Barrister
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A barrister is a lawyer found in many common law jurisdictions which employ a "split profession" (as opposed to a "fused profession") in relation to legal representation. In split professions, the other type of lawyer is the solicitor. Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case in order to provide any advocacy needed by the client. Barristers are rarely, if ever, instructed by clients directly. Instead, the client's solicitors will instruct a barrister on behalf of the client when appropriate.
The historical difference between the two professions -- and the only essential difference in England and Wales today -- is that a solicitor is an attorney, which means they stand in the place of their client for legal purposes, and may conduct litigation by making applications to the court, writing letters in litigation to the client's opponent and so on. A barrister is not an attorney and is forbidden, both by law and by professional rules, from conducting litigation. This difference in function explains many of the practical differences between the two professions. In split professions, barristers are regarded as holding higher office than solicitors, barristers being regarded as ministers of the court in contrast to solicitors who are said to be mere officers of the court: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253.
The United States does not observe a distinction between barristers and solicitors. Attorneys are permitted to conduct all aspects of litigation and appear before those courts where they have been admitted to the bar.
[edit] Practical differences between barristers and solicitors
The practical difference between the two professions is twofold:
- The barrister will usually be the lawyer who represents litigants as their advocate before the courts of that jurisdiction. A barrister will usually have rights of audience in court, whereas other legal professionals will have more limited access, or will need to take additional qualifications to do so. In this regard, the profession of barrister corresponds to that part of the role of legal professionals found in the civil law jurisdictions relating to appearing in trials or pleading cases before the courts.
- Barristers used to have a major role in trial preparation, including drafting pleadings and reviewing evidence. In modern times, it is relatively common for a barrister to only receive a "brief" from an instructing solicitor to represent a client at trial a day or two before the hearing.[1]
- Barristers often have a more specialised knowledge of case-law and precedent. When a solicitor in general practice is confronted with an unusual point of law, they sometimes seek the "opinion of counsel" on the issue.[2]
However, in many countries the traditional divisions are breaking down. Barristers used to enjoy a monopoly on appearances before the higher courts, but in most countries this has now been abolished, and solicitor advocates can generally appear for clients at trial. Increasingly firms of solicitors are keeping even the most advanced advisory and litigation work in-house for economic and client relationship reasons. Similarly, the prohibition on barristers taking instructions directly from the public has also been widely abolished, but in practice, direct instruction is still a rarity in most jurisdictions, partly because barristers with narrow specialisations or who are only really trained for advocacy are not equipped to provide general advice to members of the public.
In most countries, barristers operate as sole practitioners, and are prohibited from forming partnerships (although in England and Wales the Clementi reporthas recommended the abolition of this restriction). However, barristers normally band together into "chambers" to share clerks (administrators) and operating expenses. Some chambers grow to be large and sophisticated, and have a distinctly corporate feel. Some barristers, on the other hand, are employed by firms of solicitors, banks or corporations as in-house legal advisers.
[edit] Common law division
In the common tradition, the respective roles of a lawyer—that is as legal adviser and advocate—were formally split into two separate, regulated sub-professions, the other being the office of solicitor. An often-used (but not entirely accurate) parallel is the medical profession, in that a solicitor, like a general practitioner is the regular point of contact for a client, who will only be referred to a barrister (or, to continue the metaphor, a consultant) for specialist advisory or advocacy services. There is no difference in the level of complexity in the practice of law by the different branches of the profession, though barristers tend to be instructed in complex litigation and in certain other specialist fields.
Historically, the distinction was absolute, but in the modern legal age, some countries which had a split legal profession are now characterised by having a fused profession; all persons entitled to practice as a barrister are also entitled to practice as a solicitor, and vice versa. In practice, the distinction may be non-existent, minor, or marked, depending on the jurisdiction. And in others, Scotland and Ireland for example, there is little overlap.
Where the profession is split, it is the solicitor who works directly with the client, and who is responsible for engaging a qualified and experienced barrister appropriate to the budget of the client and the nature of his or her case. Conventionally, barristers (also known as "Counsel") will have little or no direct contact with their "lay clients", particularly without the presence or involvement of the solicitor or "professional client" that has engaged them. All correspondence, enquiries, invoices, etc. will be addressed to the solicitor, who is primarily responsible for the barristers' fees. Barristers, unlike solicitors, have full rights of audience, allowing them to appear before any court in the jurisdiction. Generally, solicitors only have rights of audience before the lower courts. However, some solicitors in England and Wales and Scotland are certified as solicitor advocates and, as such, are qualified to represent clients as an advocate in the higher courts in England and Wales or in Scotland.
[edit] Justifications
The reasons for a split profession are normally historical, however a number of reasons are still advanced for maintaining split professions.
