16
Legal Services

16.1 Introduction

We are concerned here with a number of issues related to the provision and organisation of legal services, and issues of public access to legal services. The delivery of legal services today looks very different from the way things were as recently as 1990. The legal profession has undergone a series of major changes as a result of the Courts and Legal Services Act (CLSA) 1990; the provision of public funding, advice and assistance has been drastically altered as a result of changes introduced in 1999; and the Legal Services Act 2007. The introduction of the ‘conditional fee arrangement’ (no win, no fee) in 1995 was another contentious issue in this area. In the 1950s, only a minute proportion of the population used lawyers to solve problems. Now, in the twenty-first century, a great many individuals, small businesses and organisations are using lawyers often as a matter of course.

The latest Law Society statistics in Trends in the Solicitors’ Profession – Statistical Report 2015 show that as at 31 July 2015 there were 168,226 solicitors ‘on the Roll’, that is, people qualified to work as solicitors, of whom 133,367 had a current practising certificate (PC). The number of new admissions to the Roll of solicitors declined in 2014/15 to 6,077 from a peak in the early 2000s of 8,491 in 2008/9.

The Solicitors’ Regulation Authority now produces monthly statistics about numbers of solicitors and law firms. The October 2016 report quotes 178,340 solicitors on the roll and 139,313 holding a practicing certificate. There were 10,415 registered law firms of which 2,627 were sole practitioners.

In 2015, there were 15,899 barristers in independent practice in England and Wales. This figure included 1,574 Queen’s Counsel (QCs), who are senior and distinguished barristers of at least 10 years’ standing (and generally with a minimum of 15 years’ practice) who, as a result of outstanding merit, have received a patent as ‘one of her Majesty’s counsel learned in the law’ (Bar Standards Board website, www.barstandardsboard.org.uk).

The Legal Services Act 2007

The Legal Services Act 2007 (LSA) heralded major changes in the law. The changes prescribed in this new law are comprehensive and radical. The Act was built around Sir David Clementi’s proposals and the key components were:

• Creation of the Office for Legal Complaints (OLC), which in turn created the Legal Ombudsman (LO) scheme.
• Alternative Business Structures (ABSs), which enable consumers to obtain services from one business entity that brings together lawyers and non-lawyers.
• Legal Disciplinary Practices (LDPs), which allow firms to have up to 25 per cent non-lawyer or different kinds of lawyers as partners.
• A new Legal Services Board (LSB) to act as a single, independent and publicly accountable regulator with the power to enforce high standards in the legal sector, replacing a variety of regulators with overlapping powers.
• A clear set of regulatory objectives for the regulation of legal services.

The possible effects of the Legal Services Act 2007

The Legal Services Board (LSB) permitted ABSs from 6 October 2011. This enabled non-law firms to own legal practices and is commonly called ‘Tesco Law’ by the media. While Tesco may well offer legal services, other large organisations have already registered an ABS. The Co-operative Society became one of the first to obtain a licence and become an ABS. Direct Line, the insurer, has since acquired a licence to become an ABS. Irwin Mitchell, a large legal practice, and Quindell, an AIM listed company, acquired ABS licences. The Solicitors Regulation Authority (SRA) has issued 340 ABS licences to date (SRA website, www.sra.org.uk, March 2015). Slater and Gordon, the Australian quoted law firm, acquired the legal practice of Russell Jones & Walker in April 2012 following the SRA granting an ABS licence. They have been acquiring more law firms. PricewaterhouseCoopers (PWC), a major international accountancy practice, has acquired an ABS for its legal practice, PwC Legal.

Professor Stephen Mayson of the Legal Services Policy Institute of the University of Law wrote in late 2013:

We are just at the second anniversary of licences being issued for alternative business structures (ABSs). In the first year, about 40 licences were issued, and progress seemed slow. A year later, there are still only two licensing authorities, but there have been roughly another 200 new licences. A year ago, we were told that there were another 200 applications in the pipeline. And we have had another 200 licences issued in the past twelve months. So it appears to have taken a year just to process the pipeline. There are no indications of how many are in the pipeline at the moment (stephenmayson.com, 6 October 2013).

The Law Society has not ignored the ABS threat to its members and, in autumn 2008, it commissioned a report by Lord Hunt, which was published on 5 October 2009 and titled ‘The Hunt Review of the Regulation of Legal Services’. This is a lengthy report, which starts by considering the recent background to the legal profession and then considers various matters including professional regulation, education and training and ABS.

In his report (p 102), Lord Hunt, in considering how ABS might work and be regulated, commented: ‘How will the inevitable conflict between economic benefits and ethical concerns be resolved?’ An example of this conflict might arise where a firm decided to settle a major piece of litigation, believing that it was in the best interest of the client to do so. The practice’s shareholders might suffer a consequential loss of potential profit. Under company law the shareholder may be able to sue the directors for making such a decision. The Australian firm Slater and Gordon, the first legal practice in the Western world to be listed on a stock market, worked with its regulator to solve this conundrum. Its constitution states that ‘where an inconsistency or conflict arises between the duties of the company, the company’s duty to the court will prevail over all duties’. This position has yet to be tested. As Stephen Mayson has pointed out in his excellent discussion paper on ABS and related issues:

Experience in other jurisdictions (such as New South Wales) suggests that a focus on ethical behaviour and ‘education for compliance’ with regulation could pay dividends. Work commissioned by the Department for Constitutional Affairs also suggested that it is not the business structure that should be the principal cause for concern but rather the underlying incentives, and that ‘traditional’ structures and methods of practice involving only lawyers are just as likely to encourage unethical behaviour.

Slater and Gordon specialise as an insurance complainant practice and, compared with the top English law firms, are very small. Their turnover for the 2016 accounting year was AU$ 908.2 million (£532.1 million) according to their published accounts. The Slater and Gordon business model may well be appropriate for similar practices in the UK, but it is probably less likely to be adopted by the large city corporate law practices.

A new franchise – QualitySolicitors – was founded in 2008 to enable law firms to become members and compete with the changes envisaged by the introduction of ABS. Their objective is to have member law firms across the country in every high street by October 2011. Andrew Holroyd, a former president of The Law Society (and partner in Jackson and Canter, which is now a member of QualitySolicitors), said in the Law Society Gazette (7 October 2010): ‘The creation of a national legal services brand is essential if we are to compete with the new entrants to the market next year.’

Craig Holt, the chief executive of QualitySolicitors, told the Law Society Gazette (7 October 2010) that ‘massively increasing our number of fully branded firms will enable us to achieve our goal of becoming the first established household name brand for legal services’. According to their website (www.qualitysolicitors.com, November 2015) they have over 200 branches.

The Institute of Chartered Accountants in England and Wales (ICAEW) was concerned that accountants would not be disadvantaged and in October 2013 applied to the Legal Services Board (LSB) to become an approved regulator and licensing authority for probate under the Legal Services Act 2007. The approval was granted and became effective from 14 August 2014. The ICAEW published a report on 10 November 2015 stating that they had just issued the 100th licence to Tiffin Green Ltd.

In conclusion, the LSA 2007 and its potential effects are beginning to cause both legal and non-legal professions and individual firms to consider how to move forward and compete with the changes that have been taking place since October 2011. It may be that after the initial interest and registration of ABSs by some businesses (e.g. Co-op and Direct Line) there will be comparatively little change. Companies moving into legal services may ultimately find the work less profitable than anticipated, and the risks of professional negligence claims against them may lead to such firms withdrawing from the market. An area of possible major change could be in the insurance claims market and firms seeking stock market listings like the Australian practice Slater and Gordon (see above). There is also the potential for a legal insurer to acquire a legal practice to attempt to reduce costs of defending claims. The emergence of the QualitySolicitors franchise may help to protect the smaller high-street practices against the new ‘Tesco Law’ type entrants into the marketplace. Further franchises and affiliations may possibly develop. Small- to medium-sized law firms may consider mergers to create larger, more cost-efficient operations.

The introduction of ABSs has not been a total success, with the failure of Parabis Group, formed in 2012 and broken up and sold as part of a pre-pack administration in 2015.

A pilot scheme for trainee solicitors has been started by a company called Acculaw, and approved by the SRA. Acculaw (now known as Accutrainee) will offer training contracts to law graduates and then second them to city law firms and in-house legal departments. Trainees will spend a minimum of three months with any firm and a maximum of three secondments. The trainees will be employed by Accutrainee rather than the law firms. It was announced in The Times Student Law on 22 May 2014 that the first two trainees under this scheme had qualified.

