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Barristers an introduction:
Barristers in England and Wales are one of the two main categories of lawyer in England and Wales, the other being solicitors. Barristers have traditionally had the role of handling cases for representation in court, both defence and prosecution. (The word ‘lawyer’ is a generic one, referring to a person who practises in law, which could also be deemed to include other legal practitioners such as chartered legal executives.)
Origin of the profession
Historically, the superior courts were based in London, the capital city. To dispense justice throughout the country, a judge and court personnel would periodically travel a regional circuit to deal with cases that had arisen there. From this developed a body of lawyers who were on socially familiar terms with the judges, had training and experience in the superior courts, and had access to a greater corpus of research material and accumulated knowledge on the interpretation and application of the law. Some would go “on circuit” with the court to act on behalf of those requiring representation. By contrast, solicitors were essentially local to one place, whether London or a provincial town.
Lawyers who practised in the courts in this way came to be called “barristers” because they were “called to the Bar”, the symbolic barrier separating the public—including solicitors and law students—from those admitted to the well of the Court. They became specialists either in appearing in court to represent clients, or in the process of using the courts, which would include giving oral or written advice on the strength of a case and the best way to conduct it. For those who had the means and preference to engage a solicitor, it became useful, then normal and then compulsory, for the solicitor, in turn, to select and engage a barrister to represent the client before the courts. Likewise, it became either useful or normal (but not compulsory) to engage an appropriate barrister when highly specialist advice was required. Many barristers have largely “paper practices” and rarely or (in some cases) never make court appearances.
Historically, practising at the bar (or in court) was a more socially prestigious profession than working as a solicitor. In the 18th and 19th centuries, the bar was one of the limited number of professions considered suitable for upper-class men; politics, the Army and Navy, the established clergy, and the civil and diplomatic services being the others. Many leading eighteenth and nineteenth-century politicians were barristers; few were solicitors. In the 20th century, solicitors closed the gap greatly, especially in terms of earnings, and by the early 21st century the social gap was far less important than formerly.
Key differences from the profession of solicitor
Until recently, the most obvious differences between the two professions was that, firstly, only barristers had exclusive and wide rights of audience (that is, a right to plead) in all courts in England and Wales, and secondly, only solicitors could be directly engaged by clients for payment. These differences have been eroded by recent deliberate changes, although in many fields of legal practice, the distinction is largely retained in practice.
Barristers have full rights of audience to appear in all courts, from highest to lowest. Solicitors, on the other hand, have traditionally been able to appear only as advocates in the lower courts (that is, the magistrates’ and county courts) and tribunals. The bulk of such work continues to be handled by solicitors. Under section 17 of the Courts and Legal Services Act 1990, solicitors with appropriate advocacy experience are entitled to acquire higher “rights of audience”, enabling them to appear in the superior courts. Solicitors who attain these rights are known as solicitor-advocates. But, in practice, the number of solicitor-advocates exercising their right to do so remains fairly small, and solicitors often continue to engage a barrister to undertake any required advocacy in court. Not only is this division traditional; in higher-value civil or more serious criminal cases, it is often tactically imperative to engage a specialist advocate (because if one side does not the other might).
Until 2004, barristers were prohibited from seeking or accepting “instructions” (that is, being hired) directly by the clients whom they represent. The involvement of a solicitor was compulsory. The rationale was that solicitors could investigate and gather evidence and instructions and filter them – according to the interests of the client – before presenting them to the barrister; in return the barrister, being one step removed from the client, could reach a more objective opinion of the merits of the case, working strictly from the evidence that would be admissible in court. In addition, being less involved in the current affairs of clients, including many matters that might never come to court, barristers had more time for research and for keeping up to date with the law and the decisions (precedent) of the courts.
Theoretically, this prohibition has been removed. In certain areas (but not crime or conveyancing), barristers may now accept instructions from a client directly (“Direct Access”). Only a solicitor, however, may undertake any work that requires funds to be held on behalf of a client.