- Having an independent barrister reviewing a cause of action gives the client a fresh and independent opinion from an expert in the field, something that rarely happens in jurisdictions with fused professions
- Having recourse to all of the specialist barristers at the bar enables smaller firms, who could not maintain large specialist departments, to compete with larger firms
- A barrister acts as a check on the solicitor conducting the trial; if it becomes apparent that the claim or defence has not been properly conducted by the solicitor prior to trial, the barrister can (and usually has a duty to) advise the client of a separate possible claim against the solicitor
- Having trials conducted by experienced specialist advocates makes for smoother, more professionally run trials.
Against that, a number of disadvantages are put forward:
- A multiplicity of legal advisors leads to higher costs (something that caused no small amount of concern to Sir David Clementi in his review of the English legal profession)
- As barristers are dependent upon solicitors for referrals of work, it is open to question how willing barristers are to criticise those who instruct them to the client.
- Barristers are sometimes criticised for being "over-specialised" and not having sufficient general expertise outside of their fields in some highly specialised fields, such as intellectual property law or tax law.
[edit] Regulation
Barristers are regulated by the Bar for the jurisdiction in which they practice, and in some countries, by the Inn of Court to which they belong. In some countries, there is external regulation, although where this exists it is frequently criticised as inimical to the independence of the profession as defender of the citizen against the state.
Inns of Court, where they exist, regulate admission to the profession. Inns of Court are independent societies that are titularly responsible for the training, admission (calling) and discipline of barristers. Where they exist, a person may only be called to the Bar by an Inn, of which he must first become a member. In fact, historically, call to and success at the Bar to some extent depended upon the introductions that you made during these formative years.
A Bar collectively describes all members of the profession of barrister within a given jurisdiction. Whilst as a minimum the Bar is an association embracing all its members, it is usually the case, either de facto or de jure, that the Bar will be invested with regulatory powers in relation into the manner in which barristers conduct practice.
[edit] Barristers in England and Wales
England and Wales, whilst in some areas of government separate from each other within the devolved political structure of the United Kingdom, comprise a single legal jurisdiction, and accordingly they are together served by a single Bar.
The profession of barrister in England and Wales is a separate profession from that of solicitor. Although there is some overlap in respective roles, it is not possible to be both a barrister and a solicitor at the same time. Barristers are regulated by the Bar Council.
A barrister must be a member of one of the Inns of Court, which traditionally educated and regulated barristers. There are four Inns of Court: The Honourable Society of Gray's Inn, The Honourable Society of Lincoln's Inn, The Honourable Society of the Middle Temple, and The Honourable Society of the Inner Temple. All are situated in central London, near the Royal Courts of Justice. They perform scholastic and social roles, and in some cases, provide financial aid to student barristers through scholarships. It is the Inns that actually "call" the student to the Bar at a ceremony similar to a graduation. Social functions include dining with other members and guests and hosting other events.
Student barristers must take a Bar Vocational Course (BVC) (usually one year full-time) at one of the institutions authorised by the Bar Council to offer the BVC. On successful completion of the BVC student barristers are “called” to the bar by their respective inns and are elevated to the degree of "Barrister-at-law". However, before they can practice independently they must first undertake twelve months of pupillage. The first six months of this period is spent shadowing more senior practitioners, after which pupil barristers begin to undertake some court work of their own. Following successful completion of this stage, most barristers then join a set of Chambers, a group of counsel who share the costs of premises and support staff whilst remaining individually self-employed.
In December 2004 there were just over 11,500 barristers in independent practice, of whom about ten percent are QCs and the remainder are junior barristers. Many barristers (about 2,800) are employed in companies as ‘in-house’ counsel, or by local or national government or in academic institutions.
[edit] Public Access Barristers
Certain barristers in England and Wales are now instructed directly by members of the public. These are known as ‘Public Access Barristers’. The public contract with (instruct) the barrister directly through the barrister’s clerk; a solicitor is not involved at any stage. Public Access Barristers can provide expert legal advice and/or representation in court in almost all areas of law and they are entitled to represent clients in any court or tribunal in England and Wales. Once instructions from a client are accepted, it is the barrister (rather than the solicitor) who advises and guides the client through the relevant legal procedure/litigation.
Public Access Barristers are normal barristers with an extra legal qualification. Before a barrister can undertake Public Access work, he or she must have completed a special course. At present, about 1 in 20 barristers have qualified as Public Access Barristers. Confusingly, there is also a scheme called ‘Direct Access’. However, this is different and it is not open to the general public.
The ability of barristers to accept such instructions is a recent development; it results from a change in the rules set down by the barristers’ governing body, the Bar Council, in July 2004. The Public Access Scheme has been introduced as part of the drive to open up the legal system to the public. It is part of a wider scheme to make it easier and cheaper for the general public to access legal advice.