16.2 The Legal Profession

The English legal system is one of only three in the world to have a divided legal profession where a lawyer is either a solicitor or a barrister. Each branch has its own separate traditions, training requirements and customs of practice. It is important to remember that it is not only lawyers who regularly perform legal work. As one text noted (Bailey and Gunn, Smith & Bailey on the Modern English Legal System (1991), p 105):

many non-lawyers perform legal tasks, some of them full time. For example, accountants may specialise in revenue law, trade union officials may appear regularly before industrial tribunals on behalf of their members, and solicitors may delegate work to legal executives. Conversely, many of the tasks performed by lawyers are not strictly ‘legal’.

16.3 Solicitors

The solicitor can be characterised as a general practitioner: a lawyer who deals with clients direct and, when a particular specialism or litigation is required, will engage the services of counsel, that is, a barrister. Looking at the solicitor as a legal GP and the barrister as a specialist, however, can be misleading. Most solicitors, especially those in large practices, are experts in particular areas of law. They may restrict their regular work to litigation or commercial conveyancing or revenue work. Many barristers, on the other hand, might have a quite wide range of work including criminal, family matters and a variety of common law areas like tort and contract cases. The origins of the solicitor go back to the attornatus, or later the ‘attorney’, a medieval officer of the court whose main function was to assist the client in the initial stages of the case. One group of people practising in the Court of Chancery came to be known as ‘solicitors’. Originally, they performed a variety of miscellaneous clerical tasks for employers such as landowners and attorneys. Their name was derived from their function of ‘soliciting’ or prosecuting actions in courts of which they were not officers or attorneys. Eventually, neither of these groups was admitted to the Inns of Court (where barristers worked); they merged and organised themselves as a distinct profession.

It was not, however, until 1831 that ‘The Society of Attorneys Solicitors Proctors and Others not being Barristers Practising in the Courts of Law and Equity in the UK’ was given its Royal Charter. This body emerged as the governing body of solicitors, the term ‘attorney’ falling from general use.

One very significant area of development and concern for solicitors at the beginning of the twenty-first century is the extent to which their monopolies of certain sorts of practice have been eroded. They have already lost their monopoly on conveyancing. Then, in 1999, the Access to Justice Act (see Chapter 17) introduced the provision that the Lord Chancellor would in future be able to authorise bodies other than The Law Society to approve of their members carrying out litigation. This, however, should be seen in the wider context of the policy to break down the historical monopolies of both branches of the legal profession. Thus, we can note the growth, since the CLSA 1990, of solicitors’ rights of audience in court, and a corresponding anxiety at the Bar when these rights were granted.

The 1990 Act provides that every barrister and every solicitor has a right of audience before every court in relation to all proceedings. The right, however, is not unconditional. In order to exercise it, solicitors and barristers must obey the rules of conduct of the professional bodies and must have met any training requirements that have been prescribed, like the requirement to have completed pupillage in the case of the Bar, or to have obtained a higher courts advocacy qualification in the case of solicitors who wish to appear in the higher courts.

16.3.1 Training

The standard route to qualification is a law degree followed by a one-year Legal Practice Course (LPC) and then a term as a trainee solicitor which, like the barrister’s pupillage, is essentially an apprenticeship. The one-year LPC is slowly changing, with Linklaters starting a seven-and-a-half-month course from January 2011 and Clifford Chance a seven-month course one year later. Several of the large city firms favour this course. The Solicitors Regulation Authority (SRA) (see 16.3.3) currently authorises 36 institutions to deliver the LPC. Non-law graduates can complete the Postgraduate Diploma in Law in one year and then proceed as a law graduate. While the Law Society does not require an aptitude test for students wishing to undertake the LPC, the Bar Standards Board requires one. The Bar Course Aptitude Test (BCAT) became compulsory in autumn 2013 and costs £150. After completion of the LPC and trainee-ship, a trainee solicitor may apply to The Law Society to be ‘admitted’ to the profession. The Master of the Rolls will add the names of the newly qualified to the roll of officers of the Supreme Court. The requirement for a training contract was changed on 1 July 2014 with the introduction of the SRA Training Regulations 2014 to enable qualification provided that ‘a period of recognised training’ has been completed. This route is currently controversial as to whether the training will be satisfactory and enable the student to become a solicitor. The SRA has recently proposed a final competency examination at the point of qualification for all new solicitors and has commenced a consultation on the proposal.

In October 2013 the SRA published a policy statement, Training for Tomorrow, containing three main proposals:

• competency framework to set out the knowledge, skills and attributes that a solicitor requires at the point of qualification;
• continuing professional development (CPD) to focus on effectiveness of post-qualification training;
• removal of layers of regulation which neither assure quality nor enable excellence.

The Law Society Gazette (15 April 2015) reported that a paralegal has become the first solicitor to qualify through the alternative method of ‘equivalent means’. The SRA accepted evidence that the paralegal had, while working at a law firm, achieved the same standards as someone qualifying through the traditional training period.

The SRA report Regulated Population Statistics for the year to October 2016 states that 6,452 were admitted to the role and the breakdown was:

LPC 5,580, Qualified Lawyer transfer 541, Qualified Lawyer transfer test 27, CILEX 237 and other 67.

Further developments on qualifying as a solicitor can be found in the SRA’s second consultation on the Solicitors’ Qualifying Examination which commenced on 3 October 2016 and closes on 9 January 2017. The proposals are based on establishing consistency by undergoing ‘the same independently-set professional assessment before qualifying’ (SRA news release 3 October 2016). The proposals include requiring prospective solicitors to undertake a significant period of training in a legal environment.

In July 2011 the Legal Education and Training Review was commissioned and published in June 2013 (see below, 16.3.2).

To practise, a solicitor will also require a practising certificate issued by the SRA. The fee comprises four parts as listed below. The SRA’s fee structure for 2016 is:

Individual practising fee

• A flat fee of £290 for every solicitor seeking a practising certificate.

Firm practising fee

• A fee payable by every firm seeking or maintaining authorisation to practise. This is a turnover-based fee as shown in the table below.

Individual Compensation Fund contribution

• A flat fee of £32 is payable by each individual.

Firm Compensation Fund contribution

• A flat fee of £548 is payable by firms which hold client money.

Turnover range (A)	Pay per cent of turnover within band (B)	Minimum turnover in band (C)	Minimum fee in band (D)
£0-£19,999	0.76%	£0	£100
£20,000 - £149,999	0.45%	£20,000	£252
£150,000 - £499,999	0.43%	£150,000	£837
£500,000 - £999,999	0.42%	£500,000	£2,342
£1,000,000-£2,999,999	0.39%	£1,000,000	£4,442
£3,000,000-£9,999,999	0.27%	£3,000,000	£12,242
£10,000,000 - £29,999,999	0.23%	£10,000,000	£31,142
£30,000,000 - £69,999,999	0.21%	£30,000,000	£77,142
£70,000,000 - £149,999,999	0.19%	£70,000,000	£161,142
£150,000,000 - £9,999,999,999	0.07%	£150,000,000	£313,142

The firm fee is calculated by following the steps below:

• Identify which band the turnover (T) falls in from column A.
• Take T and subtract the figure in the corresponding column C.
• Multiply this figure by the corresponding percentage in column B.
• Finally, add this figure to the corresponding figure in column D.
• Firm fee then needs to be rounded to the nearest pound (i.e. if less than 50p then round down, and if equal to or more than 50p then round up).

Formula: (T – C) × B + D

Example for turnover of £200,000:

(£200,000 – £150,000) × 0.43% + £837 = £1,052

Additionally, solicitors have to pay an annual premium for indemnity insurance.

All solicitors must now undergo regular continuing education, known as continuing professional development (CPD), which means attendance at non-examined legal courses designed to update knowledge and improve expertise. Each year, solicitors are required to complete 16 hours of CPD training in the CPD year that currently runs from 1 November to 31 October each year. One CPD point equates to one hour’s training. In November 2016 CPD was replaced by continuing competence and this requires solicitors to assess their own learning and development needs. The SRA’s website gives useful guidance on the subject.

The SRA has removed the requirement for all newly admitted solicitors to complete The Law Society’s Management Course Stage 1 before the end of the third CPD year of the solicitor being admitted to the role. However, the Law Society has introduced two management courses that satisfy the training requirements under rule 12 of the SRA Practice Framework Rules 2011 (‘qualified to supervise’) in order to achieve the required 12 hours of management skills training.

