Discuss the extent to which recent developments have lessened the differences between barristers and solicitors.

Steps are being taken to bring the two roles closer together, but with separate training and a penchant for tradition, this may take some time.

Grade: A-C | £0.00.

 

One of the most common questions asked by law students is 'what is the difference between solicitors and barristers?' There are still some very distinct differences between solicitors and barristers and, in many ways, an understanding of the effect of recent developments depends upon a real understanding of their work.

 

Both solicitors and barristers are required to complete a vocational course as part of their qualification and training. It is noticeable that both courses are delivered separately and aimed at the work undertaken by both professions. There is some overlap in the work that both members of the legal profession do, but very few opportunities have yet been taken to capitalise on combining elements of these vocational courses so as to provide one course. This suggests that training is still seen as separate. Whether this is driven by real professional differences or the client's needs will no doubt continue to be the subject of debate.

 

Advocacy is still seen as the domain of the skilled barrister even though solicitors have acquired the right to undertake such work as a result of the Courts and Legal Services Act 1990. The 1990 Act allowed a solicitor in private practice to apply for a Certificate of Advocacy enabling solicitors to appear in the higher courts. The number of solicitors with this certificate are still very few but figures are increasing.

 

The advantage of having a Certificate of Advocacy means that a solicitor is able to represent a client from start to finish without the need to instruct a barrister thus making the process simpler and more cost effective. These solicitor-advocates, solicitors who have rights of audience to present cases in the crown court as well as magistrates courts, are a fairly new but increasing breed of solicitors. Solicitors first acquired rights of audience in the higher courts in 1994 but have rapidly taken on more and more work. Since 2005-06 their workload has grown from 4% of contested trials and 6% of cases involving guilty pleas to 24% and 40% respectively by 2012-13.

 

The different vocational courses for solicitors and barristers demonstrate that training is still separate, however, the rights of audience practicing certificate is now incorporated in solicitor’s training. Consequently the vocational training is now preparing solicitors to undertake work previously reserved for barristers. New regulations mean that there is now just one route to qualification in either civil or criminal proceedings. Under the Solicitors' Higher Rights of Audience Regulations 2010 a solicitor, once admitted to the Roll, can apply for the higher courts qualification.

 

It is difficult to see how this difference will change except over a longer period of time. It is often argued that only through working in such higher courts can the advocacy skills and experience at the highest level be acquired. This certificate entitles a solicitor to conduct a case right through the hierarchy but this may still be seen as unusual and even now probably only likely to happen in special circumstances.

 

One characteristic which led to separatism was the restriction which prevented barristers from having direct access to clients in civil cases. This restriction has, subject to limitations, now been done away with. There is no longer a need for a client to go through a solicitor and in civil cases a client can have direct access to a barrister. Clients can instruct a barrister directly (without a solicitor) under the Direct Access Scheme if their case is suitable. Whilst this may allow either arm of the profession to take a case from start to finish it remains to be seen whether this development will close the gap between the professions. Again the cost to the client should be reduced but there are limitations. There are limits on the types of work that a barrister can do and there are still some cases and situations in which a solicitor or another intermediary as well as a barrister will have to be instructed. For many cases the public access scheme allows the client to go directly to the expert barrister for advice, representation and drafting. Not all barristers accept public access work.

 

 

The Legal Services Act 2007 has given birth to an amalgamation of the complaints procedure but this is not complete. Under the 2007 Act, solicitors and barristers can work together in a Legal Disciplinary Practice. The aim being to encourage closer working relationships and to increase the overlap of work. The creation of the Legal Services Ombudsman and Office for Legal Complaints is a step towards bringing the professions together but how exactly and to what extent it is difficult to see. Any development with regard to diversifying the range of legal services available and 'one stop' legal practices is likely to be slow and operate in an indirect way. Eventually it could lead to the end of the 'cab rank rule'. No doubt such organisations will have a role in ensuring consumer interests are dealt with properly but it is difficult to see how such organisations can in themselves drive forward any real initiatives for fusion.

 

The 2007 Act also allowed the formation of Alternative Business Structures (ABSs). The ABS means that anyone can apply for a licence to operate an ABS. The new business structures are able to employ both solicitors and barristers working together. The prospect of these new practice structures re-opened the debate about the 'fusion' of the profession but, in reality, the measures have had a mixed and uncertain reception. Not for the first time the legal profession has lived up to its reputation as being something of a stickler for tradition and keeping to its own practices. In September 2010 the Bar Council Chairman at that time, Nick Green QC, acknowledged that the Legal Services Act had made a positive impact on the relationship between solicitors and barristers but only in a limited way. Closer working relationships may well be possible but few have rushed forward to step into this brave new structure.

 

At a meeting in 2011 the Bar Standards Board proposed the removal of the ban on barristers conducting litigation. The move when it came in 2013 allowed barristers to offer a ‘one-stop shop’ service, including both litigation and advocacy and another step towards lessening the difference between solicitors and barristers.

 

Finally we turn to opportunities that exist for both professions to be appointed to the judiciary. The introduction of the Certificate of Advocacy means there is no longer the monopoly by barristers on senior judicial positions. Both barristers and solicitors can now be appointed as superior judges. This is a career opportunity which was previously been the reserve of barristers but solicitors have risen to the challenge and solicitors have been appointed to the judiciary. The benefit will hopefully mean a judiciary with a broader social background may well serve to answer criticisms that the judiciary is still elitist and out of touch with the public.

 

There have been a limited number of solicitors appointed to high judicial office (High Court level) over the years but these appointments are still uncommon and an indication that high judicial office still remains the traditional stronghold of barristers at present. In reality most appointments will be at Crown Court and County Court level. Whilst the fact that the public may learn that both barristers and solicitors can now be appointed as senior judges, members of the profession themselves may be aware of differences and ceilings that still operate to make for differences between the professions. Time will probably tell.

 

 

 

(Word count 1251)

 

 

Solicitor-advocates: raising the bar - Law Society Gazette

Solicitor advocates squeezing out barristers, Jeffrey Review

SAHCA — The Solicitors' Association of Higher Courts ...

Higher rights of audience - Solicitors Regulation Authority

Alternative business structures - The Law Society

Law: the expert view Forget Tesco law, this legal education review will transform the legal market

Wait for ABSs is over: Tesco law is here | Neil Rose -

The particular differences discussed include:

  • the vocational element of training which is delivered separately;
  • that advocacy is still seen as the domain of the skilled barrister;
  • the issue of access to clients;
  • measures introduced under the Legal Services Act 2007 enabling new practice structures;
  • the amalgamation of the complaints procedure;
  • appointment opportunities to the judiciary.

The essay leaves it open for the work to be personalised according to individual needs.

 

 

 

 

 

 

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