. 31
( 34)


individuals or other sets of chambers. Such comparisons were calculated only
to disparage while being unveri¬able. But comparing fees would not be open to
that objection providing it was accurate and not likely to mislead. The Bar
Council changed the rule to make that possible on 23 March 2002 with e¬ect
from that date. (One consequence is that the world now knows what top QCs

Management of the Bar
For over a century the a¬airs of practitioners have been run by the Bar Council.
Its origins were the Bar Committee, created in 1883 which in 1895 became the
General Council of the Bar. But the Bar Council was expressly barred from
interfering with ˜the property, jurisdiction, powers or privileges of the Inns™.
Over decades relations between the Bar Council and the Inns of Court were
strained. The Inns owned all the properties. They controlled admission to the
Bar and disciplinary matters but the rulings of the Bar Council on matters of
etiquette became recognised as binding on barristers as a whole.
In the second half of the twentieth century the strained relationship led to
repeated attempts to ¬nd the right formula for a working system. In 1966 the
Senate of the Four Inns of Court was established to provide one body that could
act collectively in matters of common interest. It had seven representatives from
each Inn and six representatives of the Bar Council, but it could take no deci-
sions that involved expense to the Inns without getting their agreement. This
proved unsatisfactory.

On 28 April 2003, under the heading ˜Fees Squeezed at Commercial Bar™, The Lawyer reported
that although three QCs (Lord Grabiner, Jonathan Sumption and Gordon Pollock) now
charged £1,000 per hour, the ˜headline rate™ across the rest of the Commercial Bar had been
˜hit hard™. Due to competitive pressures and the relatively slow rate of incoming work, a range
as ˜low™ (sic) as £500“600 per hour was prevalent among the forty top commercial silks. Lord
Grabiner had previously made headlines as the ¬rst barrister to earn over £1 million per year.
The record brief fee is said to have been one of £3 million paid to Gordon Pollock in the
abortive case brought by the liquidators of BCCI against the Bank of England “ The Lawyer,
12 January 2004, p. 1.
In August 2006 it was reported that there were 18 commercial and tax silks who had earned
over £2m in the previous year and that two ˜were even understood to have gatecrashed the
elite £3m-a-year club™. There were around 30 barristers earning more than £1m a year. Hourly
rates had remained static during the past year. ˜Most silks are charged at around the same rate
as a partner in a law ¬rm, with an average fee being £500 an hour. Junior barrister rates could
be as low as £35 an hour rising to £350 per hour for a senior junior. (The Lawyer, 21 August
2006, p. 4)
The same issue of The Lawyer (p. 1) reported that Linklaters had no fewer than 124
partners earning £1m or more during the previous year.; that Slaughter and May had 90, and
Allen & Overy had 85, a quarter of its equity partners. In all there were 392 London-based
private practice partners who took home more than £1m in 2005“6.
758 The legal profession

In 1972 a committee chaired by Lord Pearce pointed to the fact that there
were no fewer than six autonomous bodies to run a profession, at that time, of
fewer than 3,000 practitioners “ the four Inns, the Senate and the Bar Council.
There was a multiplicity of overlapping committees “ in 1971 some sixty-one
standing bodies. The whole system was wasteful of manpower, accommoda-
tion, money and time. Junior members were virtually excluded from all deci-
sion-making. There was a critical shortage of accommodation for practitioners
in London. The Inns had no common rent policy, no common policy on
libraries and lacked control over pupils. The Pearce Committee concluded that
there should be one e¬ective central governing body with su¬cient ¬nancial
resources to carry out its policies.
In 1974 a new body, the Senate of the Four Inns of Court and the Bar, was
set up with a slight majority of practitioners.97 Its remit was to lay down
general policy for the profession and to decide on the contents of the Con-
solidated Regulations of the Inns. The Inns agreed to abide by the general policy
laid down by the Senate subject to the understanding that they would not be
expected to bear an unfair burden of cost. The Bar Council was a sub-commit-
tee of the Senate.
In 1979 the report of the Benson Royal Commission on Legal Services said
that these arrangements were ˜neither su¬ciently co-ordinated nor adequately
representative of the profession as a whole™ (para. 32.67). The Senate should
have the power to take decisions binding on the Inns. Some sixty members of
the Senate should be elected by the Bar in such a way as to ensure adequate rep-
resentation for di¬erent levels of seniority, specialists, barristers practising in
di¬erent parts of the country and those employed in commerce and industry.
There was no need to have barristers appointed by the Inns or the Senate. It
would be right to continue to have some representation of the judges in the
Senate. A method should be found to have between ten and twenty whether
by appointment, election by the judges or co-option. The Inns should have
representatives in the form of the Treasurer and Chairman of its Finance
In 1986 a new committee under the chairmanship of Lord Rawlinson rec-
ommended that the management of the Bar should be in the hands solely of
practitioners. The government of a profession, particularly one like the Bar
which engaged in a great deal of publicly funded work, should not be in the
hands even partially of judges. There should be a new General Council of the
Bar and of the Inns of Court consisting of barristers alone. Decisions which
might a¬ect the Inns should be taken by a Treasurers™ Council of the Inns

It had six representatives of each Inn appointed by the benchers, three barrister
representatives of each Inn elected by the members of the Inns other than the benchers
and thirty-nine barristers elected by the Bar, of whom eighteen had to be practising
juniors and under seven years since Call. There were ten ex-o¬cio members, such as the
Law O¬cers and the leaders of the six circuits, and up to sixteen additional members
appointed by the Senate.
759 The Bar

consisting of the Treasurers, certain other benchers, the chairman of the
Council of Legal Education and the o¬cers of the new Bar Council. The
Treasurers™ Council would have power to refer back to the Bar Council any poli-
cies, but if the Bar Council a¬rmed the policy, the Treasurers™ Council would
have the duty to secure its implementation. (The relationship would be like that
between the House of Commons and the House of Lords, with the Commons
having the ultimate power to insist on a policy.) The Bar Council would include
a system of constituencies.98 These proposals were adopted by the Bar and came
into e¬ect on 1 January 1987.99
In 1991, Lord Benson, the former Chairman of the Royal Commission on
Legal Services, urged that the time had come to place management of all the
Inns™ properties under the authority of the Bar Council.100 Very large sums of
money would be needed to modernise the properties held by the Inns to bear
the cost of improving recruitment, the vocational training of students, remu-
neration in pupillage and continuing professional education. The Bar, though
tiny, still had six governing bodies “ the Bar Council, the four Inns of Court
and the Treasurer™s Council. The division of responsibility was wasteful in
time and money. The Inns owned extremely valuable properties in London
and were therefore one of the best-endowed professions in the country. Each
of the Inns managed its properties in its own way. For years they had charged
low rents and had therefore failed to build up reserves. Now they would have
to borrow large sums at high interest. The Inns were reluctant to allow the Bar
Council to decide how to administer their valuable assets. Under the 1987
agreement the Bar could in theory impose its will on the Inns but the proce-
dure was complex.
In 1999, the Bar Council moved to make subscription to the Bar Council
compulsory. It persuaded the Government to introduce an amendment to the
Access to Justice Bill which gave the Bar Council the right to make subscriptions
The problem of the management of the Bar continued to be an issue. In 1996,
Martin Bowley QC said: ˜The central issue . . . is that we just cannot a¬ord the
waste of resources, both human and ¬nancial, involved in our current system
of government which involves a Bar Council, four Inns of Court, six Circuits
and something like twenty specialist associations, all with di¬ering agendas and
di¬ering priorities™.102
For the most recent developments following the report of Sir David Clementi
see pp. 823“36 below.

It should consist of two representatives of each circuit (of whom one would be a junior
barrister), one from each Bar Association, three representatives of each Inn and ¬fty-one
elected members, of whom nine would be Queen™s Counsel and twelve would be under seven
years™ Call.
See Law Society™s Gazette, 28 May 1986, p. 1628; 23 July 1986, p. 2321 and also Counsel,
September/October 1994, pp. 10“14. Counsel, July 1991, pp. 14“15.
101 102
Access to Justice Act 1999, s. 46. Counsel, May/June 1996, p. 16.
760 The legal profession

Employed and ˜non-practising™ barristers
As has been seen, there are many barristers who, having been Called to the Bar,
do not become self-employed barristers in chambers but who do provide legal
services. They used to be called ˜non-practising barristers™, despite the fact that
they worked as lawyers, but in the 1980s those who o¬ered legal services to
their own employer came to be called ˜employed barristers™. Until the end of
the 1980s, employed barristers had no right to appear as advocates in the
courts. But in 1989 the Bar Council agreed that employed barristers should be
treated in the same way as solicitors. Providing they had completed pupillage
or had been in employment for ¬ve years they were given the same rights of
audience as solicitors in the lower courts. They were also permitted to instruct
barristers in private practice, but they were not allowed to conduct litigation.
In 1997, as will be seen below, employed solicitors were granted full rights of
audience and the Bar Council moved to grant similar rights to employed
barristers, but these moves were overtaken by the Access to Justice Act 1999
which required the Bar Council to grant full rights of audience to employed
barristers who satis¬ed equivalent training requirements to those for self-
employed barristers. In order to obtain rights of audience in the higher courts
a barrister must not only have completed pupillage but must for three years
following pupillage work from the o¬ce of a ˜quali¬ed person™. The majority
of employed barristers and most solicitors do not at present meet the criteria
for being ˜quali¬ed persons™.103 This creates a barrier for newly quali¬ed
There are now three categories of employed barristers. There are employed
barristers who o¬er legal services only to their own employer. This is the posi-
tion of barristers who are employed in the Government legal service or local
government and in-house lawyers in commerce, ¬nance and industry.104
Secondly, there are barristers who o¬er legal services to the general public
through their employers. They can only hold themselves out as practising bar-
risters if they have higher rights of audience and work for an organisation
approved under the Code of Conduct. The organisations that are approved
include solicitors™ ¬rms and law centres.
Thirdly, there are employed barristers who may not hold themselves out as
barristers “ for instance because although they work for an approved organisa-
tion such as a ¬rm of solicitors, they have not done pupillage. (A large number
of City ¬rms employ barristers. Allen & Overy, for instance, employs as many
as 150 barristers most of whom are not practising.) Another group are those

