Traditional Organisation of Legal Practice

A. The Monopolies of Solicitors and Barristers

The main monopoly of barristers, advocacy in the higher courts, was traditionally regulated by the courts and was not the subject of statutory regulation.

Solicitors have always shared advocacy in lower and other courts with barristers. Members of other approved bodies such as the Institute of Legal Executives (ILEX) and other more specialised groups such as Patent Agents and Costs Draftsmen also have rights.^[579] ILEX members, for example, can obtain advocacy rights in the Magistrates’ and County Courts. They can do some criminal work such as com­mittal hearings, bail applications, trials in the Magistrates’ and Youth Courts. Advocacy and the preparation of documents for litigation can be done for gain only by ‘authorised litigators’.^[580] This right can be conferred by an authorised body such as the Law Society, Bar Council, ILEX and the Institute of Patent Agents. Whereas authorised litigators owe a duty to the court to act independently and in the interests of justice,^[581] this does not apply to other professionals involved in preparation for litigation.

The monopolies exclusive to practising solicitors were formerly laid down in the Solicitors Act 1974, as amended. The Act refers to the ‘reserved services’ of convey­ancing, probate, preparation for litigation, lower court advocacy and various notarial acts.^[582] In some of these fields, solicitors gradually shared the work with other authorised practitioners. So, while only solicitors could prepare transfers of and documents relating to land for registration with the Land Registry for gain, this work is now also available to licensed conveyancers. Anyone can do their own legal work in these areas, and a third party could help them provided they did not charge a fee.

Under the Solicitors Act, only solicitors could prepare documents relating to grants of probate or letters of administration. This monopoly was first extended to barristers and then, from November 2004, to banks, insurance companies, members of ILEX and licensed conveyancers. Surprisingly, the provision of legal advice was never a monopoly of the legal profession. Anyone can advise members of the public, either free or for a fee, without being registered, or subject to the regulation of a professional body or to any rules about methods of practice.

B. Professional Status

While the areas in which lawyers have statutory monopolies may seem relatively restricted, their professional status is also protected by statute. Therefore, it is an offence for an unqualified person to act as a solicitor, ‘wilfully pretend to be’ a solici­tor or imply that he or she is a solicitor.¹² The Bar and Law Society ensure that the statutory demarcation of roles is legally enforced. In Agassi v Robinson,¹ a case relat­ing to costs, both professional bodies intervened, winning a declaration that a client briefing a barrister directly was a litigant in person.

As a consequence of the ruling, the client could not obtain an order for the costs in relation to the services of his accountants who, quite properly under the Bar’s direct access rules, briefed the barrister on the client’s behalf. This was because the accoun­tants were not authorised litigators. Any other decision, as Lord Justice Dyson said, would ‘allow a litigant in person [to] be able to recover the... fees of any person who provides general assistance in litigation’ and this in turn would allow ‘ample scope for any unqualified and unregulated person to provide general assistance in litigation secure in the knowledge that the litigant in person, if successful, would recover the cost of that assistance as a disbursement’.¹⁴

IV.