16.3.2 Legal Education and Training Review (LETR)

The Legal Education and Training Review (LETR) was commissioned by the Solicitors Regulation Authority (SRA), the Bar Standards Board (BSB) and ILEX Professional Standards (IPS). In late 2010 the SRA, BSB and IPS awarded the LETR research contract to the UKCLE Research Consortium, led by Professor Julian Webb of the University of Warwick. Research started in June 2011 and the final report was published on 25 June 2013. The aim was to survey the current state and future requirements of legal services education and training (LSET). This has become of significant importance with the advent of the Legal Services Act 2007 and the resultant changes in the legal profession.

The authors carried out detailed research involving 307 academics and an online survey of 1,128 key people. Two expert consultants in legal services, Professors Richard Susskind and Rob Wilson, also provided input to the report. The report is approximately 350 pages long and a brief summary of it can be found in the 15th edition of this book.

16.3.3 The Law Society

This was the profession’s governing body, controlled by a council of elected members and an annually elected president. Its powers and duties derived from the Solicitors Act 1974. Complaints against solicitors used to be dealt with by the Solicitors’ Complaints Bureau and the Solicitors’ Disciplinary Tribunal, the latter having power to strike from the Roll the name of an offending solicitor. It had been sometimes seen as worrying that the Society combined two roles with a possible conflict of interests: maintenance of professional standards for the protection of the public, and as the main professional association to promote the interests of solicitors.

In 2006, The Law Society council began a debate on the future of the society. The question was whether the society should survive, if so in what shape, and what it should do for the solicitors who fund it. Reforms introduced in the Legal Services Bill 2006 have already led to changes, with the society hiving off, in January 2007, its regulation to the Solicitors’ Regulation Authority and complaints handling to the Legal Complaints Service, which are new boards managed ‘at arm’s length’ from the central body. The Law Society now deals with the interests of its members and will negotiate with and lobby the profession’s regulators and government. The key roles of The Law Society now are to help, protect, promote, train and advise solicitors.

Solicitors Regulation Authority (SRA)

The SRA is the independent regulatory body of The Law Society and was established in January 2007. It was formerly known as The Law Society Regulation Board, but changed its name so that it would be clear that it was independent of The Law Society. The SRA’s job is to regulate and discipline all solicitors in England and Wales, who number in excess of 100,000, with its principal aim of giving the public confidence in the profession. The SRA’s functions include:

• setting standards for qualifying as a solicitor and the requirements for solicitors’ continuing professional development;
• monitoring the performance of organisations that provide legal training;
• monitoring solicitors and their firms to ensure compliance with rules;
• referring solicitors to the Solicitors Disciplinary Tribunal;
• running the compensation fund;
• drafting rules of professional conduct.

In carrying out its functions, the SRA consults with solicitors and other legal professionals, along with the public, consumer groups and the government.

The Compensation Fund was set up in 1941 by The Law Society to protect clients who lost money due to the dishonesty of their solicitor or their solicitor’s failure to properly account for clients’ money. The fund used to be supervised by the Consumer Complaints Service (CCS). However, the fund is now run by the SRA. Any person, and not just the client of a solicitor, may seek payment from the compensation fund providing the person has suffered financial loss due to a solicitor’s dishonesty or financial hardship due to a solicitor’s failure to pay over money that he or she has received. The loss must arise during the solicitor’s normal work. As a general rule, a person must notify the SRA within six months after they discovered (or should have discovered) the loss. The SRA will require the person making the claim to complete an application form. A caseworker will then investigate the application and if necessary will request more information before an adjudicator or panel determines the application. The SRA will not normally sanction the payment of more than £2 million including interest, costs and any other insurance or other payment the person who has suffered the loss may receive.

The Legal Complaints Service (LCS) may also direct a person to make a claim to the SRA’s compensation fund. This may happen following the LCS directing a solicitor to pay compensation for poor service but they are unable to pay it if their firm is insolvent, the SRA having intervened in the firm or their practice is closed.

The Code of Conduct

On 6 October 2011 the Solicitors’ Code of Conduct 2011 came into force, which has now codified solicitors’ conduct obligations. Rule 1 sets out six core duties which are fundamental rules, and a breach could result in sanctions. Rules 2 to 25 are the rules that arise from the core duties and which basically put flesh on the bare bones of rule 1, breach of which may result in sanctions. After each rule there is guidance which is not mandatory and does not form part of the Code of Conduct.

Outcomes-focused regulation (OFR) is the SRA’s new approach to regulation. OFR is a move away from a rules-based approach and instead focuses on high-level outcomes governing practice and the quality of outcomes for clients. Version 18 of the Code of Conduct handbook was published on 1 November 2016. The SRA has announced an 18-months process to reduce the size of the Code of Conduct handbook. The objective is to enable firms to have more flexibility in running their practice.

The Legal Ombudsman

The Legal Ombudsman (see also 16.6.7) is an independent, consumer-focused ombudsman scheme set up to resolve complaints about lawyers in England and Wales. The Legal Ombudsman (LO) was established under the Legal Services Act 2007 and began accepting complaints on 6 October 2010. The LO provides a free complaints resolution service to members of the public, very small businesses, charities and trusts.

The LO deals with complaints about solicitors and the following types of professionals (and generally those working for them): barristers, law costs draftsmen, legal executives, licensed conveyancers, notaries, patent attorneys, probate practitioners, registered European lawyers, solicitors, and trademark attorneys.

The LO runs a remuneration scheme for any person dissatisfied with their solicitor’s bill. This service is free, providing that the solicitor’s bill does not include work for court proceedings. The LO will check the solicitor’s bill to ensure that it is fair and reasonable. If the solicitor’s work includes court proceedings, then only the court can assess the bill.

The LO can also instruct a solicitor to pay compensation to their client for distress and inconvenience caused by poor service. If a person is dissatisfied with the service they received from their solicitor, they should first lodge a complaint with their solicitor or the solicitor’s complaints handling partner. If the aggrieved party fails to receive a response, or a satisfactory response, they can complain to the LO. The LO can make an award of up to £50,000, including any extra expenses and losses. The LO 2016 report stated that in the year to March 2016 the compensation awarded in 88.6% of cases was less than £1,000. The LO makes awards on the merits of each individual case.

Solicitors’ Disciplinary Tribunal (SDT)

The Solicitors’ Disciplinary Tribunal is constitutionally independent of The Law Society, although it is funded by them. The SDT’s powers arise by virtue of the Solicitors Act 1974. The purpose of the SDT is to consider and determine applications involving allegations of professional misconduct of solicitors or breaches of their professional rules. Such allegations are brought to the attention of the SDT in one of three ways:

• by members of the public;
• on behalf of The Law Society by in-house solicitors/barristers;
• by independent prosecuting solicitors instructed by The Law Society.

In addition, the SRA may refer a case to the SDT if a solicitor’s misconduct is likely to lead to a fine, suspension, being struck off or another power given to the SDT.

Whether a referral is made to the SDT depends on two tests being satisfied: the evidential test and the public interest test. The former test requires ‘that there is enough evidence to provide a realistic prospect that the solicitor will be found guilty of misconduct’ (The Law Society, October 2006). The latter test involves considering the public interest once the evidential test is satisfied. For example, a case may be referred to the SDT if there are grounds for believing the conduct is likely to be continued or repeated, whereas a case may not be referred to the SDT if the misconduct was committed as a genuine mistake or misunderstanding or if the SDT is only likely to impose a small penalty.

The SDT can impose various sanctions which include the following:

• striking off the solicitor from the Roll;
• suspending the solicitor from practice for a fixed or indefinite period;
• ordering the solicitor to pay a penalty (to Her Majesty) for each allegation;
• reprimanding a solicitor.

As mentioned above, the OLC is funded by The Law Society, so there will still be a serious question as to whether this body will be seen as sufficiently independent by the public.

16.3.4 The Chartered Institute of Legal Executives

The Chartered Institute of Legal Executives (CILEx) represents over 10,000 legal executives employed in solicitors’ offices. They are legally trained (the Institute runs its own examinations) and carry out much of the routine legal work that is a feature of most practices. The Institute was founded in 1892 and incorporated in 1963 with the support of The Law Society. On 30 January 2012 the former ILEX became incorporated by Royal Charter and its members are now known as Chartered Legal Executives. The Managing Clerks’ Association, from which CILEx developed, recognised that many non-solicitor staff employed in fee-earning work, and in the management of firms, needed and wanted a training route that would improve standards and award recognition for knowledge and skills. The education and training facilities CILEx offers have developed in number and diversity so that CILEx is able to provide a route to a career in law, which is open to all.

