pay either their full legal fees or at least part of them. In criminal proceedings, legal aid may be granted if it appears to be in the interests of justice to do so; in civil proceedings, if the claimant has fair prospects of winning the case. The guilty party in a criminal case and the successful party in a civil case will be ordered to repay the money to the state. The body responsible for administering legal aid is the Legal Services Commission (LSC). The legal aid scheme (now called Community Legal Service) was set up in 1948 and is recognised to be one of the most important social advances of the last century-, and it undoubtedly provides many lawyers with their main source of income. .
Now a new system of payment of fees has been approved for some civil cases. The method called 'no win, no fee', or 'the conditional fees scheme', has been imported from America. Under this system, a lawyer may agree to take on a case for no fee at all on condition that if the client wins and is awarded damages, the lawyer will receive his fee, which may also include an extra 'success' fee. If the client loses, he may have to pay the other party's costs, so the litigation is not entirely risk-free; however, the client may take out insurance to accommodate the risk. The scope of conditional fees is very limited - they are mainly allowed for personal injury cases.
There has always been a certain amount of pro bono work, i.e. legal work donated for the public good that lawyers agree to do for little or no remuneration. This practice, however, declined in the 1970s and now free legal services are provided by publicly-funded Citizen's Advice Bureaux and by law centres.
Private and Public Practice
In many countries private practice exists alongside public. This means that lawyers may be selfemployed or work for a private employer or, alternatively, they may be employed by the government and work as its employees and representatives. Criminal prosecutions in most countries are in the hands of the government. Formerly, most prosecutions were conducted by private barristers briefed by the Director of Public Prosecutions (DPP) or by the police. But this system effectively ended with the introduction of the Crown Prosecution Service (CPS) set up in 1986, thus allowing for the establishment of a body of official prosecutors, which relies on public prosecutors. Public, or crown, prosecutors are salaried lawyers employed by the government as its representatives in criminal matters.
Defence, too, until recently has been conducted by private barristers. The Access to Justice Act 1999 allowed a salaried Criminal Defence Service (CDS) to be set up in England and. Wales, which would rely on the work of public defenders and gradually replace criminal legal aid. Public defenders are salaried lawyers employed by the government to represent indigent persons accused of crimes. This CDS scheme was severely criticised by both branches of the legal profession. Many lawyers felt that there was something unhealthy that the Government should have not only a monopoly in prosecutions but also a monopoly in defence work. They feared that if this system undermined the private sector, there would be no place for the client to go. The US and other common-law countries' experience shows that compensation in public defender offices is often considerably lower than what the attorney could receive from a private client, and the work load is heavier. Although many public defenders are capable and committed lawyers, they are often young and lacking in experience and, in America, often exposed to political pressure. Nevertheless the UK Government went ahead with its plans and adopted the Criminal Defence Service Act in 2006. The Government's intention is to create a system where public defenders work in parallel with private lawyers, thus giving defendants a choice of representative.