Practitioners

A range of different groups are entitled to practise law. These include those authorised directly by the approved regulators.

¹² Solicitors Act 1974, ss 20 and 21, as amended.

¹³ Agassi v Robinson [2006] 1 All ER 900 (CA).

¹⁴ ibid, at [81].

A. Barristers

i. Right to Practise

a. Non-practising Barristers

Barristers can only practise as such if called to the Bar by one of the Inns. They must have satisfied the Bar’s educational requirements and joined an Inn. Those who have completed the Bar Vocational Course (BVC) and have been called to the Bar are entitled to use the title barrister even though they have not completed pupillage. In these circumstances they have not completed their training, cannot acquire a practising certificate and therefore cannot practise as barristers.

In 1995, in order to deal with the apparent anomaly that barristers could be ‘called’ but not entitled to practise, the Bar ratified the policy that call should be deferred until the completion of either the first or second sixth months of pupillage. This was to alert the public to the fact that a non-practising barrister had not completed pupillage, was not subject to Continuing Professional Development requirements and might not be insured against professional negligence.

Implementation of deferral of call was stalled amid fears of a challenge on the ground of discrimination. Subsequently there was further debate on the possible negative impact of deferring call on the flow of students from overseas common law jurisdictions to the BVC. Many jurisdictions recognise call to the English Bar as a part of their own qualification regimes. It was on this ground that a number of specialist Bar associations objected to deferral of call.^[583] The loss of overseas students qualified as English barristers would, it was feared, diminish the influence of the English Bar overseas.^[584]

A review of the regulation of legal services cited the tortuous deliberations over deferral of call as illustrating the over-complexity of the Bar’s regulatory structure.^[585] Finally, the Bar Standards Board reversed the decision to defer call, suggesting that it would be an inappropriate and disproportionate response to the risk of consumer confusion.^[586] Consequently, non-practising barristers may undertake legal work on the same basis as a layperson, but must make clear that they are non-practising barristers.^[587] They must also make clear the implications of their status for their regulation.

b. Employed Bar

Approximately 2500 barristers are employed by organisations, such as solicitors’ firms, commercial companies or government agencies. Employed barristers can hold practising certificates but can only provide legal services to members of the public as permitted by the Code of Conduct. So, for example, barristers employed by spe­cific organisations, such as the Legal Services Commission, can supply services to criminal defendants and those employed in advice centres can supply legal services to the centre’s clients.^[588] Barristers employed in non-authorised bodies, organisations like companies, can only supply legal services to specified others, including fellow employees or other organisations.^[589] Barristers employed by authorised (non-BSB) bodies, such as solicitors’ firms, can provide legal services to the clients of the firm.^[590]

c. Private Practice

Business Units

The majority of barristers occupy chambers in one of the four Inns of Court (Gray’s Inn, Lincoln’s Inn, Inner Temple or Middle Temple) within a mile of the High Court on Strand in Central London. Many metropolitan centres outside London support small local bars. Before 1987, chambers in London had to be situated in an Inn. Pressure on space led to the abandonment of this rule and many chambers are now based outside the Inns. Further, barristers of over three years’ call can practise from their home and about 250 do this. Since 2005 barristers must hold a current practis­ing certificate. They must also be insured for professional negligence through the Bar Mutual Indemnity Fund (BMIF) in accordance with terms approved by the Bar Council from time to time. Finally, since 1997 they must comply with requirements for post-qualification continuing education.

The traditional mode of practice for barristers was designed to protect independence. According to the old Bar Code of Conduct, barristers in private practice must be, ‘completely independent in conduct and professional standing as sole practitioners...

The day to day running of chambers is typically organised by a chief clerk. These share a percentage of each barrister’s brief fees and can command large incomes.^[592] They can be powerful figures because they allocate work between members. Nowadays, in addition to a senior barrister, or head of chambers, with general management respon­sibilities, many chambers also employ a chambers manager, possibly instead of a clerk. Barristers, whether in London or the provinces, must be a member of an Inn. These connections provide access to library and other facilities and encourage a collegial ethos. Provincial barristers are also encouraged to join one of the six circuits in England and Wales, but this is not compulsory.

