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64 Cards in this Set
- Front
- Back
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What does the organisation of barristers consist of? |
1) The Bar Council 2) The Inns of Court 3) The Bar Standards Board |
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What must all barristers be a part of? |
They must a part of an Inns of Court: 1) Gray's Inn 2) Lincoln's Inn 3) Middle Temple 4) Inner Temple The role of Inns of Court is to: • Rent property to barristers • Provide library and research facilities |
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What is The Bar Council? |
Composed entirely of barristers, whom are elected by fellow members. It is the professional body of barristers. Role: • To represent the profession/ the interests of barristers • Expand the market for the Bar's services |
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What is the Bar Standards Board? |
This body regulates barristers. Role of The Bar Standards Board used to be role of Bar Council until 2010 Role: • Sets down entry and training standards • Sets down Professional Code of Conduct for barristers • Can discipline barristers who are in breach of the Code |
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Stages of Training of Barristers |
This is distinct from solicitor training: 1) Academic Stage: ONLY for NON-LAW GRADUATE. 2) Vocational Stage 3) Professional Stage = 2 years for Law Grad. = 3 years for Non-Law Grad. |
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What is the Academic Stage? |
This stage is bypassed by Law Graduates Non-law Graduates must complete the Common Professional Exam, which is a 1 year academic course covering core law subjects. |
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What does the Vocational Stage consist of? |
• Bar Professional Training Course: 1 year skills-based course covering case prep., advocacy, negotiating, opinion writing and interviewing clients • Join an Inns of Court and attend 12 dinners over 1 year • Successful candidates "called to the bar" by their inns |
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What is the Professional Stage? |
A 1 year pupillage with an experienced barrister. "On the job" training. Involves legal research, drafting documents, preparing cases. • After 6 months - receive certificate allowing them to represent clients in court. Small salary paid. |
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What happens on completion of pupillage? |
Newly qualified barristers must seek a tenancy in a set of chambers Must undertake additional training annually. |
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Why is barrister training criticised? |
• It is expensive - favours wealthy candidates • Very competitive - demand outstrips supply • CPE criticised - is it sufficient? • Training is narrow - non-transferable • Qualifying does not guarantee a job, must obtain tenancy - few available. Those in private practice have no salary |
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Strengths of barrister training |
• It is very skills based/ practical. Results in well-trained barristers • Academic standards are very high - will not get through if they do not perform at such a high level |
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What is Private Practice? |
They are self-employed and work in chambers (groups of 15-20) - can split costs BUT, they cannot form partnerships |
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What is the role of the clerk? |
They are the manager of the chamber, a professional administrator BUT not a lawyer. Role: • Distribute work sent by solicitors • Negotiate a barrister's fee Clerks can be headhunted from other chambers |
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What work is done in Private Practice? |
2 divisions: 1) Advocacy 2) Paperwork |
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What does Advocacy involve? |
Presenting a criminal/ civil case in court (involves examining witnesses, cross-examining). Work is varied: • Can either prosecute or defend if criminal law barrister • Can either represent claimant or defendants if civil law barrister If barrister is QC, they can be supported by junior barrister. |
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Why is advocacy work varied? |
This is to achieve objectivity and adaptability. |
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What does paperwork involve? |
• Research/ prep. for court cases • Written advice to solicitors - "Giving counsel's opinion" • Advise professionals with direct access • Draft pleadings (statements of case) - civil case only |
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What is the Cab Rank Rule? |
Part of professional code of ethics. Rule whereby barrister cannot refuse a case they are offered - UNLESS, in an area of law they're unfamiliar with. If barrister refuses, there will be disciplinary action. |
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How does one engage the services of a barrister? |
Traditionally, they must approach a solicitor first. Solicitor then engages services of barrister and instructs them on client's behalf. |
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What did The Bar Council introduce for direct access to barristers? |
1) Allowed that accountants and other professionals could contact and instruct a barrister directly. - Known as Bar Direct 2) 2004 - ANYONE could contact and instruct a barrister directly in a civil case. DOES NOT apply to family law cases or criminal law cases. |
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What is the Queen's Counsel (QC) in Private Practice? |
•A barrister of 10 years standing can apply to be QC - only best accepted (10% of barristers become QC). • "Taking silk" - used when barrister becomes QC • QC can appear alone in court or a junior barrister may be engaged. |
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How do employed barristers differ from those in Private Practice? |
