solicitor

solicitor

[suh-lis-i-ter]
solicitor, in English law, person duly admitted to practice before the supreme court of judicature. He is the agent of the person whose suit he handles, and is distinguished from a barrister, who argues cases before the judge (see attorney). The solicitor serves as an intermediary agent between the barrister and his client, negotiating fees and preparing the case for trial. Solicitors may take the place of barristers in the lower courts, and in the 1990s gained new rights of audience in higher courts. They are officers of the court; they have a monopoly of certain legal business and are subject to court regulation. The training required of a solicitor, set by the Law Society (earlier called the Incorporated Law Society), includes several years of clerkship under a practicing solicitor and attendance at a law school.

British lawyer who advises clients, represents them in the lower courts, and prepares cases for barristers to try in higher courts. The education required of a solicitor includes a law school course and five years of apprenticeship with a practicing solicitor. In the U.S. the solicitor general represents the federal government in court, especially the Supreme Court of the United States.

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A "solicitor" is a term used in many Common law jurisdictions for a lawyer who offers legal services outside of the courts. Whereas a barrister advocates and acts in litigation, a solicitor acts as an advisor and representative, often preparing legal documents including contracts, patents,and wills. In the United States, it is also a title used by government attorneys in some government agencies.

In some common law countries including England and Wales, the legal profession is split between solicitors and barristers, and a lawyer will usually only hold one title. However, in Canada and some Australian states, the legal profession has been "fused," allowing a lawyer to hold the title of "barrister and solicitor" and practice in both roles simultaneously. The United States legal system is not considered "fused" because it never had a divided legal profession; there, outside government agencies, the term "solicitor" is merely "one who solicits," not a legal professional.

England and Wales

Before the unification of the Supreme Court in 1873, solicitors practised in the courts of chancery, while attorneys and proctors practised in the common law and ecclesiastical courts, respectively.

In the English legal system, solicitors traditionally dealt with any legal matter apart from conducting proceedings in courts (advocacy,) with some exceptions. Minor criminal cases tried in Magistrates' Courts, for example, and small value civil cases tried in county courts are almost always handled by solicitors. The other branch of the English legal profession, a barrister, has traditionally carried out the advocacy functions. Barristers would not deal with the public directly. This is no longer the case, as solicitor advocates may act at certain higher levels of court which were previously barred to them. Similarly, the public may now engage a barrister directly and without the need for a solicitor in certain circumstances.

Regulation

Solicitors in England and Wales are regulated by the Solicitors Regulation Authority, an independently administered branch of the Law Society of England and Wales. In order to become a solicitor, candidates must have passed the Academic and Vocational stages of training.

Moreover, solicitors must pay the Law Society of England and Wales a practising fee each year in order to keep practising. If they do not do this they are "non practicing" and may not give legal advice to the public (although they can start practising again at will, unlike those who have been struck off the roll).

Training and qualifications

The most common methods of qualification are a normal undergraduate law degree or a degree in any subject followed by a one-year course formerly called the Common Professional Exam and recently renamed the Post-Graduate Diploma in Law (PgDip Law). Other routes, include spending time as a clerk to magistrates or passing exams set by the Institute of Legal Executives. (ILEX) Up to this point a barrister and solicitor have the same education. Thereafter, they split. Solicitors study a one-year course called the Legal Practice Course and then must undertake two years' apprenticeship with a solicitor, called the training contract (but still widely referred to as "articles," as in "articled clerk" by older members of the profession). Once that is complete, the student becomes a solicitor and is "admitted to the roll." The "roll" is a list of people qualified to be a solicitor and is kept on behalf of the "Master of the Rolls" whose more important job is as head of the Court of Appeal of England and Wales. Solicitors who are being disciplined by the Law Society can be suspended from the roll under Section 12 of the Solicitors Act 1974 or even struck off, which prevents them acting as a solicitor.

A small proportion of solicitors in England and Wales are licensed by the Archbishop of Canterbury (originally on behalf of the Pope) after further study and examination to practice as Notaries Public. An alternative route to this work, in and around the City of London, is through the Worshipful Company of Scriveners.