De¬ned as someone who for six years has practised as a barrister or a member of an
authorised body and for the previous two years has made such practice his primary
occupation and who has been entitled to exercise a right of audience in all the courts (Code of
Conduct rule 203.3).
Those who were Called before January 2002 need only to have completed their Bar Vocational
Course (or the previous Bar Finals) to be eligible for this status. Those Called after January
2002 need also to have completed a pupillage.
761 The solicitors™ branch

who may have higher rights of audience but who o¬er legal services to the
public at large working for non-authorised organisations such as accountants™
¬rms or as claims advisers for insurance companies.
For the view that employed barristers feel cast as ˜second class citizens™ by the
Bar Council see L. Trevelyan, ˜Bar to Progress™, Law Society™s Gazette, 10
February 2005, p. 20.
For the implications of the Clementi report and its aftermath see pp. 823“36

The solicitors™ branch
Origin and history
The solicitors™ branch grew out of the variety of di¬erent practitioners who
operated in di¬erent capacities in the legal system other than the barrister and
the sergeant-at-law. By the late thirteenth century, attorneys existed to handle
the technicalities of law suits. Solicitors seem ¬rst to have emerged in the six-
teenth century. By the end of the seventeenth century the di¬erent categories
included sergeants, Queen™s Counsel and junior barristers, solicitors, attorneys,
conveyancers or scriveners, pleaders and proctors. Pleaders were absorbed by
the Bar, scriveners™ work was taken over by solicitors and attorneys, and the
di¬erences between attorney and solicitors were gradually eliminated. Attor-
neys were advisers to the parties, solicitors were especially associated with
matters concerned with land and proctors were concerned with ecclesiastical
law and matrimonial a¬airs.
The Judicature Act 1873 merged the functions of solicitors, attorneys and
proctors and the title ˜solicitor™ was adopted as a generic title for them all.
Statute now reserves that title to those quali¬ed as solicitors. (There is no equiv-
alent statute in relation to barristers.)
For information about the profession at present, including much statistical
information covering recent years, see www.research.lawsociety.org.uk. Note
especially very helpful fact sheets. See also the annual publication Trends in the
Solicitors™ Profession Annual Statistical Report accessible on the Law Society™s
Website “ www.lawsociety.org.uk.
On the history of the profession see for instance M. Birks, Gentlemen of the
Law (Stevens, 1960).

Entry and training
The process of qualifying to be a solicitor, as for the barrister, consists of an aca-
demic stage, a stage of institutional vocational training and a period of ˜on the
job™ training formerly known as articles and today called traineeship.
The academic stage A person wishing to be a solicitor can pass the academic
requirement by taking a law degree but, as with barristers, a non-law degree plus
the one-year law conversion course (the CPE) is deemed to be the equivalent.
In 2004“5 there were 7,356 persons admitted as solicitors. Of these 69 per cent
762 The legal profession

came by way of direct entry and 22 per cent were by transfer, mainly from over-
seas.105 Of those who came by direct entry, just over three-quarters had law
degrees and 23 per cent had non-law degrees. Of the transfers, 13 per cent were
former barristers, 10 per cent were legal executives and 2 per cent were justices™
clerks whilst 75 per cent were foreign lawyers “ (in order) from Australia, New
Zealand, North America, Singapore/Malaysia, Hong Kong, Scotland, EU coun-
tries and the Indian sub-continent.106
Vocational training for solicitors “ the Legal Practice Course The Law Society™s
vocational Legal Practice Course (LPC) was drastically reformed as from 1993.
The aim was to make the course more genuinely vocational, based as much as
possible on skills training. The course is taught at the ¬ve branches of the
College of Law and at over twenty universities. Whereas previously the course
was virtually identical wherever it was taught, there is now a measure of
freedom for teaching institutions subject to accreditation by the Law Society™s
Legal Practice Course Board. The content has a practical basis with an empha-
sis on the use of ˜black letter law™ and practical know-how.107 The course can be
either full-time over one year or part-time over two academic years.108 The
course was further revised in 1997 to place greater emphasis on law in general
and business law in particular to give more opportunity for options.109
In 2001 eight leading City ¬rms started a more specialised bespoke ˜LPC ™
course. City LPC was delivered originally by Nottingham Law School, the
Oxford Institute of Legal Practice and the BPP Law School. (Subsequently three
of the ¬rms110 broke away from the consortium to set up a course with the
College of Law in London. The other ¬ve111 decided to work with the BPP only.)
Bespoke courses speci¬cally tailored to the needs of particular ¬rms seem likely
to grow.112
In January 2005 the Law Society put forward a package of reform proposals
prepared by its Training Framework Review Group. The central feature of the

Law Society, Trends in the Solicitors™ Profession, Annual Statistical Report 2005 (Annual
Statistics 2005), Table 9.5. In respect of 8 per cent no information was available as to the route
of entry. Annual Statistics 2005, Table 9.6.
The course consists of both compulsory subjects (conveyancing, wills, probate,
administration, business law and practice, and litigation and advocacy) and optional subjects.
Matters of professional conduct and the in¬‚uence of European law, revenue law and ¬nancial
services law are supposed to be taught throughout the course. Skills training is supposed to
focus on interviewing and advising, legal research, writing and drafting, negotiating and
See further Law Society™s Gazette, 23 May 1990, p. 4; 20 June 1990, p. 2; 6 February 1991, p. 6;
2 October 1991, p. 4. For critical assessment and a reply see Legal Action, July 1994, p. 8 and
September 1994, p. 9. See also the study by the Policy Studies Institute “ M. Shiner and T.
Newburn, Entry into the Legal Professions: The Law Student Cohort Study Year 3 (Law Society,
For a description see N. Savage, ˜Reshaping the Legal Practice Course™, 147 New Law Journal,
19 September 1997, p. 1358. Cli¬ord Chance, Linklaters and Allen & Overy.
Fresh¬elds Bruckhaus Deringer, Herbert Smith, Lovells, Norton Rose and Slaughter & May.
In September 2006 Berwin Leighton Paisner signed up on a new LPC course aimed at
smaller ¬rms. (Law Society™s Gazette, 21 September 2006, p. 22.)
763 The solicitors™ branch

proposal was that the Legal Practice Course should no longer be compulsory.113
There would be other ways of qualifying. Instead of skills being taught in the
classroom and being tested in hypothetical exams, they could be acquired and
assessed in real-life situations. This would make it possible to earn whilst learn-
ing, so reducing the cost of qualifying. There would be no minimum period of
study and preparation prior to quali¬cation.
The proposal that the LPC become optional attracted intense critical
response114 and in view of the widespread negative reaction it was eventually
abandoned.115 The LPC therefore remains compulsory, but the new LPC
(dubbed LPC2), due to come into e¬ect in 2008, will have various di¬erent fea-
tures. One major di¬erence is that instead of all providers having to run the
same course they will have considerable freedom to devise their own course.
In January 2006, responsibility for the training system was taken over by the
Law Society™s new Regulation Board. The Training Framework Review Group
which had previously done the work was abolished.116 In May 2006 the
Regulation Board published draft proposals. The framework document stated:
˜The key regulatory role for the Law Society Regulation Board is to achieve con-
sistency of the learning outcomes and demonstration by candidates of the
minimum standards, rather than to ensure that all LPC students have a consis-
tent or equivalent experience™.
Centrally set assessments detached from any prescribed course would be
introduced, initially for the ¬nancial, business skills and professional ethics
modules. There would be more skills assessments.117 There would be a variety
of elective subjects. Students would be able to apply for exemptions from parts
of the course they had already covered in the form of equivalent experience.
There would also be ˜robust™ assessment of trainees™ work-based learning
through the completion of a 6,000 word portfolio during the training con-
The number of places for full-time students on the LPC in the three years
from 2003“5 was 7,859, 8,345 and 8,843. (That is the number of places not the
number of students.) The number of part-time places in those years was 1,700,
2,256 and 2,498.119
Funding the LPC For those who obtain traineeship contracts with large ¬rms,
the costs of the LPC course are normally paid by the ¬rm. (According to the

Law Society™s Gazette, 20 January 2005, p. 3; 27 January 2005, p. 18.
N. Johnson, ˜The Training Framework Review “ What™s All the Fuss About?™ 155 New Law
Journal, 2005, p. 357. Law Society™s Gazette, 27 October 2005, p. 1.
The Lawyer, 23 January 2006, p. 3. For discussion of this development see The Lawyer, 13
February 2006, pp. 24“9.
The Association of LPC Providers argued that this could increase the cost of the course by up
to £1,000 per pupil. (The Lawyer, 24 July 2006, p. 8.)
Law Society™s Gazette, 27 October 2005; 16 December 2005; 25 May 2006, p. 4. The Lawyer, 7
August 2006, p. 22. For an overall description of the proposals by the chairman of the
Regulation Board see P. Williamson, ˜Solicitors of the Future™, 156 New Law Journal, 17
November 2006, pp. 1756“7. Annual Statistics 2005, Table 8.3, p. 40.
764 The legal profession

