Solicitor

A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to practise there as such. For example, in England and Wales a solicitor is admitted to practise under the provisions of the Solicitors Act 1974. With some exceptions, practising solicitors must possess a practising certificate. There are many more solicitors than barristers in England; they undertake the general aspects of giving legal advice and conducting legal proceedings.[1]

In the jurisdictions of England and Wales and in Northern Ireland, in a few Australian states, Hong Kong, South Africa (where they are called attorneys) and the Republic of Ireland, the legal profession is split between solicitors and barristers (called advocates in some countries), and a lawyer will usually only hold one of the two titles. (In Scotland, the split is between solicitors and advocates). However, in Canada, Malaysia, New Zealand, Singapore 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. Some legal graduates will start off as one and then also qualify as the other.[2]

England and Wales

Before the creation of the Supreme Court of Judicature under the Supreme Court of Judicature Act 1873, solicitors practised in the Court of Chancery, attorneys practised in the common law courts and proctors practised in the ecclesiastical courts. After 1873 the offices of "attorney" and "proctor" disappeared as terms relating to legally qualified persons, being replaced by "Solicitor of the Supreme Court of England and Wales", except for the unique government offices of Queen's or King's Proctor (now generally Treasury Solicitor which is co-held with the title), and Attorney-General.[3] Since the replacement of the judicial aspect of the House of Lords with the Supreme Court the full title of a solicitor is "Solicitor of the Senior Courts of England and Wales".[4]

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 a "power of attorney". This may be a "general power of attorney"[5] or limited to a particular transaction; a Lasting Power of Attorney may be granted under the provisions of the Mental Capacity Act 2005 and is an exception to the normal rule that a power of attorney lapses if the donor becomes mentally incapable. Practitioners in specialist professions, notably intellectual property, are also referred to as attorneys, for example Registered Patent Attorney or Registered Trade Mark 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 criminal cases still 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 or above) and those of unusual complexity are tried in the High Court, and 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. 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.[6] Registered Patent Attorneys and Registered Trade Mark Attorneys also have rights of audience in intellectual property matters.

Regulatory scheme

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 these fees, acts independently of the Law Society. Together, the two bodies 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.

Training and qualifications

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[7] proceed to enroll 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 have completed a conversion course[8] 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.[9] The Legal Practice Course and training contract can also be undertaken simultaneously although this is less usual.[10] The training contract was formerly known as an articled clerkship.

It is possible to qualify as a solicitor without having attended university by being admitted as a Fellow of the Chartered Institute of Legal Executives, and thereafter completing the required number of years of practical experience, and studying for the Legal Practice Course.

Overseas qualified lawyers

Lawyers qualified in foreign jurisdictions, as well as English barristers, can take the Qualified Lawyers Transfer Scheme (QLTS) assessment, a fast-track route for qualification as an English solicitor which can be completed in a shorter or longer period of time, depending on the legal background of the candidate. There is no training or experience requirement under the QLTS, which comprises two assessments; a multiple choice test (180 multiple choice questions on 14 subject matters) and two practical assessments, the OSCE1 and OSCE 2 which include 9 written papers, 3 oral papers and 3 mixed written-oral papers on the most important areas of practice for solicitors (business law, probate, conveyancing, civil litigation, criminal litigation). The scheme is open to qualified lawyers in many common law and civil law jurisdictions, such as the US, Australia, South Africa, Nigeria, Brazil, Argentina, Turkey, Russia, China, South Korea, Japan, Singapore, India, Pakistan, all EU Member States, as well as other countries.

Although the scheme is open to also non-common law lawyers, the SRA upon launching this scheme, said "they are confident that the QLTS scheme will be 'rigorous', 'robust' and 'fairer' than the previous system - it will ensure that all solicitors qualifying to practise in England and Wales have 'the same standards of knowledge, skills and intellect', and meet the same test of character and suitability." [11]Independent research has also concluded that the QLTS assessments are ‘robust’[12]. Some candidates described it as "extremely tough."[13] In particular, the SRA has designed the OSCE assessment such that unless the candidate develops and demonstrates the necessary skills, knowledge and ability to apply the law in such a way as to meet their stringent criteria, it is unlikely to pass the assessment (especially for candidates from civil law jurisdictions).[14]

Distinction between barristers and solicitors, post-1990 changes

In England and Wales, the strict separation between the duties of solicitor and barrister was partially broken down, with the Courts and Legal Services Act 1990 removing the monopoly of barristers to act as advocates and granting solicitors rights of audience in specified circumstances. Solicitors came frequently to appear in the lower courts and, subject to passing a test and thereby obtaining Higher Rights of Audience, increasingly in the higher courts such as the High Court of Justice of England and Wales and the Court of Appeal. While the independent bar continued to exist in a largely unchanged state, a few firms of solicitors employed their own barristers and solicitor advocates to do some of their court work. The rules preventing barristers from being directly instructed were revised to allow direct instruction 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 under the Public Access Scheme.

