A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions. They can be contrasted with solicitors – the other class of lawyer in split professions – who have more direct access with clients, and may do transactional-type legal work. Barristers are rarely hired by clients directly but instead are retained (or instructed) by solicitors to act on behalf of clients.
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 can act in the place of their client for legal purposes (as in signing contracts) and may conduct litigation on their behalf 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 usually forbidden, either by law or professional rules or both, from "conducting" litigation. This means that while the barrister speaks on the client's behalf in court, he or she can do so only when instructed by a solicitor or certain other qualified professional clients, such as patent agents.
Many countries with common law legal systems, such as the United States, do not observe a distinction between barristers and solicitors. In countries with civil law or other kinds of legal systems the legal profession is often separated into divisions but these divisions rarely shadow those of barristers and solicitors.
An artist's rendition of an early 20th century English barrister
Essentially, barristers are the lawyers who represent litigants as their advocate before the courts of that jurisdiction. They speak in court and present the case before a judge or jury. In some jurisdictions they undertake additional training in order to hone their skills with evidence law, ethics, and court practice and procedure. In contrast, solicitors generally engage in preparatory work and advice, such as drafting and reviewing legal documents, dealing with and receiving instructions from the client, preparing evidence, and managing the day-to-day administration of a matter. Solicitors can provide a crucial support role to a barrister when in court, be it in managing large volumes of documents in the case or even negotiating settlements outside the courtroom while the trial continues inside.
Other differences include the following:
- 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 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 civil law jurisdictions relating to appearing in trials or pleading cases before the courts.
- Barristers usually have particular knowledge of case law, precedent and the skill of 'building' a case. When a solicitor in general practice is confronted with an unusual point of law, they sometimes seek the "opinion of counsel" on the issue.[1]
- In most countries, barristers operate as sole practitioners, and are prohibited from forming partnerships or working as a barrister as part of a corporation (although in England and Wales the Clementi report[2] 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. In some jurisdictions, some barristers are employed by firms of solicitors, banks or corporations as in-house legal advisers.
- Solicitors work directly with the client and are responsible for engaging an appropriate barrister; whereas 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, barristers usually wear a horsehair wig, stiff collar, bands and a gown. As of January 2008 Solicitor advocates have also been entitled to wear a wig, but will wear a different gown.[3]
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 England, Wales and Scotland 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.
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 others, 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.[4]
The reasons for a split profession are largely historical, but a number of reasons are still advanced[by whom?] for maintaining the split:
- Having an independent barrister reviewing a course of action gives the client a fresh and independent opinion from an expert in the field, something it is alleged[by whom?] rarely happens in jurisdictions with fused professions. However, attorneys in a "fused" profession often serve differing roles for the same client, for example as in-house counsel and outside counsel.
- In many jurisdictions, judges are appointed from the bar; and because barristers are independent,[vague] this results in a more independent judiciary.
- 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,[vague] more professionally[vague] run trials.
Against the above, a number of disadvantages are put forward:[by whom?]
- A multiplicity of legal advisers leads to higher costs (something that caused no small amount of concern to Sir David Clementi in his review of the English legal profession).[citation needed]
- As barristers are dependent upon solicitors for referrals of work, it is open to question[by whom?] how willing barristers are to criticise those who instruct them to the client.
- Barristers are sometimes criticised[by whom?] for being "over-specialised" and not having sufficient general expertise outside of what can be highly specialised fields.
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?[5]
Barristers are regulated by the Bar for the jurisdiction where they practise, and in some countries, by the Inn of Court to which they belong. In some countries, there is external regulation.
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 they must first be a member. In fact, historically, call to and success at the Bar, to a large degree, depended upon social connections made early in life.[6]
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 is invested with regulatory powers over the manner in which barristers practice.
In the common law 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. Historically, the distinction was absolute, but in the modern legal age, some countries that had a split legal profession now have a fused profession – anyone entitled to practice as a barrister may also practice as a solicitor, and vice versa. In practice, the distinction may be non-existent, minor, or marked, depending on the jurisdiction. In some jurisdictions, such Australia, Scotland and Ireland, there is little overlap.
In the Australian states of New South Wales and Queensland there is a split profession. Nevertheless, subject to conditions, barristers can accept direct access work from clients. Each state Bar Association regulates the profession and essentially has the functions of the English Inns of Court. In the states of South Australia, Victoria and Western Australia, as well as the Australian Capital Territory, the professions of barrister and solicitor are fused, but nonetheless an independent bar exists, regulated by the Legal Practice Board of the state or territory. In the state of Tasmania the profession is fused, although a very small number of practitioners operate as an independent bar.
Generally counsel dress in the traditional English manner (wig, gown and jabot) before superior courts, although they no longer robe for appearances in lower jurisdictions. Wigs are no longer worn in the highest civil court in New South Wales, the Court of Appeal. Wigs are still worn in the Supreme Court, while only robes without wigs are worn in the District Courts in civil matters. Robes and wigs are worn in all criminal cases.[7]
Each year the Bar Association appoints certain barristers of seniority and eminence to the rank of "Senior Counsel" (in New South Wales) or "Queen's Counsel" (in the Northern Territory). Such barristers carry the title "SC" or "QC" after their name. The appointments are made after a process of consultation with members of the profession and the judiciary. Senior Counsel appear in particularly complex or difficult cases. They make up about 14 per cent of the bar in New South Wales.
