Fédération des barreaux d’Europe

On an appeal from the Comptroller to the Patent Court the advocate may be a non-practising barrister, a solicitor or a Patent Agent.

Again Barristers have exclusive rights of audience as advocates in the Crown Court - subject to such rights as Solicitors and Crown Prosecutors may enjoy by virtue of directions made by the Lord Chancellor.

The right of Barristers to appear as advocates is not exclusive in County Courts, Magistrates Courts, Coroners Courts, Employment Appeal Tribunals, Courts Martial, Ecclesiastical Courts and in many tribunals established under statute. In some cases - eg disputes between mine officials and inspectors concerning times of working underground, investigations before medical pharmaceutical, dental and ophthalmic service committees and disabled persons district advisory committees, the right of audience is excluded by statute.

Barristers also have the right in expectation of a fee or reward to draw or prepare any instrument of transfer or charge relating to real or personal estate or any legal proceeding or papers to found or oppose a grant of probate or letters of administration. They enjoy this right in common with qualified Solicitors and duly certificated notaries public.

2.2 Solicitors - their rights of audience to some extent appear from what has been said about Barristers but essentially they derive from the Courts and Legal Services Act 1990 and are subject to the Solicitor holding a Practising Certificate, having at least three years post-qualification experience and having been granted a qualification certificate by The Law Society.

The advocacy rights extend to the appeal Committee of the House of Lords, bankruptcy matters in the County Court, the High Court but not the Court of Appeal, Patents Court, in Chambers in the High Court or the Restrictive Practices Court. They also extend to the Official Referees of the High Court, to all County Courts, to some Crown Courts as directed by the Lord Chancellor and to Magistrates Courts where representation is allowed.

In addition to their rights of audience in the courts, Solicitors may also conduct investment business subject to registration and certain tests of competence established by The Law Society as the appropriate regulatory body under the Financial Services legislation and regulations in general.

The right in expectation of fee or reward to prepare any instrument relating to real or personal estate or to found or oppose a grant of probate or letters of administration is the same as that enjoyed by Barristers, certificated notaries public as already indicated and at present is greater than the rights of Licensed Conveyancers.

2.3 Legal Executives - a Fellow of the Institute of Legal Executives has a right of audience before a Court in relation to any proceedings where he is employed (in whole or in part) or is otherwise engaged to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator and the proceedings are being heard in Chambers in the High Court or a County Court and are not reserved family proceedings.

A Legal Executive involved in litigation may address County Court in proceedings in which he assists a Solicitor as follows :-

(i) unopposed application for adjournment ;

(ii) application for judgment by consent (except where notwithstanding the consent a question rises as to the applicant’s entitlement to the judgment or its terms)

A Legal Executive may represent an applicant on appeal against a refusal of Legal Aid.

A Legal Executive of suitable experience and more than three years qualification is entitled to exercise some of the management and supervision functions imposed by The Law Society on a Solicitor’s office.

2.4 Licensed Conveyancers - they have the right in expectation of fee or reward to draw or prepare any instrument of transfer or charge relating to real estate or for the purposes of The Land Registration Act 1925 or to make any application or lodge any document for registration under that Act with the Land Registry. They share this right with Solicitors, Barristers and duly certificated notaries public. Their right at present does not extend to any right of audience or to the preparation or lodging of papers in probate or administration actions.

However, they are regulated for conduct and competence by the Council for Licensed Conveyancers and that Council has the power to become an authorised body under the provisions of the Courts and Legal Services Act 1990 authorised to grant rights of audience, rights to conduct litigation and to grant exemption from the prohibition relating to the preparation of probate papers but only with the respect to Licensed Conveyancers.

3. Are there any activities in which lawyers and other professionals can take part in distinctly ? Mention some of them

3.1 In the Courts notwithstanding what has been said about the rights of audience enjoyed by Solicitors and Barristers, it must be remembered that the litigant in person may appear subject to certain limitations in legal aid cases and on prosecutors in criminal proceedings in the High Court and in the Crown Court. There is also the right for any person, professional lawyer or not, to attend proceedings in open court as a friend of either party to make notes, quietly to make suggestions and give advice provided that he or she does not take part in the proceedings as an advocate contrary to the regulations of the Court. In certain tribunals the right to represent is given to Barristers, Solicitors, representatives of a trade union or any other person chosen by the party to represent him or her.

Solicitors can take part with other suitably qualified professionals in giving investment advice eg with stockbrokers, financial advisers or consultants.

The transfer of property is an activity limited by statute now to Solicitors, Barristers, certain Notaries Public and Licensed Conveyancers, but these essentially are all lawyers qualified in some way. The right to prepare papers or proceedings to found or oppose a grant of probate or letters of administration remains at present with Solicitors and Barristers. However, under the Courts and Legal Services Act 1990 Section 54(1) from a date to be appointed the statutory restrictions on such activities will be replaced to increase the lists and among others to allow the following to apply for probate or letters of administration :-

any institution authorised by the Bank of England to carry on deposit taking ;

any building society authorised to raise money from its members ;

any authorised insurance company and subsidiaries and employees of the above all of course subject to certain conditions.

The appointed day for this legislation has not yet been

announced and the draft authorised probate practitioner

regulations remain in draft and have not been implemented. It is possible that the intention of the Government to extend the class of persons entitled to prepare such papers in a way similar to that granted to the Licensed Conveyancer. In practice the Government may find that it is not necessary to implement the legislation because of two developments :-

(a) the creation by The Law Society of the Probate Practitioner Panel which is a specialist section of Solicitors and like all such sections is designed to improve the standards competence and therefore efficiency of the profession ; and

(b) the creation of the Society of Trust and Estate Practitioners (STEP). The latter in particular has many non-solicitor members - generally accountants or bank officials - all of whom claim a competence in the field of probate, trusts, tax and will writing and with whom therefore the lawyers are in competition. STEP imposes experience, educational, continuing education, disciplinary and ethical standards on its members and to some extent therefore will in the writer’s view render the potential Authorised Probate Practitioner regulations unnecessary.