Legal executives are, in the phrase of the CILEx website (www.cilex.org.uk), qualified lawyers specialising in a particular area of law. They will have passed the CILEx Professional Qualification in Law in an area of legal practice to the same level as that required of solicitors. They will have at least five years’ experience of working under the supervision of a solicitor in legal practice or the legal department of a private company or local or national government. Fellows are issued with an annual practising certificate, and only Fellows of CILEx may describe themselves as ‘Legal Executives’. Specialising in a particular area of law, their day-to-day work is similar to that of a solicitor.

Legal executives might: handle the legal aspects of a property transfer; assist in the formation of a company; be involved in actions in the High Court or County Courts; draft wills; or advise clients accused of serious or petty crime, families with matrimonial problems, and on many other matters affecting people in their domestic and business affairs. Legal executives are fee earners – in private practice their work is charged directly to clients – making a direct contribution to the income of a law firm. This is an important difference between legal executives and other types of legal support staff who tend to handle work of a more routine nature. In March 2000, six legal executives qualified to become the first legal executive advocates under the CLSA 1990. The advocacy certificates were approved by the then ILEX Rights of Audience Committee. The advocates now have extended rights of audience in civil and matrimonial proceedings in the County Courts and magistrates’ courts. In some circumstances, Fellows of CILEx can instruct barristers directly. Public Access (the Bar Council’s scheme by which barristers can be directly instructed by some professional and voluntary organisations, rather than by solicitors) enables legal executives to access a wide choice of legal advice and representation for their clients and their employers. In December 2010 the first member of ILEX was appointed a deputy district judge (Law Society Gazette, 27 January 2011).

16.4 Barristers

The barrister is often thought of as primarily a court advocate, although many spend more time on drafting, pleadings (now called statements of case) and writing advice for solicitors. Professional barristers are technically competent to perform all advocacy for the prosecution or defence in criminal cases, and for a claimant or defendant in a civil claim. More generally, however, established barristers tend to specialise in particular areas of work. Over 60 per cent of practising barristers work in London.

The Bar had been organised as an association of the members of the Inns of Court by the fourteenth century. Today, there are four Inns of Court (Inner and Middle Temples, Lincoln’s Inn and Gray’s Inn), although there were originally more, including Inns of Chancery and Sergeants’ Inns, the latter being an association of the king’s most senior lawyers. Until the CLSA 1990, the barrister had a virtual monopoly on advocacy in all the superior courts (in some cases solicitors could act as advocates in the Crown Court). In most situations, they cannot deal direct with clients but must be engaged by solicitors (but see below, 16.6.2).

16.4.1 Training

Entry to the Bar is now restricted to graduates and mature students. An aspirant barrister must register with one of the four Inns of Court in London. Commonly, a barrister will have a law degree and then undertake professional training (the Bar Practice Training Course (BPTC), formerly known as the Bar Vocation Course) for one year leading to the Bar Examinations. Alternatively, a non-law graduate can study for the Common Professional Examination for one year and, if successful in the examinations, proceed to the Bar Examinations. The Bar Standards Board has imposed an aptitude test since autumn 2013, following approval from the LSB, prior to a student undertaking the BPTC (see 16.3.1). The successful student is then called to the Bar by his or her Inn of Court. It is also a requirement of being called that, during study for the vocational course, the student attends his or her Inn to become familiar with the customs of the Bar. The student then undertakes a pupillage, essentially an apprenticeship to a junior counsel. Note that all barristers, however senior in years and experience, are still ‘junior counsel’ unless they have ‘taken silk’ and become Queen’s Counsel (QCs). Barristers who do not intend to practise do not have to complete the pupillage. See also the section on the LETR at 16.3.2.

16.4.2 The Inns of Court

The Inns of Court are administered by their senior members (QCs and judges) who are called Benchers. The Inns administer the dining system and are responsible for calling the students to the Bar.

16.4.3 The General Council of the Bar

The General Council of the Bar of England and Wales and of the Inns of Court (the Bar Council) is the profession’s governing body. It is run by elected officials. It is responsible for the Bar’s Code of Conduct, disciplinary matters and representing the interests of the Bar to external bodies like the Lord Chancellor’s Department, the government and The Law Society. According to its own literature, this Council:

fulfils the function of what might be called a ‘trade union’, pursuing the interests of the Bar and expanding the market for the Bar’s services and is also a watchdog regulating its practices and activities.

16.4.4 Education

The Bar Standards Board (BSB) was established in January 2006 as a result of the Bar Council separating its regulatory and representative functions. That separation was to ensure that there was no conflict of interest between the people whose function was to represent the professional interests of barristers (as trade unions represent the interests of their members) and the people whose function is to regulate standards on behalf of the public and clients. As the independent regulatory board of the Bar Council, the BSB is responsible for regulating barristers called to the Bar in England and Wales. It takes decisions independently and in the public interest, and is not prejudiced by the Bar Council’s representative function. The purpose of the BSB is ‘to promote and maintain excellence in the quality of legal services provided by barristers to support the rule of law’. It does that by setting standards of entry to the profession and by ensuring that professional practice puts consumers first.

16.4.5 Queen’s Counsel

Queen’s Counsel (QCs) are senior barristers of special merit. In 2015, the Bar had 1,574 QCs in practice. They are given this status (known as ‘taking silk’ because a part of the robe they are entitled to wear is silk) by the Queen on the advice of the Lord Chancellor. There were, until the suspension of the system in 2003, annual invitations from the Lord Chancellor for barristers to apply for this title. Applicants needed to show at least 10 years of successful practice at the Bar. However, under arrangements announced recently a new independent selection procedure has replaced the widely criticised former system, which relied on secret soundings among senior legal figures. Candidates will be chosen by the Lord Chancellor on the recommendation of an independent panel set up by The Law Society and the Bar Council. If appointed, the barrister will become known as a ‘Leader’ and he or she will often appear in cases with a junior. The old ‘Two Counsel Rule’, under which a QC always had to appear with a junior counsel, whether one was really required or not, was abolished in 1977. He or she will be restricted to high-level work (of which there is less available in some types of practice), so appointment can be financially difficult but, in most cases, it has good results for the QC as he or she will be able to considerably increase fee levels.

16.4.6 The Barrister’s Chambers

Barristers were not permitted to form partnerships (except with lawyers from other countries) until April 2010 when the Bar announced new rules following the LSA 2007; they work in sets of offices called chambers. Most chambers are run by barristers’ clerks who act as business managers, allocating work to the various barristers and negotiating their fees. Imagine the situation where a solicitor wishes to engage a particular barrister for a case on a certain date and that barrister is already booked to be in another court three days before that date. The clerk cannot be sure whether the first case will have ended in time for the barrister to be free to appear in the second case. The first case might be adjourned after a day or, through unexpected evidential arguments in the early stages in the trial, it might last for four days. If the barrister is detained, then his or her brief for the second case will have to be passed to another barrister in his or her chambers very close to the actual trial. This is known as a late brief. Who will be asked to take the brief and at what point is a matter for the clerk. The role of the barrister’s clerk is thus a most influential one. Since 2003, lay clients have been able to enjoy direct access to barristers under the Public Access scheme (previously known as BarDIRECT); see www.barcouncil.org.uk. It is currently possible for barristers to accept instructions from some licensed organisations as opposed to the normal practice of being briefed by solicitors.

16.5 Professional Etiquette

The CLSA 1990 introduced a statutory committee, the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC), which, until recently, had responsibilities in the regulation of both branches of the profession.

As part of the government’s reforms of legal services generally, and publicly funded legal advice specifically, the Access to Justice Act 1999 (s 35) has replaced the ACLEC (considered by some as slow and ponderous) with the Legal Services Consultative Panel, launched at the beginning of 2000. The Consultative Panel has:

• (a) the duty of assisting in the maintenance and development of standards in the education, training and conduct of persons offering legal services and, where appropriate, making recommendations to the Lord Chancellor; and
• (b) the duty of providing to the Lord Chancellor, at their request, advice about particular matters relating to any aspect of the provision of legal services (including the education, training and conduct of persons offering legal services).

The Law Society (through the Solicitors Regulation Authority) and the Bar Council (through the Bar Standards Board) exercise tight control over the professional conduct of their members. Barristers can meet the client only when the solicitor or his or her representative is present. This is supposed to promote the barrister’s detachment from the client and his or her case, and thus lend greater objectivity to counsel’s judgment. However, since April 2010 the Bar has relaxed the rules on the work a barrister can undertake (see 16.1). Barristers and solicitors must dress formally for court appearances, although solicitors, when appearing in the Crown, County or High Court, are required to wear robes but not wigs. A barrister not wearing a wig and robe cannot be ‘seen’ or ‘heard’ by the judge.

