Solicitors have conventionally been able to do advocacy work in the magistrates court and the county court but not generally in the higher courts. This position was altered by the Courts and Legal Services Act 1990 and the Access to Justice Act 1999, enabling equalising rights of audience between both types of lawyers.
Following the completion of a law degree or conversion course, a bar vocational course is required to initiate the path of becoming a barrister, followed by a pupillage (a barristers equivalent of a training contract). A client cannot liaise or instruct the barrister directly and it is only through the solicitor that instructions can be taken. The barrister is obliged to take instructions in a field in which they profess to practise, also as known as the 'cab rank rule', in which a solicitor cannot turn a client away unlike a solicitor.
Barristers are known to be 'specialists' and are forbidden from forming partnerships. Whereas, solicitors usually form partnerships with other solicitors. As an alternative, since 2001, they can form a Limited Liability Partnership where a solicitor can be personally liable for a claim in negligence against the solicitor firm even if he or she was not involved in the transaction. Under the Limited Liability Partnership (LLP) a partner's liability is constricted to negligence for which he or she was personally responsible.
It is debatable as to whether or not the fusion of these professions (barrister and solicitor) may be advantageous or not. For example, with a divided profession from a consumers perspective it will be cheaper for one entity to represent them, as the client will have to pay one professional as opposed to two.
The duplication of work may also be eliminated by the use of one representative, it is a norm that the solicitor prepares the case in which the barrister uses to argue in court. In some cases the clients see their barristers for the first time on the morning of their trials, and clearly this short amount of time is not sufficient to pass on important information which may be crucially missed or miscommunicated to the barrister.
A prospective lawyer is required to choose very early on which branch of the professions they would like to choose, but in making this decision very early on it may lead to a person who clearly has a talent in advocacy but has chosen to become a solicitor to 'waste their talent', therefore leading them to not fulfilling a talent.
Arguments against the fusion of both professions include the fact that 'two heads are better than one', each one carries out their jobs better than one profession carrying out both jobs.
The Bar has argued that the cab rank principle ensures independence, and that no defendant goes undefended and that no individual should lack representation, despite however evil the charges. Barristers of course also work independently, rather than in partnerships.
Our unique system means that the representation of oral evidence is crucial, judges have no investigatory powers and must trust the lawyers to present the case appropriately. The 1979 Royal Commission recommended that fusion of the professions would precede to a descent in the quality of the advocacy conflicting that although many solicitors were capable to advocate in the magistrates' and county courts, arguing before a jury requisites various skills and outstanding expertise.
Evaluators of motions towards fusion have reasoned that it may result in many major barristers joining the large firms of commercial solicitors, so making their expert skills less available to the average person. Smaller practices may produce inadequate business to reassert partnership with a barrister and find it challenging to secure a barrister of equivalent standing to the opposition's they would be unwilling to refer a client to a large firms for concern of losing them for good. A big drift towards large firms could aggravate the already unequal dispersion of solicitors throughout the country.
A decrease in the amount of differentiated advocates might also make it more challenging to make appropriate appointments to the bench, although the possible candidates would change, they would not be as long-familiar to those executing the selection process. Then again, this might sooner or later mean appointments would have to be made on a more exposed, orderly system, and from a broader social base.
Court cases are not given a fixed time, only a date, depending on the progress of previous case. The thought behind this is that the clients and their lawyers should wait for courts, rather then the other way round. It has been advisable that barristers are best organised for this, though there seems no reason why, within a united profession, those lawyers who specialise in court work could not organise themselves accordingly.
I personally believe that advocacy is a skill that requires a lot of practice and is not suited to all personalities therefore I support the notion of having two separate professionals as it currently stands.
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Bibliography
- English Legal System
Catherine Elliot & Frances Quinn
Eleventh Edition 2010
Pearson Education Limited
- The Future of Law
Richard Susskind
Second Edition 2005
Oxford University Press