2002 Mount¬eld Report,120 the typical ¬nancial package o¬ered by the large
¬rms covered: costs of the course, CPE as well as LPC, plus maintenance of
£5,000 pa, a salary of £28,000 for the ¬rst year of the traineeship, £32,000 for
the second year and £50,000 on quali¬cation.) Obviously, few small ¬rms can
o¬er such inducements.
In 2002, the Legal Services Commission, to encourage young lawyers into
publicly funded work, started to pay LPC fees for a hundred students a year. The
grants continue after the LPC to cover a part of the trainee™s salary for the
traineeship stage. Grants were being targetted at ¬rms in smaller urban and
rural areas. Firms must derive over 50 per cent of their income from legal aid.
The grants are premised on an expectation that the solicitor will stay with the
¬rm for at least two years after quali¬cation.121
Traineeship Hitherto the basic post-LPC training-on-the-job has been two
years in a solicitors™ o¬ce under a formal training contract. In August 2006 the
new Law Society Regulation Board (LSRB) published a consultation paper en-
titled A New Framework for Work Based Learning (www.lawsociety.org.uk). This
invited views on radical proposals designed to create a more ¬‚exible system
aimed at reducing the cost of training and the bottleneck for would-be solici-
tors who had passed the LPC but could not get a training contract.122
The main features of the proposed new system would be:
• A move away from the two-year training contract to a period of assessed
learning involving an initial planning session and four review sessions at not
less than four-month intervals. (So quali¬cation would be possible after
sixteen months.)
• A route to quali¬cation for individuals not working in an accredited organi-
sation or under a formal training arrangement through the guidance of LSRB
trained ˜portfolio supervisors™.
• A standard portfolio template as an assessment tool for the period of work-
based learning.
• The development of an improved validation and monitoring process for
organisations seeking accreditation as training organisations and a lighter
touch, in-house assessment regime for individuals employed in those organ-
A distinction would be drawn between trainees working in accredited organi-
sations and others. The LSRB would no longer prescribe the detailed structure
and content of training in accredited organisations. Anyone wishing to qualify
as a solicitor would be able to present themselves for assessment regardless of

Report of the Committee on Financial Support for Entrants to the Bar, July 2002, Annex B.
See the Legal Services Commission™s consultation paper Developing Legal Aid Solicitors; Press
Release of 12 June 2002 (˜Over £1.5 million to help fund the next generation of legal aid
solicitors™) “ www.legalservices.gov.uk.
The page one story in the Law Society™s Gazette, 17 August 2006 was headed ˜Board sets
training revolution in motion™.
765 The solicitors™ branch

where or how they had gained their experience and whether it had been
obtained under a structured training environment or by working in some other
legal environment at an appropriate level. (The costs of the reviews for those
not employed in accredited organisations would fall on the trainee.) The inten-
tion would be for the standard of competence for all entrants to match that
achieved by newly quali¬ed solicitors under the existing system.123 A two-year
pilot project would start in September 2007. The pilot would be evaluated
before full implementation of the new system.
Trainee registrations are at record levels “ having exceeded 5,000 per annum
for six consecutive years. (In 2004“5 there were 5,732 new traineeships regis-
tered compared with 4,170 ten years earlier, an increase of over a third.124) Well
over half (61 per cent) were women (compared with 54 per cent in 1990“1).125
Of those with known ethnicity, ethnic minority trainees were 18 per cent.126
Since 1987, the Law Society has recommended national minimum starting
salaries for trainee solicitors. From 1993“9 the rates were frozen at the 1992
levels. From 2003 there was also a recommended salary (as opposed to
minimum salary). (From August 2006 the recommended salary was £17,527 in
Central London and £15,605 in the rest of the country, with the recommended
minimum as £17,110 and £15,332.) It was reported in 2006 however that the
Law Society™s new Regulatory Board was contemplating ditching minimum pay
˜in an e¬ort to grow the number of training contract places available to stu-
dents™.127 Despite growth over the previous ¬ve years in the number of students
taking the LPC the number of training contracts had remained almost static.
Most trainees are paid over the minimum rate. The average starting salary in
2004“5 was £20,794 “ though in Central London it was £27,094.128 Male
trainees were o¬ered starting salaries that on average were 7 per cent above that
for females.129
The small number of large ¬rms took a completely disproportionate number
of the trainees. Almost a third (31 per cent) of all traineeships registered in
2004“5 were with the 0.3 per cent of ¬rms with eighty-one or more partners
and a further 15 per cent with ¬rms with twenty-six to eighty partners. (These
¬rms accounted for 1.4 per cent of all ¬rms.) Fifteen per cent of trainees were
with the 3 per cent of ¬rms with eleven to twenty-¬ve partners, 15 per cent were
with the 9 per cent of ¬rms with ¬ve to ten partners and 24 per cent were with
the 86 per cent of one to four partner ¬rms.130
Continuing education The Law Society introduced compulsory continuing
education for new entrants as from 1984. In 1990 it was extended to all members
of the profession qualifying after 1987. They have to undertake sixteen hours per

For further details and di¬ering views see Law Society Gazette, 21 September 2006, pp. 20“1.
124 125
Annual Statistics 2005, chart 6, p. 41. Ibid, Table 8.7, p. 42.
Ibid, Table 8.8, p. 42. With regard to 7 per cent of trainees there was no information as to
ethnicity. The Lawyer, 4 September 2006, p. 11.
128 129
Annual Statistics 2005, para. 8.13, p. 46. Ibid, para. 8.14, p. 46.
Ibid, Table 8.11, p. 45.
766 The legal profession

annum at continuing education courses or activities of one sort or another for
the rest of their careers. As from November 1998 the same obligation to under-
take continuing education was extended to all solicitors of whatever seniority.
The obligation can be met by engaging in a variety of educational activities.131

Number of solicitors
A person who acts as a solicitor within the meaning of the Solicitors Act 1974
must hold an annual practising certi¬cate. In 2005, there were 126,142 solici-
tors on the Roll of whom 100,938 (80 per cent) held practising certi¬cates.132 Of
these, 78,092 (77 per cent) were in private practice.133
There has been a dramatic increase in the number of solicitors with practis-
ing certi¬cates. For the ¬rst half of the twentieth century, it was under 20,000. In
1950, it was 17,000. In 1975, the number was just under 30,000; in 1985, 44,500;
in 1995, 66,100. In the decade to 2005, it grew by 34,000 to just over 100,000.134
The large growth in the size of the Bar in the 1960s and 1970s was fuelled to
a considerable extent by the exponential increase in grants of representation
under legal aid. This was not the case for the solicitors™ branch since legal aid
forms only a small proportion of their income.135 The growth was attributable
rather to the spread of home ownership in the population. As will be seen below,
until 1986 solicitors had a monopoly of the handling of conveyancing which
accounted for a very large part of their income. (In 1901, only about 10 per cent
of dwellings were owner-occupied; the ¬gure in 1971 was 50 per cent and in
1990 was 67 per cent.136)

The structure of the solicitors™ profession
Solicitors practise in ¬rms. A ¬rm may have more than one o¬ce. The annual
statistics published by the Law Society show the number of ¬rms broken down
by numbers of partners. In 2004“5, there were 9,728 ¬rms with a total of 12,650
As has been seen, the great majority of ¬rms are small, but it is the largest ¬rms
of which one hears most often. According to the 2004 pro¬le of the ˜Top 100™
¬rms by The Lawyer,138 there were several ¬rms with over 1,000 fee earners.139

See generally the CPD and Training Supplement in 156 New Law Journal, 17 November 2006,
pp. 1747“59. The penultimate article in the supplement by the chairman of the Regulation
Board (pp. 1756“70) indicated that the Board would in future be looking at ways of placing
emphasis on outcomes rather than on CPD hours spent.
Ibid, para. 1.3, p. 13. Those without a practising certi¬cate include retired solicitors and
others not pursuing a career in the legal profession. Ibid, Table 2.2.
Ibid, p. 13.
In 1999“2000 it was 13 per cent of gross fees. The ¬gure was not available after 2001 but it is
unlikely that the percentage increased.
For an overall assessment of the changing pro¬le of the profession see N. Rose, ˜Strength in
Numbers™, Law Society™s Gazette, 8 July 2004, pp. 24“5.
137 138
Annual Statistics 2005, Table 3.1, p. 23. 5 May 2004, p. 16
Cli¬ord Chance (2,684 lawyers including 406 equity partners), Fresh¬elds (2,225 lawyers, 516
equity partners), Linklaters (2,000 lawyers, 390 equity partners), Allen & Overy (1,879
767 The solicitors™ branch

Their importance, however, is enormous. In 2005, ¬rms with eighty-one or
more partners, around 0.3 per cent of the total number of ¬rms, employed just
over one-¬fth (22 per cent) of all solicitors. Firms with twenty-six or more part-
ners, 1.5 per cent of the total, employed well over a third (38 per cent) of all
solicitors. (At the other end of the spectrum, sole practices, 46 per cent of all
¬rms employed 8 per cent of all solicitors.140)
The ¬rms with twenty-six or more partners in 1999“2000 generated no less
than 50 per cent of the profession™s gross fees. (This ¬gure was not available after
2001.) As has been seen, they also train half of all the entrants to the profession.
˜Assistant solicitors™ are quali¬ed solicitors who are not partners. In recent
years a new category has emerged of ˜associate solicitors™ whose status is
between that of assistant solicitor and partner. In 2005, solicitors in ¬rms were
partners (34 per cent), assistant solicitors (36 per cent), associate solicitors (13
per cent), consultants (4 per cent), sole practitioners (5 per cent) and other (7
per cent).141
A solicitor normally cannot establish his own practice within three years of
admission to the Roll. He needs the permission of the Law Society to do so.
The fee earners in solicitors™ ¬rms also include ˜legal executives™.

