Differences between barristers and other lawyers
A barrister's wigs, Parliament Hall, Edinburgh
A barrister, who can be considered a jurist, is a lawyer who represents a litigant as advocate before a court of appropriate jurisdiction. A barrister speaks in court and presents the case before a judge or jury. In some jurisdictions, a barrister receives additional training in evidence law, ethics, and court practice and procedure. In contrast, a solicitor generally meets with clients, does preparatory and administrative work and provides legal advice. In this role, he or she may draft and review legal documents, interact with the client as necessary, prepare evidence, and generally manage the day-to-day administration of a lawsuit. A solicitor can provide a crucial support role to a barrister when in court, such as managing large volumes of documents in the case or even negotiating a settlement outside the courtroom while the trial continues inside.
There are other essential differences. A barrister will usually have rights of audience in the higher courts, whereas other legal professionals will often have more limited access, or will need to acquire additional qualifications to have such access. As in common law countries in which there is a split between the roles of barrister and solicitor, the barrister in civil law jurisdictions is responsible for appearing in trials or pleading cases before the courts.
Barristers usually have particular knowledge of case law, precedent, and the skills to "build" a case. When a solicitor in general practice is confronted with an unusual point of law, they may seek the "opinion of counsel" on the issue.
In most countries, barristers operate as sole practitioners and are prohibited from forming partnerships or from working as a barrister as part of a corporation. (In 2009, the Clementi Report recommended the abolition of this restriction in England and Wales.) 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. In some jurisdictions, they may be employed by firms of solicitors, banks, or corporations as in-house legal advisers.
In contrast, solicitors and attorneys work directly with the clients and are responsible for engaging a barrister with the appropriate expertise for the case. Barristers generally have little or no direct contact with their 'lay clients', particularly without the presence or involvement of the solicitor. All correspondence, inquiries, invoices, and so on, will be addressed to the solicitor, who is primarily responsible for the barrister's fees.
In court, barristers are often visibly distinguished from solicitors by their apparel. For example, in Ireland, England, and Wales, a barrister usually wears a horsehair wig, stiff collar, bands, and a gown. Since January 2008, solicitor advocates have also been entitled to wear wigs, but wear different gowns.
In many countries the traditional divisions between barristers and solicitors are breaking down. Barristers once enjoyed a monopoly on appearances before the higher courts, but in Great Britain 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 specializations, or who are only really trained for advocacy, are not prepared to provide general advice to members of the public.
Historically, barristers have had a major role in trial preparation, including drafting pleadings and reviewing evidence. In some areas of law, that is still the case. In other areas, it is relatively common for the barrister to receive the brief from the instructing solicitor to represent a client at trial only a day or two before the proceeding. Part of the reason for this is cost. A barrister is entitled to a 'brief fee' when a brief is delivered, and this represents the bulk of her/his fee in relation to any trial. They are then usually entitled to a 'refresher' for each day of the trial after the first. But if a case is settled before the trial, the barrister is not needed and the brief fee would be wasted. Some solicitors avoid this by delaying delivery of the brief until it is certain the case will go to trial.
Justification for a split profession
Some benefits of maintaining the split include:
- Having an independent barrister reviewing a course of action gives the client a fresh and independent opinion from an expert in the field distinct from solicitors who may maintain ongoing and long-term relationships with the client.
- In many jurisdictions, judges are appointed from the bar. Since barristers do not have long-term client relationships and are further removed from clients than solicitors, judicial appointees are more independent.
- Having recourse to all of the specialist barristers at the bar can enable 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.
- Expertise in conducting trials, owing to the fact that barristers are specialist advocates.
- In many jurisdictions, barristers must follow the cab-rank rule, which obliges them to accept a brief if it is in their area of expertise and if they are available, facilitating access to justice for the unpopular.
Some disadvantages of the split include:
- A multiplicity of legal advisers can lead to less efficiency and higher costs, a concern to Sir David Clementi in his review of the English legal profession.
- Because they are further removed from the client, barristers can be less familiar with the client's needs.
A detailed examination of the justifications for a split legal profession and of the arguments in favour of a fused profession can be found in English solicitor Peter Reeve’s 1986 book, Are Two Legal Professions Necessary?