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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) the administration of estates. 7 The duties of solicitors towards their clients are governed both by statute and their code of professional conduct. In the case of barristers the obligations are governed solely by the dictates of professional etiquette. The rules of conduct may change from time to time and may be altered by the Inns of Court on behalf of their members or by the Senate of the Inns of Court and the Bar. 8 Even from the introductory sentences it is clear that here I am speaking about representatives of two different professions which has its own traditions and areas of practice inside one field. These professions have evolved as separate ones. The advocates with audience in the common law courts were the serjeants and barristers. While the preparatory work was carried out by officer of the court, known as attorneys. In such a way developed two classes of legal practitioners: serjeants and barristers on the one hand and attorneys, solicitors at present time, who are officers of the court, on the other. Since the UK has its distinctive legal system, the possibility of having two types of legal practitioners should be regarded as a common trait of such system. The whole legal system of the UK has shown that it can proceed very well, since the barristers and solicitors are indispensable part of this system there is no need to change the status quo. With regard to a controversial issue of fusion Royal Commission, which was set up in 1976 to inquire into the law and practice relating to the provision of legal services in England, Wales and Northern Ireland stated:” a two-branch profession is more likely than a fused one to ensure the high quality of advocacy which is indispensable, so long as our system remains in its present form, to secure the proper quality of justice” 9 Who else than a Royal commission can adjudicate on the appropriateness of having two separate legal professions. Since the small cases can be handled by the barrister or solicitor separately, large cases will demand far greater input. The outcome of such case in situation where it is handled by either barrister or solicitor will be unpredictable. In some areas barristers and solicitors are performing similar tasks. For example, barristers are mainly engaged in “paper-work”, while solicitors are dealing with preparatory stages of litigation such as the preparation of evidence, issuing writs. The nature of these actions is similar. Nevertheless, they are performed to achieve different goals. Since only solicitors have a right of audience in most courts and tribunals and are instructed by their clients directly, it may appear that barristers, who have access only to magistrates, are put in unfair position. It may seem that while comparing to the structure of ECJ a solicitor is similar to Advocate General of ECJ and solicitors are similar to legal secretaries – representatives of lover level of hierarchy of ECJ. Maybe fusion may level their status? In practice this is not true. The distinction between these two professions is very strong. The right of access to the court does not always guarantee a solicitor higher salary or higher amount of clients. Barristers are drafting complex settlements and opinions on specialized maters such as taxation and company law. 10 Types of cases that barristers and solicitors are dealing with are completely different. Barristers and solicitors face similar types of problems. Since the representatives of both professions are bar members they are subject to the decision of the respective bar associations with regard to the fees charged. The comments about fees are based on the duty of “advocates (solicitors and barristers)” not to 7 Note 1. Supra at 250. 8 Note 1. Supra at 273. 9 Report of the Royal Commission on Legal Services (Cmdh. 7648). Paras 17.45-17.46 in R. Walker (ed.) The English Legal System (Butterworths, 1985) at 250. 10 Note 1. Supra at 249. VIKTORS URVAČOVS - BARRISTERS AND SOLICITORS SHALL REMAIN SEPARATE LEGAL PROFESSIONS 138
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) exploit the monopoly for providing legal services by excessive demands for fees” 11 Barristers and solicitors could be regarded as deeply specialized professionals in respective fields. Each willing that ones talent and skills will be valued at substantially high level. This is the main similarity. Regarding the work, which they perform, neither of them could personify an outstanding tax lawyer, collector of evidence and representative of a party in a High court at once. Of course there could be exceptions. Most solicitors, especially those in large practices, are experts in particular areas of law. 12 Many barristers on the other hand might have a quite wide range of work including criminal, family matters and a variety of common law areas like tort and contract cases. 13 Other problem is of educational nature. Many trainee lawyers did not know which way to choose: to be a barrister or to be a solicitor. They face this question before even knowing at which sphere he or she is best at. The anomaly is enhanced by the fact that there are practicing barristers – conveyancing counsel, for example – who barely even go into court, and solicitors – magistrate’s court advocates, for example – who rarely go anywhere else. 14 But these things, nevertheless, could not challenge the stability of the system as whole. As in many spheres of life there is always some aspect, which can be improved. In my opinion the system that is applied in UK regarding the division of responsibilities of advocate between barristers and solicitors shall be examined in European countries. As for Latvia, the possibility of having two types of legal practitioners would increase the quality of services provided and will balance the workload between practicing lawyers. Number of lawyers in Latvia is not clear. A person can only find out the number of the number of advocates in Latvia because they have a bar association. Inconveniences are caused also by the fact that according to the decision of Constitutional Court in case 2003-04-01 15 , basically everybody can present a party in court, provided that he has basic legal knowledge and skills. Such people are unaccountable and the damages, which a client suffers as a result of the actions of such a representative, could not be compensated. Contrary in UK there are bar associations of both barrister and solicitors. Each and every person who practices law is accountable and could be subject to sanctions from ones bar association. The issue of accountability of law practitioners is one of the most important while comparing the situation in law sphere in Latvia and UK. I have faced the problem of overload of practicing lawyers. At the same time people have to prepare for court cases and compose memoranda. This is very hard to manage at the same time. Each direction requires a lot of input. The quality of work suffers a lot. If the English perspective would have been implemented in Latvia it would be better for the people and for the functioning of the whole legal system. There is no necessity to fuse these two professions. According to Access to Justice Act (chapter 12) Lord Chancellor will in future be able to authorize bodies other than the Law society to approve their members carrying out litigation. This will increase competition and will have a positive impact on the administration of justice throughout the country. 16 11 G. Moss”Insolvency barristers’ fees in the 21st century”, (1998), 11(7). (Insolvency Intelligence), 53-54 12 G. Slapper. and D. Kelly (eds.), The English Legal System (fourth edition) (Cavendish publishing limited, 1999) at 418. 13 Ibid. 14 Sir Stephen Sedley, “The future of advocacy” in G. Slapper and D. Kelly (eds.), The Sourcebook on the English Legal system (Cavendish Publishing, 2001) at 466. 15 http://www.satv.tiesa.gov.lv/LV/Spriedumi/04-01(03).htm. 16 Note 12. Supra at 419. VIKTORS URVAČOVS - BARRISTERS AND SOLICITORS SHALL REMAIN SEPARATE LEGAL PROFESSIONS 139
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