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.
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.
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.
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, or have completed a conversion course. 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,, 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 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 advocate, 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. 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
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