• Not self-employed • There are about 2,500 employed barristers and are salaried • Work for a variety of organisations e.g.: - Local Government - Banking - Armed Forces Since 1999, these barristers have full rights of audience in higher courts, which they previously did not. |
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What are examples of Professional Misconduct? |
• Breach of client confidentiality • Advertising for cases • Refusing a case • Represent a client in a case with conflicting interest • Sexual relationship with client |
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What is the disciplinary process? |
• The Bar Standards Board regulates barristers • The Bar Standards Board investigates alleged breaches of the Code and can discipline them. IF very serious, it can refer to the relevant Inn. • Council of the Inns Court can discipline in 4 ways: 1) Warning/ Reprimand 2) Fine 3) Suspend for set time period 4) Disbar the barrister |
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What are the 2 ways for a client to complain? |
1) Court action - RARE 2) Complain to the Legal Ombudsman |
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What can clients sue barristers for? |
They CANNOT sue for breach of contract as the contract is NOT between the client and barrister. BUT, they can sue for negligence. This was traditionally not possible - ruled in Rondel v Worsley (1970) as barrister's first duty is to the court and public policy. |
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What 2 decisions changed being able to sue for negligence? |
1) Saif Ali v Mitchell & Co (1980) - Barrister and solicitor could be sued for written advice. - Solicitor told him he could not make personal injury claim for crash but found out he could - when it was too late. 2) Hall v Simons (2000) - HL held that they could be sued for negligent advocacy work. The reason for this is because other professionals can be sued or negligent work so barristers should be too. |
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What is the process to complain to the Legal Ombudsman? |
This is for general complaints and court action does not relate. 1) Complain directly to Head of Barrister's Chambers - if not resolved... 2) Complain to Legal Ombudsman. If complaint found valid it can ask barrister to: - Apologise to client - Redo the work - Refund/ Reduce client's bill - Order compensation up to £30,000 |
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What is the Legal Ombudsman? |
This is an independent body to both legal professions and was set up in 2010. It was created under the Legal Services Act (2007) |
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How is the complaints procedure better since the 2010 Legal Services Act reforms? |
• It is now independent = impartial decisions - used to be The Bar Council • Procedure is now simple - used to many avenues, could deter clients • Is quicker and less prone to delays - most dealt with 3 - 8 months - was 18 months - 5 years • Compensation limits doubled - to £30,000 |
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What are criticisms with the complaints procedure? |
• The cost has not changed, it is still expensive • The complainant must still hire a solicitor to represent them. Solicitors are often reluctant to represent a complainant. Difficult to hire a solicitor |
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What is The Law Society? |
The Law Society controls solicitors It was the governing body until 2010, it still represents their interests. Its aim - "to help, protect, and promote solicitors". It also regulated the profession UNTIL 2010 |
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Who regulates solicitors? |
The Solicitors' Regulation Authority, which is entirely independent from the profession. It is responsible for regulating: • Training requirements • Sets a professional code of conduct • Disciplinary actions |
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Do you have to be a graduate to train as a solicitor? |
No, there is a non-degree route through Institute of Legal Executives (ILEX) Qualifications - this can take years. |
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What are the stages of solicitor training? |
1) Academic Stage - Law graduate by-passes 2) Vocational Stage 3) Professional Stage = 3 years for Law Grad. = 4 years for Non-law Grad. |
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What is the Academic Stage? |
It consists of the Common Professional Exam |
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What does the Vocational Stage include? |
The Legal Practice Course. This is a 1 year training course in skills, such as client interviewing, advocacy, drafting documents. |
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What does the Professional Stage consist of? |
• Become a trainee solicitor. - 2 year training contract with a firm. They will meet clients, provide advice, draft contracts, prepare cases under supervision of a solicitor. --> Are paid average of £15,000/ year. • Become a qualified solicitor - name added to Roll of Supreme Court. • Seek employment - in Private Practice or Outide |
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What must qualified solicitors undertake each year? |
They must undertake Continuous Professional Development for 12 hours/ year. |
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What are the criticisms of training for a solicitor? |
• Expensive, no grants available and cost is upfront - favours wealthy • Competitive - difficult to get on LPC/ training contract with firm • Salary small at training, another job required? • Quality of training contract may vary • There is over-supply • Is the CPE adequate? |
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What are the strengths of training for a solicitor? |
• Paid a salary at Professional Stage • Training very skills-based. • Non-Graduate route - BUT is long • Some firms will pay for LPC after graduation - BUT they must remain with firm. |
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How many solicitors work in Private Practice? |
80% of solicitors work in firms. They are allowed to form partnerships (share profits of firm). Work is varied but many specialise in one or two areas. Salaries range from £30,000-£500,000 |