Legal executives
It has been a familiar feature of solicitors™ o¬ces for well over a hundred years
that they employ unadmitted sta¬ on professional work. Formerly they were
known as ˜managing clerks™, but since the founding of the Institute of Legal
Executives in 1963 they have generally been known as legal executives, regard-
less of whether they were actually members of the Institute. In 2005, there were
some 22,500 members of the Institute (including students). There are reckoned
to be approximately another 10,000 unadmitted sta¬ in solicitors™ o¬ces who
are not members of the Institute.
The Institute has three grades of membership “ students, Associates (who
have passed four papers in law and have served in solicitors™ o¬ce for at least
three consecutive years) and Fellows (who must be twenty-¬ve or over, have
served eight years in a solicitors™ o¬ce and who must have passed an examina-
tion comprising three papers out of a choice of thirteen).
For further information see the Institute™s Website www.ilex.org. See also
A.M. Francis, ˜Legal Executives and the Phantom of Legal Professionalism: the
Rise and Rise of the Third Branch of the Legal Profession™, 9 International
Journal of the Legal Profession, 2002, pp. 5“25. For a comparison between qual-
ifying as a solicitor via a university degree and via being a legal executive see J.
Beavan, ˜Quali¬cation: an Alternative Option™, 155 New Law Journal, 2005,
pp. 1535“6.
As will be seen, legal executives now have signi¬cant rights of audience.
lawyers, 312 equity partners), Lovells (1,153 lawyers, 235 equity partners), Eversheds (1,712
lawyers, 172 equity partners) and DLA (1,212 lawyers, 113 equity partners).
140 141
Annual Statistics 2005, Table 4.1, p. 27. Ibid, Table 4.1, p. 27.
768 The legal profession

The distribution of solicitors™ offices in the community
The ¬rst systematic national study of the location of solicitors™ o¬ces was
carried out by Ken Foster on the basis of the Law List in 1971.142 Wide
di¬erences emerged in the distribution of solicitors™ o¬ces. Various socio-
economic factors were then tested to attempt to explain this unequal distribu-
tion of solicitors. The strongest correlation was between the distribution of
solicitors and the amount per head of retail sales. These high correlations,
Foster suggested, indicated that ˜the location of solicitors and their o¬ces is
governed principally by economic considerations very similar to those that
govern the location of retail distribution outlets™.143
A second study of the distribution of solicitors was carried out on the data
for 1985 by Kim Economides and Mark Blacksell.144 Like Foster, they plotted the
distribution of solicitors in the Solicitors and Barristers Directory. The results
showed a very uneven distribution. ˜At a regional level, the southeast domi-
nated, with almost half the total and the lowest regional value for the number
of persons per solicitor. There was a broad band of relatively well-provided
counties stretching from the southwest to East Anglia, while poorly-provided
counties covered the north and east Midlands.™145 However, more detailed
scrutiny of the data, at district rather than county level, revealed a more
complex and more interesting pattern which ran somewhat counter to the
general distribution picture. Solicitors were disproportionately well represented
in rural areas and poorly represented in rapidly expanding suburban popula-
tions on the fringes of the major centres of population.

Women in the solicitors™ profession
The remarkable rise in the number of women in the profession is similar to that
at the Bar. As recently as 1960 there were virtually no women solicitors. In 1970,
they were a mere 3 per cent of those with practising certi¬cates. In 1980, the
proportion was 10 per cent, in 1990 25 per cent and in 2005 42 per cent. Since
1994 more than half of those admitted as solicitors have been women. In
2004“5, the proportion was 60 per cent.146
It seems, however, that women still do not enjoy parity in promotion prospects.
The distribution of solicitors in private practice in 2005 is given in the Table
below. It shows that 44 per cent of men compared with 20 per cent of women were
partners. In part this might be because women have only relatively recently begun
to enter the profession in signi¬cant numbers. But the Statistical Report goes on
to show that with equivalent levels of experience a higher proportion of men
achieve partnership.147 Thus, of solicitors with ten to nineteen years™ experience,
68 per cent of men were partners (or sole practitioners) compared with 45 per

142 143
˜The Location of Solicitors™, Modern Law Review, 1973, p. 153. Ibid at pp. 161“2.
˜Access to Justice in Rural Britain: Final Report™, 16 Anglo“American Law Review, 1985,
145 146
pp. 353“75. Ibid at pp. 357“8. Annual Statistics 2005, Table 9.3, p. 48.
Ibid, para. 2.10, p. 18.
769 The solicitors™ branch

All solicitors Women Men
per cent per cent per cent

Partners 34 20 44
Sole practitioners 5 3 7
Associate solicitors 13 16 11
Assistant solicitors 36 53 25
Consultant 4 2 6
Other 7 6 8
Total 100 100 100

(Source: Annual Statistical Report, 2005, Table 2.9, p. 17)

cent of women. This could be partly because, compared with men, women take a
greater number of career breaks and accumulate fewer years of post-qualifying
experience. No doubt it is also due to some extent to gender discrimination.148

Ethnic minorities in the solicitors™ profession
The proportion of solicitors from the ethnic minorities has risen considerably
in recent years. In 1995 they were 3.8 per cent of solicitors with practising cer-
ti¬cates. By 2005, this had risen to an estimated 8.7 per cent.149 Of the students
enrolling with the Law Society in 2004“5, no fewer than 25 per cent were from
ethnic minority groups150 “ compared with 14 per cent in 1991“2.151
In 2005, 18 per cent of trainee solicitors and 13 per cent of new admissions
to the Roll were from ethnic groups.152
By far the largest single category of ethnic minority admissions was Asian (56
per cent). Others were African (12 per cent), Chinese (7 per cent) and Afro-
Carribbean (5 per cent).153 The ¬gures for ethnic origin of those admitted as
solicitors is not complete since the information about ethnic origin was only
available in 2004“5 for 76 per cent of those admitted.
A further breakdown of the ethnic minority admissions showed that 63 per
cent were women “ an even higher proportion than for admissions generally.
Within the ethnic minorities, the proportion of female admissions was highest
amongst Afro-Carribbeans (82 per cent).154

See further C.M.S. McGlynn, ˜The Business of Equality in the Solicitors™ Profession™, 63
Modern Law Review, 2000, pp. 442“56; H. Sommerlad, ˜Women Solicitors in a Fractured
Profession: Intersections of Gender and Professionalism in England and Wales™, 9
International Journal of the Legal Profession, 2002, pp. 213“34; D. Nicolson, ˜Demography,
Discrimination and Diversity: a New Dawn for the British Legal Profession?™, 12 International
Journal of the Legal Profession, 2005, pp. 201“28; Law Society, Women Solicitors, Fact Sheet,
2005 “ www.research.lawsociety.org.uk.
Annual Statistics 2005, para. 2.12, p. 19. The ethnicity information was available for 87.9 per
cent of practising solicitor holders. Ibid, Table 8.5, p. 38.
Annual Statistics 2001, para. 8.5, p. 56.
152 153
Annual Statistics 2005, Table 8.8, p. 42 and Table 9.9, p. 54. Ibid, Table 9.11, p. 55.
Ibid, para. 9.11, p. 55.
770 The legal profession

Whereas 36 per cent of White Europeans in private practice are at partner-
ship level, the corresponding proportion from minority ethnic groups is signif-
icantly lower at 22 per cent.155 In March 2006, Trevor Phillips, chair of the
Commission for Racial Equality, warned the profession that without visible
improvement the profession was ˜inviting Government to consider tougher leg-
islation™ which would force it to do better.156
In May 2005 the Lord Chancellor™s Legal Services Consultative Panel called
for law ¬rms and barristers™ chambers to undertake diversity monitoring
including keeping records for QCs and partners and to publish the results on
their Website.157 In July 2006, however, a Government minister said she was
˜appalled™ at the lack of response by law ¬rms with regard to publishing their
diversity statistics.158

Management of the solicitors™ branch
The profession is run by the Law Society which was established by Royal Charter
in 1831 and by 121 autonomous local law societies. The Law Society is both the
professional association concerned with the advancement of the interests of
solicitors and the governing body concerned with dealing with complaints
against solicitors and disciplinary matters. It is therefore both the trade union
and the regulator. (As will be seen, in 2006 these two roles were separated and
under the Legal Services Bill complaints against solicitors are to be entirely
The Law Society issues practising certi¬cates to those in private practice. It
administers the Compensation Fund against which clients defrauded by solici-
tors can complain and recoup their losses.159 It also manages the system of train-
ing for those wishing to qualify as solicitors through its College of Law. Practice
Rules regulating the practice, conduct and discipline of solicitors were until
now promulgated by the Law Society with the approval of the Master of the
Rolls under the authority of the Solicitors Act 1933, s. 31.
The 121 local law societies perform less important functions. They deal with
complaints from the public, help solicitors in di¬culties and assist would-be
entrants to secure positions in ¬rms. They may arrange lectures and social
events. They also play a role in shaping Law Society policy by reacting to pro-
posals emanating from Chancery Lane.