A barrister is in principle required to act for any client offering a proper fee, regardless of the attractions or disadvantages of a case and the personal feelings of the barrister towards the client. This is known as the “cab-rank rule“, since the same rule applies to licensed taxi-cabs. Modifying conditions include that the barrister is available to take the case and feels competent to handle the work. A barrister who specialises in, for example, crime is not obliged to take on employment law work if he is offered it. He is entitled (and, even, obliged) to reject a case which he feels is too complicated for him to deal with properly.
Manner of work
Barristers work in two main contexts: in self-employed practice (formerly known as “independent practice”) or in “employed” practice (i.e. salaried).
Most barristers are in self-employed practice, but operate within the framework of a set of Chambers. Under a tenancy agreement, they pay a certain amount per month (“rent”) or a percentage of their incomes, or a mixture of the two, to their chambers, which provides accommodation and clerical support (including the crucial function of booking, and sometimes of finding, work). The Head of Chambers, usually a Queen’s Counsel (also referred to as “QC” or “Silk”) or a “senior junior”, may exercise a powerful influence on the members, and members often offer informal help and guidance to each other. They are not liable for each other’s business (as partners are). Members of the same set of chambers may appear on opposite sides in the same case. Each barrister remains an independent practitioner, being solely responsible for the conduct of his own practice and keeping what he earns. He does not receive a salary from anyone. A barrister in independent practice will be instructed by a number of different solicitors (“professional clients”) to act for various individuals, government departments, agencies or companies (“lay clients”).
By contrast, an “employed” barrister is a barrister who works as an employee within a larger organisation, either in the public or private sector. For example, employed barristers work within government departments or agencies (such as the Crown Prosecution Service), the legal departments of companies, and in some cases for firms of solicitors. Employed barristers will typically be paid a salary, and in most circumstances may do work only on behalf of their employer, rather than accepting instructions on behalf of third parties (such as their employers’ customers). They remain subject to the Bar Council‘s Code of Professional Conduct, and their advice is entitled to professional privilege against disclosure.
New entrants to the employed bar must have completed pupillage in the same way as those in independent practice. The Bar Council produces exhaustive guidance regulating the way in which both groups operate, although in 2006 some of the regulatory authority was passed over to the independent Bar Standards Board.
In 2011 there were around 12,000 barristers in independent practice, of which about ten per cent were QC. A further group (about 3,300) were employed in companies as ‘in-house’ counsel, or by local or national government, or in academic institutions.
Appearance and forms of address
The appearance and form of address of a barrister is bound by a number of conventions.
A barrister’s appearance in court depends on whether the hearing is “robed” or not. In England and Wales, criminal cases in the Crown Court are almost invariably conducted with the barristers’ wearing robes, but there is an increasing tendency in civil cases to dispense with them. The vast majority of County Court hearings are now conducted without robes, although the traditional attire continues to be worn in High Court proceedings.
At a robed hearing, barristers wear a horsehair wig, an open black gown, dark suit and a shirt, with strips of white cotton called ‘bands’ or ‘tabs’ worn over a winged collar, instead of a tie. Female barristers wear either the same shirt or a special collar which includes the bands and tucks inside a suit jacket. QCs wear slightly different silk gowns over short embroidered black jackets and striped trousers. Solicitors wear a black gown (of a distinct style), wing collar and band and a wig. The question of barristers’ and judges’ clothing in the civil courts was the subject of review, and there is some pressure to adopt a more “modern” style of dress, with European-style gowns worn over lounge suits. Guidance from the Bar Council has resulted in robes being worn for trials and appeals in the County Court more than formerly.
In court, barristers refer to each other as “my learned friend”. When referring to an opponent who is a solicitor, the term used is “my friend” – irrespective of the relative ages and experiences of the two.
In an earlier generation, barristers would not shake hands or address each other formally. The rule against shaking hands is no longer generally observed, though the rule regarding formal address is still sometimes observed: at Gray’s Inn, when toasting other barristers, a barrister will address another only by surname, without using a prefix such as ‘Miss’.
