UPDATE 2011-2012 ON THE LEGAL PROFESSIONS IN ENGLAND AND WALES AND OTHER RELEVANT LEGAL ISSUES (10th January

2012) When we talk about the legal professions in England and Wales, we should refer to: the solicitor and barrister professions who defend a client's interests in court (for litigation cases) or out of court (for non litigation cases) judges For a long time solicitors were described as mere legal advisers of clients as opposed to barristers who had a role of representation in court. With the evolution of the legal market since the Courts and Legal Services Act 1990, followed more recently by the Legal Services Act 2007, this description is no longer totally appropriate. ACADEMIC BACKGROUND Solicitors & barristers The information set out in the book regarding solicitors' and barristers' academic and professional background has not changed. A few interesting figures1: 120 new QC's took silk in 2011; each paid 7,000 including application fee and appointment fee. Out of the initial 251 applications, there were 5 from solicitor advocates but only 2 of them were successful. ''the number of women awarded QC status increased to 27 from 20 in 2009-10 and 16 in 2008-09. The number of female applicants, however, decreased to 41 from 46 last year. Twelve applicants who declared an ethnic origin other than white were successful. The figure is down on the 2010 equivalent of 17; however, only 20 ethnic minority candidates applied this year compared with 35 candidates in 2010 ''. Judges Unlike France where judges have to pass a concours (ENM for juges judiciaires or a specific concours or alternatively the ENA for juges administratifs), judges in Britain are former practising solicitors or barristers. Until recently only barristers could apply for a judicial appointment. Solicitors can now also apply. However research and statistics show that despite the fairly recent opening of the profession to solicitors, most aspiring judges are barristers. The reason seems to be the work conditions of both professions: a set of chambers will always support a barrister who aspires to become a judge (it will improve its image) unlike a firm of solicitors which will see it as the possible loss of a fee earner2. For most judicial posts, the applicant must have practised as a solicitor or barrister for at least 5 or 7 years (depending on the post) although experience shows that most judges have practised for longer than that. Since the implementation of the Tribunals, Courts and Enforcement Act of 2007 some (limited) judicial positions have become open to professions other than solicitors or barristers, such as legal executives, members of the Institute of Trade Mark Attorneys or Chartered Institute of Patent Attorneys3.
1 For info on applications for silk and outcome of applications: <http://www.legalweek.com/legalweek/analysis/2034665/silk-round-2011-reaction-chambers-perspective> 2 For further info, see the following article in the Law Society Gazette: ''Solicitors believe judicial appointments not for me, JAC research finds'' by Catherine Baksi (03/06/2009): <http://www.lawgazette.co.uk/print/51155> 3 For further info see the website of the Judicial Appointments Commission: <http://jac.judiciary.gov.uk/application-

Research shows that most ''traditional'' judges (High Court, Crown Court, Court of Appeal and of course Supreme Court) come from a very traditional background. According to the Sutton Trust's report: ''73 percent of barristers in 1989 had attended fee-paying schools, just five percent more than'' in 2005, ''as had 76 percent of judges, a figure that has not changed significantly []. In 2004 82 percent of UK-educated barristers had attended Oxford or Cambridge, as had 81 percent of judges''4. At today's date, all Supreme Court judges are former barristers. Former Supreme Court Justice Lord Collins (up to April 2011) used to be head of the litigation department at City firm Herbert Smith, one of the largest UK firms of solicitors. It may be of interest to students to point out that in France, you can be a judge at 23 whereas in the UK you are unlikely to get a judicial position until you are in your forties. This may reflect on the quality of their judgments and maybe justice itself. CHANGES IN THE PROFESSIONAL ORGANISATION OF SOLICITORS AND BARRISTERS A few numbers Solicitors According to the Law Society (pages 5 & 6 of the report below): in July 2009, 115,500 solicitors holding a practising certificate 85,000 of them work for private practice (i.e. for a firm) 1/3 of practising certificate holders were based in London but only 27% of private practice firms 85% of firms have 4 or fewer partners Sole practices represent 40% of firms, but only employ 8% of all private practitioners5 By the end of November 2011, the number of solicitors had gone up to 125,500. Barristers In December 2010 there were 12,500 barristers working for chambers (68% male & 32% female)6. There are currently 330 sets of chambers in England and Wales, 198 of them being based in London7. Courts and Legal Services Act 1990 Solicitors (litigators) have since gained '' rights of audience '' before the higher courts and can become solicitor advocates if they follow the appropriate training. We must emphasise that even before that reform solicitors could: plead a case before the lower courts including the magistrates courts and the county courts .
process/6.htm> 4 <http://www.suttontrust.com/research/law-educational-backgrounds/> 5 <http://www.lawsociety.org.uk/secure/file/183555/e:/teamsitedeployed/documents/templatedata/Publications/Research%20Publications/Documents/asr2009report.pdf)> 6 <http://www.barcouncil.org.uk/assets/documents/Self%20Employed%20Bar%20by%20Ethnicity%20and %20Gender.pdf> 7 <http://www.barcouncil.org.uk/assets/documents/Table_5_Annual%20Statistics%202010.pdf>

