PAPER 1: Section A - Legal Profession [1/2 COMPLETE] Flashcards
1) Describe barristers.
- They are self employed
- Work in a set of chambers with around 15-20 other barristers.
2) What does a barristers’ work involve? Involve three examples
CHOOSE FROM -
- Honesty and integrity
- Conference skills
- Rights of audience
- Drafting court documents
- Work on pleadings
- Negotation
- Give counsels opinion / expert advice
- Litigation
- Advocacy
3) Define litigation (an example of a barrister’s work)
Taking a case to court
4) Define advocacy (an example of a barrister’s work)
Arguing a case in court
5) Who governs barristers and what do they do?
General Council of the Bar - Represents barristers in England and Wales and their interests.
Bar Standards Board - Regulates the profession of barristers.
6) Outline and describe what the General Council of the Bar do.
(8 marks)
- Represent the barristers of England and Wales and their interests (1 mark)
- Promotes the Bar’s advocacy and advisory services (1 mark)
- Promote fair access to justice (1 mark)
- Promote the highest standards of ethics, equality and diversity across barristers (1 mark)
- Promote the development of business opportunities for barristers at home or abroad (1 mark)
- They USED to be responsible for disciplining barristers (1 mark) but this conflicted their role, so the Bar Standards Board was created to discipline barristers instead. (1 mark)
7) Why couldn’t the General Council of the Bar discipline barristers and how was this issue resolved? (2 marks)
Disciplining barristers conflicted with the Bar’s roles (1 mark) so the Bar Standards Board was created to deal with discipline (1 mark)
8) Outline and describe what the Bar Standards Board do. (8 marks)
- They regulate barristers and set training and entry standards. (2 marks)
- They set a Code of Conduct which barristers should comply with. (1 mark)
- If it’s a serious matter, it’ll be referred to a Disciplinary Tribunal. (1 mark)
9) List three sanctions a Disciplinary Tribunal can give out.
OUT OF THESE:
- Reprimand the barrister
- Making the barrister complete further professional training
- A fine of up to £50,000
- 2 month suspension
- Disbar the barrister (extreme)
10) What are the 5 rules of practice for barristers?
- Can’t form partnerships - Barristers can be employed by local government or the CPS (Crown Prosecution Service)
- Work in chambers - Shares the office cost with other services.
- May advertise their services - Barristers need to attract their own business and clients.
- QC - After 10 yers, barristers can apply for ‘silk’. This is a grant which allows barristers to take on more complicated high profile cases and charge more money.
- Cat rank principle - The obligation of a barrister is to accept any work in a field which they profess themselves at their usual rates.
What was held from Arthur Hall vs Simons?
It was held that lawyers could also be liable for negligence in the conduct of advocacy in court.
Describe solicitors?
- There are over 149,000 solicitors practising in England and Wales, and they are controlled by their own professional body, the Law Society. About 75 per cent work in private practice and the remainder are in employed work, such as for local government, the Civil Service, the CPS or private businesses. The majority of those qualifying as a solicitor will work in private practice in a solicitors’ firm.
there are other careers available including working in the CPS, for a local authority or government departments or as legal advisers in commercial businesses or in industry.
A solicitor in private practice will generally work in a partnership, ranging from a ‘high street’ practice to a big city firm. - If someone has a legal problem, they’ll have to go to a solictior, who will then enter a contract with a client to provide legal services for a fee.
- Majority of solicitiors work privately, but some can work for CPS or local councils.
-They can represent clients in court.
Although some solicitors may handle a variety of work, it is more usual for a solicitor to specialise in one particular field. The firm itself may handle only certain types of cases (perhaps only civil actions) and not take any criminal cases, or a firm may specialise in family matters. In large city firms there will be an even greater degree of specialisation, with departments dealing with just one area of law or a limited number of clients
. Advocacy Alt solicitors have rights of audience in the lower courts - the Magistrates’ and County Courts. Solicitors who wish to exercise rights of audience in the higher courts must satisfactorily complete the appropriate higher courts’ advocacy qualification. Solicitors with an advocacy qualification are eligible to be appointed as Queen’s Counsel and also to be appointed as judges
What does a solicitor’s GENERAL work include? Choose 3 out of the 5 listed.