To some extent this relaxation mirrors the relaxation in the rules to allow ‘solicitors advocates’. It further reduces the distinction between solicitors and barristers. The distinction remains however because there are certain aspects of a solicitor’s role that a Public Access Barrister is not able to do.
[edit] Barristers in Northern Ireland
In April 2003 there were 554 barristers in independent practice in Northern Ireland. Sixty-six were Queen's Counsel (QCs), barristers who have earned a high reputation and are appointed by the Queen on the recommendation of the Lord Chancellor as senior advocates and advisers.
Those barristers who are not QCs are called Junior Counsel and are styled "BL" or "Barrister-at-Law". The term "junior" is often misleading since many members of the Junior Bar are experienced barristers with considerable expertise.
Benchers are, and have been for centuries, the governing bodies of the four Inns of Court in London and King's Inns, Dublin. The Benchers of the Inn of Court of Northern Ireland governed the Inn until the enactment of the Constitution of the Inn in 1983, which provides that the government of the Inn is shared between the Benchers, the Executive Council of the Inn and members of the Inn assembled in General Meeting.
The Executive Council (through its Education Committee) is responsible for considering Memorials submitted by applicants for admission as students of the Inn and by Bar students of the Inn for admission to the degree of Barrister-at-Law and making recommendations to the Benchers. The final decisions on these Memorials are taken by the Benchers. The Benchers also have the exclusive power of expelling or suspending a Bar student and of disbarring a barrister or suspending a barrister from practice.
The Executive Council is also involved with: education; fees of students; calling counsel to the Bar, although call to the Bar is performed by the Lord Chief Justice on the invitation of the Benchers; administration of the Bar Library (to which all practising members of the Bar belong); and liaising with corresponding bodies in other countries.
The Bar Council is responsible for the maintenance of the standards, honour and independence of the Bar and, through its Professional Conduct Committee, receives and investigates complaints against members of the Bar in their professional capacity.
All barristers and solicitors in Northern Ireland have passed exams at the Institute of Professional Legal Studies, of Queen's University of Belfast. The exams there are different from the rest of the UK, but on the possession of a qualifiying law degree (especially from Queen's University), the teaching can be missed and the exam sat directly. Those with a non-qualifying degree can still do the exams, on completion of the relevant course. After a pupillage with an experienced barrister at the Bar Library, one is then qualified.
[edit] Advocates in Scotland and the Channel Islands
In Scotland an advocate is, in all respects except name, a barrister, but there are significant differences in professional practice.
In Scotland, admission to and the conduct of the profession is regulated by Faculty of Advocates (as opposed to an Inn).
In the Bailiwick of Jersey, there are solicitors and advocates, but in the Bailiwick of Guernsey, Advocates of the Royal Court perform the functions of both solicitors and barristers.
[edit] Barristers and solicitors in Canada
In Canada (except Quebec), the professions of barrister and solicitor are fused, and many lawyers refer to themselves with both names, even if they do not practice in both areas. In colloquial parlance within the Canadian legal profession, lawyers often term themselves as "litigators" (or "barristers"), or as "solicitors", depending on the nature of their law practice though some may in effect practice as both litigators and solicitors. However, "litigators" would generally perform all litigation functions traditionally performed by barristers and solicitors; in contrast, those terming themselves "solicitors" would generally limit themselves to legal work not involving practice before the courts (not even in a preparatory manner as performed by solicitors in England), though some might practise before chambers judges in non-contentious (and sometimes contentious) matters.
However, in Quebec, which has a civil law tradition, the situation resembles the rest of Canada. Advocates (avocats) practice before the courts, whereas civil law notaries (notaires) limit themselves to most of the functions of solicitors. However, many aspects of non-contentious legal matters are the concurrent domain of both advocates and notaries; with the result that advocates often specialize either as pleading advocates (i.e. litigators) or as non-pleading advocates (i.e. solicitor). The only exception is that advocates cannot perform notarial acts (i.e., essentially, certifications and authentifications of documents and the keeping of contracts and other legal records, en minute (in minute form) ). Most of the large law firms in Quebec are firms of advocates (pleading and non-pleading) who perform the full range of legal services like those performed by law firms in the common law provinces, the only exception being notarial acts.
[edit] Barristers in other jurisdictions
Barristers are also found in the Republic of Ireland, Hong Kong (where the Chinese name da lu shi, 大律師 is also used), and Australia (in the states without a fused profession, namely New South Wales, Victoria, and Queensland).