The county courts are the courts having original civil jurisdiction (juge de droit commun en matire civile unless some other specific court has jurisdiction) appear before certain higher courts for the hearing of specific applications (''higher courts'' refer to the High Court, Crown Court, Court of Appeal and Supreme Court although solicitors (non advocates) will not appear before the Supreme Court for preliminary hearings). It is therefore wrong to assume that before 1990 solicitors could not do advocacy and merely had a duty of advice to the client. However the reform has not been that successful: the number of solicitor advocates remains quite low, about 4,000 for a total number of solicitors in private practice of 85,0008. The Solicitors Association of Higher Court Advocates (SAHCA) has expressed its concern about a governemental scheme purporting to enable judges to assess them when they perform advocacy. According to the SAHCA it would create a form of discrimination compared to barristers. The scheme was meant to be partly introduced in December 2011 and then fully in spring 2012'9. The respective professional bodies of solicitors and barristers remain the Law Society and the Bar Council. However the Legal Services Act 2007 has brought the professions closer by setting up the Legal Services Board. According to its website10 : ''We are the new, independent body responsible for overseeing the regulation of lawyers in England and Wales. Our goal is to reform and modernise the legal services market place by putting the interests of consumers at the heart of the system ''. The LSB is now the single regulator of the whole legal profession. Public Access Rules 2004 ''Members of the public are now able, in many circumstances, to instruct a barrister direct'' 11. However in practice most of them still receive their briefs from solicitors. Two reasons for that: the tradition remains that solicitors instruct counsel + barristers prefer it if solicitors ''screen'' the case i.e. do the preparation work (save if barristers are instructed by professionals such as banks, firms of accountants etc). Solicitors and barristers getting closer? In order to do legal aid work, lawyers must bid for a contract which allows them to become legal aid suppliers. In order to increase their chances in an increasingly difficult legal market, 15 firms from South Wales have recently formed an alliance with a set of chambers to bid for a criminal legal aid contract. This is an innovation and may open the door for the two professions to become (even) closer..... CHANGES IN THE LEGAL MARKET Creation of legal expenses insurance Nowadays people are encouraged to take out a legal insurance policy which will cover them against the possible costs of a legal action being brought against them. This has been encouraged by the government in the last few years as the government hopes to save public money by finding an alternative to applications for legal aid from people who can't afford defending a legal action. We 8 You can find more info about solicitor advocates on the following site: <http://www.sahca.org.uk/ For info on the
number of solicitors etc in England and Wales, look at http://www.lawsociety.org.uk/secure/file/183555/e:/teamsitedeployed/documents/templatedata/Publications/Research%20Publications/Documents/asr2009report.pdf> 9 <http://www.lawgazette.co.uk/news/solicitor-advocates-make-final-effort-halt-scheme> 10 <http://www.legalservicesboard.org.uk/> 11 <http://www.barcouncil.org.uk/about/publicaccess/>

