Solicitor: Wikis

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Law of England and Wales

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Courts of England and Wales

Solicitors are lawyers who traditionally deal with any legal matter apart from conducting proceedings in courts (advocacy), with some exceptions. In the United Kingdom and Ireland, the legal profession is split between solicitors and barristers, and a lawyer will usually only hold one title. However, in Canada, New Zealand and some Australian states, the legal profession is now for practical purposes "fused", allowing lawyers to hold the title of "barrister and solicitor" and practice as both. The distinction between barristers and solicitors is, however, retained.

Contents

England and Wales

Before the unification of the Supreme Court in 1873, solicitors practised in courts of equity, while attorneys practised in the common law courts. After 1873 the title of "attorney" disappeared, being replaced by "solicitor" in all courts.[1]

In the English legal system, solicitors traditionally dealt with any legal matter apart from conducting proceedings in courts (advocacy), with some exceptions. Minor criminal cases tried in Magistrates' Courts, for example, and small claims civil cases tried in county courts are almost always handled by solicitors. Barristers, as the other branch of the English legal profession, have traditionally carried out the functions of advocacy. In the past, barristers did not deal with the public directly. This rigid separation no longer applies. Solicitor advocates with an additional audience rights qualification may now act at all levels of the courts. Conversely, the public may now hire and interact with a barrister directly in certain types of work without having to go to a solicitor first.[2]

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Regulatory scheme

Solicitors in England and Wales are represented by, and therefore pay their practising fees to the Law Society of England and Wales. The Solicitors Regulation Authority and Legal Complaints Service act independently of the Law Society, but together make up the complete system of professional regulation for solicitors.

Training and qualifications

Training and qualifications are regulated by The Solicitors Regulation Authority. Prospective solicitors must first possess a qualifying law degree,[3] or have completed a conversion course.[4] Then prospective solicitors must enroll with the Law Society as a student member and take a one-year course called the Legal Practice Course and then usually undertake two years' apprenticeship, known as a training contract,[5], formerly an articled clerkship.

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). While the independent bar still exists in a largely unchanged state, a few firms of solicitors now employ their own barristers and solicitor advocates to do some court work. Barristers, in turn, can now be directly instructed by certain organizations such as trade unions, accountants, and similar groups. Additionally, barristers who have completed 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, such barristers cannot take control of the conduct of litigation nor can they act in matrimonial matters.

This breakdown in the strict separation between barrister and solicitor is expected to go further in the next few years, with the advent of Legal Disciplinary Practices (on 31 March 2009) and Alternate Business Structures (expected 2011) appearing.

Regulation of both barristers and solicitors was reviewed by David Clementi on behalf of the Ministry of Justice in 2004. He delivered his final recommendations in December 2004[6] which included proposals for a more unified regulatory system and new structures for cross-profession work. Many of his recommendations were enshrined in the Legal Services Act 2007.

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 Judiciary and the Court of Session. However, under Section 24 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, suitably qualified solicitors were for the first time in Scotland granted rights of audience in the Supreme Courts in Scotland as well as in the House of Lords and the Judicial Committee of the Privy Council as solicitor advocates.

In Scotland, solicitors are regulated by the Law Society of Scotland, which require prospective solicitors to pass exams in a curriculum set by the Society. Ordinarily, this is done by obtaining a Bachelor of Laws (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 trainee ships with a law firm before they can qualify as a solicitor. As the Faculty of Advocates used to require a M.A. degree of its candidates, it used to be common to take a five-year combined MA LLB curriculum at the Scottish universities. Those intending to become solicitors who studied law as a first degree were at one time awarded a BL degree.

Prior to the formation of The Law Society of Scotland, solicitors were in most areas organized into a local Faculty of Procurators or Faculty of Procurators and Solicitors. These societies still exist, but their influence has waned. Whereas membership was once required in order to practice law in a particular locality, as long as a solicitor is registered with The Law Society of Scotland this is no longer the case. The local societies are now more likely to provide their members with a well-stocked law library, continuing professional development courses (all solicitors in Scotland are required to complete 20 hours of continuing professional development each year), and lobby on behalf of their members with The Law Society of Scotland and The Scottish Government regarding future legal developments.

