Solicitors on the other hand are usually the ones who meet face to face with the client and prepare the case for trial before passing it on to a barrister. I use the term usually because although most cases do go through a solicitor and a barrister, there are ways for the public to go straight to the barrister without the need of a solicitor.
Another difference between the work of solicitors and barristers is how they work. Barristers are usually self-employed, so what they earn is what they get. Barristers usually work in chambers with other barristers who share the heating and lighting bill but do their own work.
But this is not the same case for solicitors, as they are usually employed by an employer. Solicitors are most known to work in firms, small or big. Solicitors are paid a certain amount by their employer, no matter how much or how little they may earn in that period of time. Most solicitors usually practice in most areas of law, but some small firms may specialize in certain aspects of law.
There is a certain rule which barristers have to work to when taking cases. This is called the cab rank rule. The cab rank rule states that barristers are obliged to accept any cases that come in to their field of work which he practises and to take them in the correct order at the court he usually appears in at his normal rates. But there are times when a barrister can refuse a case- when the rate of pay is not adequate to the amount of work being done. If this is the case, then a barrister has a right to refuse the case, which could lead to disaster.
A barrister can also become a Queens Counsel. Becoming a QC requires a barrister to have practised as a barrister for 10 years or more, after which they can apply to the Lord Chancellor to become a QC. Becoming a QC is usually called ‘taking silk’ because when barristers become QC’s they begin to wear silk robes. QC’s can demand higher wages than a normal barrister, and they are assisted by junior barristers. Top QC’s can make more than £1million in a year. Since 1995, solicitor-advocates can now also apply to the LCD to become a QC.
Originally, barristers could not be sued for negligence within court. We see this in Rondel v. Worsley (1969) where Rondel had been convicted for GBH and blamed his barrister, Mr. Worsley, because he looked like he was half asleep during the trial of the case. Rondel then tried to sue Mr. Worsley, claiming damages. The courts held that barristers did not owe their client a duty of care, so they could not be sued by their clients. A duty of care is a legal responsibility put on a person requiring that they use a reasonable standard of care while performing any acts that could foreseeably harm their neighbors. A person can only be sued for negligence if they show that there was a duty of care owed, there was a breach of that duty of care and that breached caused foreseeable damage. As barristers did not owe this duty of care to their client, this gave barristers immunity from being sued for negligence. They had felt that clients who are unhappy with their verdict may all try to blame the barrister, and not the evidence involved. This case set a precedent which would apply to all later cases. This struck out many cases against barristers which could be deemed hopeless or unsuccessful.
But as we see in Saif Ali v. Sydney Mitchell (1978), this immunity was only extended to pre-trial work closely involved with the conduct of the case. However when it came to work outside of the court, both solicitors and barristers could be sued in the tort of negligence. During the trial, Lord Wilberforce said "In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill.” It was held that barristers could be sued for professional negligence outside of court, and Saif’s barrister had owed him a duty of care while advising Saif so he could be sued for negligence as he had breached his duty of care owed to his client. Barristers could be sued up to £2000 or, depending on the seriousness of the case, could be barred from practising as a barrister.
A barrister does dot enter a contract with his client, therefore he cannot sue for unpaid fees, which also means the client cannot sue the barrister for breach of contract. But in the more recent case of
Hall v. Simons (2000) the client can now sue his/her barrister for professional negligence. This case held that the given immunity to barristers from the case of Rondel v. Worsley had not been decided wrongly at the time, but the world had changed. The House of Lords decided that the immunity from the previous case could not be justified; therefore the immunity from being sued negligence had been removed from both criminal and civil cases. Both barristers and solicitors can now be sued for negligence regarding work out of court and work during the course of a trial. This was a precedent which is now used for current cases.
In conclusion there are many differences between barristers and solicitors which make the two professions different. Some of the main differences are barristers have to dine at an Inn of their choice whereas solicitors don’t, most solicitors meet face to face with the client whereas barristers just advocate them in court and barristers are self employed whereas solicitors are usually employed by an employer. These differences all define the line between barristers and solicitors.
8(b) Discuss the advantages and disadvantages of having a single legal profession
The English legal system currently operates with the two divided professions, solicitors and barristers. This division has been frequently criticised because of the overlap of work, but having a divided profession can have its advantages. But the fusion of the two professions also has its advantages, which is why there has been argument about keeping the divided professions or fusing them into one single profession.
