Historically Different Roles Performed by Solicitors and Barristers - Essay Example

Titus R Manickam Order No. 175664 06 August 2007 Historically different roles performed by solicitors and barristers History is not just about eras,wars and politics. It is also about circumstances and trials, and the triumph of the human spirit. It is about the nature of a problem, sometimes apparently insurmountable, and how personalities and concepts came into being to single handedly overcome the most hopeless situation. It is uncanny but true - how problems get resolved with gains far outweighing the losses. It almost seems to have been pre-arranged. Look at the human body. A casual observation of the human physique reveals that most of the visible human organs are in pairs - e.g. eyes, ears, hands or legs - and they either work in unison or complement each other in such a way that the result or consequence is seen as a perfect acceptance by a single receptor. This perfect, clock-like arrangement of the human organ pairs prove the point that in order to achieve greater, faster, easier and more accurate results, sometimes it becomes necessary to break up functions or decentralize so that there is greater efficiency in performance. Law, a study and practice followed by both, solicitors and barristers, has a great historical origin. (Symmetry in homes)1. The Greco-Roman era The legal code began to take shape and take roots as early as the 8th century BC when the Greeks first became a world power and a with a firm, military discipline, laid the foundations of a system of law which was initially draconian. However, it was superseded by a more methodical and humane system by Solon. Finding themselves in confusion due to violent revolt by the people, the oligarchy called upon Solon, known for his wisdom and uprightness, to establish a rule of law. Following a course of a difficult, bloody period of wars and dissension, Solon drafted an all-encompassing legal code which found favor with the oligarchy. (A History of Ancient Greece)2 The Romans were responsible for improving upon the Spartan laws and many of our modern legal concepts were founded by them. They were the first to acknowledge that the citizenry had certain rights and actively pursued means to voice these rights to their people. Civil laws, contract laws, property and personal rights, use of evidence in a court of law, use of a legal will, are some of the legal concepts brought into being by the Romans. (Legal Concepts Based on the Ancient Romans)3. Lawyers Lawyers are called by many names - notably advocates, attorneys, barristers, counselors, solicitors, notaries. A lawyer or attorney at law is an individual licensed by the state to advise clients in legal matters and represent them in courts of law and other legal agencies. Most countries today require professional law advisors in their juridical systems. Different countries have different systems and practices based on which the lawyers are classified. For instance, lawyers are invariably referred to as attorneys or counselors in the USA. In England, the system is more elaborately laid out where the functions for barristers and solicitors are specified. Elsewhere too, the functions are divided and laid out in such manner as is beneficial for speedier and fairer dispensation of justice. Many countries also follow the law system where a person who is not a qualified lawyer could be empanelled as a member of the jury on the strength of his or her social and professional standing. In countries like India, persons with a good history of social service, irrespective of his educational qualifications, are designated as "special magistrates" and allowed to settle certain local disputes. Of course, these are only so at the lower levels where it would be otherwise very difficult to cope with pending cases. (Lawyers, Nature of the work)4. Coming back to the United States, almost anyone can be an attorney. And in this situation, an attorney is similar to an agent, a person who has been formally empowered by someone else to act on behalf of the principal. Lawyers are "attorneys at law," engaged to plead cases on behalf of their clients. Practical differences between barristers and solicitors Barristers are required to be members of a Bar Council, whereas solicitors are members of a Law Society. (Lawyer)5 The barrister is the lawyer who represents litigants as their advocate before the courts of that jurisdiction. Barristers receive briefs from solicitors at least a day before the hearings. They are experts and specialize in their branch of law, with a good grasp of precedents of similar case. However, the monopoly of barristers is now giving way to fused profession where solicitors are allowed to appear for clients at trial. The solicitor has the advantage of communicating directly with the client and choose the barrister of his choice, according to the nature of the case. Getting a good barrister is not always very easy because of their nature of work. Barristers specializing in criminal laws are especially difficult to get due to their demand and tight schedule and what could be termed "unreasonably" high fees. (Frontier Economics)6. Lawyers in the USA, UK and Common Law countries A person holding a law degree does not automatically become a lawyer per se. In order to begin practice, it is necessary to secure a state license, without which he could be engaging in "unauthorized practice of law" (UPL). There are strict UPL rules which could prosecute a person under federal laws. Ironically, in some regions in the United States, non-lawyers are allowed to sit as judges, although they are not allowed to practice as lawyers in the same courts In the UK, Australia, and several other common law countries, there are normally two kinds of lawyers - solicitors and barristers. Solicitors generally practice before lower courts, but their main work is carried on outsides the courts, where their work involves providing legal advice, drafting and formalizing legal documents, wills and estates. The barristers carry on their practice before lower, superior and high courts. Traditionally, for major cases a solicitor and a barrister may come together as a team. The solicitor comes first as legal adviser, followed by the barrister for legal representing the client's case before the courts. Also, a solicitor or a firm of solicitors may engage services of a number of barristers for cases of different types such as civil, criminal, industrial, real estate, domestic, etc. Legal Education in England and Wales A law degree (LL.B.) in England and Wales is quicker and more practical. The duration is 3 years. This is followed by a one-year training course where the student could make the choice whether he wishes to practice as a barrister or a solicitor. The Bar Vocational Course (BVC) lays more emphasis on advocacy, whereas the solicitor is