Beginning in January 2006, standards for admission to the bar and disciplinary proceedings are administered by the Bar Standards Board (BSB), a regulatory board of the General Council of the Bar. The BSB is not legally separate from the General Council of the Bar, but is set up so as to be independent of it. Previously, barristers were governed by the General Council of the Bar and the individual Inns of Court. There are four Inns, all situated in the area of London close to the Law Courts in the Strand. Gray’s Inn is off High Holborn, Lincoln’s Inn off Chancery Lane, the Middle and Inner Temples, situated between Fleet Street and the Embankment.
The Inns provide a social and professional hub where barristers and jurists can meet. They comprise a grand hall where barristers dine and attend social functions, and include an extensive library. Several rooms are available for conferences and a place for trainee barristers to engage in advocacy practice. Two of the Inns have chapels, and Middle Temple and Inner Temple share Temple Church. All four Inns are set in well-tended gardens and are surrounded by chambers often organised in courtyards and squares.
Direct public access to barristers
Members of the public may engage the services of the barrister directly under the Public Access Scheme; a solicitor is not involved at any stage.
Barristers undertaking public access work can provide legal advice and representation in court in all areas of law (see the Public Access Information on the Bar Council website) and 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 or litigation.
Before a barrister can undertake Public Access work, he or she must have completed a special course. At present, about 1 in 20 barristers has so qualified. ‘Licensed Access’ is a separate scheme available to certain nominated classes of professional client; it is not open to the general public.
It is an early 21st-century development to enable barristers to accept instructions directly from clients; it results from a change in the rules set down by the General Council of the Bar in July 2004. The Public Access Scheme has been introduced as part of a larger effort to open up the legal system to the public, and to make it easier and cheaper for individuals to obtain access to legal advice. It reduces the distinction between solicitors and barristers. The distinction remains, however, because a solicitor’s role has certain aspects which a barrister is not able to undertake.
Education and training
A prospective barrister must first complete the academic stage of their legal education by obtaining a qualifying law degree. In lieu of a formal law degree, however, the individual may undertake a one-year law conversion course, formerly known as the CPE (Common Professional Examination) or PGDL (Postgraduate Diploma in Law), and now known simply as a GDL (Graduate Diploma in Law), having initially graduated in a subject other than law. The student joins one of the Inns of Court and takes the Bar Professional Training Course (BPTC) at one of the accredited providers.
It is still mandatory to “keep terms” before the student can be called to the bar. The student must participate in 12 qualifying sessions, which may include dining in the Hall of the Inn. It used to be a prerequisite that 24 dinners were eaten before call, but the number has since been reduced to twelve. Dining credits are available for participating in specified training events (e.g., a weekend at Cumberland Lodge organised by one of the Inns credits attendees with three dinners). It is also possible to “double-dine” on various special occasions, by which the student is credited with two sessions.
The origins of this date from the time when both students and practitioners dined together; students learned elements of their education from their fellow diners and from readings given by a senior member of the Inn (Master Reader) after the meal. Generally, in order for the dinner to count towards the 12 required, the student must remain seated until after coffee has been served. Often moots (legal debates arguing for or against a point before a notional appellate court) are held in the hall afterwards. At the successful completion of the BPTC (where continuous assessment, as well as examinations, are now the rule), and completion of the requisite number of dining nights, students are entitled, subject to various formalities, to be “called to the Bar” at a ceremony in their Inn. This is conducted by the Masters of the Bench, or Benchers, who are generally senior practising barristers or judges.
Once called to the bar, the new barrister has a choice whether or not to pursue a career in practice. As there are far more applicants for “tenancy” in barristers’ “Chambers” (see below) than there are places, many barristers are unable to obtain a tenancy and choose to go into commercial or academic work. Those choosing not to practice continue to be recognised as ‘barristers’, although may not provide legal services under this label, and remain subject to some limited regulation by the Bar Standards Board.
