Chapter 6 Guidance to answering the practical exercises

Legal services and ethics

Q1: Are legal services just like any other service?

At its widest, a service might be defined as any work done for pay, for instance accounting, banking, insurance, etc. It can be combined with provision of goods, e.g. plumbing, etc. Lawyering is in a similar vein. However, there is a distinction between a service and a profession. A profession (see 6.2.1 of the text) requires regulation, training, and involves the giving of specialist advice.

In 6.2.2 you read that certain activities are reserved for lawyers (under the Legal Services Act 2007), and others are not. This means that lawyers provide some legal services that non-lawyers cannot. The full impact of the Act has yet to be felt, but it is quite possible that some legal services, like negotiating contracts, etc. will resemble other services quite soon, and be provided by a variety of different non-lawyer providers.

Those core reserved activities are likely to remain as such and thus are definitive of the core work of lawyers, as contrasted with other service providers.

Q2: Should legal services be regulated just like any other service?

You have probably realised that this question implies a generalisation- that there is a generic regulation template for services. Whilst the regulation of services is increasingly on the same model (i.e. an independent regulator enforcing regulations generated by statutory instrument, with complaints handled by an independent tribunal), the scope of regulation is quite industry specific. So the question must really be restricted to the model of regulation, rather than its content.

You don’t have to look a long way from the provision of legal services to see a similar model. Claims management is an industry that has grown up since the conditional fee’ (‘no win no fee’) reforms in the 1990s and the loss of legal aid for civil claims. PPI claims are an example of claims commonly made by claims management companies. Since 2007 the industry has been regulated by the Claims Management Services Regulator, and around 3000 such companies are regulated in England & Wales. Decisions of the Regulator can be appealed to the Claims management Tribunal on a similar model to the Solicitors’ Disciplinary Tribunal and the Disciplinary Tribunal for the Bar.

Doctors are regulated similarly. A patient with a complaint would complain to the General Medical Council, and any appeals would be to the Medical Practitioners Tribunal Service.

So this model of independent regulation is common among service providers, and replaces the previous model where the regulation of professions was by their own associations (e.g. The Law Society). It is surely preferable that a profession is seen to be independently regulated.

Q3: Should all defendants, no matter how odious, have legal representation?

In the view of the author, the arguments in favour are almost overwhelming.

One of the hallmarks of a country with a respect for Rule of Law is to afford those who are at risk of losing their liberty a right to legal representation. It goes hand-in-hand with the right to a fair trial. Until the defendant is convicted, they are presumed to be innocent- so until this stage, even a murderer should be allowed representation.

This does of course have the effect that those accused of heinous crimes, including many who have actually committed those crimes, are represented at no expense to themselves. But even they have a right to a lawyer, to plead for a proportionate sentence. In some countries, where the death penalty still exists, the stakes are so high that it would be inhumane to deny defendants representation.

Another argument is that it would be very difficult to differentiate the innocent from the malfeasant, if it were possible to deny the so called ‘worst offenders’ legal representation. Many wrongly accused innocents would be left without a professional voice in court.

From the lawyer’s perspective, it is many lawyers’ job to defend those subject to criminal trial. Barristers operate under a system called the ‘cab rank rule’, under which a barrister must accept any work in a field in which he professes himself competent, subject to certain limitations. Without this rule, it would be very difficult for certain defendants to obtain representation.

As a postscript, not all countries give this right. A visit to the World Justice Project website will show a strong correlation between their overall ranking and the availability of rights of the accused.

Q4: Is it only a matter of time before solicitors and barristers disappear?

At 6.6 you read of the seismic changes happening to the legal profession in England and Wales. The organisation and regulation of solicitors, and to a lesser extent, barristers, has undergone transformation in the last two decades.

People need legal advice. If there is a lesson in chapter 6 it is this. None of us has a crystal ball, but it is clear that lawyers will continue to be necessary in the future.  Reserved and non-reserved legal services both need to be provided by experts.

You may have your own opinion about who will be providing these services. It is quite possible that the identity of these experts (especially for non-reserved legal services) will change. It is plausible that the name given to lawyers will, over the very long term, change.

But it is very unlikely that in an advanced society, that people will cease to need lawyers.

Q5: Should the solicitors and barristers professions merge?

In chapter 6 you read about the distinction between solicitors, who were historically the first port of call for people needing representation or legal advice, and barristers, who were traditionally lawyer advocates, and leading experts in their fields. This dichotomy has long been inaccurate, and there is considerable overlap in their roles. Fusion of the professions has long been a live issue.

Not only is there a decreasing differentiation between their roles, but it is also costly for the client to engage both a solicitor and a barrister.

There are arguments in favour of the divided profession. Those who have moved from one profession to the other report that it is too easy for the solicitor to become optimistic for their client, to identify too closely with them. The barrister, instructed later in the process, can analyze the litigation more dispassionately.

Cost is another argument. It is a common view that barristers are more expensive (like-for-like) than solicitors. According to this view, it makes sense for solicitors to do much of the more routine work at lower cost, and then for counsel to be instructed only when necessary. Studies have suggested that this is not necessarily the case, and that lawyers at similar levels in either branch cost roughly the same.

Another argument for fusion is for people training to be lawyers. Once a future lawyer has studied law (the BSB requires a law degree or equivalent; the SRA requires a degree, and enough legal knowledge to pass its SQE1 exams), a law student must opt for SQE1 (for SRA qualification- though some students are still studying under the older LPC-based system) or BPC. At this point the die is cast. From this point, very few solicitors retrain as barristers, or vice versa. Many commentators have said that this is too early a stage to commit to one branch or the other, and excludes good lawyers from access to the branch which is suited to them.

Or is it like many features of the jurisdiction of England & Wales; that, given a clean slate, you would never design it in the way it has evolved; but that there seems little reason to force root and branch reform on a system that largely serves the needs of the legal system and its clients.

Bearing in mind that numerous solicitors are advocates, and some barristers serve clients directly, many of the benefits of fusion appear already to be in place.

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