Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client.[1][2] In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not (with the exception of solicitor advocates); there is no such distinction in American law.
In superior courts, generally only barristers or advocates have a right of audience. Depending on jurisdiction, solicitors may have a right of audience in Magistrates and County or District courts.[2] Further, a person appearing in court without legal representation has a right of audience but a person who is not a lawyer that assists a party to a legal matter in court does not have a right of audience.[citation needed] See D v S (Rights of Audience) [1997] 2 FCR 217
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[edit] England and Wales
In English law, a right of audience is a right to appear and conduct proceedings in court.[1]
Traditionally, only barristers had rights of audience and, as of 2008[update], they still enjoy rights of audience in every court in England and Wales. However, rights of audience are now granted to a wider class of persons and are governed by the Courts and Legal Services Act 1990, s.27, as amended by the Access to Justice Act 1999, ss.36-39. The 1999 Act removed earlier restrictions on employed lawyers, such as counsel for corporations, exercising rights of audience (ss.37-38)
[edit] Courts and Legal Services Act 1990
The following have rights of audience:
- Rights granted by authorised bodies:
- Bar Council, grants rights to all barristers in all courts (ss.27(9)(a), 31);
- Law Society of England and Wales, grants rights to solicitors but require specific additional qualifications to appear in the higher courts (ss.27(9)(b), 31);
The Association of Law Costs Draftsmen grants rights to a Costs Lawyer i.e. Fellow of the Association having completed an advocacy course. (Association of Law Costs Draftsmen Order 2006 SI 2006/3333)
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- Chartered Institute of Patent Attorneys (s.27(9)(c));[3]
- Institute of Legal Executives (s.27(9)(c));[4]
- Persons granted rights by statute (s.27(2)(b)), for example, Health and Safety inspectors[5]
- Persons granted rights by the discretion the court (s.27(2)(c));
- Litigants in person (s.27(2)(d));
- Employees of qualified litigators, such as solicitors' clerks, appearing in hearings held in private (s.27(2)(e)).
On the small claims track, any person may exercise rights of audience, under the Lay Representatives (rights of audience) Order, but only if the party is present at the hearing.[6] Other persons may not exercise rights of audience but may sit with a litigant in person and offer quiet assistance as a McKenzie friend.
[edit] Reform
These rights will continue until the Legal Services Act 2007 comes into force and which will give powers to grant rights of audience to:
- Bar Council;
- Law Society;
- Institute of Legal Executives;
- Chartered Institute of Patent Attorneys;
- Institute of Trade Mark Attorneys; and
- Association of Law Costs Draftsmen.
[edit] References
- ^ a b Curzon, L.B. (2002). Dictionary of Law (6th ed. ed.). London: Longman. pp. p.34. ISBN 0-582-43809-8.
- ^ a b Osborn, P G (1993). Osborn's Concise Law Dictionary (7th ed. ed.). London: Sweet & Maxwell. pp. p.39. ISBN 0-421-38900-1.
- ^ Chartered Institute of Patent Agents Order 1999, SI 1999/3137
- ^ Institute of Legal Executives Order 1998, SI 1998/1077
- ^ Health and Safety at Work etc. Act 1974, s.39
- ^ Lay Representatives (Rights of Audience) Order 1999, SI 1999/1225