A set may contain several Queen’s Counsel (QCs) but the majority of its members will be junior counsel, that is, career barristers who have not yet been appointed QC. Each set of chambers is normally headed by a QC but this is not compulsory. In addition there will be some pupil barristers in training and maybe some ‘squatters’ and door tenants who have the right to practise but who are not formally members of the chambers and do not contribute to the running costs. There are about 300 sets of chambers with an average membership of t30, although some chambers have over 100.

Hierarchy

The Bar has a clearly defined professional hierarchy. Barristers are identified by their year of call. After a decade or more of practice barristers can apply for ‘silk’, that is to become Queen’s Counsel (QC).

QCs are instructed in more difficult or serious cases and receive higher fees. They can insist on the appointment of a junior, a non-QC barrister, who drafts the papers for the case. The process for appointing QCs used to be obscure, depending in part on ‘secret soundings’ amongst the judiciary. It offended all the normal recruitment or promotion policies common in industry or the public service. The Law Society was vociferously against the system which discriminated against solicitor advocates. The Lord Chancellor set up a committee to look into the issue, chaired by Sir Leonard Peach, which reported in 2001.^[593] In 2003 the Lord Chancellor announced that the system would cease and the appointment of QCs was suspended. It was then decided to allow the QC title to continue but that appointment to it would be subject to a merit-based system of open competition.

From July 2005 the system for appointing QCs changed. Applicants must now apply anonymously and include references from judges and clients. Applications are made to the Ministry of Justice and are considered by an interview panel consisting of a lay chair, three other laypersons, two solicitors and barristers and one retired judge. They work to an agreed set of competences and have the advice of an HR professional. The cost of the new system is to be met by the fees paid by the applicants. The first appoint­ments under this system were made in July 2006. The numbers of female applicants (68) almost doubled over those applying in 2003 (39). The success rate of female applicants also doubled, from under a quarter in 2003 to nearly half.^[594] Ten applicants from ethnic minorities and four solicitors were also appointed.

Receiving Work

A major restriction on the way that barristers could offer their services to the public was the rule that they could be briefed only by solicitors, not instructed by clients directly.

As the respective monopolies of barristers and solicitors were eroded throughout the 1980s and 1990s, so was the barristers’ role as consultants. Direct professional access to barristers was first permitted by the Bar Council in 1989 when members of certain professions, such as accountants and surveyors, were permitted to brief bar­risters without using solicitors as intermediaries. This mechanism, which was known as Bar Direct, was gradually extended to other professions or employees of public bodies throughout the 1990s.

In 2004 a more general direct access to barristers by members of the public was introduced. The move was a response to a report from the OFT in which the old rule was criticised as an unjustifiable restrictive practice.^[595] It was accepted by the Bar Council as a response to its own Kentridge Report.^[596] Access was restricted to barristers of over three years’ call who had completed a one-day training course covering record keeping and money laundering rules. The Public Access Rules provide that members of the public can instruct barristers directly. This means that clients need not instruct a solicitor in order to have access barristers’ services. Clients carry out the routine work of the case themselves rather than paying a solicitor to do it.

Direct access barristers must be registered as such with the Bar Council. Certain cases, involving immigration, asylum, family proceedings and crime, are excluded from the scheme. Barristers are not bound by the cab rank rule when approached under the schemes. This means that they can refuse clients provided they do not dis­criminate unlawfully.

There are in fact many obstacles in the way of direct access. For example, barristers cannot hold client monies, cannot conduct the preliminaries of litigation such as writ­ing letters to the other side and cannot issue proceedings or serve documents. Barristers are therefore not on the court record as being the client’s representative. If the client is unable to do these tasks as a litigant in person, or get them done by someone else, barristers cannot take the case on.

Where the client is capable of taking simple steps or is only interested in getting a legal opinion, direct access could prove to be the speediest and most economical route. The barrister can draft documents, such as letters before action or offers to settle, for the client to send. Direct access represents a major departure from the Bar’s traditional method of working. It may even prove to be a decisive step towards fusion of the professions. There will undoubtedly be further pressure to reduce the restrictions.