Traditionally, lawyers were not permitted to advertise their services, although this area has been subject to some deregulation in the light of recent trends to expose the provision of legal services to ordinary market forces. Solicitors can, subject to some regulations, advertise their services in print and on broadcast media.

16.5.1 Immunity from Negligence Claims

Until recently barristers could not be sued by their clients for negligent performance in court or for work that was preparatory to court work (Rondel v Worsley (1969)); this immunity had also been extended to solicitors who act as advocates (Saif Ali v Sidney Mitchell (1980)). The client of the other side, however, may sue for breach of duty (Kelly v London Transport Executive (1982)). This was changed in a major case in 2000.

Advocates’ liability
Arthur JS Hall and Co v Simons and other appeals (2000)

Background

Lawyers are, for the general public, the most central and prominent part of the English legal system. They are, arguably, to the legal system what doctors are to the health system. For many decades, a debate had grown about why a patient injured by the negligence of a surgeon in the operating theatre could sue for damages, whereas a litigant whose case was lost because of the negligence of his or her advocate could not sue. It all seemed very unfair. Even the most glaringly obvious courtroom negligence was protected against legal action by a special advocates’ immunity. The claim that this protection was made by lawyers (and judges who were lawyers) for lawyers was difficult to refute. In this House of Lords decision, the historic immunity was abolished in respect of both barristers and solicitor-advocates for both civil and criminal proceedings.

Facts

In three cases, all conjoined on appeal, a claimant raised a claim of negligence against a firm of solicitors, and in each case, the firms relied on the immunity attaching to barristers and other advocates from claims in negligence. At first instance, all the claims were struck out. Then, on appeal, the Court of Appeal said that the claims could have proceeded. The solicitors appealed to the Lords and two key questions were raised: should the old immunity rule be maintained and, in a criminal case, what was the proper scope of the principle against ‘collateral attack’? A ‘collateral attack’ is when someone convicted in a criminal court tries to invalidate that conviction outside the criminal appeals process by suing his trial defence lawyer in a civil court. The purpose of such a ‘collateral attack’ is to win in the civil case, proving negligence against the criminal trial lawyer, and thus by implication showing that the conviction in the criminal case was unfair.

Held

The House of Lords held (Lords Hope, Hutton and Hobhouse dissenting in part) that, in the light of modern conditions, it was now clear that it was no longer in the public interest in the administration of justice that advocates should have immunity from suit for negligence for acts concerned with the conduct of either civil or criminal litigation.

Lord Hoffmann (with Lords Steyn, Browne-Wilkinson and Millett delivering concurring opinions) said that over 30 years had passed since the House had last considered the rationale for the immunity of the advocate from suit in Rondel v Worsley. Public policy was not immutable and there had been great changes in the law of negligence, the functioning of the legal profession, the administration of justice and public perceptions. It was once again time to re-examine the whole matter. Interestingly, Lord Hoffmann chose to formulate his opinion in a creative mode to reflect public policy, rather than in the tradition of what can be seen as slavish obedience to the details of precedent:

I hope that I will not be thought ungrateful if I do not encumber this speech with citations. The question of what the public interest now requires depends upon the strength of the arguments rather than the weight of authority.

The point of departure was that, in general, English law provided a remedy in damages for a person who had suffered injury as a result of professional negligence. It followed that any exception that denied such a remedy required a sound justification. The arguments relied on by the court in Rondel v Worsley as justifying the immunity had to be considered. One by one, these arguments are evaluated and rejected.

Advocate’s divided loyalty

There were two distinct versions of the divided loyalty argument. The first was that the possibility of being sued for negligence would actually inhibit the lawyer, consciously or unconsciously, from giving their duty to the court priority over their duty to their client. The second was that the divided loyalty was a special factor that made the conduct of litigation a very difficult art and could lead to the advocate being exposed to vexatious claims by difficult clients. The argument was pressed most strongly in connection with advocacy in criminal proceedings, where the clients were said to be more than usually likely to be vexatious.

There had been recent developments in the civil justice system designed to reduce the incidence of vexatious litigation. The first was r 24.2 of the Civil Procedure Rules, which provided that a court could give summary judgment in favour of a defendant if it considered that ‘the claimant had no real prospect of succeeding on the claim’. The second was the changes to the funding of civil litigation introduced by the Access to Justice Act 1999, which would make it much more difficult than it had been in the past to obtain legal help for negligence claims that had little prospect of success.

There was no doubt that the advocate’s duty to the court was extremely important in the English justice system. The question was whether removing the immunity would have a significantly adverse effect. If the possibility of being held liable in negligence was calculated to have an adverse effect on the behaviour of advocates in court, one might have expected that to have followed, at least to some degree, from the introduction of wasted costs orders (where a court disallows a lawyer from being able to claim part of a fee for work that is regarded as unnecessary and wasteful). Although the liability of a negligent advocate to a wasted costs order was not the same as a liability to pay general damages, the experience of the wasted costs jurisdiction was the only empirical evidence available in England to test the proposition that such liability would have an adverse effect upon the way advocates performed their duty to the court, and there was no suggestion that it had changed standards of advocacy for the worse.

The ‘cab rank’

The ‘cab rank’ rule provided that a barrister could not refuse to act for a client on the ground that they disapproved of the client or his or her case. The argument was that a barrister who was obliged to accept any client would be unfairly exposed to vexatious claims by clients for whom any sensible lawyer with freedom of action would have refused to act. Such a claim was, however, in the nature of things intuitive, incapable of empirical verification and did not have any real substance. This rule has been modified by the Bar Standards Board (Law Society Gazette, 2 August 2012). A barrister can now refuse to act when work is offered by firms on the List of Defaulting Solicitors.

The witness analogy

The argument started from the well-established rule that a witness was absolutely immune from liability for anything that he or she said in court. So were the judge, counsel and the parties. They could not be sued for libel, malicious falsehood or conspiring to give false evidence. The policy of the rule was to encourage persons who took part in court proceedings to express themselves freely. However, a witness owed no duty of care to anyone in respect of the evidence he or she gave to the court. His or her only duty was to tell the truth. There was no analogy with the position of a lawyer who owed a duty of care to his or her client. The fact that the advocate was the only person involved in the trial process who was liable to be sued for negligence was because he or she was the only person who had undertaken such a duty of care to his or her client.

Collateral attack

The most substantial argument was that it might be contrary to the public interest for a court to retry a case which had been decided by another court. However, claims for negligence against lawyers were not the only cases that gave rise to a possibility of the same issue being tried twice. The law had to deal with the problem in numerous other contexts. So, before examining the strength of the collateral challenge argument as a reason for maintaining the immunity of lawyers, it was necessary to consider how the law dealt with collateral challenge in general.

The law discouraged re-litigation of the same issues except by means of an appeal. The Latin maxims often quoted were nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. The first was concerned with the interests of the defendant: a person should not be troubled twice for the same reason. That policy had generated the rules that prevented re-litigation when the parties were the same: autrefois acquit (someone acquitted of a crime cannot be tried again for that crime); res judicata (a particular dispute decided by a civil court cannot be retried); and issue estoppel (a person cannot deny the fact of a judgment previously decided against him).

The second policy was wider: it was concerned with the interests of the state. There was a general public interest in the same issue not being litigated over again. The second policy could be used to justify the extension of the rules of issue estoppel to cases in which the parties were not the same, but the circumstances were such as to bring the case within the spirit of the rules. Criminal proceedings were in a special category, because although they were technically litigation between the Crown and the defendant, the Crown prosecuted on behalf of society as a whole. So, a conviction had some of the quality of a judgment in rem, which should be binding in favour of everyone.

Not all re-litigation of the same issue, however, would be manifestly unfair to a party or bring the administration of justice into disrepute. Sometimes there were valid reasons for rehearing a dispute. It was therefore unnecessary to try to stop any re-litigation by forbidding anyone from suing their lawyer. It was ‘burning down the house to roast the pig; using a broad-spectrum remedy without side effects could handle the problem equally well’ (Lord Hoffmann (2000).

The scope for re-examination of issues in criminal proceedings was much wider than in civil cases. Fresh evidence was more readily admitted. A conviction could be set aside as unsafe and unsatisfactory when the accused appeared to have been prejudiced by ‘flagrantly incompetent advocacy’ (see R v Clinton (1993). After conviction, the case could be referred to the Court of Appeal if the conviction was on indictment, or to the Crown Court, if the trial was summary, by the Criminal Cases Review Commission.

