Solicitor

Related Topics:
Solicitor_General :: Solicitors

A solicitor is a type of lawyer in many common law jurisdictions, such as the United Kingdom, Hong Kong, Republic of Ireland, Australia and New Zealand, but not the United States or Canada (in the United States the word has a quite different meaning—see below). In most common law countries the legal profession is split between: solicitors who represent and advise clients, and a barrister who is retained by a solicitor to advocate in a legal hearing or to render a legal opinion.

However in several Australian States (including South Australia), as well as in Canada, the legal profession is "fused" which means that a lawyer can be a solicitor, barrister, and proctor.

Where the legal profession is not "fused" in cases where a trial is necessary a client must retain a solicitor, who will advise him or her and then may deliver a brief to a barrister to act on the solicitor's instructions.

England and Wales

Before the unification of the Supreme Court in 1873, solicitors practised in the court of Chancery, while attorneys and proctors practised in the common law and ecclesiastical courts respectively.

In the English legal system solicitors have traditionally dealt with any legal matter apart from the conducting proceedings in court (advocacy). The other branch of the English legal profession, a barrister, has traditionally carried out the advocacy functions. Barristers would not deal with the public direct. This is no longer the case, solicitor advocates may act at any level of court.

Regulation

Solicitors in England and Wales are regulated by the Law Society of England and Wales (which wears the hat of both regulator and union) and in order to become a solicitor must have had a qualifying legal education.

Moreover, solicitors must pay the Law Society of England and Wales a practising fee each year in order to keep practising. If they do not do this they are 'non-practising' and may not give legal advice to the public (although they can start practising again at will, unlike those struck off).

Training and qualifications

The most common methods of qualification are a normal undergraduate law degree (a Bachelor of Laws, or 'LLB'), or a degree in any subject followed by a one year course formerly called the Common Professional Exam and recently renamed the Graduate Diploma in Law. Other routes, for example, include spending time as a clerk to magistrates, or passing exams set by the Institute of Legal Executives (ILEX) are possible. Up to this point a barrister and solicitor have the same education.

Thereafter they split. Solicitors study a one year course called the Legal Practice Course and then must undertake two years apprenticeship with a solicitor, called the training contract (but still widely referred to as 'articles' as in 'articled clerk' by older members of the profession). Once that is complete, the student becomes a solicitor and is 'admitted to the roll'. The 'roll' is a list of people qualified to be a solicitor and is kept on behalf of the 'Master of the Rolls' whose more important job is that he is the head of the Court of Appeal of England and Wales. Solicitors who are being disciplined by the Law Society can be suspended from the roll or even struck off, which prevents them acting as a solicitor.

Recent developments

In England and Wales the strict separation between the duties of solicitor and barrister has been partially broken down and solicitors frequently appear not only in the lower courts but (subject to passing a test) increasingly in the higher courts too (such as the High Court of Justice of England and Wales and the Court of Appeal). Firms of solicitors now employ their own barristers and solicitor-advocates to do the work, taking it away from the private groups 'sets' or 'chambers' of barristers who formerly did the work. Barristers in turn can now be directly instructed by certain organisations such as trade unions.

This breakdown is expected to go further in the next few years, with the government pressing the Bar Council to allow barristers to deal directly with the public. Despite the numerous anecdotal claims that solicitors are increasingly taking advantage of increased rights of audience, this does not seem to be reflected in practice, with both arms of the legal profession thriving in recent years.

Regulation of both Barristers and Solicitors is being reviewed by David Clementi on behalf of the Department for Constitutional Affairs. His final recommendations are expected to include a more unified regulatory system, and new structures for cross-profession work.

Traditionally, firms of solicitors can only be owned by solicitors. The government is determined to allow anyone to be able to have a share in the ownership and control of a law firm. This has lead to fears that the professional duty a solicitor owes of confidentiality to their client will be threatened. A solicitor will be required to share confidential information with the organisations and individuals who acquire control of their firm even though those organisations and individuals will not be bound by the professional duty of confidentiality and may use their knowledge of the client's confidential affairs to their own advantage. This is often referred to as "Tesco law" as access to legal services would be as freely available as goods from a supermarket.

Scotland

Scotland's legal system is separate from those of England and Wales and Northern Ireland. In Scotland the legal profession is divided between solicitors and advocates, the distinction being similar to that between solicitors and barristers in England and Wales, though Scottish solicitors have traditionally represented their clients in the lower courts (such as the Sheriff Court and the District Court), only being excluded from the High Court of Justiciary and the Court of Session (unless they qualify as solicitor advocates). In Scotland, Solicitors are regulated by the Law Society of Scotland, who require prospective solicitors to pass exams in a curriculum set by the Society. Ordinarily this is done by obtaining an LLB in Scots law at a university approved by the Society, though it is also possible to sit the Society's own exams. Prospective solicitors are then required to take the Diploma in Legal Practice (a one year course provided by several Scottish universities) and then undertake a two year traineeship with a law firm, before they can qualify as a solicitor.

Republic of Ireland

Following the establishment of the Irish Free State many of the features of the England and Wales legal system were continued in the new state. The legal profession remained divided between barristers and solicitors.

The Law Society of Ireland was established by the Solicitors Act of 1954 to be the representative and regulatory body for all Solicitors in Ireland. The Law Society of Ireland is also, under the various Acts of the Oireachtas which govern it, the sole training body for Solicitors in the Republic of Ireland.

In recent years, legal changes have also greatly eroded the traditional boundaries between Solicitors and Barristers, with many Solciitors choosing to represent their clients in all Courts.

Australia

Regulation of the profession in Australia varies from state to state. Admission to practice is state-based, although mutual recognition enables a practitioner admitted in any state to practice nationally. In some States, the distinction between barristers and solicitors is nominal and reflects individual preferences and membership of professional associations. In others, at least in a practical sense, the distinction is clear from the type of practice an practitioner has, even if they are entitled to practice in the other branch of the profession. Thus, while members of the bar practice only as barristers, a practitioner is admitted as a "barrister and solicitor". Thus, every solicitor is also a barrister, although many prefer to brief counsel rather than appear in courts or tribunals themselves. The trend to a fused profession is similar to that outlined in England and Wales above.

However, the states of New South Wales and Queensland maintain strongly independent Bars, call to which requires extra training. In those states, solicitors' rights of audience before superior courts are theoretically unlimited, but infrequently exercised in practice. Victoria also has an independent bar but solicitors have full right of audience before all courts.

The different usage in the United States

In American and Canadian English, the term often refers to "a person who seeks business or contributions from others; an advertiser or promoter" (according to Black's Law Dictionary, 7th edition). This is the meaning intended in the ubiquitous signs on business premises that say "No Soliciting" or "Please Do Not Contribute To Solicitors." The equivalent British English term would be "tout" and the Australian English term "hawker".

In some U.S. states, a "solicitor" may be the chief legal officer of a city or town — for example, a "town solicitor," — although cities in other states simply have "city attorneys." Some counties and states as well as the federal government have an official known as a Solicitor General who is actually more of an advocate than a solicitor in the traditional British sense. In South Carolina the term "solicitor" applies to a circuit prosecutor. In Georgia a county solicitor-general is responsible for prosecution of misdemeanor offenses. Historically, Georgia solicitor-generals were state prosecutors. Today, that office is known as district attorney.

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