Ibid, para. 2.15, p. 22.
156 New Law Journal, 31 March 2006, p. 526. He was speaking at the launch of a survey by the
Black Solicitors Network showing that many of the top solicitors™ ¬rms in the UK had no
black or ethnic minority partners.
The Legal Profession: Entry, Retention and Competition, May 2005, www.dca.gov.uk/atoj/
The Lawyer, 31 July 2006, p. 4. Bridget Prentice MP, Parliamentary Under Secretary of State at
the DCA, said that only thirty-four of The Lawyer UK 100 had replied to the DCA™s request
despite repeated reminders.
In 2005, payments from the Fund amounted to £13.3 million. (Law Society™s Annual Report,
2005, p. 27.)
771 The solicitors™ branch

The Law Society is run by its Council, which until 2000 consisted of seventy-
¬ve members elected by solicitors throughout the country. The country was
divided into constituencies, each of which had a proportionate number of Coun-
cil members depending on the number of solicitors who practised in that area.
As is normal for a professional body, the Law Society has always been the butt
of criticism from its members, but in the past few years the level of criticism has
reached new heights (or depths). Dissatisfaction seems to centre partly on the
way the Society deals with substantive issues “ such as the catastrophe of the
shortfall of several hundred million pounds on the Solicitors™ Indemnity Fund
(SIF) and the resulting gigantic increases in insurance premiums, partly on
what is felt to be general ine¬ciency and partly on lack of rapport with the con-
cerns of the ordinary practitioner. Criticism from outside the profession is also
endemic “ notably over the Law Society™s handling of complaints by clients.
The crisis over the SIF, after a long and agonising saga, eventually led in June
1999 to a decision by a reluctant Council of the Law Society to allow solicitors
to opt between the previously compulsory mutual Fund and making equivalent
alternative insurance arrangements in the open market.160
The perceived problem of ine¬ciency and general malaise led to the Council
asking for advice from Pearson Group chairman, Sir Dennis (now Lord)
Stevenson, a businessman experienced in helping ailing companies. His verdict:
˜The Law Society does not work. Its very structure prevents e¬ective decision-
making, and when decisions are made, there is no means of ensuring that they
are implemented™. He recommended that the Society™s 141 committees and
working parties should be reduced to a core, that greater use be made of ad hoc
task forces, that an executive committee should oversee implementation of the
Council™s policy decisions and that elections should be restricted to the Deputy
Vice President level to avoid damaging contests.161 The Council took his advice.
In January 1999 some ¬fty committees were abolished. A new organisational
system was established that came into existence as from January 2000. In the
meanwhile a small Interim Executive Committee and twelve working parties on
major policy areas were established.162
In 1999“2000 the Law Society engaged in a further bout of major reform. In
December 1999 the Interim Executive Committee approved the appointment
of consultants Corporate Edge to advise on a rede¬nition of the Society™s
activities. In April 2000 the Council received reports from three working

Law Society™s Gazette, 30 June 1999, p. 3. The story can be traced over months through the
columns of the Gazette. For a potted history of professional indemnity insurance for solicitors
see Law Society™s Gazette, 17 February 1999, p. 22. For a full account see M. Davies, ˜Wither
Mutuality? A Recent History of Solicitors™ Professional Indemnity Insurance™, 5 International
Journal of the Legal Profession, 1998, pp. 29“61. For the new scheme see Law Society™s Gazette,
11 August 1999, p. 46; 20 April 2001, p. 24; New Law Journal, 15 June 2001, p. 881; The
Lawyer, 25 June 2001, p. 33. The Lawyer, 22 September 1998, p. 1.
For the developing story see Law Society™s Gazette, 20 September 1998, p. 4; 18 November
1998, p. 22; 25 November 1998, p. 22; 2 December 1998, p. 15; 20 January 1999, p. 16; 26 May
1999, p. 18.
772 The legal profession

parties on the Future of Regulation, Regulation Review, and Sections and
Specialisation. It agreed that reform should be taken forward by a specially con-
vened Reform Co-ordination Group. This eventually resulted in a consultation
paper which was sent to the profession in October 2000. The consultation paper
made a number of central proposals:
• An enlarged and more representative Council “ size to be increased from
seventy-¬ve to a hundred “ representation not only for geographical con-
stituencies but also for sectional and specialist interests possibly to be elected
by national ballot or nominated by the interest groups “ primary role of
Council to approve strategic priorities, determine policy and set budget “ it
would elect and delegate authority to a Main Board “ the Council would only
meet four to six times a year.
• Redesignation of the Society™s functions “ proposed they be Standards,
Adjudication and Compliance, Law reform, Representation, Services, and
Finance and Administration.163
• A Board per function, chaired by a Council member “ each Board to consist of
a mixture of Council, non-Council and lay members “ the ¬rst two named
Boards to have 50 per cent lay membership.
• The Main Board to operate as ˜cabinet™ government “ consisting of three o¬ce
holders, Council member chairs of the individual boards, the Chief Executive
and the sta¬ director of each function “ its role overseeing the strategic plan
and budget.
The reform package met opposition,164 but it was approved by the profession “
¬rst in responses to the consultation exercise and then at a Special General
Meeting in May 2001. The postal ballot, in which over 17,000 voted, approved
a series of resolutions by more than the required two-thirds majority.165
The Society™s annual report for the year ending December 2001 gave details
of the initial phase under the new system. The new Council had sixty-one seats
for geographical constituencies plus up to thirty-nine specialist seats and ¬ve
lay members. So far, thirty-six of the thirty-nine seats had been designated. The
¬rst lay members had been appointed by the Master of the Rolls in July 2001.
The Standards Board had eight Council members and three lay members. Half
the members of the Compliance Board which dealt with enforcement of rules,
regulations and standards were lay persons.
It is not required that quali¬ed solicitors be members of the Law Society, but
over 80 per cent are.

See further p. 835 below.
See for instance D. Keating, ˜Reform at the Law Society™, 150 New Law Journal, 29 September
2000, p. 1396; M. Mears, ˜Keep the status quo™, Law Society™s Gazette, 16 November 2000,
p. 26.
See M. Napier, ˜End of the Beginning™, Law Society™s Gazette, 3 May 2001, p. 20; and for the
resolutions passed see ˜The Law Society™s Special General Meeting™, Law Society™s Gazette, 11
May 2001, p. 14.
773 The divided profession

For the recommendations regarding regulation in the report by Sir David
Clementi, the profession™s response and the Legal Services Bill see pp. 824“27,
834“35 below.
For the view that the Law Society had lost its way in coming to terms with
contemporary conditions see A.M. Francis, ˜Out of Touch and Out of Time:
Lawyers, their Leaders and Collective Mobility within the Legal Profession™, 24
Legal Studies, 2004, pp. 322“48.

2. The divided profession
Many assume that the division of the legal profession goes back into the mists
of antiquity, but this is not so. As Australian scholar John Forbes pointed out,
division presupposes two or more parts of a whole, but it was not until the sev-
enteenth or even eighteenth century that solicitors could be said to have
emerged as a distinct or identi¬able professional group. The Bar had by then
had centuries of development. The distinction in those days was therefore not
between two parts of the same profession, but between lawyers and sub-lawyers.
In 1765 Blackstone set out the hierarchy of the legal profession without even
mentioning solicitors. Even a hundred years later Dicey lectured on legal edu-
cation without referring to solicitors. Until the late eighteenth and into the early
nineteenth century, solicitors could be described as ˜an unorganised, ill-
disciplined, ill-educated category of sub-professional agents, living wholly or
partly on the sub-professional trivia of litigation and conveyancing and sharing
even this subject matter with court clerks, law students and laymen™.166
However, in the nineteenth century the solicitors™ branch gradually estab-
lished itself and carved out areas of work in which it specialised. The Bar was
persuaded ¬rst to give up seeing clients direct and then to cease to do con-
veyancing. In return the Bar had a monopoly over the right to appear as an
advocate (the ˜right of audience™) in the higher courts and a virtual monopoly
over appointments to the bench.
In 1979, the Benson Royal Commission on Legal Services concluded
unanimously that the divided profession was in the public interest mainly on
the ground that it promoted specialisation (Cmnd 7648, 1979, para. 17.45).
Today the division is still maintained. One cannot practise both as a barris-
ter and a solicitor at the same time. Barristers and solicitors are not (yet at least)
permitted to form partnerships.The Bar is still the senior branch. The solicitor
attends on the barrister in his chambers rather than the reverse. The barrister
is in charge of the running of the case and will tell the solicitor how he intends
to conduct it. The barrister team and the solicitor team in a case still tend to
work separately in doing their respective parts of the work. Barristers no longer
have their former monopoly with regard to rights of audience in the higher
courts, but they still do by far the bulk of that work. (The Law Society has

M. Birks, Gentlemen of the Law (Stevens, 1960) p. 105.
774 The legal profession

conceded that in some cases it is not necessary for a solicitor to attend counsel
at court.167)
Similarly, although barristers no longer have their former monopoly over all
higher judicial appointments168 the great majority of such appointments have
been and still are from the ranks of barristers. (Thus in 2004“5 of eleven High
Court judges appointed, none was a solicitor; of 145 recorders appointed, only
four were solicitors.169)
There are more and more signs of overlap in the work done by barristers and
solicitors and of direct competition between the two branches. The Bar™s
Response to the 2001 OFT report said: ˜All the services that barristers provide
can now be and are increasingly provided by solicitors™.170 In 2003 it even
became possible for lay clients to seek advice from a barrister without the inter-
vention of a solicitor (see pp. 799“800 below). This was the most radical step
yet in the changing relationship between the two branches of the profession.
For the Bar™s statement of the value of having an independent referral pro-
fession see Appendix 9 and 10 to the Bar Council™s Response to the DCA/LSC
Consultation Paper, Legal Aid: A Sustainable Future, October 2006 “ www.bar-
For the e¬ect of the Government™s Legal Services Bill introduced in
November 2006 see pp. 823“36 below.