will see below that a legal aid reform is pending and that the means test (one of the conditions which must be fulfilled to obtain legal aid together with a merits test) will no doubt be made even more restrictive in the near future. Creation of Alternative Business Structures (ABS reform) This was the MAJOR change of Autumn 2011 (at least on paper) and it should at some stage deeply change the current legal market, the legal professions and eventually access to justice. ABSs have been nicknamed ''Tesco law'' after the big supermarket chain. Why Tesco? Because in 2004 Tesco started selling cheap landlord & tenant legal kits, divorce kits, employment dispute kits, for about 7 or 8 each, which were supposed to enable someone to do his own DIY litigation. Tesco even set up an online shop12. The ABS reform was meant to come into full effect on 6th October 2011. The Council of Licensed Conveyancers (non solicitors who do conveyancing which is the legal transfer of property from one person to another) was approved by the Legal Services Board as an ABS regulator and was thus able to grant ABS licences from 6th October. The Law Society (the solicitors' professional body) was also recently approved and should begin licensing very shortly (early 2012)13. The date has otherwise been postponed for other professions/businesses to a later date due to parliamentary timetable constraints. Non-lawyers will now be able to invest in legal businesses and own them. The legal professions are currently not too worried about this reform which should affect ALL aspects of their work (litigation and non litigation). When the Licensed Conveyancers' profession was created by the Administration of Justice Act 1985, solicitors specialised in conveyancing (role fulfilled in France by notaires) did not panic. They lost their monopoly but a good proportion of clients/consumers who had left firms of solicitors to go to licenced conveyancers soon came back to solicitors. According to the Ministry of Justice: ''non-legal firms such as insurance companies, banks and estate agents will have the freedom to realise synergies with legal firms by forming ABS firms and offering integrated legal and other professional services...Allowing new providers into the marketplace should lead to innovation and price reductions...Firms wishing to combine legal and non-legal services will need to satisfy licensing authorities that they are competent to provide such services''14. Some people have said that ABS will lower the quality of the legal services provided and leave the door open for ethical problems such as conflicts of interest etc. The Co-operative has already announced its intention to apply for a licence. This is exactly the sort of company solicitors should be wary of. THE JACKSON REPORT Lord Jackson's report was published in mid-January 2010 and its aim is ''to rein in the costs of civil justice''. The judiciary was ''concerned about the escalating costs of civil justice. Those costs are often disproportionate to the issues, in particular the sums at stake''. The report is 550 pages long and the main points are as follows: '' Proportionality - the costs system should be based on legal expenses that reflect the nature/complexity of the case . Success fees and after the event insurance premiums to be irrecoverable in no win, no fee cases (CFAs Conditional Fee Agreements) .
12 <http://www.venables.co.uk/n0409tescolaw.htm> 13 <http://www.lawsociety.org.uk/practicesupport/regulation/absfaqs.page> 14 <http://www.justice.gov.uk/publications/docs/abs-fact-sheet.pdf>