Recent developments

In England and Wales, the strict separation between the duties of solicitor and barrister has been partially broken down and solicitors frequently appear not only in the lower courts but (subject to passing a test) increasingly in the higher courts, too, (such as the High Court of Justice of England and Wales and the Court of Appeal). While the independent bar still exists in a largely unchanged state, a few firms of solicitors now employ their own barristers and solicitor-advocates to do some court work. Barristers, in turn, can now be directly instructed by certain organisations 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, although there are some limitations on the type of work that can be done this way: for example, such barristers cannot take control of the conduct of litigation nor can they act in matrimonial matters.

This breakdown in the strict separation between barrister and solicitor is expected to go further in the next few years, with Legal Disciplinary Practices and Alternate Business Structures appearing.

Regulation of both barristers and solicitors is being reviewed by David Clementi on behalf of the Ministry of Justice. His final recommendations are expected to include a more unified regulatory system and new structures for cross-profession work.

Traditionally, firms of solicitors can only be owned by solicitors. The government is considering allowing anyone to be able to have a share in the ownership and control of a law firm. This has led to fears that the professional duty of confidentiality solicitors owe to their client will be threatened. The fear is that solicitors will be required to share confidential information with the organisations and individuals who acquire control of their firm, even though those organisations and individuals will not be bound by the professional duty of confidentiality and may use their knowledge of the client's confidential affairs to their own advantage. This is often referred to as "Tesco law," as legal services would be offered directly to the public by solicitors owned and controlled by non solicitors, and it is companies such as the major UK supermarkets (the foremost in this area being Tesco itself, despite Tesco declaring that it has no intentions to move into legal practice) that have expressed a particular interest in owning solicitors to complement their moves into the already deregulated financial services markets.

Scotland

Scotland's legal system is separate from those of England and Wales and Northern Ireland. In Scotland, the legal profession is divided between solicitors and advocates, the distinction being similar to that between solicitors and barristers in England and Wales, though Scottish solicitors have traditionally represented their clients in the lower courts (such as the Sheriff Court and the District Court), only being excluded from the High Court of Judiciary and the Court of Session. However, under Section 24 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, suitably qualified solicitors were for the first time in Scotland granted rights of audience in the Supreme Courts in Scotland as well as in the House of Lords and the Judicial Committee of the Privy Council as solicitor advocates.

In Scotland, solicitors are regulated by the Law Society of Scotland, which require prospective solicitors to pass exams in a curriculum set by the Society. Ordinarily, this is done by obtaining an LLB in Scots law at a university approved by the Society, though it is also possible to sit the Society's own exams. Prospective solicitors are then required to take the Diploma in Legal Practice (a one-year course provided by several Scottish universities) and then undertake a two-year traineeships with a law firm before they can qualify as a solicitor. As the Faculty of Advocates used to require a M.A. degree of its candidates, it used to be common to take a five-year combined MA LLB curriculum at the Scottish universities. Those intending to become solicitors who studied law as a first degree were at one time awarded a BL degree.

Prior to the formation of The Law Society of Scotland, solicitors were in most areas organised into a local Faculty of Procurators or Faculty of Procurators and Solicitors. These socities still exist, but their influence has waned. Whereas membership was once required in order to practice law in a particular locality, as long as a solicitor is registered with The Law Society of Scotland this is no longer the case. The local societies are now more likely to provide their members with a well-stocked law library, continuing professional development courses (all solicitors in Scotland are required to complete 20 hours of continuing professional development each year), and bring their members together to more effectively lobby The Law Society of Scotland and The Scottish Government regarding future legal developments.

In Glasgow, The Royal Faculty of Procurators still exists. In Edinburgh, both The Society of Writers to Her Majesty's Signet (now known as the W.S. Society), whose members refer to themselves as a Writer to the Signet (W.S.), and the Society of Solicitors to the Supreme Courts (S.S.C.) are still in existence. In Aberdeen, solicitors can choose to belong to a Society of Advocates in Aberdeen Members are formally referred to as an "Advocate in Aberdeen" to distinguish them from advocates.