Transfer between the two branches
It has become very much easier than it previously was to transfer from one
branch to the other. Under the Quali¬ed Lawyer Transfer Regulations 1990 a
barrister wishing to practise as a solicitor must pass a test in Professional
Conduct and Accounts (a combined paper). In addition, they must either have
completed twelve months™ pupillage and twelve months™ legal practice after
pupillage or complete two years™ legal practice. Providing they have had recent
advocacy experience, they do not have to re-qualify for rights of audience in the
higher courts.171 Barristers who switch to practice as solicitors do not, as for-
merly, have to disbar themselves. They remain subject to the Bar Council Code
as ˜non-practising barristers™. Solicitors who switch to become barristers do not
have to come o¬ the Roll but they cannot have a practising certi¬cate. Unless
they have higher rights of audience, solicitors transferring to the Bar must
undertake pupillage.

See Guide to the Professional Conduct of Solicitors, 20.04 (www.lawsociety.org.uk) which
replaced the version of 20.04 in the printed Guide. It applies in magistrates™ courts, small
claims, fast track and in some Crown Court cases “ where the solicitor considers it reasonable
in that neither the client™s interests nor the interests of justice will be prejudiced.
Solicitors gained the right to be appointed recorders and Circuit judges by the Courts Act
1971. (See also the Administration of Justice Act 1977, s. 12.) They won the right to be
appointed judges in the High Court and above by the Courts and Legal Services Act 1990,
169 170
s. 71. www.dca.gov.uk/judicial/ja-arep2005/parttwo.htm#f. Paragraph 2.19.
Courts Quali¬cations Regulations 2000 made under the Access to Justice Act 1999.
775 Law centres

About seventy solicitors apply each year to become barristers; some 150“200
barristers apply each year to become solicitors.

3. Law centres
Law centres as noted above (p. 614), are o¬ces providing legal services in
poverty areas sta¬ed by lawyers whose salaries are paid out of public funds. The
funding is a mixture of central and local Government money and ordinary pay-
ments out of the legal aid fund. For the clients the services are entirely free of
Law centres were ¬rst proposed in 1968 in the Society of Labour Lawyers™
pamphlet Justice for All. At the time the concept was opposed by the Law Society,
which saw law centres as a threat to the private practitioner. The ¬rst centre was
set up in 1970 in North Kensington. By the end of that decade there were some
thirty. During most of the 1980s there were some ¬fty law centres and that
remains the approximate number.
The original opposition of the Law Society melted away as it began to be
appreciated that law centres could refer paying work to the local profession
whilst handling unremunerative work that the profession was not keen to
undertake. Law centres are generally regarded as an important resource ¬lling
gaps in the legal aid system, often specialising in areas of work that private prac-
titioners do not handle.
Law centre lawyers have developed skills and specialisms which have been
copied by private practitioners. They have pioneered means of delivering legal
services such as twenty-four hour services (a precursor of the police station
Duty Solicitor scheme), multi-plainti¬ work in areas other than personal
injuries, peripatetic advice sessions, advice over the telephone for those who
¬nd it di¬cult to get to the o¬ce or pro-active lawyering, for instance through
advice and training to groups. Law centres have also played a major role in pro-
viding representation in tribunals and thereby opening up an area of need not
covered by the traditional legal aid system.
Law centres also play an important role as specialists. The DTI for
instance awarded the Law Centres Federation (LCF) £150,000 to fund a
one-year project to train lawyers and caseworkers in new legislation on
equality legislation. The London Discrimination Unit, in the Lambeth Law
Centre, funded by the Commission for Racial Equality, the Big Lottery Fund
and the Association of London Government, takes discrimination cases
from across London. The Law Centres Federation received a grant of £1.4
million from the Disability Rights Commission to fund caseworkers in law

Examples were given by Steve Hynes, Director of the Law Centres Federation, in an article on
specialist funding for law centres in 34 Independent Lawyer, January/February 2006, p. 21.
776 The legal profession

4. The use of solicitors, and clients™ perceptions
There have been various surveys about use of lawyers.173 The main ¬ndings of
these surveys are:
• Use of lawyers is common. Nearly three-¬fths of people over eighteen had
seen a solicitor with regard to a personal problem at some point. 14 per cent
had done so in the previous twelve months.174 34 per cent had used a solici-
tor in the past ¬ve years for a personal problem.175
• The age group that uses lawyers most are those between twenty-¬ve and
thirty-four.176 Given that buying a home is the most common reason for using
a solicitor, this is not surprising.
• The main services are buying and selling a home, making a will, divorce and
matrimonial problems, dealing with someone™s estate and compensation for
• Use of lawyers varies by socio-economic group. A solicitor in 1977 was used
by 25 per cent of the professional class, 21 per cent of employers and man-
agers, 19 per cent of intermediate and junior non-manual workers, 13 per
cent of skilled manual workers and workers who worked on their own
account, 11 per cent of semi-skilled workers and 10 per cent of unskilled
manual workers.178
• Those in non-manual households (one-third of the population) accounted
for over a half of all use of lawyers for the buying and selling of property,
dealing with the estates of deceased persons and making or altering wills.179
In divorce, motoring o¬ences and personal injury claims arising out of road
tra¬c accidents those who used lawyers were roughly in proportion to their
size in the general population.180 Manual households used lawyers consider-
ably more (proportionately) than non-manual in claims for industrial injury
compensation and marginally more in o¬ences other than motoring,181 but
in matters which were not connected with property, ˜the pro¬le of users of
lawyers™ services by socio-economic group is not greatly di¬erent from that of
the adult population in general.182
These results demonstrate that use of lawyers is problem-connected even
more than it is type-of-person connected. In other words, socio-economic

The largest study was that conducted in the late 1970s for the Benson Royal Commission on
Legal Services based on interviews with a random sample of 7,941 households (Cmnd. 7648,
1979, vol. 2, pp. 173“298 (Royal Commission)). A study by the Law Society™s Research and
Planning Unit was based on interviews with a representative sample of 1,630 people aged over
eighteen (J. Jenkins and V. Lewis, Client Perceptions, Research Study No. 17, 1995 (˜Jenkins
and Lewis, 1995™)). See also J. Jenkins, E. Skordaki and C. Willis, Public Use and Perception of
Solicitors™ Services (Law Society Research Study No. 1, 1989) and R. Craig, M. Rigg, R. Briscoe
and P. Smith, Client Views (Law Society Research Study No. 40, 2001).
174 175
Royal Commission, Table 8.3, p. 185. Jenkins and Lewis, 1995, n. 173 above, p. 5.
176 177
Royal Commission, para. 8.27, p. 184; Law Society, 1995, pp. 5“6. All three surveys.
178 179 180
Royal Commission, Table 8.8, p. 190. Ibid, para. 8.110. Ibid, para. 8.111.
181 182
Ibid, para. 8.112. Ibid, para. 8.115.
777 Reform of the profession “ current issues

background is not the best explanation of the fact that di¬erent categories in
the socio-economic scale use lawyers to a di¬erent extent. In ¬elds where
property is involved (conveyancing, probate, wills, etc.), naturally those with
property see lawyers much more than those without. Since this is the largest
single source of work for the solicitors™ profession it explains why lawyer use
seems to re¬‚ect the di¬erences between classes, but the impression is mis-
leading. If one looks at non-property types of work, the use of lawyers is rel-
atively even as between members of di¬erent socio-economic backgrounds.
• The image of solicitors is generally good. Of the professions evaluated (the
others were bank managers, estate agents, dentists, NHS doctors and social
workers), solicitors came in the middle range, with doctors rated most highly
on all criteria.183 The vast majority of clients were extremely satis¬ed with
their own solicitor.184
• People distinguished between their own solicitor and the profession as a
whole. Thus 31 per cent thought solicitors were approachable and easy to talk
to. When asked about their own solicitor, the percentage was 74 per cent.185
The ratings for all the professions were generally down from the previous survey
in 1989. (˜The evidence supports the opinion that the public are now more
questioning and demand higher level of service from all professions™.186)
For a study by the Consumers™ Association conducted since the establishment
of the Community Legal Service see The Community Legal Service: Access for
All?, 2000, summarised in Legal Action, July 2000, pp. 8“9.
For a major empirical study of what people do when they have a legal
problem see H. Genn, Paths to Justice (Hart, 1999). For the follow-up study in
Scotland see H. Genn and A. Paterson, Paths to Justice: Scotland (Hart, 2001).