B. Solicitors

i. Right to Practise

It is an offence for a person to practise or hold out that they are a solicitor without a practising certificate under the Solicitors Act 1974, sections 20 and 21. In order to obtain a practising certificate, solicitors must provide details of insurance. Such insurance used to be arranged by the Law Society itself but since 2001 has been provided under approved commercial schemes.^[597] Under the old rules solicitors also had to prove compliance with continuing education requirements.^[598] This is no longer required by the new rules,^[599] although specified Continuing Professional Development is still required under the relevant regulations.^[600]

The practising certificate fee must be set in order to cover only those costs approved by the Lord Chancellor, such as regulation, training and developing and disseminating professional guidance. Some law reform work related to the profession and human rights work can also be included in fixing the cost of the practising certificate.^[601] The cost of practising certificates has risen sharply in recent years to cover the increasing cost of regulation.

Solicitors who have qualified, but do not have a practising certificate, may call themselves solicitors but not act as such for reward. There is not the same degree of concern over the non-practising profession as at the bar, since solicitors are not admitted to the roll of solicitors until they have complied with the training regulations,^[602] including completing the prescribed two year training period.

a. Private Practice

The majority of solicitors are in private practice. Of the 128,778 solicitors with prac­tising certificates on 31 July 2013 nearly 88,000 were private practitioners.^[603] This is a continuation of a trend of an increase in total numbers at a rate of about 4 per cent per annum. In 2007 there were 104,543 solicitors with practising certificates and over 77 per cent worked in private practice. In 2009, it was 115,475 with 73.7 per cent in private practice.

b. Employed Solicitors

Solicitors may practise as an employee of an organisation provided they work only for that employer.^[604] They can be held out as a solicitor or provide reserved legal services for which they are authorised if they hold a practising certificate.^[605] In 2012, 23,577 solicitors holding practising certificates were in the employed sector. An increasing proportion of all solicitors holding practising certificates were employed solicitors. Between 1999 and 2009 the proportion grew from 19.5 per cent to 26.3 per cent.^[606] Over half were employed in commerce and industry and just under a third in govern­ment service.^[607]

There are a large number of exceptions to the rule that they can only work for their employer. These cover, for example, acting for work colleagues, or bodies related to the employer, like subsidiaries.^[608] In general, the conduct rules that apply to private practice solicitors apply to in-house solicitors. Different rules may apply when an in-house solicitor is acting for his employer or for a client other than his employer.

ii. Size and Spread of Organisations

The vast majority of law firms are relatively small. In 2009, 85.3 per cent of firms had four or fewer partners.^[609] In 2009 2 per cent of firms had 26 or more partners. They employed 31.3 per cent of all principals and 41.8 per cent of all solicitors in private prac­tice. Sole practices accounted for 40.7 per cent of firms, yet employed only 7.9 per cent of all private practitioners.

The largest firms, those with 81 or more partners, had on average, 2.19 assistant/ associate solicitors per partner. This compared with between 0.7 and 1.62 in the smaller and medium-sized firms. The trend is towards solicitors’ firms growing larger. Between 2011 and 2012, the number of small firms, those with between one and four partners, decreased by 2 per cent. Over a similar period, the numbers of both medium and large firms increased by around 5 per cent each.^[610]

iii. Traditional Business Model of Private Practice

The traditional business unit of solicitors was a partnership, or firm, in which equity partners shared profits as laid out in the partnership deed. Partnership was the pre­ferred form of organisation for two reasons. First, equity partners were jointly and severally liable for the firm’s debts to the extent of their private resources. Unlimited liability was a position that was thought to encourage responsibility. Secondly, solicitors could not share professional fees with anyone other than another solicitor. Therefore, all partners must be solicitors. This was thought to guarantee the indepen­dence of the solicitor from external influence.

The partnership arrangement supported diverse forms of organisation, from sole practitioners to extremely large international firms. Any categorisation of this wide diversity involves a degree of generalisation, but there are some recognisable ways in which firms organise and engage with a client base. Some basic types were identified in the 1990s among firms typically engaged in criminal defence work.^[611] The descrip­tions used there, classical, managerial, political and routine, are a useful starting point for describing firms operating in other fields. There are other terms commonly used to describe types of law firm, for example, large firms, often operating in the corporate/commercial field, high street firms and boutique firms. All of these terms are very broad descriptions. They sometimes confuse organisational form and market orientation. For example, a high street firm could be either a classical or political firm. Therefore, the features of these different firm types may overlap.