It followed that it would ordinarily be an abuse of process for a civil court to be asked to decide that a subsisting conviction was wrong. That applied to a conviction on a plea of guilty as well as after a trial. The resulting conflict of judgments was likely to bring the administration of justice into disrepute. The proper procedure was to appeal, or if the right of appeal had been exhausted, to apply to the Criminal Cases Review Commission. It would ordinarily be an abuse, because there were bound to be exceptional cases in which the issue could be tried without a risk that the conflict of judgments would bring the administration of justice into disrepute.

Once the conviction has been set aside, there could be no public policy objection to a claim for negligence against the legal advisers. There could be no conflict of judgments. On the other hand, in civil, including matrimonial, cases, it would seldom be possible to say that a claim for negligence against a legal adviser or representative would bring the administration of justice into dispute. Whether the original decision was right or wrong was usually a matter of concern only to the parties and had no wider implications. There was no public interest objection to a subsequent finding that, but for the negligence of his lawyers, the losing party would have won.

But again, there might be exceptions. The claim for negligence might be an abuse of process on the ground that it was manifestly unfair to someone else. Take, for example, the case of a defendant who published a serious defamation that they attempted unsuccessfully to justify. Should they be able to sue their lawyers and claim that if the case had been conducted differently, the allegation would have been proved to be true? It seemed unfair to the claimant in the defamation claim that any court should be allowed to come to such a conclusion in proceedings to which they were not a party. On the other hand, it was equally unfair that they should have to join as a party and rebut the allegation for a second time. A person’s reputation was not only a matter between them and the other party; it represented their relationship with the world. So, it might be that in such circumstances, a claim for negligence would be an abuse of the process of the court.

Having regard to the power of the court to strike out claims that had no real prospect of success, the doctrine was unlikely in that context to be invoked very often. The first step in any application to strike out a claim alleging negligence in the conduct of a previous action had to be to ask whether it had a real prospect of success.

Lords Hope, Hutton and Hobhouse delivered judgments in which they agreed that the immunity from suit was no longer required in relation to civil proceedings, but dissented to the extent of saying that the immunity was still required in the public interest in the administration of justice in relation to criminal proceedings.

Comment

This decision is of major and historic importance in the English legal system for several reasons. It can be seen as a bold attempt by the senior judiciary to drag the legal profession (often a metonymy for the whole legal system) into the twenty-first-century world of accountability and fair business practice. In his judgment, Lord Steyn makes this dramatic observation (Arthur JS Hall & Co v Simons [2000] 3 All ER 673 at 684):

… public confidence in the legal system is not enhanced by the existence of the immunity. The appearance is created that the law singles out its own for protection no matter how flagrant the breach of the barrister. The world has changed since 1967. The practice of law has become more commercialised: barristers may now advertise. They may now enter into contracts for legal services with their professional clients. They are now obliged to carry insurance. On the other hand, today we live in a consumerist society in which people have a much greater awareness of their rights. If they have suffered a wrong as the result of the provision of negligent professional services, they expect to have the right to claim redress. It tends to erode confidence in the legal system if advocates, alone among professional men, are immune from liability for negligence.

The case raises and explores many key issues of the legal system, including: the proper relationship between lawyers and the courts; the proper relationship between lawyers and clients; the differences between criminal and civil actions; professional ethics; the nature of dispute resolution; and the circumstances under which the courts should make new law. Above all, however, the case has one simple significance: ‘It will’, in the words of Jonathan Hirst QC, a former Chairman of the Bar Council, ‘mean that a claimant who can prove loss, as the result of an advocate’s negligence, will no longer be prevented from making a claim. We cannot really say that is wrong’ ((2000) Bar News, August, p 3).

16.6 The Courts and Legal Services Act 1990

Both branches of the legal profession have traditionally enjoyed monopolies in the provision of certain legal services (for example, advocacy was reserved almost exclusively to barristers, while conveyancing was reserved to solicitors). In the 1980s, Lord Mackay, the then Lord Chancellor, argued that these monopolies did not best serve the users of legal services as they entailed unnecessarily limited choice and artificially high prices. The CLSA 1990 was introduced to reform the provision of legal services along such lines. Today, many of the old monopolies have been broken. Thus, we have solicitor-advocates and non-solicitor licensed conveyancers.

In 1990 in the CLSA, the government broke the solicitors’ conveyancing monopoly by allowing licensed conveyancers to practise. There was initially evidence that this increased competition resulted in benefits to the consumer. From 1985, The Law Society had permitted solicitors to sell property, like estate agents, so as to promote ‘one-stop’ conveyancing. The Consumers’ Association estimated that solicitors’ conveyancing prices fell by a margin of 25 to 33 per cent before licensed conveyancers actually began to practise.

Under the CLSA 1990, apart from allowing the Bar Council and The Law Society to grant members rights of audience as before, The Law Society is able to seek to widen the category of those who have such rights. Applications are made to the Lord Chancellor, who refers the matter to their Advisory Committee. If the Committee favours the application, it must also be approved by four senior judges (including the Master of the Rolls and the Lord Chief Justice), each of whom can exercise a veto. The Director General of the Office of Fair Trading must also be consulted by the Lord Chancellor. All those who consider applications for extended rights of audience or the right to conduct litigation must act in accordance with the ‘general principle’ in s 17.

16.6.1 Section 17

The principle in s 17 states that the question of whether a person should be granted a right of audience or to conduct litigation is to be determined only by reference to the following four questions:

• Is the applicant properly qualified in accordance with the educational and training requirements appropriate to the court or proceedings?
• Are applicants members of a professional or other body with proper and enforced rules of conduct?
• Do such rules have the necessary equivalent of the Bar’s ‘cab rank rule’, that is, satisfactory provision requiring its members not to withhold their services: on the ground that the nature of the case is objectionable to them or any section of the public; on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to them or to any section of the public; or on any ground relating to the prospective client’s source of financial support (for example, public funding)?
• Are the body’s rules of conduct ‘appropriate in the interests of the proper and efficient administration of justice’?

Subject to the above, those who consider applications must also abide by s 17’s ‘statutory objective’ of ‘new and better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice’.

Successful applications were made by The Law Society, the Head of the Government Legal Service and the Director of Public Prosecutions (DPP). The Advisory Committee, while rejecting the idea of an automatic extension of solicitors’ rights of audience upon qualification (for example, guilty plea cases in Crown Courts), accepted the principle that they should qualify for enlarged rights after a course of advocacy training. Non-lawyers can also apply for rights of audience in the courts: the Chartered Institute of Patent Agents successfully applied for rights to conduct litigation in the High Court. Under s 12 of the CLSA 1990, the Lord Chancellor will use their power to enable lay representatives to be used in cases involving debt and housing matters in small claims procedures. Similarly, under ss 28 and 29 of the CLSA 1990, the right to conduct litigation is thrown open to members of any body that can persuade the Advisory Committee, the Lord Chancellor and the four senior judges that its application should be granted as the criteria set out in s 17 (above) are satisfied.

The historic monopoly of barristers to appear for clients in the higher courts was formally ended in 1994 when the Lord Chancellor approved The Law Society’s proposals on how to certify its members in private practice as competent advocates. The innovation is likely to generate significant change in the delivery of legal services, especially in the fields of commercial and criminal cases. The prospective battle between solicitors and barristers for advocacy work can be simply characterised.

16.6.2 Solicitors’ Rights of Audience

There are now 6,680 solicitors qualified as solicitor-advocates with rights to practise advocacy in some or most levels of the court structure (SRA website statistics of solicitor advocates, www.sra.org.uk, November 2016). This development began with changes in the 1990s. In February 1997, the Lord Chancellor, Lord Mackay, and the four designated judges (Lord Bingham, Lord Woolf, Sir Stephen Brown and Sir Richard Scott; see s 17 of the CLSA 1990) approved The Law Society’s application for rights of audience in the higher courts for employed solicitors, but subject to certain restrictions.

Lord Phillips, the Lord Chief Justice, put forward proposals that will allow solicitor-advocates to have the same dress code as barristers. The new reforms came into effect in 2008. Solicitor-advocates finally put on wigs in court (Law Society Gazette, 10 January 2008). Solicitor-advocates in criminal cases are allowed to wear wigs, wing collars and bands. They can also wear stuff gowns. However, in civil and family proceedings the wigs and other regalia will no longer be worn. The dress code for judges was changed in 2008. The judge’s robe, designed by Betty Jackson, received mixed reactions when it was unveiled in May 2008 (‘Thumbs down for designer robe’, The Times, 15 May 2008).