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[15] 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.

The breakdown in the strict separation between barrister and solicitor was expected to go further following recognition by the Act of the Legal Disciplinary Practice (LDP)[16] (from 31 March 2009) and Alternate Business Structure (ABS)[17] (from 6 October 2011) bodies.

Ireland

Solicitors in 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; a few practising solicitors have no degree of any kind. Instead, individuals sit professional examinations which are set at degree level standard and undertake an intense apprenticeship program.

Irish independence in 1921 was marked more by continuity with the British legal system than with change. The legal profession remained divided between barristers (or abhcóidí in Irish) and solicitors (or aturnaetha in Irish). There was some blurring of the distinction between their 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 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 unlimited, but infrequently exercised in practice. South Australia and Victoria also have an independent bar but solicitors have full right of audience before all courts.

Hong Kong

Hong Kong has maintained the distinction between solicitors, regulated by The Law Society of Hong Kong, and barristers, regulated by the Hong Kong Bar Association. A person intending to become a solicitor must have a professional law degree, either LL.B. or JD or the equivalent, and complete the one-year Postgraduate Certificate in Laws (P.C.LL.) course. They must also complete a two-year trainee solicitor contract with a law firm. All solicitors in Hong Kong are admitted to the High Court of Hong Kong and thus bear the full title of "Solicitor of the High Court of Hong Kong".[18]

Solicitors enjoy rights of audience in the lower court and in chamber hearings in the High Court. For hearings in open court in the High Court and the Court of Final Appeal, only solicitors who have been certified as solicitor advocates may appear.[19]

United States

Historical usage

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.[20] With the chancery or equity courts disappearing or being subsumed under courts of law, solicitors became obsolete by the late 19th century.

Modern usage

In modern American usage, the term solicitor in the legal profession refers to government lawyers.

On the federal level, departmental solicitors remain in the Department of Labor,[21] Department of the Interior,[22] and the Patent & Trademark Office.[23] The Solicitor General of the United States is the lawyer appointed to represent the federal government before the United States Supreme Court.

In various states, the title "solicitor" is still used by town, city, and county lawyers. These states include Delaware,[24] Georgia,[25] Massachusetts, Maryland, New Hampshire, New Jersey, Ohio, Pennsylvania, Rhode Island, South Carolina, and West Virginia.

In South Carolina, a "solicitor" is a government attorneys, while "circuit solicitor" is analogous to that of prosecutor or District Attorney in other jurisdictions[26]

In the Commonwealth of Massachusetts, the professional organization for government lawyers was formerly known as the City Solicitors and Town Counsel Association.[27]

Common meaning of solicitor

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". Signs or decals bearing the phrase "No Soliciting" may also appear near the entrances to private residences in the U.S., especially in areas of high foot traffic. In addition to warding off salesmen when desired, these signs are also used to help deter proselytizing by religious groups such as Mormons and Jehovah's Witnesses who have a history of door-to-door canvassing in the U.S., seeking new converts to their respective faiths.

Japan

In Japan, Shihō-shoshi' (司法書士) are specialists in registration procedures for real estate and incorporation. With certification by the Ministry of Justice, they are also authorized to represent clients in civil suits filed in courts of summary jurisdiction (with claimed amount up to ¥1.4 million).[28] In 2006, their professional body, Japan Federation of Shiho-shoshi's Associations (日本司法書士会連合会) proposed that, in English, Shihō-shoshi be called "solicitor" and their organization "Japan Federation of Solicitor Associations," announcing that they would approach the government and other relevant parties to promote the use of the new translations.[29] The government agencies, however, continue to use the traditional translation "judicial scrivener."[30] Japan Federation of Shiho-shoshi's Association itself has not (as of August 2016) officially changed its English name as proposed.[28]