In the Republic of Ireland, the official qualification is that of Barrister-at-Law (abbreviated to "B.L."). Senior members of the profession may be selected for elevation to the Inner Bar, when they may describe themselves as Senior Counsel ("S.C.") There is a single Inn that has retained (or at least has not delegated) its educational responsibilities: The Honorable Society of King’s Inns, (note Honorable not Honourable as in England) located near to the Four Courts, the premises of the High Court and Supreme Court. Unlike barristers in England and Wales, Irish barristers are sole practitioners and may not form chambers or partnerships . In order to practice, a newly qualified barrister is apprenticed to a more senior barrister of at least 7 years' experience. This apprenticeship is known as pupillage or devilling and lasts between one to two years.
In Australia, each state Bar Association has the functions of Inns of Court.
In Western Australia and South Australia, the professions of barristers and solicitors are fused, but nonetheless an independent bar is in existence, regulated by those States' Legal Practice Boards. A similar arrangement exists in New Zealand. In Tasmania (Australia) the profession is fused although a very small number of practitioners operate as an independent bar.
The United States does not draw a distinction between barristers and solicitors; all lawyers who pass the bar examination may argue in the courts of the state in which they are admitted, although some state appellate courts require attorneys to obtain a separate certificate of admission to plead and practice in the appellate court. Federal courts require specific admission to that court's bar in order to practice before it. At the State appellate level and in Federal courts, there is no separate examination process, and admission is usually granted as a matter of course to any licensed attorney.
In Nigeria, there is no formal distinction between barristers and solicitors. All lawyers who pass the bar examination and are called to the Nigerian bar by the Body of Benchers of the Nigerian Bar may argue in any Federal trial or appellate court as well as any of the courts in Nigeria's 36 states and the Federal Capital Territory. The Legal Practitioner's Act refers to Nigerian lawyers as Legal Practitioners, and following their call to the bar, Nigerian lawyers are required to enrol or enter their names in the register or Roll of Legal Practitioners kept at the Supreme Court. Perhaps for this reason, a Nigerian lawyer is also often referred to as a Barrister and Solicitor of the Supreme Court of Nigeria, and a good many Nigerian lawyers term themselves Barrister-at-Law complete with the postnominal initials "B.L.".
The vast majority of Nigerian lawyers combine contentious and non-contentious work, although there is a growing tendency for practitioners in the bigger practices to specialise in one or the other. In colloquial parlance within the Nigerian legal profession, lawyers may for this reason be referred to as "litigators" or as "solicitors".
Consistent with the practice in England and elsewhere in the Commonwealth, senior members of the profession may be selected for elevation to the Inner Bar by conferment of the rank of Senior Advocate of Nigeria ("S.A.N.").
Spain has a division which generally corresponds to the division in Britain between barristers/advocates and solicitors. Procuradores represent the interests of a litigant in court, while abogados is the general term for other lawyers. Procuradores are regulated by Royal Decree 2046 of 1982, which approved the General Statute of the Procuradores, and the Organic Law no.6 of 1985. The General Statute regulates the qualifications and conduct of the procuradores. Thus, obligations to act pro bono are laid down by Article 13.
[edit] Barristers in fiction
There have been a number of famous portrayals of barristers in fiction:
- Sydney Carton in the novel A Tale of Two Cities by Charles Dickens.
- The character of Archie Leach, played by John Cleese in A Fish Called Wanda.
- Rumpole of the Bailey, written by real-life barrister, John Mortimer QC.
- Kavanagh QC, played by John Thaw.
- Lewis Eliot in the "Strangers and Brothers" sequence by C. P. Snow.
- The character of Mark Darcy, in Bridget Jones's Diary (film).
- Mel Horowitz in popular teen film 'Clueless'
[edit] See also
- Advocate
- Bar association
- Junior barrister
- Queen's Counsel
- Senior Counsel
- Solicitor
- Solicitor Advocate
[edit] External links
[edit] Australia
- Australian Bar Association (barristers in the Commonwealth of Australia)
- Bar Association of New South Wales (Australia)
- Victorian Bar Association (Australia)
- Queensland Bar Association (Australia)
- South Australian Bar Association (Australia)
- Western Australian Bar Association (Australia)
[edit] UK & Ireland
- Bar Council (barristers in England and Wales)
- Bar Library of Northern Ireland
- Further material on advocates in Scotland
- Irish Bar Council (barristers in the Republic of Ireland)
[edit] Other Countries
- Law Society of Upper Canada
- Law Society of Hong Kong
- Hong Kong Bar Association (barristers in Hong Kong)
[edit] Footnote
- ^ Part of this is cost. Barristers are entitled to a "brief fee" when a brief is delivered, and this represents the bulk of their fee in relation to any trial. They are then usually entitled to a "refresher" for each day of the trial after the first. As many trials settle in the last few days before the hearing, many solicitors seek to save costs by delaying delivery of the brief until the last possible moment.
- ^ In insurance contracts there is often the requirement to seek the expert opinion of counsel where the policy contains what is known as "a QC clause".