Under The Law Society’s 1998 regulations approved by the Lord Chancellor’s Department, some solicitors (those who are also barristers or part-time judges) are granted exemption from the new tests of qualification for advocacy. Others need to apply for the grant of higher courts qualifications, either in civil proceedings, criminal proceedings or in both. A holder of the higher courts (criminal proceedings) qualification has rights of audience in the Crown Court in all proceedings (including its civil jurisdiction) and in other courts in all criminal proceedings. A holder of the higher courts (civil proceedings) qualification may appear in the High Court in all proceedings and in other courts in all civil proceedings. On 1 April 2010 new rules came into force for solicitors seeking higher rights of audience. The rules were amended on 1 September 2010. On 17 June 2011, The Higher Rights of Audience Regulations 2011 replaced the 2010 regulations with effect from 6 October 2011. Qualification under the new regulations is solely by advocacy assessment based on the SRA’s Higher Rights of Audience competence standard, which is run by organisations authorised by the SRA. A detailed summary can be found in the 15th edition of this book.

All solicitors seeking these rights of audience have to pass an advocacy assessment based on higher rights of audience competency standards.

One benefit for law firms is that those that offer advocacy training are likely to attract the best graduates. This is a worry for the commercial Bar, as some graduates will see a training contract with an advocacy element as a better option than the less secure Bar pupillage. The Bar is determined that it will not lose any significant ground in the face of this new competition. Its representatives claim that solicitors will not be able to compete with barristers because of their much higher overheads.

From 2000, there have been three routes to qualification: the ‘development’ route leading to the all-proceedings qualification; the ‘accreditation’ route appropriate for solicitors who have significant experience of the higher civil and/or higher criminal courts; and the ‘exemption’ route which has existed under both the 1992 and 1998 regulations. The accreditation and exemption routes were phased out in 2005, leaving now only the advocacy assessment route as detailed above. Solicitors who obtained Higher Rights of Audience under previous regulations were transferred under the 2010 regulations and retain their existing rights.

Many barristers are very worried about the threat to their traditional work. A potentially significant development is Public Access (originally known as Bar-DIRECT), a pilot scheme set up in 1999 that enables certain professions and organ-isations to have direct access to barristers without referral through a solicitor. While this initiative could be one of the keys to the continuing success of the Bar, it is argued that it makes barristers no different from solicitors and could even encroach on the solicitors’ market.

16.6.3 The Access to Justice Act 1999 and Rights of Audience

Lawyers’ rights of audience before the courts were further addressed in Part III of the Access to Justice Act 1999. It replaces the Lord Chancellor’s Advisory Committee on Legal Education and Conduct with a new Legal Services Consultative Panel:

• It provides that, in principle, all lawyers should have full rights of audience before any court, subject only to meeting reasonable training requirements.
• It reforms the procedures for authorising further professional bodies to grant rights of audience or rights to conduct litigation to their members; and for approving changes to professional rules of conduct relating to the exercise of these rights.

The Act also contains sections that:

• simplify procedures for approving changes to rules and the designation of new authorised bodies;
• give the Lord Chancellor power, with the approval of Parliament, to change rules that do not meet the statutory criteria set out in the CLSA 1990 as amended by these sections;
• establish the principle that all barristers and solicitors should enjoy full rights of audience; and
• establish the primacy of an advocate’s ethical duties over any other civil law obligations.

The legislation enables employed advocates, including Crown Prosecutors, to appear as advocates in the higher courts if otherwise qualified to do so, regardless of any professional rules designed to prevent their doing so because of their status as employed advocates.

16.6.4 Partnerships and Transnational Firms

By virtue of s 66 of the CLSA 1990, solicitors are enabled to form partnerships with non-solicitors (multidisciplinary partnerships or MDPs), and the section confirms that barristers are not prevented by the common law from forming such relationships. They are, however, prohibited from doing so (unless with a foreign lawyer) by the Bar. Solicitors are able, under s 89 of the CLSA 1990 (Sched 14), to form multinational partnerships (MNPs). The arrival of MNPs over the coming years will raise particular problems concerning the maintenance of ethical standards by the Solicitors’ Regulation Authority over foreign lawyers. MDPs also raise potentially serious problems, as even in arrangements between solicitors and others, it will be likely that certain work (for example, the conduct of litigation) would have to be performed by solicitors.

The business organisation called the limited liability partnership (LLP) was introduced by the Limited Liability Partnership Act 2000. The new business form seeks to amalgamate the advantages of the company’s corporate form with the flexibility of the partnership form. Although called a ‘partnership’, the new form is, in fact, a distinct legal entity that enjoys an existence apart from that of its members. The LLP can enter into agreements in its own name, it can own property, sue and be sued. Traditional partnerships by contrast entail liability for the partners as individuals. Although the LLP enjoys corporate status, it is not taxed as a separate entity from its members. Solicitors do not seem to have been keen to adopt these as their preferred form of firm. The growth in their popularity has been steady. In 2002, fewer than 100 from the then 8,300 law firms had become LPPs. Most were formed because of international constraints in mergers, that is, the foreign firm could not merge with the British one unless the British one became an LLP. In October 2016 1,559 law firms in England and Wales out of 10,415 were practising as LLPs, ((S RA statistics).

Law firms

Another feature of change is the evidently widening gap between the work and income of the top few hundred commercial firms and the 2,627 sole practitioners. Compare this number with the very large practices who employ more than 2,627 solicitors.. A series of mergers has created a few relatively huge law firms, and the merger of an English firm with an American one produced the world’s first billion-dollar practice. In 1999, partners at Clifford Chance voted to merge with the United States’ Rogers & Wells, and Punders in Germany, to form a firm that now employs over 7,000 people in 30 offices worldwide.

The trend of firms merging is continuing. In late 2015, Irwin Mitchell announced that it was taking over Thomas Eggar, which will create a practice with a fee income of approximately £250 million. As firms have merged and also become international the number with a turnover in excess of £1 billion is increasing and comparison with individual firms of the past becomes less relevant. In 2015 the top 100 law firms had a combined fee income of £20 billion and eleven of the top 200 firms had an average PEP (profit per equity partner) in excess of £1 million (Lawyer.com 21 and 27 October 2016).[

16.6.5 Employed Solicitors

This is a fast-growing area of practice with more than one-fifth of those holding a practising certificate working outside private practice. Employed solicitors are professionals who work for salaries as part of a commercial firm, private or public enterprise, charity or organisation, as opposed to solicitors in private practice who take instructions from various clients.

16.6.6 Monopoly Conveyancing Rights

Historically, barristers, solicitors, certified notaries and licensed conveyancers enjoyed statutory monopolies, making it an offence for any other persons to draw up or prepare documents connected with the transfer of title to property for payment. The CLSA 1990 broke this monopoly by allowing any person or body not currently authorised to provide conveyancing services to make an application to the Authorised Conveyancing Practitioners’ Board (established by s 34) for authorisation under s 37. The Board must be satisfied, before granting authorisation, that the applicant’s business is, and will be, carried on by fit and proper persons, and must believe that the applicant will establish or participate in the systems for the protection of the client specified in s 37(7) including, for example, adequate professional indemnity cover and regulations made under s 40 concerning competence and conduct. Banks and building societies were in a privileged position (s 37(8)), since they were already regulated by statute. These institutions did not initially appear enthusiastic to compete with solicitors by establishing in-house lawyers. They have preferred instead to use panels of local practitioners.

Figure 16.1 A Breakdown of the Different Legal Professions.

The solicitors’ monopoly on the grant of probate has also been abolished. Under ss 54–55 of the CLSA 1990, probate services were opened up to be available from approved bodies of non-lawyers. Grant of probate is the legal proof that a will is valid, which is needed for a person to put the will into effect. New probate practitionersdirectly compete with solicitors for probate work. The grant of probate is only a small part of the probate process, but when it was restricted as business that only a solicitor could perform, it effectively prevented others, except some banks, from being involved in probate. The banks seem best placed to take up work in this area as they already have trustee and executor departments.

16.6.7 The Legal Ombudsman

The Legal Ombudsman (LO) scheme, replacing the previous Legal Services Ombudsman (LSO), was established by the Office for Legal Complaints (OLC) under the Legal Services Act 2007. It began accepting complaints in October 2010. The LO claims to be an independent, consumer-focused ombudsman scheme set up to resolve complaints about lawyers in England and Wales. It provides a free service to all members of the public, very small businesses, charities, clubs and trusts.