a. Classical

The classical firm model describes a traditional partnership. The firm is often organised in departments each headed by a partner. The firm tends to represent local businesses and so has repeat clients. Solicitors often handle a relatively low volume of high value cases. The solicitors are therefore able to be centrally engaged in all the legal tasks, research, interviewing clients and advocacy. In addition, the solici­tor inducts trainees and non-qualified staff and allocates and supervises their work. Solicitors expect to graduate to partnership and stay with the firm throughout their careers. A senior partner usually holds the title managing partner and spends some time dealing with partnership matters. The role is often rotating. There is a low turn­over of staff and the atmosphere of the firm is collegial. Such firms are often cohesive and stable. They are found in large numbers, particularly in provincial centres.

b. Managerial/Routine

Firms with a strong managerial ethos are likely to specialise in particular areas of work, like crime, family law or immigration. They may handle a lot of relatively small value matters. They have responded to the need for efficiency by introducing strong managerial structures, introducing systems and procedures aimed at reducing admin­istration and delay. This has the effect of introducing routines for time recording and billing, training and the delegation of work. Work in such firms can be physically demanding, repetitive and unending. There may be high staff turnover leading to instability and variable service to clients. Staff may be initially attracted to these firms by the public service dimension of the work, but have relatively poor working conditions and relatively low pay.

c. Political

The political firm is organised around personal commitment to kinds of work, like criminal defence, civil liberties or human rights, and particular types of clients, like terrorists, whose cases test the law in these areas. Firm members may empathise with poor and disadvantaged clients in their disputes with the state, corporations or employers.^[612] This kind of work has recently been called ‘cause lawyering’, because the law is used politically to highlight injustice and bring about political change. These firms attract highly motivated staff committed to providing quality services. They are keen to test and change the law by pursuing test cases. Some such firms specialise in disaster litigation, such as that arising from road or rail accidents, class actions con­cerning drugs or tobacco or political cases involving clients alleged to be involved in terrorism.

d. Large Firms

In the United States large firms serving business clients were a feature of the legal landscape since the before the turn of the century. They became a form of business in their own right stressing high quality service and demanding large staff, a high degree of organisation, a high overhead and more intense specialisation. The ‘law factory’ emerged with the mass of work performed by the ablest products of the best law schools. From these, the most dedicated and entrepreneurial were selected for partnership.^[613] The partners lent their name to the work but were principally business getters and the reposi­tory of the goodwill of the corporate clientele.^[614]

In the UK, partnerships of solicitors were not permitted to exceed 20 until the pass­ing of the Companies Act 1967.^[615] Since then, the increasing numbers of large firms, and the concentration of legal resources within them, has been one of the most signif­icant developments in the legal professions of the United States, Canada and Britain. They have grown faster than the profession as a whole and receive a larger proportion of the money spent on legal services, mainly from business clients.^[616] Between 1984 and 1986, the number of firms with more than 11 partners increased by 8 per cent and the number of principals in those firms by 12 per cent.^[617] In the UK, the 100 largest firms represent nearly 1 per cent of all solicitors’ firms but account for half the turnover of all private practitioner solicitors.

The opportunity for expansion of firms was fuelled by the ‘Thatcher revolution’ of financial services in the 1980s. This led to the ‘big bang’ in the City of London which cre­ated substantial work for solicitors’ firms,^[618] which coincided with the abandonment of fee regulation in England and Wales.^[619] The expertise in large-scale financial work paved the way for City of London firms to grow, by merger and otherwise. The largest firms rapidly grew to comprise hundreds of partners and thousands of lawyers. They gener­ate sufficient profit to pay some partners in excess of £1million per annum.^[620] Massive scale allowed English solicitors’ firms to dominate a growing international market for corporate and commercial legal services. This prospect led to the merger of Coward Chance and Clifford Turner, creating Clifford Chance. At the time, in 1988, the firm had 168 partners, 386 assistants and 123 articled clerks. It now has 589 partners^[621] and is one of the largest law firms in the world. The resources of large firms stood in stark contrast to those of most other solicitors. A dichotomy, already established in the USA, emerged between wealthy firms serving corporate/commercial clients and smaller ‘gen­eral practice’ firms handling lower value work on behalf of individual clients.^[622] Within a short time, large firms transformed views of the possibilities for handling legal work and perceptions of the legal profession.