In the 18th century, Dr Samuel Johnson marked the change in designation of the lawyers in Glasgow with a jibe about their moving from "procuring" (a play on the title "Procurator," meaning agent, a word still used in the Scottish courts, particularly when one Scottish solicitor is explaining to the court that he is covering a hearing only in the capacity of agent to another solicitor), to "soliciting."

Solicitors in Scotland have full rights of audience in the Sheriff Courts throughout Scotland in both criminal and civil cases. They also have rights of audience in the District Courts (the lowest criminal court in Scotland), although these are now being replaced by Justice of the Peace Courts, in which a solicitor also has a full right of audience. When in court, a solicitor will normally wear a suit and tie together with a Scottish bar gown (a form of black robe).

Republic of Ireland

Solicitors in the Republic of 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.

Irish independence in 1921 was marked more by continuity with the British legal system than with change. The legal profession has remained divided between barristers (or abhcóidí in Irish) and solicitors (or aturnaethe in Irish). However, there has been some blurring of their respective 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 practice 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 practice in the other branch of the profession. Thus, while members of the bar practice 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 theoretically unlimited, but infrequently exercised in practice. Victoria also has an independent bar but solicitors have full right of audience before all courts.

Hong Kong

Hong Kong has not fully embraced the "fused profession" trend; solicitors are governed by the Law Society of Hong Kong and barristers are governed by the Hong Kong Bar Association. A person intending to become a solicitor in Hong Kong must have a professional law degree, either LLB or JD or another equivalent degree, and complete the one-year PCLL program. He has also to complete a two-year trainee solicitor contract with a law firm. Solicitor enjoys rights of audience in the lower courts, but the rights do not extend to the Hong Kong High Court and the Hong Kong Court of Final Appeal; rights of audience in these two higher courts are restricted to barristers. But this tradition may change in the future. Work related to legislating for higher solicitors' rights of audience is being done - including the formation of a working party under the Chief Justice. The Chief Justice of Hong Kong has nodded to the proposal of creating a special scheme, under which a solicitor would be able to gain the status of "solicitor-advocate" along with higher rights of audience.

Canada

In the English-speaking jurisdictions of Canada (and New Brunswick, a bilingual jurisdiction), the profession is being fused; all lawyers are called to the bar and admitted as solicitors. While many barristers and solicitors choose to practice within the scope of one or the other traditional disciplines, many others choose a cross-discipline practice.

Amongst lawyers in Canada speaking English, it is common to refer to one another as solicitors, whether practicing in a solicitor's or barrister's role. Among members of the general public, the term "solicitor" also has a similar commercial connotation to that in use in the United States (see below).

United States

Government usage

In some U.S. states, a "solicitor" may be the chief legal officer of a city or town -- for example, a "town solicitor" -- although cities in other states simply have "city attorneys." Some counties and states as well as the federal government have an official known as a Solicitor General who is actually more of an advocate than a solicitor in the traditional British sense. In South Carolina the term "solicitor" applies to a circuit prosecutor. In Georgia a county solicitor general is responsible for prosecution of misdemeanor offences. Historically, Georgia solicitors general were state prosecutors; today, that office is known as district attorney.

Nongovernment usage

In American and Canadian English, the term solicitor often refers to "a person who seeks business or contributions from others; an advertiser or promoter" (according to Black's Law Dictionary, 7th edition). This is the meaning intended in the ubiquitous signs on business premises that say "No Soliciting" or "Please Do Not Contribute To Solicitors."

Many cities in the U.S. have enacted municipal ordinances that require the licensing of solicitors and also require them to not solicit at homes or businesses that have posted "No Solicitors" signs. The ordinances of Urbana, Illinois, Marion, Iowa, and Hermosa Beach, California are typical examples.

The equivalent term in British English is "tout." The Australian English term frequently used is "hawker," which is also used in other countries as slang with identical meaning.

See also

External links

Footnotes

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