There are many advantages of fusion in the English legal system. The main advantage of fusing the two professions is it reduces the costs that a client has to pay to have their case represented. Currently a client has to pay two fees, one for their solicitor the other for their barrister as it is usually necessary to hire both, the solicitor to prepare the court case and the barrister to act as an advocate in court (although solicitors can also advocate now). It would save a lot more money if the client only had to hire one lawyer who could do all the preparatory work as well as appearing as an advocate in court.
Another advantage of fusing the two professions is it encourages continuity. During the preparation of a case, clients and solicitors often build up a relationship of trust. A client may not want to give their case over to the barrister as they may be anxious about a stranger advocating them in court. The Crown Court’s research showed that the majority of defendants do not meet their barrister until the day of the trial. This would not be the case if only one lawyer had to be hired.
Another advantage of fusing the two professions is it reduces duplication. Currently employing two lawyers means that a solicitor produces all the paper work, which then has to be duplicated and given to the barrister when handing over the case. This is wasteful and also increases costs. This could be avoided if the two professions were fused as only one lawyer would handle the whole case so it would be unnecessary to duplicate all the work when handing over a case, as this would not happen.
Another advantage of fusing the two professions is that it doesn’t require a law student to choose whether they wish to train as a barrister or a solicitor. Currently after completing their law degree, young students have to make a decision about which route of training they wish to take, a barristers or a solicitors, without much experience. This means they could end up choosing the wrong career for them as they haven’t usually got much experience in either career. If the two professions were fused, all lawyers would follow the same basic training and could then later make a decision about if they wish to specialize in a particular area of law and then train appropriately.
Another advantage of fusing the two professions is that there is less delay within a case. Barristers often find themselves overbooked and have to return briefs for another barrister to deal with. A National Audit Office survey 1997 showed that three quarters of all prosecution briefs were returned shortly before the trial. This causes further delay in the case, where as if the two professions were fused, there would be no handing over of briefs as only one lawyer would be needed to see the case the whole way through.
There are also many disadvantages of fusion in the English legal system. One of these disadvantages is there would be a reluctance to use specialists. Currently barristers and some solicitors train and specialize in specific areas of law. But if the two professions fused, most lawyers would become general practitioners and would rather try to deal with a case themselves rather than turning to a specialist for help.
Another disadvantage of fusing the two professions is the loss of availability of advice from barristers. Currently a solicitor can call upon an independent barrister who specializes in a particular area of law for help in during a case. If the two professions were fused, there would be fewer specialists so solicitors would have to consult a rival firm, which could result in the loss of the client. Small firms would also not be able to gain all the knowledge and expertise from the bar.
Another disadvantage of fusing the two professions is that most solicitors would prefer the current system. Currently solicitors spend a lot of time on paper work and a lot of time in offices so they simply couldn’t afford the time to leave their offices to advocate their clients in court, whereas if the two professions were fused, they would be forced to do this as the one lawyer has to deal with paper work and has to advocate in court.
Another disadvantage of fusing the two professions is there would be a loss of a fresh mind and second opinion. Currently handing over the case to a barrister brings a second opinion from the barrister into the case. As the barrister is not so personally involved with the client in the preparatory stage, a barrister may be more detached from the client and more objective. But if the two professions were fused, there would be no-one to pass the case onto which means that there is no second opinion on the case and there may well be less objectivity from the current lawyer.
Another disadvantage of fusing the two professions is the loss of the cab-rank rule. The cab-rank rule is a rule which all barristers have to follow which is they must accept the next brief given to them, on the condition that they have not already been briefed for that day. This ensures that representation is fair, even in the most distasteful or unpopular cases. But if the two professions were fused, the cab-rank rule would be harder to operate, so some cases may not be ensured proper representation.
Another disadvantage of fusing the two professions is that they normally split of into two branches anyway. Currently we have solicitors and barristers, solicitors being the office workers and barristers being the advocates. But even if the two professions were fused, the lawyers would usually split into office workers and advocates, which is almost the same as solicitors and barristers, destroying one of the main purposes of fusion.
To conclude I feel that although fusion may seem like a good thing, the two professions should stay separated. Fusion may be ok for a little while, but overall it would just create unsolvable issues which we would not be able to handle. Although fusion reduces the duplication of work, encourages continuity and it may be a little cheaper, fusion could decrease the amount of specialists available and destroy the cab-rank rule which would mean that clients may not receive the proper representation to which they are entitled to. Proper representation of a case is high in public concern, an although cheap law may be a good thing, bad law is not, therefore putting fusion into place in the English legal system would not be the best move to make.
(2651 words)
Bibliography
Jacqueline Martin
Brown GCSE Law
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