A final point to mention about solicitors is that until 1986 Solicitors had no rights of audience, the lack of rights of audience was demonstrated in Abse v Smith (1986) where a solicitor was not allowed to read out the details of a case that came to an agreed settlement in court. The Lord Chancellor issued the Practise Direction 1986 allowing solicitors to make a statement in the High Court in a case that has been settled.
Legal Executives
Legal executives are assistants who work for a solicitors firm and are employed to facilitate solicitors. Very often they are able to deal with the more straight forward cases themselves, for example, preparing simple wills or leases. They also have limited rights of audience in court, mainly making applications in the County Court where the case is not defended.
B) How far is it true to say that the work of solicitors and barristers has changed so much that it is no longer necessary for there to be two separate professions?
There has occurred a change in the work of solicitors and barristers. A major alteration to the work of solicitors came under the Courts and Legal Acts 1990 whereby certain solicitors were able to acquire rights of audience in the Crown Court. This used to be the sole domain of barristers and was usually the field in which barristers were skilled in and spent most of their time doing. Under this act, a solicitor in private practice had the right to apply for a certificate of advocacy which enabled him to appear in higher courts and a solicitor may now qualify for the same rights of audience as barristers.
It would seem therefore that the distinction between the two professions is becoming blurred. Despite this apparent blurring, however, in actual practice a number of differences still exist between solicitors and barristers. A barrister still primarily makes his living from advocacy, whereas a solicitor still primarily makes his living from the paperwork side of things – having said this, sometimes the opposite can be true for either. A barrister can still be considered a specialist, say like a surgeon, and a solicitor is still expected to handle a slightly more diverse range of matters, although again, sometimes it can be the other way round. Furthermore, though solicitors have been granted the right of audience, this does not mean that in practice they are any closer to becoming fused in with barristers. Both professions are still very different and both require different skills. It is submitted therefore that it would be useful to retain the two branches and keep them separate professions. The utility being that each side of the profession could focus on the skills that they are historically and often practically suited to.
Whether it is necessary to have two separate professions is a little troublesome to say as one can envisage a system in which the branches are fused; other justice systems, such as the US, operate well enough without the demarcation. But, it is suggested that the present separation between the two professions should be retained. The utility of our system is apparent; we currently have a system containing a small body of experts (barristers) who are available to a larger body of practitioners (solicitors). The barrister need only concern himself with the organisation of the facts and the delivery of the case in court. The solicitor provides all the information the barrister may require. If one lawyer was to deal with both parts of the case (the preparation as well as advocacy), depending on the strength and particular skill set of the individual lawyer, one or the other part of preparation or advocacy may suffer, or at least not be conducted with the same level of skill possible as that with separate lawyers for separate roles. On the other hand, it could be argued that there would be more continuity if one lawyer was to handle both parts. This can be countered by the fact that a good lawyer (be it a solicitor or barrister) should be able to communicate the issues and matters involved in a case seamlessly to the other so that no adverse consequences arise from the involvement of another lawyer.
In many cases it can also be said that personal involvement of the barrister with the client is often an undesirable state of affairs. A detached barrister concentrates upon the legal issues and facts which are made available to him. Though it is often the case that once a barrister is involved he will meet with the solicitor and his client, he ought not to get sidetracked by personal involvement and is in fact less likely to as the personal contact is not often prolonged if the solicitor has been thorough in his preparation. The thoroughness of a solicitor’s preparation also answers the charge that often work is duplicated by the involvement of a barrister. In a well conducted case, a barrister will be given a brief which outlines his remit of involvement according to his expertise. He will know what is expected of him and it is just as undesirable for the lawyers as it is for the client to duplicate work.
It could also be said that there is a public interest in not to allow the current fusion between the professions to dissolve the branches entirely. A fusion of the two professions may in fact result in lower standards of advocacy as not all lawyers have developed this particular skill. Further, the legal material used in court may be weaker and this would affect the ability of judges to make the best decisions based on the material presented.
It can also be said that even if the professions were unified, a distinction would remain in practice between the lawyers; there will be those who prefer not to advocate and those who make their reputation out of it. This also addresses the concern currently expressed about higher costs arising out of the existence of two separate branches. If the branches were unified, those able to carry out the preparation and advocacy of a case to the highest level will be able to charge a premium for their service and the convenience of only having one lawyer; good service will still be expensive.
Another reason for retaining the separate branches is that our present system does not allow Barristers to turn down cases for which they are qualified and available for under the ‘cab rank rule'. Solicitors, on the other hand, can. The cab-rank rule for barristers ensures that all clients can have access to the specialist skills of an advocate. This principle allows anyone to get representation, even if their case is unpopular or unlikely to win and may be diluted if the branches were unified.
In conclusion it can be said that although barristers and solicitors have some similarities and there have been some efforts made to bridge the gap, as a whole they are still a great distance away from being merged. Each profession has a skill set they are particularly good at and more suited to. Even if there was to be a unification of the separate branches these inherent differences in focus would create a practical distinction between lawyers; those that prefer to advocate and those that prefer to case manage and prepare. As stated earlier, it may not be necessary for there to remain two separate branches in the sense that the justice system could still proceed after unification, but there may actually be a utility in preserving the distinction.
Misbah Hanif
