English Legal System: Is the division of the legal profession into solicitors and barristers still

The legal profession can be traced back to the twelfth century. It was difficult to differentiate between the two branches but barristers were originally known as Apprentices in law equivalent to today's Junior Counsel. Those who were given rights of audience in the higher courts were known as Sergeants at law a title abolished by the provisions of the Judicature Act (1873). This title would equate to the Queens Counsel of the modern Bar.

Solicitors as we know them today were mainly concerned with the preparation of court work and took on many titles. This is not to say they did not advocate in some of the lower courts. In Common law courts they were known as Attorneys, in Ecclesiastical and Admiralty courts Proctors and in Chancery courts as Solicitors. In 1739 these lawyers grouped together to form "The Society of Gentlemen Practisers in the Courts of Law and Equity" although it was far from representative of all the non-advocates. This society became "The Incorporated Law Society of the United Kingdom" in 1831 and granted a Royal Charter in 1845 to become "The Law Society" by charter in 1903. The Judicature Act (1873) set the seal on the division of the two professions and merged the titles of Attorneys and Proctors into Solicitor. The division of labour was complete.

The distinction between barristers and solicitors has often been compared to that of doctor and consultant. This analogy is somewhat floored. A senior partner in a solicitors firm will know infinitely more than a junior barrister setting out on their career path. Barristers are perceived to the public as bewigged and gowned advocates who appear in court to argue for the defence or prosecution but this is only a part of the barristers remit. Barristers segregate from solicitors after gaining their degree to take further examinations set by The Bar Council. They then spend a year in pupillage, the first six months of which are unpaid, under the supervision of a qualified barrister of five years standing. Once completed they attain the title of junior counsel. The higher echelons, ten percent of barristers, obtain "silk" by appointment of the Queen on the advice of the Lord Chancellor. This is a reference to the gown worn and they are then known as Queens Counsel.

Barristers who work as advocates are given rights of audience in all courts in England and Wales. They can work for prosecution or defence in criminal cases and plaintiff or defendant in civil matters. Barristers obtain their work from solicitors who prepare briefs, on overview of the case, to be argued in court. They have no direct dealings with the public and must see clients in the company of their solicitor. Briefs can be sent to an individual barrister or a set of chambers where a clerk will distribute them to barristers with relevant knowledge on a cab-rank, first come ...

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Barristers also draw up documents and give advice on cases to solicitors, some barristers spending much of their time on such work rarely appearing in court. Although self employed barristers cannot set up partnerships but they do work in chambers with other barristers sharing the cost of secretarial staff and maintenance. Not all barristers work in chambers and there has been a growth in employed barristers who seem to do similar work to employed solicitors, non-contentious and case preparation for their employer. Barristers cannot sue for their fee but solicitors are obliged to pay them even of they are not paid themselves. Barristers are not liable in the tort of negligence for work done in court or their opinions in cases referred to them by solicitors Rondel-v-Wosley but can be sued for work done in pre trial preparation Saif Ali-v-Sydney Mitchell & Co..

Solicitors are the front line troops in the legal profession. They are the face the public come into contact with when they have legal problems. At the university split solicitors go onto examinations by the Law Society. After completion they spend two years as articled clerks then become solicitors. Solicitors advise on all legal matters although larger firms tend to specialise in certain areas of the law. They have limited rights of audience in the courts and spend much of their time preparing cases for court and drafting documents. Unlike barristers solicitors can sue for their fees, they can also take or reject any case that comes to them. Solicitors are also employed in organisations ranging from the Crown Prosecution Service to local authorities and increasingly in the private sector.

Almost from the start of the division in the two professions there has been calls for a fusion. In the present economic climate and the spiralling cost of going to the law the advocates of fusion point to the duplication of work in the profession. A solicitor, once they have got to grips with the case, must duplicate a brief for the barrister. They then must accompany their client whilst visiting the barrister in chambers. Once the case has reached the courts the barrister is handed the reins of a case but the solicitor must remain present even though he has no "voice" in the court. A classic example was recorded in The New Law Journal by Tony Holland. A newspaper was summoned by the judge to appear the next morning in court to answer allegations of contempt. The solicitor, a specialist in this field, asked if he could speak in court to explain there was no contempt under S.5 of the Contempt Of Court Act. This was not allowed and the hearing had to be conducted with a barrister, with solicitor present, the case lasting two minutes, the total cost doubled [1992] NLJ.818.

A Q.C. will also have junior counsel adding still further to the cost.