In Glasgow, the Royal Faculty of Procurators still exists. In Edinburgh, both The Society of Writers to Her Majesty's Signet (now known as the W.S. Society), whose members refer to themselves as a Writer to the Signet (W.S.), and the Society of Solicitors to the Supreme Courts (S.S.C.) are still in existence. In Aberdeen, solicitors may belong to the Society of Advocates in Aberdeen. Its members are formally referred to as "Advocate in Aberdeen" to distinguish them from regular Scottish advocates.

In the 18th century, Dr. Samuel Johnson marked the change in designation of the lawyers in Glasgow with a jibe about their moving from "procuring" (a term which traditionally meant pimping) to "soliciting" (which was and is used as shorthand for prostitution). This was a play on the title "Procurator," meaning agent, a word still used in the Scottish courts, particularly when one Scottish solicitor tells a court that he is appearing only as the agent of another solicitor.

Solicitors in Scotland have full rights of audience in the Sheriff Courts throughout Scotland in both criminal and civil cases. They also have rights of audience in the District Courts (the lowest criminal court in Scotland), although these are now being replaced by Justice of the Peace Courts, in which a solicitor also has a full right of audience. When in court, a solicitor will normally wear a suit and tie together with a Scottish bar gown (a form of black robe).

Republic of Ireland

Solicitors in the Republic of Ireland are represented and regulated by the Law Society of Ireland. It was formally established by Royal Charter in 1852. The legislative basis for its current role is set out in the Solicitors Acts 1954-2002.

Irish independence in 1921 was marked more by continuity with the British legal system than with change. The legal profession has remained divided between barristers (or abhcóidí in Irish) and solicitors (or aturnaetha in Irish). However, there has been some blurring of their respective roles over the years. Notably, under Section 17 of the Courts Act 1971, solicitors were granted a right of audience in all courts, although in practice relatively few solicitors act as advocates for their clients in the Superior 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 practitioners have, 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 above in England and Wales.

The states of New South Wales and Queensland, however, 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.

Hong Kong

Hong Kong has not fully embraced the "fused profession" trend; solicitors are governed by the Law Society of Hong Kong and barristers are governed by the Hong Kong Bar Association. A person intending to become a solicitor in Hong Kong must have a professional law degree, either LLB or JD or another equivalent degree, and complete the one-year PCLL program. They must also complete a two-year trainee solicitor contract with a law firm. Solicitors enjoy rights of audience in the lower courts, but the rights do not extend to the Hong Kong High Court and the Hong Kong Court of Final Appeal; rights of audience in these two higher courts are restricted to barristers. But this tradition may change in the future. Work related to legislating for higher solicitors' rights of audience is being done - including the formation of a working party under the Chief Justice. The Chief Justice of Hong Kong has nodded to the proposal of creating a special scheme, under which a solicitor would be able to gain the status of "solicitor-advocate" along with higher rights of audience.

Canada

In the English-speaking common law jurisdictions of Canada, the profession of barrister and solicitor have been fused; all lawyers are called to the bar and admitted as solicitors. While many barristers and solicitors choose to practice within the scope of one or the other traditional disciplines, many others choose a cross-discipline practice. In Quebec, however, like America and modern France, there is no tradition of split professions, though a distinction is sometimes made between an avocat plaidant "trial lawyer" and an avocat-conseil or conseiller juridique "legal consultant".

Japan

In Japan, Shihou-syoshi, the second tier legal profession who are prohibited from giving legal advice but are only allowed to prepare documents on behalf of their clients, describe themselves as Japanese "solicitors". Their attempt to register the word "solicitor" as their trade mark in Japan, however, was thwarted by the Japanese Trade Mark Office rejecting the application on the basis that the word was generic.

United States

Historically, solicitors existed in America, though the term referred to a lawyer who argued cases in a court of equity, as opposed to an attorney who appeared only in courts of law.[7][8] With the chancery or equity courts disappearing or being subsumed under courts of law, solicitors became obsolete by the late 1800s. In more modern American usage, the term solicitor is understood to refer to government lawyers. For example, the title "solicitor" is still used by town, city, and county lawyers in Delaware, Georgia, Massachusetts, Maryland, New Hampshire, New Jersey, Ohio, Pennsylvania, Rhode Island, South Carolina, and West Virginia. In the state of Massachusetts, the professional organization for government lawyers is the City Solicitors and Town Counsel Association. On the federal level, departmental solicitors remain in the Department of Labor, Department of the Interior, and the Patent & Trademark Office, and the Solicitor General is the lawyer appointed to represent the federal government before the Supreme Court. In the US, "solicitor" is also used synonymously with salesman.

