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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 also engaged by solicitors to provide specialist advice on points of law. 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.
On the other hand, many countries such as the United States do 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.
The practical difference between the two professions is twofold:
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.
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 report has 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.
In court, barristers are often visibly distinguished from solicitors by their apparel. For example, in England and Wales, barristers usually wear a horsehair wig, stiff collar, bands and a gown. Solicitor advocates will not wear a wig, and wear a different gown.[2]
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.
The reasons for a split profession are normally historical, however a number of reasons are still advanced for maintaining split professions:
Against that, a number of disadvantages are put forward:
Barristers are regulated by the Bar for the jurisdiction in which they practise, 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. While 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.
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. It is however possible to hold the qualification of both barrister and solicitor at the same time; it is not necessary to be disbarred in order to qualify as a solicitor.
Barristers are regulated by the Bar Standards Board, a division of the General Council of the Bar.
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 all cases, provide financial aid to student barristers (subject to merit) 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 practise 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 may 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 and the remainder are Many barristers (about 2,800) are employed in companies as ‘in-house’ counsel, or by local or national government or in academic institutions.
Certain barristers in England and Wales are now instructed directly by members of the public. Members of the public may contract with (instruct) the barrister directly through the barrister’s clerk; a solicitor is not involved at any stage. Barristers undertaking Public Access work can provide 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 and the litigation.
Barristers undertaking Public Access work must have completed a (fairly straightforward) special course; it provides no guarantee of special legal skill. At present, about 1 in 20 barristers have qualified as Public Access Barristers, often in the hope of attracting work which would otherwise be denied them. 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 General Council of the Bar, in July 2004. The Public Access Scheme was introduced as part of an attempt to open up the legal system to the public by making it easier and cheaper for the general public to obtain access to legal advice.