In the case of accident, injury, employment problems particularly concerning dismissal or harassment or some description, lawyers are in competition with "legal advisers" who operate on a no-win no fee basis generally dealing with cases where the party alleged to be at fault is insured, where there is almost certainly no doubt about liability and where the legal advisers secure their payment by an agreement with is a percentage (perhaps 25%) of the sum recovered. Such advisers are unregulated, are not in breach of any legislation because they are not acting as advocates, they do not issue proceedings which if issued are done by and in the name of the injured party, if at all, and such advisers are in competition with regulated lawyers.

Commercial transactions particularly are areas where lawyers do and for many years have taken part with other professionals. On the takeover of a company whether by shares or assets the lawyers will be involved generally with accountants and occasionally with other professions for example surveyors. The accountants normally deal with the financial aspects of the company - corporation tax, VAT

salaries and tax of employees. The surveyors will deal with the condition of the properties and perhaps an environmental audit of the land. The lawyers role will be to deal with the effective transfer of title to all assets and the efficacy of the overall agreement.

4. Which of the aforementioned activities were traditionally assigned to other professionals and today due to the increase of lawyers or changes in the profession itself are assigned to lawyers ?

4.1 Advocacy rights in the Courts have been the subject of disputes between Solicitors and Barristers and the effect is that many of the traditional rights which were reserved to Barristers have now been opened to Solicitors as well

It can be seen from the text of the Courts and Legal Services Act 1990 that the Government has the legal ability, even if it does not at the moment have the

political will, to create other groups who have rights of audience, rights to conduct litigation and the Council for

Licensed Conveyancers has the potential as mentioned

earlier to become a body which is authorised to grant licences for such rights. Any licences granted would

have to be subject to appropriate controls for competence and ethics but essentially the principle of Government is to extend the areas of competition for traditional lawyers. The same traditions restricted access to Barristers only through Solicitors but the changes in legislation now allow Barristers direct access to the public. The impact of this has yet to appear fully but the changes essentially are within the legal profession itself rather than extending the legal profession outside its normal area of work or allowing non-lawyers into the area of work of lawyers.

As other areas of advocacy have reduced the lawyers have sought to practise before tribunals where more often representation would have been the preserve of the trade unionist or where non-advocacy advice would have been given by a friend.

In the commercial area lawyers are probably more involved now in the formation and operation of companies, in advising on their obligations in respect of employees for employment conditions - harassment, dismissal, health and safety and in the company’s environmental obligations and in their commercial operations. In this they work with and are in competition with accountants and the large accountancy firms. The involvement in the writer’s view has increased not only because of lawyers seeking the work but because many of the problems derive from new legislation often imposed by the EU and the work is therefore seen to be more legal than anything else.

On the other hand which activities traditionally assigned to lawyers are nowadays being carried out by other professionals

In England and Wales the Courts and Legal Services Act 1990 to which reference has already been made stated as its objective the development of legal services (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new and better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice (S.17).

This statute contemplates bodies which set standards of educational and ethical competence but while it includes Barristers, Solicitors and Licensed Conveyancers it is certainly not limited to them.

Property transfers for reward were previously the preserve of lawyers but they now include Licensed Conveyancers ; the way in which such work is dealt with is also changing because of the commercial power of lenders and of selling agents.

Probates and Letters of Administration remain the statutory preserve of lawyers but in the light of the 1990 Act and the potential regulations on the as yet unappointed day and of the remarks made about STEP and its activities and influence, it is likely that these activities will not remain the preserve of Solicitors and Barristers for much longer.

Wills have never been a statutory preserve but traditionally were associated with property and probate work and therefore were drawn by Solicitors and Barristers. These are now in competition for the preparation of Wills drawn by people who advertise in Yellow Pages, who claim membership of the Will Writers’ Association or some similar body but who need have no competence and often have none and have merely purchased a commercial software package which enables them to produce a document which some clients believe is a perfectly effective Will.

In accident, personal injury and employment cases the growth of insurance cover and the arrival of contingent fees and conditional fee agreements means that the Solicitors and Barristers are in competition with unqualified legal advisers who are unregulated and in many cases unscrupulous and incompetent but about whom the public is incapable of making any judgment or proper assessment.

In company work the accountants seek to extend their area of work beyond the statutory reserve of the audit function and the preparation of accounts traditionally carried out by them.

5. Finally is the combined intervention in the undetermined zones more useful than controversial or vice versa ? What steps do lawyers take in order to avoid conflicts ?

5.1 The intervention described in the earlier part of this presentation is not combined. There is open competition within the legal profession ie between Barristers, Solicitors and Licensed Conveyancers though generally not with Legal Executives who tend to be employed by any of the former. These parts of the legal profession and of the more traditional legal profession of the Solicitors and Barristers are in competition with accountants and with those who are unqualified as previously indicated. The competition would be beneficial if lawyers could demonstrate superiority in education, competence, discipline and compensation but in England and Wales at least they have yet to do this. Conflicts in transactions where the work is combined - eg with lawyers, accountants and surveyors on company work as previously indicated, is generally avoided by the parties by very clear definition of the areas of competence and concern in any transaction. This is as much for the operation of the particular transaction as for the professional liability insurance of the professionals involved.

The division of the areas of competence and concern means that the professional ethical rules are often not called into question but the differences clearly exist as the recent case concerning Prince Jefri and KPMG has demonstrated and also the rules of conduct of The Law Society.