It deals with complaints about the following types of lawyers (and generally those working for them):

• barristers;
• solicitors;
• law costs draftsmen;
• legal executives;
• licensed conveyancers;
• notaries;
• patent attorneys;
• probate practitioners;
• registered European lawyers;
• trademark attorneys;

and deals with complaints relating to:

• buying and selling a house or property;
• family law such as divorce;
• wills;
• personal injury;
• intellectual property;
• criminal law;
• civil litigation;
• immigration;
• employment issues.

If the LO decides the service received by the complainant was unsatisfactory, it can require the lawyer to put it right. Although most complaints can be resolved informally, it is empowered to carry out a formal investigation.

Chapter Summary: Legal Services

The main area of debate on this theme is the best approach to supplying the highest number and widest range of people with legal services appropriate to what citizens need. How can the legal profession become more user-friendly? Have the changes made under the CLSA 1990 to increase competition in the provision of legal services been successful? Have the restrictive professional monopolies been properly broken and, if so, will the quality of services offered by non-lawyers (for example, conveyancing, probate, litigation) be reduced? Will the exclusion of millions of people from public funding eligibility have any serious consequences?

The impact of the conditional fee arrangements, the 1995 Green Paper on legal aid, and franchising are of special importance, but to deal with these issues properly you need to be familiar with the details of how legal services are delivered in general.

The Legal Profession

The legal profession, although not fused, comprises solicitors and barristers whose work is becoming increasingly similar in many respects. Additionally, the ending of monopolies on litigation, probate and conveyancing has meant that lawyers’ traditional work is increasingly becoming blurred with that of other professionals. The liabilities of lawyers for errors and negligence are key issues. Another is the way in which complaints are handled by the professions.

The Courts and Legal Services Act 1990

The CLSA 1990 was passed ‘to see that the public has the best possible access to legal services and that those services are of the right quality for the particular needs of the client’. The detail by which the Act sought to do this is very important, especially s 17 (general principle, litigation and rights of audience); s 11 (lay representatives); ss 28–29 (right to conduct litigation); s 66 (multidisciplinary partnerships); s 89 (multinational partnerships); ss 34–37 (conveyancing); ss 21–26 (the Legal Services Ombudsman); and s 58 (conditional fee arrangements).

The Access to Justice Act 1999

The 1999 Act makes many changes that will have an impact upon the professions. It articulates the principle that all lawyers should have full rights of audience before all courts, provided they have passed the relevant examinations. Also, by reforming the procedures for authorising further professional bodies to grant rights of audience, it signals a widening of those rights in the future.

Immunity from Negligence Claims

Until recently barristers could not be sued by their clients for negligent performance in court or for work that was preparatory to court work (Rondel v Worsley (1969)); this immunity had also been extended to solicitors who act as advocates (Saif Ali v Sidney Mitchell (1980)). The client of the other side, however, may sue for breach of duty (Kelly v London Transport Executive (1982)). This was changed in a major case in 2000, Arthur JS Hall and Co v Simons and Other Appeals.

The Legal Ombudsman

An Ombudsman is a person independent of the government or a given field of activity, who investigates complaints of maladministration. The post of Legal Ombudsman is now operated under the LSA 2007 by the Office for Legal Complaints.

Overview of Changes to Legal Profession

Historically the legal profession was generally considered a safe, conservative and usually profitable business. However, this is starting to change.

The Legal Services Act 2007 received Royal Assent on 30 October 2007 and became fully operational on 6 October 2011 when it allowed the formation of Alternative Business Structures (ABSs).

The Act came into force during a severe and prolonged economic recession, and the latter may also have contributed to the changes in the legal profession.

There have been significant changes during this period with the creation of the QualitySolicitors franchise, mergers of law firms, the newly created ABS structures and Slater and Gordon acquiring English legal practices. The changes are still in their infancy and the ultimate outcome for the legal profession is still unclear.

The Law Society Gazette (5 August 2013) reported that a half-yearly report produced by Law Consultancy Network indicated that 38 per cent of firms of fewer than 10 partners thought that there was a good or definite chance of a merger. This trend towards merging is not limited to small firms, as can be seen by the takeover of Thomas Eggar by Irwin Mitchell (‘Irwin Mitchell creates £250m firm with Thomas Eggar merger’ (2015) Law Society Gazette, 26 November). The Wall Street Journal (27 October 2013) reported that a number of US law firms were in merger discussions.

The advent of the ABS has been relatively slow, as stated in Stephen Mayson’s report dated 6 October 2013 which indicated that in the first two years, only 240 ABS licences had been issued. However, some major developments have taken place under the umbrella of an ABS.

The Co-op Legal Services, which was formed in 2006, was one of the first firms to acquire an ABS. The financial report for the Co-op group for 2015 reported that the legal business made a profit of £.7 million in the year, compared with a loss of £4 million in 2014 (Co-operative Group Limited, Annual Report 2015).

The AA has obtained an ABS and from 1 December 2013 commenced a joint venture with law firm Lyons Davidson. Direct Line Insurance has also now obtained an ABS licence.

Russell Jones & Walker acquired an ABS licence and were then acquired by Australian law firm Slater and Gordon (a public quoted company), which has subsequently acquired four more English legal practices.

It is unclear at the present time how the legal market will develop with the current changes and new businesses offering legal services. The largest English law firms that tend to specialise in corporate and related work for major companies appear, at the present time, to be relatively unaffected and still producing turnover in excess of £1 billion and PEP of £1 million. What is becoming clear is the need for the legal profession to adapt to the changes in the legal market. We have already seen a number of law firms of varying size collapse including Halliwells, Cobbetts, Follett Stock, Manches and Dewey & LeBoeuf (a large US firm also operating in the UK). In 2015, Parabis Group, an ABS formed in 2012, was sold off as part of a pre-pack administration.

Food for thought

1. Why should the legal profession be divided into two discrete sectors? Whose interests does this really serve?
2. Why do barristers make the best judges, if they do?
3. Much is made of the need for greater access to the legal professions. However, given the increase in the number of law graduates and the restrictions in the number of training contracts and pupillages, is progression not a matter of ‘who you know rather than what you know’?
4. In legal firms, attention tends to be focused on the partners/solicitors, but what roles do the legal executives play?
5. Does the introduction of ‘Tesco Law’ (ABSs) necessarily mean a reduction in standards?
6. Consider the extent to which access to online provision reduces the need for legal professionals.

Further Reading

Abel, R, The Legal Profession in England and Wales, 1988, Oxford: Basil Blackwell

Baksi, C, ‘Solicitor-advocates hit bar’ (2008) Law Soc Gazette, 28 March

Browne, D, QC, ‘A considered response’ (2009) Counsel 3

Bryant, J, ‘Proactive regulation will hit solicitors where it hurts’ (2009) 23(40) Lawyer 6

Cocks, R, Foundations of the Modern Bar, 1983, London: Sweet & Maxwell

Farrow, A and Littler, R, ‘Raising the bar’ (2009) 153(40) SJ 6

Genn, H and Genn, Y, The Effectiveness of Representation at Tribunals, 1989, London: LCD

Guise, T, ‘Something for everyone’ (2009) 153(41) SJ 19

Holroyd, A, ‘Moving with the times’ (2008) 105(2) Law Soc Gazette 16

Jackson, R, ‘Disappointed litigants and doubtful actions’ (1995) Counsel 16

Keogh, A, ‘Power sharing’ (2008) 158 NLJ 717

Lord Hoffmann, Arthur JS Hall and Co. v. Simons (A.P.) (2000) UKHL 38

Money-Kyrle, R, ‘Advocates’ immunity after Osman’ (1999) 149 NLJ 945 and 981

Susskind, R, Tomorrow’s Lawyers (2013) Oxford: OUP

Underwood, K, ‘Hope continues’ (2007) 151(46) SJ 1542

Williamson, P, ‘Open and accountable’ (2007) 104(48) Law Soc Gazette 11

Useful Websites

www.lawsociety.org.uk
The official site of The Law Society.

www.sra.org.uk
The official site of the Solicitors Regulation Authority.

www.barcouncil.org.uk
The official site of the Bar Council of England and Wales.

http://letr.org.uk
The site of the Legal Education and Training Review.

Companion Website

Now visit the companion website to:

• test your understanding of the key terms using our Flashcard Glossary;
• revise and consolidate your knowledge of ‘Legal services’ using our multiple choice question testbank;
• read the latest news and updates on the Legal Profession in the Student Law Review;
• view all of the links to the Useful Websites above.

www.routledge.com/cw/slapper