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What work does a solicitor do in Private Practice? |
• Administration of client's legal affairs • Advocacy • Giving general advice • Registering companies • Litigation • Matrimonial work • Commercial work • Conveyancing • Probate work |
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What is Conveyancing? |
Transfer of legal title of property from one person to another |
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What type of matrimonial work is done? |
• Regarding family law: divorce, custody of children, financial maintenance, prenuptial. |
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What does litigation mean? |
The process of taking legal action. - Taking a case to a court of law so that a judgement can be made |
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What is probate? |
The official proving/ validating of a will. |
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What type of commercial work do solicitors do? |
Advise companies and governments on business-related issues. E.g. • Finance • Corporate • Dispute resolution • Infrastructure projects • Mergers • Liquidisation of companies |
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Where do those work if not in Private Practice? |
They will not work within a solicitor's firm. Some work other areas of employment: • Local Council • Industry • Magistrates' Court Clerk • Banking • Retail • Armed Forces |
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Do solicitors have rights of advocacy? |
Before the Courts and Legal Services Act (1990), barristers had a monopoly over advocacy in higher courts. After the CLSA reforms, solicitors are allowed to apply for certificate of advocacy to conduct cases in higher courts. |
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What are other effects of the CLSA reforms? |
• One lawyer can represent client from start to finish - no need for barrister (should be cheaper). • Solicitor-advocates can now become senior judges (previously, only barristers could) |
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Why is the effect limited? |
Only few solicitors have opted to be solicitor-advocates since 1990 - They have little interest. |
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How can a client complain against a solicitor? |
There are 2 possible routes: 1) Court Action - Sued 2) Legal Ombudsman - For general complaints |
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What can a solicitor be sued for? |
Like a barrister, they can be sued for negligence for 2 things: 1) Adequate work: Griffiths v Dawson (1989) - Solicitor failed to make the correct application in divorce proceedings against husband. Claimant awarded £21,000 compensation. 2) Negligent Advocacy: Hall v Simons (2000) UNLIKE a barrister, a solicitor can also be sued for breach of contract. |
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What is the process for complaining to Legal Ombudsman? |
1) Complain in writing to firm - all firms have an "in house" complaints procedure. Many resolved this way, if not... 2) Complain to Legal Ombudsman. Can ask solicitor to do 4 things: - Apologise - Redo work - Refund/ reduce bill - Order compensation up to £30,000 |
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What is the complaint regards professional misconduct? |
The Solicitors' Regulatory Authority investigates. If there is evidence, it will refer to Solicitors' Disciplinary Tribunal. Can discipline 4 ways: - Reprimand - Fine - Suspend -Strike name off roll (disqualify) |
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How has the complaints procedure improved since 2010? |
• General complaints are no longer dealt with by The Law Society - Now impartial • Complaints procedure was complex and prone to long delays, now simple and quick • Compensation limit was doubled |
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What has not been improved since 2010? |
• The cost is still high • Solicitors are still reluctant to represent complainants |
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What did the Legal Services Act (2007) create? |
1) The Legal Services Board - Independent, chairman and majority of members non-lawyers. Oversees Regulatory bodies. - SRA and BSB 2) Office for Legal Complaints - Oversee all complaints of both professions. Chairman and most members are non-lawyers. Set up Legal Ombudsman in 2010 3) Legal Disciplinary Practices - Solicitors form these with barristers - allows them to work together (all legal services at one place) 4) Alternative Business Structures - Could be created and owned by non-lawyers. Licence needed to do so. |
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What is the Fusion Debate? |
This emerged in the 70s and 80s but has died out recently. It is about whether the legal profession should be combined, much like America. The Bar Council: Opposes The Law Society: Opposes but not as much as The Bar Council |
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What are the reasons in favour of the Fusion Debate? |
•Reduced cost for client • More continuity - same lawyer throughout case • Less duplication of work/ saves time • Other countries have a single system of lawyers - works for them |
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What are the reasons against the Fusion Debate? |
• Less objectivity - as no barrister for second opinion • Decrease in specialist skills of advocacy • Loss of Cab Rank Rule • Realistically, 1 person cannot undertake 2 specialist roles - "Jack of all trades, master of none" • Loss of an independent specialists at the bar |
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Why is fusion still necessary? |
YES: • Training is similar - few slight differences • Barrister no longer have monopoly of advocacy |
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Why is fusion not still necessary? |
• CLSA (1990) meant solicitor-advocates have same rights of audience as barristers for higher courts - • Bar Direct - No need to see solicitor • Barristers can do litigation (like solicitors) with direct access. |