The City firms are organised around four broad categories of work: corporate and commercial, property, litigation and tax, but their principal focus is corporate and commercial work.^[623] The de-nationalisation of publicly owned companies created new areas of work and built expertise. Ambiguous drafting and the discretionary decisions of new regulators for these industries created fresh legal problems to solve.^[624] City firms provided expertise in solving complex problems on a massive scale, being adept at ‘custom work’, solving the multitude of problems raised by complex commercial transactions.^[625] Their approach is often multi-disciplinary, involving large teams of lawyers, accountants, economists and architects. The firms, and the individuals work­ing within them, were ‘becoming more corporate, more specialist, more competitively aware, and more orientated to economic productivity’.^[626]

The dominance of large firms had a range of impacts on the legal services market. Among the positive influences, large firms offer a democratic and meritocratic envi­ronment for employees, reflecting prevailing standards in the public sector.^[627] They therefore provide better opportunities for the advancement of women and ethnic minorities. They boost national productivity with their work for international clients and can also afford to take a lead in activity in providing free legal services to meet the legal need among disadvantaged sections of the population. Less positively, large firm trainee salaries and benefits cannot be matched by High Street practices, so that large numbers of the most able applicants are recruited to the service of corporate clients.^[628]

e. High Street Firms

High street firms are those found on most main roads in metropolitan suburbs, towns and villages. They may comprise a sole practitioner with supporting staff or a firm organised on the classical model with a large number of lawyers. They specialise in services responding to local markets, but are also diverse and versatile. They are the most numerous kinds of firm.

f. Boutique Firms

Boutique firms represent a high degree of specialisation, often in areas considered niche markets. As originally conceived they conducted high value work, intellectual property or medical law, for example. These firms tend to be smaller than typical large and medium firms and less likely to draw their clientele from a local area. The development of technology assists these firms as they are not now dependent on any particular locality for their business. There is, for example a firm that specialises in dental law whose clients come from all over the country although their office is in Nantwich.^[629]

Specialist firms were encouraged to bid for publicly funded work by the introduc­tion of contracting for legally aided work in 2000. They needed to demonstrate to the Legal Services Commission, which awarded block contracts, that they were specialised and organised to cope with work at reasonable volume. Therefore, ‘boutique firms’ might also describe firms doing lower value work, child care, immigration, crime or family. Such firms can be organised on the lines of the classical, managerial or political models.

iv. Distribution

It is difficult to be categorical about the spread of types of firm, but size of firm gives a rough indication of probable type of firm. In 2007 there were 8,926 solicitors’ firms. Although 46.3 per cent of these firms were sole practitioners, such firms employed only 8.2 per cent of solicitors. Only 1.3 per cent of firms had over 26 partners, but they employed 39 per cent of solicitors. Around 25 firms, mostly in London, had more than 81 partners.^[630]

p. Challenges to the Partnership Model

Before the advent of large firms, solicitors’ firms were subject to considerable restraints in developing their practices and competing with other businesses offer­ing similar services. The principle that solicitor partners must accept personal responsibility for his or her work also meant that no corporate business structure or limited liability could be used. This made considerably less sense when the restriction on size of partnership was lifted. Firms with hundreds of partners ren­dered the idea that they could personally control every aspect of their business implausible. Requiring consensus between partners would mean that effective decision-making was impeded. Further inroads into the idea that partnership was a necessary mode of business organisation for solicitors were made by the introduction of rules permitting limited liability and by rules permitting fee sharing with non-lawyers.

a. New Business Forms for Solicitors

The Limited Liability Partnership Act 2000 resulted from pressure by large account­ing firms seeking the flexibility of partnership and benefits of limited liability. Solicitors were allowed to incorporate in 2001, allowing them limited liability, like other business persons, but subject to various safeguards in relation to client liability insurance to compensate for the loss of personal liability.^[631] This protected their per­sonal property from being used to pay business debts. Complex rules provided that only practising solicitors could be a partner, shareholder or director of solicitors’ limited companies.^[632] All solicitors’ firms needed at least one principal or director of at least three years’ standing. This person was responsible for the work of the practice and compliance with the regulations.^[633]