The duplication of work may also lead to mistakes. A solicitor may, having spent many months or years collecting evidence, forget to brief the barrister on a fundamental point in the case. The barrister may not find the brief sufficient and because they mat have spent little time with the client they fail to get a feeling of the case and miss vital evidence. An active solicitor who has a barrister with no enthusiasm for his client feels frustrated. Barristers who have worked with a solicitor in pre-trial opinions may be substituted before the case comes to court losing all continuity. Barrister diaries are especially difficult to timetable as they never truly know the length of each case. This could be stopped with a one-stop legal profession with a lawyer taking the case to its conclusion. It must seem frantically disorganised to a client to not see the barrister until the morning of the trial. Research by Bottoms and McLean showed 96% of defendants pleading guilty did not see their barrister until the day of the trial and 79% who were pleading not guilty did not see their counsel until the day of the trial either. 50% of briefs from the C.P.S. and Government Legal Services Department reached barristers only two days before the hearing [1992] NLJ.8.Barristers appear aloof at the best of times and Paul Hill, one of the Guilford Four, remarked on the fact that "...the cab-rank barrister, which had been changed prior to trial, seemed more interested in talking to the prosecution counsel than to me..." [1992] NLJ.8.

The division of the legal profession also robs society of some of the very best lawyers. The forced separation at degree level does not allow for an exploration of the different sides of the profession. Many students still believe money is the key to becoming a barrister. Good advocates may be lost because of the division, only able to practice in the lower courts as a solicitor. It is also said that the advocacy skills of a senior solicitor who has spent much time in the lower courts will arguably be as good as most barristers and better than most new arrivals. Opening up the franchise could enhance the skills of both professions and bring a bigger pool from which to choose our judges. As the system now stands both professions are insulated. The solicitor can hand his hard work to the barrister for "opinion" and the barrister has little or no insight and input into the preparation of the case.

The case for fusion seems to be clear but the Law Society and the Bar Council are both frightened of losing their identity. The Bar, strongly vocal in its calls for the status quo, are supported much by the judiciary. In the words of Many Rice-Davies "...well they would wouldn't they..." especially as the vast majority of judges are old barristers. They argue that such fusion would eradicate the identity of the skilled advocate who is seen as a specialist. These skills of advocacy are available to all solicitor through the cab-rank system. Fusion could create a vacuum where litigation could become under represented, lawyers preferring to take on lucrative non-contentious work. Along with the decline in advocates comes a decline in standards. Unqualified and inexperienced lawyers may try to undercut their opposition to keep clients. It is often said that the greatest aid to learning is experience and the more time lawyers spend in their office the less time they may have for court work, thus decreasing their advocacy skills. At present standards are maintained by peer pressure on the barristers close knit family.

The one stop lawyer may also be inclined to hold onto a client and not to seek advice from a specialist in that area of the law which they or their firm do not specialise in. Specialist would tend to work in larger city firms and the sole practitioner could end up like the corner shop. Good for quick, general law but nothing of choice compared to the to the supermarket firms which have a vast array of choice at cheaper prices. Lawyers would no longer have a cab-rank rule so disenfranchising those whose cases were repugnant. This would take the judicial function away from the courts and place it in the hands of lawyer who decide on who has justice.

The government have pushed forward a number of measures especially in the Courts and Legal Services Act (1990), section 66 allows barristers to join solicitors practices, section 62 gives all persons qualified to advocate the same immunity in negligence. Under section 67 the Lord Chancellor can direct that certain categories of solicitors can have rights of audience in designated Crown courts. The Law Society has made applications for increased rights of audience to the Lord Chancellors Advisory Committee although an article by Robert Smith [1992] NLJ.8. suggests that of the four judges, there are seventeen members, only one has to veto any proposals for it to fail. The first tentative sounding seem to suggest that solicitors with three years advocacy experience and relevant training may be extended rights of audience but not employed solicitors, they being to closely involved with their client who is their employers, as with employed barristers. The C.P.S. and S.F.O. also do not look likely to gain any extension [1992] Evlynne Gilvarry L.S.Gaz.89/15.

With argument raging on both sides of the profession both for and against it seems we could be in for a long protracted battle. This time however it is not the lawyers who make money out of pain but the academics and column writers who will be kept in beer tokens. Fusion will occur, maybe not through logical ideology but economic pressure. The only question is one of time. "The Bars monopoly...only has history on its side"[1990] G.Bindman NLJ.1712. and that time is running out. When change does come the cries will be loud but, much like the cries from solicitors when they lost their conveyancing monopoly, they will not last long. Both sides will have to adjust to a new position but this seems to have been achieved admirably so far in the changes that have already occurred.