One who wishes to become a practising barrister must first obtain a “pupillage“. This is a competitive process which involves some 4,000 students applying for some 300 places each year. The online pupillage application system, Pupillage Portal (formerly known as OLPAS), enables applicants to submit their details to up to 12 barristers’ chambers. The Pupillage Portal system is used by most chambers to recruit their pupils; many, however, do not, and such chambers must be contacted directly by applicants. There is no limit to the number of non-OLPAS chambers that an applicant can contact. Such chambers’ recruiting deadlines broadly mirror those of the Pupillage Portal sets.
Pupillage consists of a period of 12 months, where the pupil studies with and under a practising barrister of at least 5 years’ experience. The time is traditionally served in two six-month periods under different pupil-masters (three-month periods are becoming increasingly common), usually in the same chambers. Traditionally, the pupil was paid nothing and could earn no fees until the second six-month period, when he or she was entitled to undertake work independently. All sets are now required to pay their pupils a minimum of £12,000 per year. Some pay considerably more than that, although others have applied for exemption and do not guarantee any income. The Bar is a highly varied profession, both in terms of the specialism (or otherwise) of individual sets of chambers, and in the financial rewards available. For sets doing predominantly publicly funded work, earnings are low for new practitioners. In more specialised areas serving private clients, such as commercial, tax, or chancery work, earnings are far higher, and at least comparable to those of similarly experienced solicitors in big city firms.
After pupillage, the new barrister must find a seat or “tenancy” in a set of chambers. Chambers are groups of barristers and tend to comprise between 20 and 60 barristers. The members of a Chambers share the rent and facilities, such as the service of “clerks” (who combine some of the functions of agents, administrators and diary managers), secretaries and other support staff. Most chambers operate a system whereby the members contribute to these common expenses by paying a certain percentage of their gross income. However, there is no profit-sharing as in a business partnership. Individual barristers keep the fees they earn, beyond what they have to pay towards professional expenses.
The Bar remains a highly individualistic profession, and earnings vary widely – from some newly qualified (usually criminal) juniors who are lucky to earn £25,000 per year to the top Queen’s Counsel (QCs or ‘silks’ as they are known, from their silk gowns) making well in excess of £1 million a year (with a handful of tax and commercial QCs reported to earn more than £2 million a year).
Although not all barristers practise from the Inns (for reasons such as the limited amount of space available), the majority still practise from chambers. The names placed on boards at the entrances of many of the staircases of the buildings within the Inns are the names of the tenant barristers (and occasionally distinguished members now prominent in judicial or political life) practising from the chambers in those buildings.
Some of the principles and traditions that have given the profession its unique character have been caricatured in John Mortimer‘s Rumpole of the Bailey tales and the television episodes based on them. Novelist Caro Fraser also wrote a popular series of books about a fictional series of barrister’s chambers called Caper Court.
In television the bar was popularised by actor John Thaw‘s portrayal of the title character in Kavanagh QC. Peter Moffat (who created Kavanagh QC) also later created a further television series about barristers called Silk (in reference to the silk gowns of Queen’s Counsel) and North Square.
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching the philosophy, hypothesis and history of law, and giving expert legal opinions.
Barristers are distinguished from solicitors, who have more direct access to clients, and may do transactional-type legal work. It is mainly barristers who are appointed as judges, and they are rarely hired by clients directly. In some legal systems, including those of Scotland, South Africa, Scandinavia, Pakistan, India, Bangladesh, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man, the word barrister is also regarded as an honorific title.
In a few jurisdictions, barristers are usually forbidden from “conducting” litigation, and can only act on the instructions of a solicitor, who performs tasks such as corresponding with parties and the court, and drafting court documents. In England and Wales, barristers may seek authorisation from the Bar Standards Board to conduct litigation. This allows a barrister to practise in a ‘dual capacity’, fulfilling the role of both barrister and solicitor.
In some countries with common law legal systems, such as New Zealand and some regions of Australia, lawyers are entitled to practise both as barristers and solicitors, but it remains a separate system of qualification to practise exclusively as a barrister.
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.