When they were introduced, it was anticipated that about one-third of the top 100 firms would convert to limited liability partnerships by 2005,^[634] but LLPs were less popular than predicted. In 2007, of the 8926 solicitors firm in England and Wales, 941 were incorporated and 1288 had formed limited liability partnerships.^[635]

b. Exception to the Ban on Fee Sharing

An exception to the ban on fee sharing was introduced in the Solicitors’ Code of Conduct 20 07.^[636] This made it easier for firms to raise working capital or acquire ser­vices such as computing packages. The rule permitted solicitors to make fee sharing arrangements with non-solicitors provided the arrangement was solely to facilitate the introduction of capital or the provision of services. It did not allow the fee sharer to constrain the solicitor’s professional judgement in dealing with clients. Solicitors had to ensure that the arrangement did not in fact create a partnership and that there was no breach of the rules against payment for the referral of business.^[637]

The SRA is likely to be concerned if fee sharing agreements provide more than 15 per cent of a firm’s gross fees. Contributions above that level might be seen to compromise the firm’s independence. The fear is that a firm might change the way it deals with clients in order to suit the fee-sharers’ interest in maximising profits. The Law Society may also be concerned to constrain profit sharing of this kind because, without these rules, it would be possible for any business to offer the full range of legal services to the public to the detriment of traditional solicitors’ practice.

c. Restrictions on Linked Businesses

A solicitor’s firm, whether a partnership or incorporated, could only carry on the business of providing ‘professional services such as were provided by individuals practising as solicitors’^[638] and could only provide legal services to the public through a regulated solicitors’ practice. They could not, therefore, offer legal services and estate agency or accountancy services unless they did it through a separate business.^[639] The aim of this rule was to ensure that the two businesses were kept separate and that the public were not misled into thinking that the regulator was responsible for the non­solicitor business simply because it is owned or managed by a qualified solicitor.

Where a solicitor owned an estate agency, clients referred to the solicitor’s practice from that agency had to be informed personally and in writing of the interest of the solicitor in the two businesses and consent to the firm acting. These rules were designed to avoid restricting a client’s choice of solicitor. It might also avoid a potential conflict of interest between the client and the solicitor, for example, where the convey­ancing solicitor is tempted to conceal from the client adverse results from searches or defects in title in order not to prejudice claiming an estate agent’s commission.

There was some concern as to the adequacy of the rules on separate businesses to protect clients from conflicts of interest. This concern was fuelled by the growth of solicitor-owned claims companies following relaxation of the rules on claiming conditional fees in personal injury actions in 2001. Claims companies needed a tie-in with solicitors because they could advise and prepare cases but not conduct litigation. The Law Society found some difficulty monitoring these sometimes complex relation­ships. Claims companies must now be registered under the Compensation Act 2006, which makes it an offence for a solicitor to have dealings with an unregistered claims company. Solicitors have been warned by the SRA that dealing with an unregulated claims company is a disciplinary offence as well as carrying the risk of criminal pros- ecution.^[640] Paying claims companies for personal injury and fatal injury claims is now banned.^[641]

C. Legal Executives

There are around 22,000 Legal Executives in England and Wales. They originated in the nineteenth century as experienced, non-qualified lawyers who supervised junior clerks in solicitors’ firms. Known originally as managing clerks, they evolved into law­yers sitting examinations set by their own professional body. Members qualified by a combination of evening classes and practical experience in solicitors’ firms. Although they were restricted to working for solicitors, and could not practise in their own right, many legal executives developed high levels of expertise in specific areas, becoming recognised as leading practitioners in their area.

D. Licensed Conveyancers

Licensed conveyancers were established by statute, with an independent professional body, the Council for Licensed Conveyancers (CLC).^[642] Their main role is to prepare documents for property transfer, in the same way as solicitors. They tend to work for solicitors’ firms, banks or property developers, but can form their own partnerships after three years’ employment. There are about 200 independent licensed conveyance firms. Unlike solicitors, licensed conveyancers can act on both sides of a transaction, despite the risk of conflict of interest, and need not disclose to clients that they have paid refer­ral fees for work. Following calls from the Law Society for the banning of referral fees in 2009, the Legal Services Board commissioned analyses of the impact of referral fees. It concluded a ban was not justified provided there were requirements for disclosure. This was the position taken by the CLC in a consultation closing in March 2013.^[643]