The type of work done by a solicitor will largely depend on the firm. A high street firm will probably be a general practice advising individual clients on a whole range of topics including:
- Litigation - when some solicitors act for clients in civil or criminal cases
- Conveyancing - process of buying and selling houses
- General legal advice
- Negotiating
- Interviewing
- Drafting contracts / leases
- The making of wills, and probate (dealing with the affairs of deceased persons)
- Consumer problems (business matters, personal injury claims, family matters)
- Writing letters and emails,
- Drafting contracts, leases or other formal documents.
What does The Courts & Legal Service Act 1990 grant solictors?
Solicitors can now apply for a Certificate of Advocacy so they can appear in higher courts. This is only given if the solicitor has experience of presenting in lower court and pass a training course.
What two special jobs do solicitors have??
Briefing barristers - Solicitors can brief a barrister to represent their client in difficult cases and get their experience in complex cases.
Specialising - Solicitors deal with a wide variety of work, but can choose to specialise in one particular area of work. Small firms can choose to specialise in certain types of work, whilst large firms have different department specialising in different work.
Two cases about solicitors
Gritthes v Dawson - Solicitors failed to make a correct application in divorce proceedings as a result the client lost financially. The solicitors were ordered to pay her £21,000.
White v Jones - Father wanted to make a will leaving £9,000 to each daughter solicitor did not do this and daughters lost out on the money. They successfully sued the solicitor for the £9,000 each.
everything on lega executives
There are over 20,000 legal executives currently practising. Legal executives are likely to specialise in a particular area of law, and their work is similar to that of a solicitor although they tend to deal with more straightforward matters. Most legal executives work for a firm of solicitors in private practice. Their work is charged at an hourly rate in the same way as solicitors’ work is charged but it is likely to be charged at a lower rate. In this way a legal executive makes a direct contribution to the income of a firm.
Legal executives can also work for local authorities, the CPS and in company legal departments. A qualified Legal Executive will need to be a fellow of the Chartered Institute of Legal Executives (CILEX), to have obtained the CILEX Professional Qualification and to have completed three years’ supervised legal experience.
For example, they can:
• handle parts of a property transfer • assist in the formation of a company • draft wills • advise people with matrimonial problems • advise clients accused of a crime, advise a client detained in a police station and interview witnesses.
regulation of barristers
Regulation of barristers Bar Standards Board This body sets training and entry standards but also regulates the barrister’s profession. It sets out a Code of Conduct that barristers have to comply with. The Board investigates any alleged breach of the Code of Conduct. It can discipline any barrister who is in breach of the Code. If the matter is serious, it will be referred to a Disciplinary Tribunal arranged by an independent Bar Tribunals and Adjudication service. A tribunal has several sanctions it can impose, including: • reprimanding the barrister (formally warning them about their behaviour) • making the barrister complete further professional development training • ordering the barrister to pay a fine • suspending the barrister for up to three years • in extreme cases, disbarring barrister (striking off) the barrister. If a complainant is unhappy with the decision of the Bar Standards Board, a complaint can be made to the Legal Ombudsman. Liability A barrister enters a contract with a client on the Direct Access scheme and such client can sue for breach of contract. A barrister can be liable in negligence for a poor quality of advocacy (but this must be more than just losing a civil claim or being convicted in a criminal case
regulation of solicitors
Solicitors Regulation Authority Although every solicitor must belong to the Law Society, it is the SRA who deals with complaints about professional misconduct of solicitors. • It will initially investigate the complaint. If there is evidence of serious professional misconduct, it can bring the case to the Solicitors’ Disciplinary Tribunal. • If the Tribunal upholds the complaint, it can fine or reprimand the solicitor or, in more serious cases, it can suspend a solicitor from the Roll, so that they cannot practise for a certain time. • In very serious cases, the Tribunal can strike off a solicitor from the Roll so that they are prevented from practising again as a solicitor. Liability in contract and negligence As a solicitor deals directly with a client, a contract is entered into. This means that: • If the client does not pay, the solicitor has the right to sue for outstanding fees. • The client can sue the solicitor for breach of contract if the solicitor fails to do the agreed work. • The client can also sue the solicitor in negligence if they suffer loss due to poor quality of work. It was decided in Hall v Simons (2000) that loss suffered as a result of negligent advocacy can also be claimed. • Solicitors can be liable in negligence to persons who are not their clients but who are affected by their negligent work. This is shown in White v Jones (1995).