See also

References

  1. ^ Oxford English Dictionary
  2. ^ Public Access
  3. ^ "SRA - Academic Stage" (in English). Solicitors Regulation Authority. http://www.sra.org.uk/students/academic-stage.page. Retrieved 2009-01-04.  
  4. ^ "SRA - Conversion Course" (in English). Solicitors Regulation Authority. http://www.sra.org.uk/students/conversion-courses.page. Retrieved 2009-01-04.  
  5. ^ "SRA - Training contract information" (in English). Solicitors Regulation Authority. http://www.sra.org.uk/students/training-contract.page. Retrieved 2009-01-04.  
  6. ^ "Clementi Review of Legal Services" (in English). Legal Services Review. http://www.legal-services-review.org.uk/. Retrieved 2009-04-22.  
  7. ^ "Glossary of Terms", Arkansas Territorial Briefs and Records, William H. Bowen School of Law, University of Arkansas at Little Rock, s.v. "Chancery", retrieved on 12 June 2009: [1].
  8. ^ Frederic Jesup Stimpson, Glossary of Technical Terms, Phrases, and Maxims of the Common Law, s.v. "Solicitors", (Boston: Little, Brown and Co., 1881), 273.

External links


1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

SOLICITOR, in England, an officer of the Supreme Court of Judicature qualified to conduct legal proceedings for his clients: see also Attorney. Previous to the reign of Henry III. the common law considered it indispensable that the parties to a suit should be actually present, but the privilege of appearing by attorney was conceded in certain cases by special dispensation. The passing of the statute of Merton and subsequent enactments made it competent for both parties in all judicial proceedings to appear by attorney. Previous to the passing of the Judicature Act of 1873 there was a distinction between the terms "solicitor" and "attorney." Solicitors appear to have been at first distinguished from attorneys, as not having the attorney's power to bind their principals, but latterly the distinction was between attorneys as the agents formally appointed in actions at law, and solicitors who took care of proceedings in parliament, chancery, privy council, &c. In practice, however, and in ordinary language, the terms were synonymous. Down to the 17th century the solicitor of the chancery courts was considered inferior to the attorney of the common law courts, but the rapid growth of equity jurisdiction gave the solicitor an importance in no degree inferior to his fellow practitioner at the common law. Until 1873 it was usual for attorneys to be admitted as solicitors as well, but the Judicature Act of that year enacted that all persons admitted as solicitors, attorneys or proctors of an English court shall henceforth be called solicitors of the Supreme Court. Regulations regarding the qualification of attorneys are found as far back as the 20 Edward I. (1292), and the profession has been stringently regulated by a series of statutes passed during the 19th century, notably the Solicitors Act 1843 and the Solicitors Acts 1877 and 1888.

Every person, before he can become a duly qualified solicitor, must serve an apprenticeship or clerkship to a practising solicitor for a term of years varying from three to five, he must pass all the necessary examinations, he must be duly admitted and entered on the roll of solicitors kept by the Incorporated Law Society and must take out an annual certificate to practise. The organization of the profession is in the hands of the Incorporated Law Society. Established originally in 1827, in succession to an earlier society dating back to 1739, it was incorporated in 1831. It began courses of lectures for students in 1833 and ten years later was constituted registrar of attorneys and solicitors. In 1860 it obtained the power of suing unqualified solicitors and in 1888 it was given the custody of the roll of solicitors, on the abolition of the office of the clerk of the Petty Bag. The Solicitors Act of 1888 vested in the Incorporated Law Society the power of investigating complaints as to the professional conduct of solicitors, as well as power to refuse to renew the annual certificate of a solicitor, subject to the solicitor's right of appeal. The statutory committee of the Incorporated Law Society may make application to the court to strike a solicitor off the rolls without preliminary inquiry by the committee where he has been convicted of a criminal offence, but where he is alleged to have been guilty of unprofessional conduct or a statutory offence the committee first hold a preliminary inquiry. Apart from its judicial administrative authority it has exercised powerful influence in the attitude which it has frequently taken towards proposed legislation. Membership of the society, which is not compulsory, is open to any duly qualified practising solicitor, on approval by the council. No person, however duly qualified, can be admitted as a solicitor till he has attained 'the age of twenty-one years. Though admitted as a solicitor and his name entered on the roll he is not at liberty to practise until he has taken out his annual certificate, the fees for which vary according as the applicant ' E. Schrader, Abh. K. Preuss. Ak. Wiss. (1879), pp. 31-36.