E. Patent Attorneys

The relatively small number of specialist patent attorneys work on protecting and enforcing intellectual property rights in, for example, industrial designs and copy­right. The work includes registering patents and trade marks. They tend to work either in-house for corporations or government departments or in firms of patent attorneys. Law qualifications are not required to begin practising. The main require­ment is a science or engineering degree. Legal skills of drafting, analysis and logical thought tend to be acquired on the job. The Chartered Institute of Patent Attorneys offers examinations leading to entry on the Register of Patent Agents.^[644] The business is increasingly international and knowledge of French and German is encouraged.^[645]

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F. Trade Mark Attorneys

There are around 50 firms registered as trade mark attorneys in the UK, although some of these are solicitors’ firms.^[646] At least half have an office on London. The Institute of Trade Mark Attorneys offer examinations for entry to the Register of Trade Mark Agents and those with some legal qualifications may be given exemption from some of the papers.

G. Law Costs Draftsmen

A Law Costs Draftsman prepares the more complicated legal bills for other legal professionals. This service is provided to other professionals, mainly solicitors. A Costs Draftsman can also be instructed by litigants in person who can recover fees in respect of advice given.^[647] The professional body, currently called the Association of Costs Lawyers, was founded in 1977. Costs lawyers may attend the procedure, called taxation, whereby the court approves the costs of a representative, such as a solicitor, awarded against a party in litigation. Qualified costs lawyers can appear as advocates in such proceedings.

H. Notaries

Notaries are primarily concerned with the authentication and certification of signatures and documents for use abroad. The Notaries Society, founded in 1882 and incorpo­rated in 1907, is a membership body with no disciplinary functions. Admission as a notary follows a two-year part-time course covering similar ground as law degrees.^[648] Substantial exemptions are given to law degree holders and solicitors and barristers with five years’ experience.

I. European and Foreign Lawyers

Legal practitioners do not have to be British nationals or qualified in England and Wales to offer legal advice. As a result of an EU directive in 1989, qualified lawyers from EU Member States could practise under the designation accorded lawyers, for example, solicitor or barrister, in another Member State having passed an aptitude test.^[649] A further directive in 1998 provided that qualified lawyers should be able to achieve integration after a period of professional practice in the host Member State under their host-country professional titles or else continue to practise under their home-country professional titles.^[650]

Acceptance of European lawyers was necessary to meet the requirements of EU policy on free movement of labour. In fact, it also responded to the fact that the EU internal market increasingly called for lawyers who operated across national borders. A similar rationale applies to foreign lawyers, who also have limited rights to prac­tise in England and Wales without re-qualifying. Lawyers from the EU have general access to all areas of practice reserved to solicitors and barristers, but with some restrictions. They must appear in courts with a local lawyer. They cannot handle con­veyancing and probate if these activities are reserved to a separate profession in their home state. Non-EU foreign lawyers do not have general rights of audience or rights to conduct litigation. They may apply to the chair of the Bar Council for permission to appear in the English courts in matters from their home jurisdiction.

Subject to the restrictions on areas of practice, overseas lawyers can practise English law, as well as the law of their own country, as sole practitioners, as a Registered European Lawyer (REL). This status is only required of lawyers practising in the UK under the title of another European Union or European Economic Area jurisdiction, or Switzerland, and under conditions of citizenship. They may also prac­tise in a partnership of foreign lawyers, as an assistant or consultant in a law firm, in partnership with English solicitors and REL, but only if registered with the SRA as a Registered Foreign Lawyer (RFL) or as a REL. They can also practise in employment with English solicitors or as in-house lawyers.

Overseas lawyers wishing to practise with no restrictions can qualify for the appro­priate profession in England and Wales. This usually involves passing a series of tests on aspects of English Law, together with Professional Conduct and Accounts. They can then call themselves the relevant English professional, but must meet any additional requirements to offer financial, immigration and asylum advice. There is a schedule of foreign legal professions recognised by the SRA as appropriate managers of recognised bodies.^[651]

J. Unauthorised Persons

Analysis of SRA data shows that in 2009/10 around 40 per cent of fee earners in SRA- regulated firms were not solicitors. In legal aid firms, diversity surveys show around two out of five fee earners are non-solicitors.^[652] These figures cannot be explained by the presence of legal executives and suggest large numbers of para-legal fee earners.

V.