Do I need a lawyer, a solicitor or a barrister?
Whilst we refer to everyone as a lawyer, there are important differences.
The Legal Services Act 2007 (Royal Assent on 30 October 2007) reformed the way legal services in England and Wales are regulated and puts the consumer interest at the heart of the regulatory framework.The legislation has been entangled in controversy since Sir David Clementi made suggestions for reform in 2004. The new Act creates an over-regulator that will oversee the Bar Standards Board (Bar Council) and the Solicitors Regulation Authority and regulate anyone who offers any form of legal services. The Government claims that the changes have been introduced by the Government to improve competition, flexibility, and choice for consumers and that deregulation of the legal profession reduces costs; however this is unlikely as the two regulatory bodies (Solicitors Regulatory Authority and Bar Council respectively) have decided not to lower their Codes of Conduct in the new de-regulated areas so solicitors and barristers will continue to have all the costs of compliance. Ultimately, you as a consumer continue to pay for this.
As well as making a firm accountable rather than individual solicitors, the Act has two concepts:
- Reserved Legal Services, such as probate and litigation and
- Non-Reserved Legal Services
Reserved Legal Services are:
- the exercise of a right of audience (i.e. the right to appear before and address a court, including the right to call and examine witnesses, except where immediately before the Act came into force, no restriction was placed on the persons entitled to carry on that activity);
- the conduct of litigation (i.e. the issuing of proceedings before any court in England and Wales, the commencement, prosecution and defence of such proceedings, and the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions); except where immediately before the Act came into force, no restriction was placed on the persons entitled to carry on that activity);
- reserved instrument activities (i.e. such as preparing any instrument of transfer or charge for the purposes of the Land Registration Act 2002 or making an application or lodging a document for registration under that Act or preparing any other instrument relating to real or personal estate or relating to court proceedings in England and Wales. This includes, in respect of disposition of land, a contract in relation to real property (except a short lease), but does not include a will or other testamentary instrument, an agreement not intended to be executed as a deed, other than a contract that is included by virtue of the preceding provisions of this sub-paragraph, a letter or power of attorney, or a transfer of stock containing no trust or limitation of the transfer.);
- probate activities;
- notarial activities;
- the administration of oaths.
Free For All
If you’re not conducting a Reserved Legal Service, your covered by the Act but don’t need to be a barrister or solicitor and this includes any activity of a judicial or quasi-judicial nature (including acting as a mediator or arbitrator)). So the generation of business contracts and agreements and other legal services which are not Reserved Legal Services can be provided by anyone with a law degree (or even without a law degree).
What does this mean in practice?
It means that High Street Solicitors will amalgamate into bigger firms or will leave Law Society Regulation and simply re-style themselves as Law Firms.
The more expensive “Solicitors” firms will be those that only conduct the Reserved Legal Services. If you currently have 10 high street solicitors, you’ll have one within the next few years, but you’ll also have numerous “Law Firms” that don’t do Reserved Legal Services.
So will Law Firms be safe to use?
That depends on how they are staffed.
Many will be staffed by ex-solicitors and ex-barristers and those people will have had extensive proper legal training. They’ll just be taking advantage of the fact that they don’t need Law Society Regulation anymore.... check out their qualifications. If they are ex-barristers and ex-solicitors and they carry insurance they will be safe. They will loook to the new super-regulator Legal Services Board rather than be regulated by the Bar Standards Board (Bar Council) and the Solicitors Regulation Authority. Don’t be afraid to ask why they’re not solicitors, but remember that once proceedings are issued, they cannot represent you.
Being a member of the Law Society requires a special insurance and a practising certificate and this alone adds about 12% to the costs per hour that are charged, compared with the New Firms.
Some Law Firm members will offer to become “quasi-employees” acting as in-house Counsel in their specialist fields and can be appointed to your Board. They will then represent your firm in the conduct of litigation being carried out by solicitors, and although you’ll be paying for them as well as solicitors, any litigation will not divert management time and be carried out more efficiently than you can carry it out.
Other Law firms may set up utilising loopholes in the Act. These will be staffed by people with mere law degrees or paralegals (overseas qualified solicitors who are to trained in English law) or people taking advantage of lower regulatory requirements in other European Countries.
Where a lawyer is a member of an overseas European Bar or Law Society, then they can conduct Reserved Legal Services in the UK. You need in such cases to check whether they are qualified in the law of England and Wales.
It will also mean that more and more legal services are available online via the Law Firms.
New Cross-Disciplinary Firms
Solicitors can now take on non-lawyer partners, although they will have to apply to register such persons with the Solicitors Regulatory Authority and demonstrate that they are fit and proper before the application can be accepted, (Obviously it will be unnecessary to apply such a process other lawyer who are authorised persons as they have already demonstrated that they are fit and proper to other approved legal regulators).
Does Privilege apply?
Legal professional privilege (“LPP”) applies to any communication, document, material or information relating to a service provided by an
individual who is not a barrister or solicitor at any time when the individual is providing advocacy services, litigation services, conveyancing services or probate services in the individual’s capacity as an authorised person. Such a communication is to be treated as if it were a communication made by a solicitor for the purposes of disclosure. This doesn’t change the current law. Clients of Solicitors and Barristers and certain legal services providers (such as authorised litigators and advocates, recognised bodies, licensed conveyancers, trade mark and patent firms and Alternative Business Structures) have similar LPP protection to clients of solicitors under the common law, but unless someone falls into that category, LPP will not apply so many of the new Law Firms will not be able to provide protection of your communications via privilege (although there are other solutions).