 To offset the effects of this for claimants, general damages awards for personal injuries and other civil wrongs should be increased by 10% . Referral fees should be scrapped - these are fees paid by lawyers to organisations that sell damages claims but offer no real value to the process . Qualified one way costs shifting - claimants will only make a small contribution defendant costs if a claim is unsuccessful (as long as they have behaved reasonably), removing the need for after the event insurance . Fixed costs to be set for fast track cases (those with a claim up to 25,000) to provide certainty of legal costs ... Establishing a Costs Council to review fixed costs and lawyers hourly rates annually, to ensure that they are fair to both lawyers and clients . Allowing lawyers to enter into Contingency Fee Agreements, where lawyers are only paid if a claim is successful, normally receiving a percentage of actual damages won .; and Promotion of before the event legal insurance, encouraging people to take out legal expenses insurance e.g. as part of household insurance ....''15 The idea of making civil justice cheaper etc. is far from new. See the Civil Procedure Rules (Woolf reform) of April 1999. Incidentally the Woolf reform has proved to be a quasi-failure and likewise, the Jackson report has been heavily criticised by the legal professions because some of its aspects are difficult to implement in practise and are not necessarily in favour of a better access of litigants to justice. Early December 2011, justice secretary Kenneth Clarke announced that he would be delaying the legal aid reforms to give the legal profession time to implement other changes such as Alternative Business Structures16. LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS REFORM The legal aid (and other!) reform is another MAJOR reform on the cards by which the government hopes to save public money. It is (indirectly) linked to the Jackson report and to the government's wish to save public money. The Legal Services Commission had said that some provisions should come into force on 3rd October 201117 but as mentioned above this has now been delayed. Any application for legal aid is means and merits tested and over the last few years the government has regularly reviewed the tests to make it harder to obtain legal aid. The 2bn legal aid budget is facing cuts of 350 million18. For some odd reason (maybe that of ''killing two birds with one stone'') the government published on 21st June 2011 a ''general'' bill called Legal Aid, Sentencing and Punishment of Offenders Bill19. The Parliament then tried to force it through just before going on recess by going through two subsequent readings on 21st and 29th June 2011. The Law Society President commented: ''The government is hell bent on introducing a piece of legislation that will increase crime, weaken social cohesion and cost taxpayers more than it cuts'' and it was pointed out that the Parliamentary protocol is usually to allow for two weekends between two readings20. The idea of mixing the legal aid reform with a criminal reform came from Justice secretary Kenneth Clarke who wanted to give
15 <http://www.judiciary.gov.uk/media/media-releases/2010/media-release0210> 16 <http://www.lawgazette.co.uk/blogs/blogs/news-blogs/will-jackson-reforms-go-hold? utm_source=emailhosts&utm_medium=email&utm_campaign=Gazette+-+12+Dec+2011> 17 <http://www.legalservices.gov.uk/civil/legal_aid_reform.asp> 18 <http://www.lawgazette.co.uk/news/clarke-rules-out-further-raid-legal-aid-pot> 19 <http://www.publications.parliament.uk/pa/bills/cbill/2010-2012/0205/2012205.pdf> 20 <http://www.lawgazette.co.uk/news/fast-track-second-reading-legal-aid-and-sentencing-bill-condemned>

offenders a 50% reduction in jail terms in return for early guilty pleas. It looks like the government has now done a U-turn on this particular issue. Both legal professions are against the reform. For the chairman of the Bar Council: '' the numbers of litigants in person will rise significantly if these reforms are implemented. The [...] withdrawal of legal aid in private family law cases risks courts being clogged up with stressed DIY litigants, who will not have access to qualified legal representatives. Vulnerable people will be forced to go to court alone to attempt to find access to justice. As a result, these cases will take longer and the system will cost more''21. Boris Johnson (mayor of London) has recently expressed his concern that the cuts in legal aid will potentially make it impossible for women who suffer violence to seek a divorce. The new rules should indeed require the woman to provide specific evidence of the violence sustained. LIBEL REFORM A Libel reform bill was unveiled in March 2011 and its aim is to fight against ''libel tourism''. It follows, amongst other things, the famous Simon Singh case. In the autumn a parliamentary committee recommended that juries be removed from libel trials save for ''exceptional cases involving public figures ''. The underlying idea is to make it ''more difficult for large corporations to sue newspapers '' 22. May I draw your attention to Berezovsky v. Terluk [2011] EWCA Civ 153423, an interesting libel case in which judgment was handed down on 15th December 2011 by the Court of Appeal. This will mostly be of interest to M1 teachers. EUROPEAN CONTRACT LAW REFORM It has been on the cards for a long time but recently the European Commission has recently taken more steps in that direction. A consultation was conducted in July 2010. The Commission recently published a ''Feasibility Study'' and had invited comments by 1 July 2011. Nobody (UK, France etc) seems keen on a European contract law reform but still, the European Commission seems to get on with it. At today's date nobody seems to know what could eventually be achieved. The legal profession(s) in Britain is/are opposed to it.

21 <http://www.barcouncil.org.uk/news/latest/728.html> 22 <http://www.guardian.co.uk/media/2011/oct/19/libel-reform-juries-dropped> 23 Here is a link to the decision published on bailii: <http://www.bailii.org/cgi-bin/markup.cgi? doc=/ew/cases/EWCA/Civ/2011/1534.html&query=berezovsky+and+2011&method=boolean>