intends to practise in London or the provinces. Solicitors now have a right to practise in any court, i.e. in every division of the High Court, in every inferior court, in the ecclesiastical courts (as proctors), in the court of appeal, in the privy council and in the House of Lords. Their right of audience, however, is restricted. They may appear as advocates in most of the inferior courts, as before justices, magistrates, coroners, revising barristers and county courts. They have no right of audience, however, in the Mayor's court, London, nor in the High Court of Justice, privy council or House of Lords, where, from time immemorial, the right has pertained to the bar, but they have right of audience in chambers and certain bankruptcy matters. Since the Conveyancing Act 1881 solicitors may do all kinds of conveyancing, which formerly was considered the exclusive business of the bar. The Conveyancing Act 1881 having made great changes in the practice of conveyancing, it became necessary to place the remuneration of solicitors upon a new basis. This was done by the Solicitors Remuneration Act, passed on the same day as the Conveyancing Act. It provides for the framing of general orders, fixing the principles of remuneration with reference inter alia to the skill and responsibility involved, not, as was generally the case before, with reference simply to the length of the documents perused or prepared. A solicitor -is not responsible for statements made by him in his professional capacity as an advocate, and all communications which pass between a solicitor and his client are privileged, so also is any information or document which he has obtained in his professional capacity on behalf of his client. The relation of solicitor and client disqualifies the former from dealing with his client on his own behalf, while it gives him a lien, on professional services, over the deeds, &c., of the client in his possession. A solicitor's remuneration is minutely arranged by statute and he has no power of recovering more from his client than his statutory charges, and he is liable to be sued for damages for negligence in his client's behalf. Certain personal privileges belong to a solicitor. He is free from serving on juries, nor need he, against his will, serve as a mayor, alderman, sheriff, overseer or churchwarden.

In Scotland solicitors in the Supreme Court are not, as in England, the only persons entitled to act as law agents. They share the privilege with writers to the signet in the Supreme Court, with agents at law and procurators in the inferior courts. They were formed into a society in 1784 and incorporated in 1796, and are usually recognized as members of the College of Justice. This difference is, however, now of little importance, as by the Law Agents Act 1873 any person duly admitted a law agent is entitled to practise before any court in Scotland. In the United States the term solicitor is used in some states in the sense of a law agent practising before a court of equity.

Many of the great public offices in England and the United States have their solicitors. In England the treasury solicitor fills an especially important position. He is responsible for the enforcement of payments due to the treasury, and conducts generally its legal business. The office of king's proctor is also combined with that of treasury solicitor. Under his powers as king's proctor the treasury solicitor acts as administrator of the personal estate of an intestate which has lapsed to the crown, and intervenes in cases of divorce where collusion is alleged (see under Proctor). Under the Prosecution of Offences Act 1884 he also acted as director of public prosecutions, and was sometimes called Crown Solicitor. By the Prosecution of Offences Act 1908 the office of director of public prosecutions was separated from that of treasury solicitor and made a separate appointment. In Ireland, solicitors called crown solicitors are attached to each circuit, their duty being to prepare the case for the crown in all criminal prosecutions. In the United States the office of solicitor to the treasury was created by Act of Congress in 1830. His principal duties are to take measures for protecting the revenue and to deal with lands acquired by the United States by judicial process or vested in them by security for payment of debts.

See E. B. V. Christian, A Short History of Solicitors; Cordery on Solicitors; and A. P. Poley, Law Affecting Solicitors.


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