See also

References

  1. ↑ A Dictionary of Law (7 ed.), J Law and EA Martin, Oxford University Press, 2009, ISBN 9780191726729
  2. ↑ "Converting From Barrister To Solicitor". Aspiring Solicitors. Archived from the original on 27 September 2015. Retrieved 17 August 2015.
    - "Ex-Freshfields solicitor switches to the Bar". Archived from the original on 2 April 2015. Retrieved 17 August 2015.
  3. ↑ Oxford English Dictionary
  4. ↑ Solicitors Journal 5 October 2009
  5. ↑ Powers of Attorney Act 1971 section 10
  6. ↑ Public Access Archived 31 January 2009 at the Wayback Machine.
  7. ↑ "SRA - Academic Stage". Solicitors Regulation Authority. Archived from the original on 16 December 2008. Retrieved 4 January 2009.
  8. ↑ "SRA - Conversion Course". Solicitors Regulation Authority. Archived from the original on 18 December 2008. Retrieved 4 January 2009.
  9. ↑ "SRA - Training contract information". Solicitors Regulation Authority. Archived from the original on 27 December 2008. Retrieved 4 January 2009.
  10. ↑ "Period of recognised training (training contract)". Archived from the original on 29 August 2015. Retrieved 17 August 2015.
  11. ↑ https://www.lawgazette.co.uk/analysis/qlts-will-ensure-all-uk-solicitors-will-meet-the-highest-standards/52635.article
  12. ↑ https://www.qlts.com/uncategorized/future-of-the-qlts-sra-research-finds-dual-qualification-assessments-robust
  13. ↑ https://medium.com/@qltsosce/how-i-prepped-for-and-passed-the-qlts-osce-qlts-success-story-62e31f325e1f
  14. ↑ https://www.qlts.co.uk/ufaqs/main-reason-candidates-fail-qlts-assessments-2/
  15. ↑ "Clementi Review of Legal Services". Legal Services Review. Archived from the original on 12 April 2009. Retrieved 22 April 2009.
  16. ↑ "Legal disciplinary practice". Archived from the original on 15 August 2014. Retrieved 17 August 2015.
  17. ↑ "Alternative business structures". Archived from the original on 8 August 2014. Retrieved 17 August 2015.
  18. ↑ "The Law Society of Hong Kong : Hong Kong Solicitors". www.hklawsoc.org.hk. Archived from the original on 18 December 2012.
  19. ↑ "Solicitors gain higher rights of audience - Hong Kong Lawyer". www.hk-lawyer.org. Archived from the original on 13 May 2018.
  20. ↑ "Glossary of Terms" Archived 6 July 2008 at the Wayback Machine., Arkansas Territorial Briefs and Records, William H. Bowen School of Law, University of Arkansas at Little Rock, s.v. "Chancery". Retrieved 12 June 2009.
    - Frederic Jesup Stimpson, Glossary of Technical Terms, Phrases, and Maxims of the Common Law, s.v. "Solicitors", (Boston: Little, Brown and Co., 1881), 273.
  21. ↑ "Office of the Solicitor (SOL) - U.S. Department of Labor". www.dol.gov. Archived from the original on 1 June 2017.
  22. ↑ "Office of the Solicitor". www.doi.gov. Archived from the original on 13 May 2017.
  23. ↑ Counsel, Office of General. "Office of the Solicitor". uspto.gov. Archived from the original on 12 June 2017.
  24. ↑ "Civil - Attorney General, Matt Denn - State of Delaware". delaware.gov. Archived from the original on 2 June 2017.
  25. ↑ "State Court Solicitor - Augusta, GA - Official Website". www.augustaga.gov. Archived from the original on 10 July 2017.
  26. ↑ "Home". dilloncounty.sc.gov. Archived from the original on 12 June 2017.
  27. ↑ "Massachusetts Municipal Lawyers Association – The Bar Association of Massachusetts Municipal Attorneys". www.massmunilaw.org. Archived from the original on 6 November 2017.
  28. 1 2 "Shiho-Shoshi Profile". Japan Federation of Shiho-shoshi's Associations. Archived from the original on 11 March 2016. Retrieved 29 August 2016.
  29. ↑ "理事会レポート" [Board of Directors' Report] (PDF). Monthly SHIHO-SHOSHI (in Japanese). Vol. No.416. Tokyo, Japan: Japan Federation of Shiho-shoshi's Associations. 2006. p. 52. Retrieved 29 August 2016.
  30. ↑ "Ministry of Justice 2016" (PDF). Ministry of Justice. p. 29. Archived (PDF) from the original on 13 September 2016. Retrieved 29 August 2016.
    - "WTO: Revised Offer (Outline)". Ministry of Foreign Affairs of Japan. Archived from the original on 7 February 2014. Retrieved 29 August 2016.
This article is issued from Wikipedia. The text is licensed under Creative Commons - Attribution - Sharealike. Additional terms may apply for the media files.