5. Reform of the profession “ current issues
Reform of the legal profession has been a live topic for most of the period since
the 1960s. For over forty years the profession has been the subject of a series of
reports, Green Papers, White Papers and a succession of statutes, culminating
in the Legal Services Bill 2006“07 to implement the recommendations of the
report in 2003 by Sir David Clementi.
In the 1960s the a¬airs of the profession were examined in three reports from
the now defunct National Board for Prices and Incomes (1968, 1969 and 1971).
In the 1970s the Monopolies Commission produced three reports a¬ecting the
legal profession on restrictive practices generally (1970), the Two Counsel Rule
(1976) and restrictions on advertising (1976). The Benson Royal Commission on
Legal Services published its report in 1979.187 In 1988, the Marre Committee set
up jointly by the Bar Council and the Law Society to deal with rights of audience,

183 184
Jenkins and Lewis, 1995, n. 173 above, Ch. 3. Ibid, para. 3.9.
185 186
Ibid, para. 3.10. Ibid, para. 3.12.
Cmnd. 7648.
778 The legal profession

published its report A Time for Change. (For reasons of space, these reports are
dealt with here only to the extent necessary to understand current issues.)
The aggregate e¬ect of all these inquiries was not great. In January 1989, the
then Lord Chancellor, Lord Mackay, launched three Green Papers making a
whole raft of radical proposals for reform of the profession. The Green Papers
provoked uproar.188 The legal profession and the judges reacted ¬ercely forcing
Mrs Thatcher™s Government to retreat.189 The White Paper published in July
1989 was signi¬cantly less radical than the Green Papers of January.190 The
White Paper was broadly implemented in the Courts and Legal Services Act
1990 (CLSA).191 That Act created a new structure for dealing in particular with
the endless battles over rights of audience.
Seven years later, in December 1997, Lord Irvine, the incoming Labour Lord
Chancellor, indicated that he was dissatis¬ed with the system for dealing with
rights of audience created by the CLSA and that fresh legislation would be intro-
duced to reform it. A consultation paper (Rights of Audience and Rights to
Conduct Litigation: The Way Ahead) was issued in June 1998 followed in
December 1998 by a wide-ranging White Paper (Modernising Justice) dealing
with legal services, civil legal aid, the civil courts, criminal justice and criminal
defence. At the same time Lord Irvine published his Access to Justice Bill which
became the Access to Justice Act 1999.
The Report of the O¬ce of Fair Trading The next major development was the
publication in March 2001 of the O¬ce of Fair Trading™s report Competition in
Professions.192 The OFT™s report was commissioned under s. 2 of the Fair
Trading Act 1973. The terms of reference were to identify restrictions which

There were three Green Papers: The Work and Organisation of the Legal Profession (Cm. 570,
1989), Conveyancing by Authorised Practitioners (Cm. 572, 1989) and Contingency Fees (Cm.
571, 1989). For an extended review of the proposals in the Green Papers see ˜The Green
Paper on Contingency Fees™, 8 Civil Justice Quarterly, April 1989, pp. 97“103; and ˜The
Realignment of the English Legal Profession™, 8 Civil Justice Quarterly, July 1989,
pp. 202“14.
For a detailed account of the battle over the Green Papers see M. Zander, ˜The Thatcher
Government™s Onslaught on the Lawyers: Who Won?™, 24 International Lawyer, 1990,
pp. 753“85. For a more recent account of the story see Ch. 2 of R. Abel™s book English Lawyers
between Market and State (OUP, 2003) and the writer™s assessment of Abel™s account in 11
International Journal of the Legal Profession, 2004, pp. 123“30.
White Paper on Legal Services (Cm. 740, July 1989). For a review of the White Paper see ˜The
White Paper on Legal Services™, 9 Civil Justice Quarterly, January 1990, pp. 6“12.
For an account of the CLSA 1990 see ˜Courts and Legal Services Act 1990™, 10 Civil Justice
Quarterly, April 1991, p. 97.
OFT 328 “ accessible on www.oft.gov.uk. For a summary see 151 New Law Journal, 23
February 2001, p. 370. The report was on restrictions on competition in three professions “
lawyers, accountants and architects “ but the lawyers were the main focus. The
recommendations in the report were wide-ranging and potentially extremely serious for both
branches of the profession: the professions to lose their partial exemption from competition
law; banks, insurance companies and building societies to be allowed to compete for
conveyancing and probate work; solicitors and barristers employed by non-lawyers to be
permitted to o¬er legal services to the public; scrapping of the rank of QC; abolition of the
restrictions on lay clients having direct access to barristers; on barristers forming partnerships
779 Reform of the profession “ current issues

have the e¬ect of ˜preventing, restricting or distorting competition in profes-
sional services to a signi¬cant extent™. Although any consumer bene¬ts claimed
for the restrictions were also to be identi¬ed, the terms of reference expressly
stated that the question whether such bene¬ts justi¬ed the restrictions was to
be left ˜for further consideration™.
Section 9 of the Competition Act 1998 sets out the criteria that must be met
if a restrictive agreement is to be given an exemption. The test is a narrow eco-
nomic one “ namely, whether (1) the restriction on competition in question is
justi¬ed on the ground that it improves production, distribution or economic
progress, while allowing consumers a fair share of the resulting bene¬t and (2)
does not impose restrictions that are not indispensable to the attainment of
those objectives or give the profession concerned the possibility of eliminating
competition in respect of a substantial part of the work in question.
The OFT™s document consisted of two parts “ the 137 page report of its con-
sultants, Law and Economics Consulting Group Ltd (LECG), and its own nine-
teen page conclusions based on that report. LECG™s report was prepared under
severe time constraints and was based on skimpy ¬eld research. (For instance,
it did not include a visit to a single set of chambers!) They also drew up their
extensive reform agenda despite admitting that their inquiries ˜did not uncover
signi¬cant concerns among users of professional services, whether about
quality, price or innovation™ (para. 20). (The report said that there were two
possible explanations. ˜One is that the professions are providing a high standard
of service at a reasonable price. The other is that they may not be, but that clients
have di¬culty in judging whether they have received good service and what
would constitute a reasonable price™ (para. 20).)
Despite these manifest shortcomings, the OFT adopted LECG™s report. It
called for consideration of legislative action by Government. It urged the pro-
fessions to take prompt action to remove those restrictions that did not have a
proper justi¬cation and warned that, failing readiness to take such action within
twelve months, it would ˜use its available powers with a view to removal of those
restrictions™ (para. 49).
The then Secretary of State at the Department of Trade and Industry, Mr
Stephen Byers, said in the Commons on 8 March 2001 that the Government
accepted and would implement the recommendation to make the professions
fully subject to competition law (which happened),193 but that for the rest it
seemed appropriate to consider comments on the report and that the Govern-
ment would be issuing a formal consultation paper.
The Bar™s Response The Bar published a forty-one page Response to the OFT
in February 2002.194 It started with why the divided profession was in the public

and on barristers and solicitors forming multi-disciplinary partnerships etc. This was, in
e¬ect, a reprise of Lord Mackay™s 1989 Green Papers.
The Enterprise Act 2002 repealed Sch. 4 of the Competition Act 1998.
Accessible on www.barcouncil.org. The Response was prepared by a committee chaired by Sir
Sydney Kentridge QC, the doyen of the Bar.
780 The legal profession

interest. (LECG™s report had not addressed this question.195) The divided pro-
fession not only had the advantages of enabling barristers to hone specialist
skills as advocates and of providing objective advice to solicitors and their
clients, it also enabled them to do their work ˜more e¬ciently and cheaply than
solicitors™.196 This was because barristers™ overheads were so much lower “ typ-
ically 28 per cent of gross income compared with 70 per cent for solicitors.197
The market for their services, the Bar said, would work less e¬ciently if the
client did not have the solicitor to match the barrister to the client™s needs and
to monitor the quality of the barrister™s work. The divided profession also pro-
moted competition between solicitors by giving even small ¬rms access to the
full range of expertise at the Bar which enabled them better to compete with
larger ¬rms. Eighty per cent of solicitors™ ¬rms had ¬ve or fewer partners. The
availability of the Bar enabled them ˜to provide a much higher quality and range
of services than would otherwise be possible™.198 The divided profession also
permitted barristers to operate the cab-rank rule which prohibited picking and
choosing clients. (The rule requires a barrister to accept instructions with
regard to work within his competence on being o¬ered a proper fee.199)
Because, as a result, barristers were not identi¬ed with their clients, even the
most unpopular could secure proper representation. The cab-rank rule did not
apply to solicitors. The Bar ended the general introductory section of its
Response by quoting this writer, commenting on the OFT report, that it was an
over-simpli¬cation to believe:
. . . that equating the work done by professional people to business will neces-
sarily improve the position of the consumer when the reality is that sometimes
it may rather worsen it. Certainly one wants competition to ensure that profes-
sional fees are no higher than they need to be and that professional rules do not
unnecessarily inhibit e¬ciency, but what one looks for from the professions
even more is standards, integrity and concern for the client of a higher order
than that o¬ered in the business world.200

