Encyclopedia
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 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 , 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 . 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 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 .
Training and qualifications
The most common methods of qualification are a normal undergraduate law degree , 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 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 . 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 increasingly in the higher courts too . 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 accountants and similar groups. Additionally barristers who have done the Bar Council's 'Public Access' course can take instructions directly from members of the public although there are some limitations on the type of work that can be done this way: for example they cannot take control of the conduct of litigation nor can they do matrimonial matters. Where such limitations occur the barrister should advise the persons to see a solicitor.
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 , only being excluded from the
High Court of Justiciary and the
Court of Session . 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 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 a 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.
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" . 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.
See also
- Barrister
- Legal executive
- Licensed Conveyancer
- Solicitor General
External links