Hall v Simons (2000) Three firms of solicitors were sued by their clients for negligent advocacy. The lower courts were bound by the decision of Ronde/ v Worsley (1969) which decided that lawyers could not be liable for negligent advocacy. Using the Practice Direction 1966, the House of Lords reversed Ronde/ v Worsley and ruled that the protection given to advocates was no longer appropriate, because of changes in the law of negligence, the working of the legal professions, the administration of justice and public perceptions. As a result, barristers and solicitors carrying out negligent advocacy could be sued by a client. White v Jones (1995) A father wanted to make a will leaving each of his daughters £9000. He wrote to his solicitors instructing them to draw up a will to include this. The solicitors received this letter on 17 July 1986 but had done nothing about it by the time the father died on 14 September 1986. As a result, the daughters did not inherit any money. They successfully sued the solicitor for the £9000 they had each lost.
regulation of legal executives
Regulation of Legal Executives Chartered Institute of Legal Executives All legal executives are members of the Chartered Institute of Legal Executives (CILEx). This organisation provides education, training and development of skills for legal executives. It also protects the status and interests of legal executives. Another aim is to: ‘’ promote and secure professional standards of conduct amongst members and those who are , , registered with the Institute. CILEx publishes a code of conduct and guides to good practice but regulation of members is done by the CILEx Regulation Board, which investigates complaints about legal executives. When an investigation is complete, a summary of the issues is prepared and the matter is put to the Professional Conduct Panel for consideration. The Panel will decide if there has been misconduct. If there has been misconduct it may reprimand or warn a member. It will refer serious matters to the Disciplinary Tribunal. The Disciplinary Tribunal has the power to: • exclude a person from membership of the Institute • reprimand or warn the member • order the legal executive to pay a fine and costs.
justies of the supreme court
stices of the Supreme Court are appointed from those who hold high judicial office; for example, as a judge in the Court of Appeal, or from those who have been qualified to appear in the senior courts for at least 15 years.
As the Supreme Court is the final appellate court for Scotland and Northern Ireland as well, judges can also be appointed from those who have qualified to appear in courts in Scotland or Northern Ireland for at least 15 years. The Constitutional Reform Act 2005 provides that there should be a maximum of 12 Justices and they are the most senior judges in the country. They sit in the Supreme Court to hear final appeals from all courts in the UK.
lords justice of appeal
Lords Justices of Appeal must have been qualified as a barrister or solicitor and have gained experience in law for at least seven years or be an existing High Court Judge. Lords Justices of Appeal are officially appointed by the Queen. A Lord Justice of Appeal will sit in either: • th_e Civil Division of the Court of Appeal where they will hear appeals from cases in the County Court or High Court, or • the Criminal Division of the Court of Appeal where they will hear appeals from trials in the Crown Court.
high court jugdes
In order to be eligible to be appointed as a High Court Judge, it is necessary either to have been qualified as a barrister or solicitor, and have gained experience in law for at least seven years, or to have been a Circuit Judge for at least two years. The vast majority of High Court Judges are appointed to serve full time from barristers who have been in practice for twenty or thirty years. Deputy High Court Judges, who sit part-time, are also appointed and this is a way of testing the suitability of a person to become a High Court Judge. Candidates are usually expected to have previous judicial experience at a lower level. High Court Judges are officially appointed by the Queen. High Court Judges are assigned to one of the Divisions of the High Court and will hear the cases assigned to that Division: 1 Judges of the Queen’s Bench Division will hear high value civil claims of contract and tort. In addition, judges of this Division will hear serious criminal cases such as murder in the Crown Court. 2 Judges of the Chancery Division will hear high value commercial claims and cases of liquidation of companies and partnership disputes. 3 Judges of the Family Division will hear claims relating disputes of property and financial matters of married and unmarried partners and relating to children of relationships. In addition, judges of the High Court can sit as judges of the Court of Appeal alongside Lords Justices to hear appeals relating to work of the respective Divisions
circui juges
In order to become a Circuit Judge, it is necessary to be a solicitor or barrister who has held a ‘right of audience’ for at least ten years. They should generally also have served either part-time as a Recorder in criminal cases or full-time as District Judges in civil cases before they can be appointed. They will hear both civil and criminal cases: 1 In the County Court they will hear a wide range of tort and contract claims, claims relating to possession of land and property disputes and some family work. 2 In the Crown Court they will take charge of criminal trials, hearing more serious cases as they gain seniority, and sentence offenders who have pleaded guilty. This is a part-time post for qualified barristers or solicitors who have gained at least seven years’ experience. An applicant is appointed as a Recorder in training first and then appointed as a Recorder. They will hear less serious civil cases in the County Court and less serious criminal cases in the Crown