Except that it stated that it had no objection to the title ˜barrister™ and ˜solicitor™ continuing
provided that restrictions on direct access of clients to barristers and on conducting litigation
were removed (para. 252, p. 74). The OFT report itself had said: ˜The dual structure of the
legal profession, with its separate roles for solicitors and barristers, may add unnecessarily to
costs™. In the Director General™s view, rather than pressing now for restructuring to end the
dual structure of the legal profession, ˜the best approach is to address its remaining adverse
e¬ects through further liberalisation of professional rules™ (para. 49).
Paragraph 2.10.
It quoted the current average hourly rates for barristers: up to ¬ve years™ Call, £78; ¬ve to ten
years™ call, £113; over ten years™ Call, £166; QCs, £293 “ by comparison with the rates for
solicitors: up to ¬ve years™ post-quali¬cation, £181; over ¬ve years™ post-quali¬cation £245;
equity partner £323. BDO Stoy Hayward, Survey of Barristers™ Chambers, 2001, para. 6.5.
Paragraph 2.17.
See A. Watson, ˜Advocacy for the Unpopular: The Barrister™s Cab-rank Rule in England and
Wales “ Past, Present and Future?™, 162 Justice of the Peace, 20 June 1998, pp. 476, 499 and 576.
M. Zander, ˜Should the Legal Profession be Shaking in its Boots?™, 151 New Law Journal, 23
February 2001, p. 369.
781 Reform of the profession “ current issues

The Response then addressed the speci¬c restrictive rules at issue: partnerships,
including multi-disciplinary partnerships, direct access to barristers by lay
clients, advertising, the right to conduct litigation, Queen™s Counsel and legal
professional privilege. The arguments are noted in the relevant sections below.
The Law Society™s Response The Law Society™s Response to the OFT™s report
in December 2000 (www.lawsociety.org.uk) was quite brief. It stated that the
Law Society had a Working Party on Multi-disciplinary Partnerships and a
Regulation Review Working Party reviewing all the current restrictions on com-
petition. It explained the rules regarding entry to the profession, fee sharing
with non-solicitors and advertising and argued that they were in the public
In April 2002, the OFT issued a twenty-one page progress statement.201 The
accompanying press release was headed ˜Competition in professions “ improve-
ment but more action needed™.
In July 2002, the LCD issued a consultation paper (In the Public Interest?)202
regarding the topics in the OFT™s report which fell to the Department.203 It
stated: ˜On all the issues raised in this consultation, the Government™s position
is that the market should be opened up to competition unless there are strong
reasons why that should not be the case, such as evidence that real consumer
detriment might result from such a change™ (p. 5). The Government had
decided to review the whole regulatory framework for legal services, the ¬rst
step of which would be to settle the scope of such an exercise and how to com-
plete it. It posed a series of questions.
In November 2002, both the Bar and the Law Society published their
responses to the LCD™s consultation paper In the Public Interest?204
Also in November 2002, the OFT issued a brief response to the LCD™s con-
sultation paper In the Public Interest? (press release, 21 November 2002.)
On 24 July 2003, Lord Falconer, Lord Chancellor and Secretary of State for
Constitutional A¬airs, announced that there was to be a wide-ranging review
of the regulation of the legal services market aimed at promoting competition
and innovation and improving services for the customer. It would be led by Sir
David Clementi, an accountant, chairman of Prudential Plc and former Deputy
Governor of the Bank of England. He was asked to complete his review by the
end of 2004.205
201 202
OFT 385, www.oft.gov.uk. DCA consultation paper 07/02 “ www.dca.gov.uk.
Four topics were addressed: legislation on conveyancing and probate, multi-disciplinary
partnerships for solicitors, legal professional privilege and the QC system.
For the Bar™s response see www.barcouncil.org.uk; for the Law Society™s response (Quality,
Choice and the Consumer Interest) see www.lawsociety.org.uk.
The Clementi Review was announced in the DCA™s twenty-page report of July 2003
Competition and Regulation in the Legal Services Market (CP(R2) 07/02) giving the
Government™s response on the matters raised in the consultation paper In the Public Interest?
of July 2002. The 2003 report included a ¬ve page Annex A on opening up the market for
probate services. It also had annexed to it a 133-page Scoping Study prepared by three
academics, Robert Baldwin, Kate Malleson and Martin Cave, and Sheila Spicer of the LCD.
(Sheila Spicer was then seconded to Sir David Clementi™s inquiry.)
782 The legal profession

The DCA™s 2003 report also announced that:
• The probate market would be opened up to banks, building societies and
insurance companies, subject to the controls in ss. 54 and 55 of the Courts
and Legal Services Act 1990 which would be brought into e¬ect, as recom-
mended by the OFT. The Government™s calculation was that, over a decade,
solicitors were unlikely to lose more than 7“8 per cent of their market share
in this area, which represented only one per cent of solicitors™ overall gross
income. (See p. 819 below.)
• The Government favoured allowing new types of businesses such as multi-
disciplinary partnerships (MDPs) giving ˜one-stop™ services and corporations
wider access to the market but would leave it to the Clementi Review to rec-
ommend how best to regulate them to safeguard the independence of the pro-
fessions and consumers™ interests. (˜Appropriate regulation, adequate and
stringent enough to protect both the interests of the public and the core values
of the professions, is the key to the successful development of these new style
• Legal professional privilege would not be extended to clients of non-lawyers.
(There was no evidence that the existing privilege was signi¬cantly distorting
the market in favour of lawyers and it was contrary to the public interest to
increase the right of non-disclosure, both from the courts and from the
Revenue and Customs and Excise.) But the Government later changed its
mind. Clause 182 of the Legal Services Bill introduced in November 2006,
would confer privilege on any non-lawyer providing advocacy services, liti-
gation services, conveyancing or probate services as what the Bill calls ˜autho-
rised persons™ (see further p. 000 below).
• Pending the Clementi Review, the conveyancing market would not be opened
up to banks or building societies. (The set-up costs for Government in respect
of regulation would be high. In the early 1990s, take-up by such competitors
was low. The conveyancing market was no longer a monopoly and was already
The Clementi Review The Review published a seventy-nine page consultation
paper in March 2004 and its Final Report (Review of the Regulatory Framework
for Legal Services in England and Wales) in December 2004. The Final Report
(considered further below, pp. 823“41) made far-reaching recommendations
regarding three topics:
• Regulation of legal services There should be a single regulator for the entire
market “ the Legal Services Board (LSB) “ with a majority of non-lawyers.
The LSB would authorise Front Line Regulators (FLRs) such as the Bar
Council and the Law Society to carry out day-to-day regulation.

For a sharp critical reaction from a sole practitioner to the prospect of what has been dubbed
˜Tesco law™ see C. Sutton, ˜A “Special O¬er” the Public must Refuse™, New Law Journal, 1
August 2003, p. 1185.
783 Reform of the profession “ current issues

• Complaints There should be a new single body “ the O¬ce of Legal
Complaints “ to handle all legal services complaints.
• New ways of providing legal services There should a new form of provider of
legal services “ Legal Disciplinary Partnerships (LDPs) “ with non-lawyer
partners, providing lawyers were in the majority. Non-lawyer ownership of
LDPs should be permitted subject to a test of ˜¬t to own™.
In October 2005, the Government responded to the Clementi Report in a 158
page White Paper (The Future of Legal Services: Putting Consumers First).207 The
White Paper indicated that the Government accepted the recommendations of
the Report except that with regard to LDPs it would go further than Clementi
by allowing Alternative Business Structures (ABS), with a majority of non-
lawyers (and even non-lawyer owners) to provide legal services.
On 24 May 2006 the Government published the Draft Legal Services Bill.208
The Draft Bill was sent for consideration to a Joint Committee of both Houses
which was required to complete its work and to report by 25 July. The Com-
mittee published its response on time.209 In September 2006 the Government
published its response to the Joint Committee™s Report. On 23 November 2006
the Legal Services Bill was introduced by the Lord Chancellor in the House of
What follows is a treatment of a variety of current topics including in partic-
ular issues raised by the OFT and by the Clementi Report. A topic that is not
treated is that of fusion or uni¬cation of the two branches of the legal profession.
At one time this issue excited a great deal of interest. The writer wrote extensively
on the subject.210 In the ¬rst ¬ve editions of this work a considerable amount of
space was given to the subject, but in the sixth edition (1992) this material was
dropped “ not because the topic lacked interest, but because it no longer seemed
to be of practical importance. The Benson Royal Commission on the Legal
Services in its 1979 Report had concluded unanimously that the divided
Cm. 6679 “ www.dca.gov.uk.
The Draft Bill (172 pp.), Explanatory Notes (66 pp.) and the Full Regularity Impact
Statement (82 pp.) are all accessible on www.dca.gov.uk/legist/legalservices.htm. For a
three-part series by S. Young analysing the Draft Bill see ˜Tomorrow™s World™, 156 New
Law Journal, 1 September 2006, p. 1304; 8 September, p. 1351; 15 September, p. 1391.
The Joint Committee™s Report (HC 1154, HL 232) was published on 25 July 2006. Accessible
at www.parliament.gov.uk “ Business-Committees “ Committees in Full “ Former
Committees “ Draft Legal Services Bill.
The argument for uni¬cation of the legal profession was perhaps most fully developed in M.
Zander, Lawyers and the Public Interest (Weidenfeld and Nicolson, 1968, now out of print)
pp. 270“332. See also P. Reeves, Are Two Legal Professions Necessary? (Waterlows, 1986). For a
direct response to the arguments in Lawyers and the Public Interest see G. Gardiner, ˜Two
Lawyers or One?™, 23 Current Legal Problems, 1970, p. 1. See also R.E. Megarry, Lawyer and
Litigant in England (Stevens, 1962); C.P. Harvey, The Advocate™s Devil (Stevens, 1958); E.J.
Cohn, ˜The German Attorney “ Experiences with a United Profession™, 9 International and
Comparative Law Quarterly, 1960, pp. 580“99 and 10 International and Comparative Law


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