Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers (or, in Scotland, advocates), and a lawyer will usually only hold one title. However, in Canada, New Zealand and most Australian states, the legal profession is now for practical purposes "fused", allowing lawyers to hold the title of "barrister and solicitor" and practise as both. The distinction between barristers and solicitors is, however, retained. Some legal graduates will start off as one and then decide to become the other.[1]
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Legal profession
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Before the unification of the Supreme Court under the Judicature Act 1873, solicitors practised in the Chancery Courts, attorneys practised in the Common Law courts and proctors practised in the Ecclesiastical Courts. After 1873 the titles of "attorney" and "proctor" disappeared as terms relating solely to legally qualified persons, being replaced by "Solicitor of the Supreme Court" in all courts.[2] Since the replacement of the House of Lords with the Supreme Court the full title of a solicitor is now “solicitor of the Senior Courts of England and Wales”.[3]
The term "attorney" is however still used under English law to refer to someone legally appointed or empowered (who may but need not be legally qualified) to act for another person. Currently, the term is most commonly used to refer to someone so appointed under the provisions of the Mental Capacity Act 2005 to act in this manner in a Lasting Power of Attorney.
In the English legal system, solicitors traditionally dealt with any legal matter including conducting proceedings in courts although solicitors were required to engage a barrister as advocate in a High Court or above after the profession split in two. Minor criminal cases are tried in Magistrates' Courts, which constitute by far the majority of courts. More serious cases start in the Magistrates Court and may then be transferred to a higher court. The majority of civil cases are tried in county courts and are almost always handled by solicitors. Cases of higher value (£50,000.00 or above) and those of unusual complexity are tried in the High Court, and the advocates in the High Court were until recently barristers engaged by solicitors to assist. Barristers, as the other branch of the English legal profession, have traditionally carried out the functions of advocacy in the High Court and Crown Court and Court of Appeal. However, barristers have now lost this exclusivity and solicitors may now extend their advocacy to such courts. In the past, barristers did not deal with the public directly. This rigid separation no longer applies. Solicitor advocates with extended rights of audience may now act as advocates 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.[4]
Solicitors in England and Wales who wish to practise must pay an annual fee to obtain a Practising Certificate. This fee is paid to the Law Society of England and Wales, which represents the profession. The Solicitors Regulation Authority though funded by solicitors mandatory annual fees to the Law Society act independently of the Law Society, but together make up the complete system of professional regulation for solicitors. Complaints about solicitors if not satisfactorily resolved by the solicitors' firm may be made to the Legal Ombudsman.
The training and qualification required to enter the profession by being admitted as a solicitor is regulated by the Solicitors Regulation Authority. There are two graduate routes of entry into the profession. Prospective solicitors holding a qualifying law degree[5] proceed to enrol with the Law Society as a student member and study the Legal Practice Course. Those holding a non law degree but one which is a "qualifying degree" must in addition completed a conversion course[6] prior to enrolling on the Legal Practice Course. Once the Legal Practice Course has been completed, the prospective solicitor usually must then undertake two years' apprenticeship, known as a training contract, with a firm entitled to take trainee solicitors.[7] The training contract was formerly known as an articled clerkship.
It is also possible to qualify as a solicitor without having attended university by being admitted as a Fellow of the Institute of Legal Executives (FILEX), and thereafter completing the required number of years of practical experience, and studying for the Legal Practice Course.
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 and thereby obtaining Higher Rights of Audience) 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 of their 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[8] 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'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 Justiciary 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 requires 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 Professional Legal Practice (a one-year course provided by several Scottish universities) and then undertake a two-year traineeship 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 practise 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 (also 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).
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. In Ireland it is quite possible to become a solicitor without holding a law degree. Indeed a small number of practising solicitors hold no degree whatsoever. Instead individuals sit professional examinations which are set at degree level standard and undertake an intense apprenticeship program. However those who have recently qualified with a law degree would have the advantage over non-degree holders as they would have near expert knowledge in the study of the law and should have little difficulty with the examinations.
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.
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 practise 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 practise in the other branch of the profession. Thus, while members of the bar practise 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 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.
In the English-speaking common law jurisdictions of Canada, the profession of barrister and solicitor have been fused; all those called to the bar are lawyers, and admitted as solicitors. While many barristers and solicitors choose to practise 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".
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.
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.[9][10] With the chancery or equity courts disappearing or being subsumed under courts of law, solicitors became obsolete by the late 19th century. 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 Commonwealth 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 of the United States is the lawyer appointed to represent the federal government before the United States Supreme Court. In the U.S., "solicitor" is also used synonymously with salesman (with a pejorative connotation roughly equivalent to the British English word tout) as in the signed warning on public places of accommodation, "no soliciting".
In South Carolina, the position of "Circuit Solicitor" is analogous to that of State's Attorney or District Attorney in other jurisdictions.