required to familiarize himself with subjects such as client interviewing and accounting in the Legal Practice Course (LPC). After the BVC and LPC, the student could begin his career as a trainee. A student opting to work as solicitor cannot call himself solicitor until his training period is over. In the case of the barrister, he can start working as a barrister after the training period. The training period gives the barrister a good exposure to different branches law with which he could familiarize himself and choose the branch in which he wishes to specialize. Other routes to studying law Non-law graduates in the UK have the option of taking up a one-year Diploma in Law course. After completing this course, the student could proceed for regular training. Public access barristers Certain barristers in England and Wales are now instructed directly by members of the public. These are known as 'Public Access Barristers'. The public contract with the barrister directly through the barrister's clerk; a solicitor is not involved at any stage. Public Access Barristers are normal barristers with an extra legal qualification. Before a barrister can undertake Public Access work, he or she must have completed a special course. This arrangement narrows down the gap between solicitors and barristers and brings the latter closer to the client. However, this does not affect the solicitor's role in a major way because there are certain roles that cannot be performed without a seasoned solicitor and which a Public Access barrister cannot perform. (Legal Education in England and Wales)7. Split and Fused Legal System Both solicitor and barrister are lawyers. However, professionally they are split, a phenomenon common to many vocations and is referred to as a split profession as opposed to a fused profession. If the solicitor is one part in the split profession, the other part is the barrister. Solicitors come in direct contact with the clients, advise the client, and act on behalf of the client to the extent of sending notices to the opposing side, and engaging the services of a barrister who specializes in the branch which is relevant to the actual client. A barrister is rarely involved with the client. In case of any requirement at any stage, the barrister turns to the solicitor, who in turn, may get back to the actual client. In certain countries like Malaysia, Singapore, Australia, and Canada, fused legal system is in vogue whereby lawyers practice as both barristers and solicitors. (Lawyer)8. The role of a lawyer is parallel to that of a doctor. The profession of a doctor is divided into that of a general practitioner and the special consultant and surgeon. Only a nave patient would straightaway head for the surgeon before visiting the general practitioner. In real terms, a skilled surgeon may not be sufficiently informed on aspects of medicine other than his own which a seasoned general practitioner may have acquired. So, as in the case of medicine, it is safe to route a case through the solicitor and then head for the barrister according to the solicitor's advice. (Barristers)9 The Victorian Bar Inc., One Profession, Two Branches According to the Legal Practice Act 1996 (Vic), all practicing lawyers are treated as one single consolidated group. However, they are segregated as solicitors and barristers for professional reasons and orderliness. For a legal recourse, to a common man, the first point of contact is the solicitor. Having heard and understood the situation, the solicitor then advises the client about the latter's legal position and options. The next step may involve issuing of notices and/or out of court settlement. Ultimately, in the event the case remains unresolved, it has to be handed over to the barrister who is expert in the field for representing the client before the court. The solicitor and barrister then work as a team. There are, of course, those who operate both as solicitors and barristers. But, by and large, solicitors operate as individuals or a firm, and engage services of a barrister according to the latter's expertise. In every state in Australia, and in the two mainland territories, there is a separate group of lawyers who practice exclusively as barristers, and who form a separate Bar in that state or territory. These Bars have been in existence for many decades and in some cases since the close of the 19th century. A separate Bar was formed in New Zealand in 1989, and of course one has existed in England for centuries. Admission to Legal Practice The formalities for a budding lawyer in Australia who seeks to begin his career as a practicing lawyer is to secure admission to legal practice, governed by the Legal Practice (Admission) Rules 1999. Simultaneously, he is also required to register with the Roll of Practitioners kept by the Supreme Court. Candidates for admission must have successfully completed a law degree, a course of practical training, either at the Leo Cussen Institute or another approved provider of practical legal training or undergo articles of clerkship with a solicitor of good standing. Commencement of Legal Practice Having obtained admission to legal practice, he has to satisfy certain other conditions to commence practice. These conditions were ratified in 1997 with the enactment of the LPA. This LPA requires that after a lawyer has been admitted to legal practice, he has to obtain a practicing certificate from one of the two accredited Recognized Professional Associations (RPAs) in Victoria. These are the Victorian Lawyers RPA Limited which runs the Law Institute of Victoria, and The Victorian Bar Incorporated. In coordination with other statutory bodies, these RPAs are responsible to regulate and oversee the legal practitioners to whom it has issued certificates to practice. (The Victorian Bar Inc)10. Sources 1(Symmetry in homes, S Krishnan, krish4949@yahoo.co.in, 02 August 2007). 2(A History of Ancient Greece, Solon's Early Greek Legislation, http://history-world.org/solon.htm, 02 August 2007). 3(Legal Concepts Based on the Ancient Romans, N.S. Gill, http://ancienthistory.about.com/od/romelaw/f/RomanLaw.htm, 02 August 2007). 4(Lawyers, Nature of the work, http://www.bls.gov/oco/ocos053.htm, 04 August 2007). 5(Lawyers, http://members.lycos.co.uk/lawnet/LAWYERS.HTM, 04 August 2007). 6(Frontier Economics, pg 9, http://www.dca.gov.uk/laid/frontier-barristers-rpt.pdf, 04 August 2007). 7(Legal Education in England and Wales, by Professor Bob Lee, Dean of Cardiff Law School, http://www.britishcouncil.org/bg/china-society-publications-legaleducation.pdf, 02 August 2007). 8(Lawyer, http://www.ebroadcast.com.au/lookup/encyclopedia/la/Lawyer.html, 02 August 2007). 9(Barrister, http://en.wikipedia.org/wiki/Barrister, 02 August 2007). 10(The Victorian Bar Inc, One Profession, Two Branches, http://www.vicbar.com.au/pdf/oneprof_twobranches.pdf, 03 August 2007). Read More