Is There a Separation of The Professions of Barrister and Solicitor - Essay Example

Is there a continued need for the separation of the professions of barrister and solicitor? In finding the need to maintain separate professions of barrister and solicitor, it is necessary to understand their specific roles in the legal system. Barristers differ basically with solicitor attorneys that they have rights of audience in the higher courts whereas the solicitor has limited one. They work as counsellors assisting judges on circuit, the court, plaintiffs and defendants in civil action or prisoners in criminal actions. They inform the court of important laws, statutes and precedents, draft legal pleadings, argue or support and provide opinion whichever suits his belief that justice will be served. They may also assist for a party when asked to by a solicitor and serve as intermediaries between clients and counsellors. They are divided into Queen’s Counsel or QC and junior barristers with the QC appointed by the Lord Chancellor. There has been seen a shortage of QC so that they demand “extremely high fees” making litigations cost high (Legal Directory, 2011, P 5). Solicitors on the other hand deal directly with the clients and are allowed to advertise their service. They conduct and manage daily administration of preparing, reviewing and drafting merits of a legal case and appoint barristers. Reeves (1986) has argued that the separation was necessary to maintain a fresh and objective perspective for client which becomes rare where the professions are merged; judges were appointed from senior and experienced barristers expected as independent and therefore sustain the role in the judiciary; access of small firms to all specialist barristers allows them to compete with higher chances in any legal proceedings; the barristers are expected to provide a more appropriate advice to client where claims or defence may be conducted improperly. In addition, it was pointed out that the lawyer profession has expanded to being a broker, financier, entrepreneur, accountant, land agent, and others they may so wish, whereas the barrister has been limited to law and advocacy (Cohen, 1988). On the other hand, the proponents to the merge advance legitimate and strong points. The Economist of London observed that “…Some barristers are not specialists, some solicitors are. Some solicitors are better advocates than many barristers,” (1983, p 25). In addition, the Financial Times (1986) also pointed out that there is a much more rigorous training and education requirement for solicitors making them more qualified specialists so that it is expected of them to perform well for the benefit of their clients, which is the main reason why they were chosen and paid for in the first place. The separation has been seen as historical in nature with the notion that the barristers assist generalist solicitors. One historical fact that Cohen (1988) emphasised was that, “Legal historians do not discuss the question of the solicitor’s part in the denial of the right of audience in the courts to attorneys,” (p 13). But the Financial Times (1986) insisted that, “It is ridiculous to assert that, after six months’ pupillage, a barrister is better equipped to appear in a court than an experienced solicitor,” (p 20). The absurdity is highlighted further with the fact that solicitors have a right of audience in the European Court of Justice considered as a more senior court than the High Court, Court of Appeal or House of Lords (Law Society, 1983). Even Sir Gordon Borrie admitted to the difficulty of the situation, himself being a barrister. “It seems to me that the arguments in favour of the [barristers’ monopoly on pleading in the High Court] are difficult to sustain on their merits,” (Law Society, 1983, p 193). Reeves (1986) also pointed out that that the multiplicity of legal advisers makes litigations costs higher; and that there is the question of objectivity between the solicitor who has referred a barrister to a client and the solicitor who may conduct improper actions. The organisation of barristers in Inns expected as academic in nature where they are aurally “students” with the masters of the bench has also been questionable as the Inn has been seen as a product of practicing lawyers who need to seek support from the complex legal system (Cohen, 1988). The association of barristers with their “colleagues” in the Inn serves the barrister an enviable position in English society argued to be justified for the higher skill and responsibility expected of them by the pubic (Cohen, 1988). It has also become imperative for clients to should costs for litigation that will need to pay for a solicitor, a QC and a QC’s assistant or junior barrister, of which the client will have no option but respect if the QC requires so (Law Society, 1983). Another questionable issue about the professions are the way QCs were chosen by the Lord Chancellor. Every year, applicants will come from successful juniors and about 40 to 50 will be chosen. The unsuccessful candidates may reapply or simply give up even if their refusal has no legal or any form of basis at all (Cohen, 1988). The elevation of barristers from solicitors is also doubtful in history as only a probable understanding has been forwarded: the matter was conjured up between judges and the Lord Chancellor (Cohen, 1988). Based on the above discussion, practical and emerging financial constraints for clients, and the existing definition of tasks of barristers and solicitors, there is no need for the separation of the profession or barrister and solicitor. The questionable history of solicitors practically banned in higher court, the process of appointing barristers, and the legal implication of their tasks in international proceedings blur the legality of barrister roles. Aside from that, the biggest reason that barristers and solicitors should be merged is practical in nature - in order to sustain the legal rights of ordinary citizens allowing them lower litigation costs, access to competitive solicitor charges, as well as levelling of the playing field. All disadvantages will be overshadowed by the fact that litigation will become more affordable for the citizens and a streamlined, less questionable justice system will also prevail. Reference: Cohen, Harry. 1988. The Divided Legal Profession In England And Wales - Can Barristers and Solicitors Ever Be Fused. Journal of the Legal Profession 12 (1), 7-28. Financial Times. 1986. The Legal Profession. June 2. Law Society. 1983. Young Solicitors, An Argument for Fusion. Law Society Gazette January 25. Legal Directory. 2010. What are Barristers? Accessed from http://www.legal-directory.net/english-law/barristers.htm The Economist of London. The Legal Profession. July 30, 1985, p 25. Read More