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.
The situation is somewhat different in Quebec as a result of its civil law tradition. The profession of solicitor, or avoué, never took hold in colonial Quebec, so attorneys[8] (avocats) have traditionally been a fused profession, arguing and preparing cases in contentious matters, whereas Quebec's other type of lawyer, civil-law notaries (notaires), handle out-of-court non-contentious matters. However, a number of areas of non-contentious private law are not monopolized by notaries so that attorneys often specialise in handling either trials, cases, advising, or non-trial matters. The only disadvantage is that attorneys cannot draw up public instruments that have the same force of law as notarial acts. Most large law firms in Quebec offer the full range of legal services of law firms in common-law provinces. Intending Quebec attorneys must earn a Bachelor's degree in civil law, pass the provincial bar examination, and successfully complete a legal internship to be admitted to practice. Attorneys are regulated by the Quebec Law Society (Barreau du Québec).
Although England and Wales are separate in some aspects of the political structure of the United Kingdom, they compose a single legal jurisdiction. Accordingly, they are 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 leave the bar 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 Professional Training Course (BPTC - previously Bar Vocational Course or BVC) (usually one year full-time) at one of the institutions authorised by the Bar Council to offer the BPTC.[9] On successful completion of the BPTC student barristers are "called" to the bar by their respective inns and are elevated to the degree of "Barrister". However, before they can practise independently they must first undertake 12 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 Queen's Counsel 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.
Certain barristers in England and Wales are now instructed directly by members of the public.[10] Members of the public may engage the services of the barrister directly; a solicitor is not involved at any stage. Barristers undertaking public access work can provide legal advice and representation in court in almost all areas of law (see the Public Access Information on the Bar Council website)[11] 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 must have completed a special course. At present, about one in 20 barristers has so qualified. There is also a separate scheme called 'Licensed Access', available to certain nominated classes of professional client; 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 General Council of the Bar in July 2004. The Public Access Scheme has been introduced as part of the drive to open up the legal system to the public and to make it easier and cheaper to obtain access to legal advice. 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 barrister is not able to undertake.
In France, avocats, or attorneys, were, until the 20th century, the equivalent of barristers. The profession included several grades ranked by seniority: stagiaire (pupil, student-at-law), plaignant (junior barrister), and consultant (senior barrister). Since the 14th century and during the course of the 19th in particular, French barristers competed in territorial battles over respective areas of legal practice against the conseil juridique (chamber-counselor) and avoué (solicitor), and expanded to become the generalist legal practitioner. After the 1971 and 1990 legal reforms, the avocat was fused with the solicitor and chamber-counselor, making the avocat (or, if female, avocate) an all-purpose lawyer for matters of contentious jurisdiction, analogous to an American attorney. French attorneys may specialize as litigators (trial lawyers) and legal consultants (advising lawyers), known respectively as avocat plaidant and avocat-conseil. All intending attorneys must pass a legal practice examination and two-year traineeship to be admitted to general practice and enrolled, but to have rights of audience at a given court, an attorney must join that court's bar (barreau) by passing its specific bar examination. Each bar is regulated by a Bar Council (Ordre du barreau).
In Germany, lawyers may only plead at the Federal Court of Justice (Bundesgerichtshof) if they are admitted to that court.[12] Fewer than 50 lawyers are admitted to the Bundesgerichtshof;[13] those lawyers may not plead at other courts, in practice deal only with litigation, and are usually instructed by a lawyer who represented the client in the lower courts. However, these restrictions do not apply to criminal cases, nor to pleadings at courts of the other court systems (labour, administrative, taxation, and social courts, as well as the EU court system).
The legal profession in Hong Kong is also divided into two branches: barristers (where the Cantonese name daai lut si, 大律師 is also used) and solicitors (where the Cantonese name lut si, 律師 is also used).
In the High Court and the Court of Final Appeal, only barristers are allowed to speak on behalf of any party, which means that solicitors are restricted from doing so. In these two courts, barristers dress in the traditional English manner, as do the judges and other lawyers.
In Hong Kong, the rank of Queen's Counsel was granted prior to the transfer of sovereignty over Hong Kong to China in 1997. After the handover to China, the rank has been replaced by Senior Counsel (postnominal SC). Senior Counsel may still, however, style themselves as silks, like their British counterparts.
In the Republic of Ireland, admission to the Bar by the Chief Justice of Ireland is restricted to those on whom a Barrister-at-Law degree (B.L.) has first been conferred. The Honorable Society of King's Inns[14] is the only educational establishment which runs vocational courses for barristers in the Republic and degrees of Barrister-at-Law can only be conferred by King's Inns. King's Inns are also the only body with the capacity to call individuals to the bar and to disbar them.
Most Irish barristers choose to be governed thereafter by the Bar Council of Ireland, a quasi-private entity. Senior members of the profession may be selected for elevation to the Inner Bar, when they may describe themselves as Senior Counsel ("S.C."). Admission to the Inner Bar is made by declaration before the Supreme Court, patents of precedence having been granted by the Government. Irish barristers are sole practitioners and may not form chambers or partnerships if they wish to remain members of the Bar Council's Law Library.
To practise under the Bar Council of Ireland's rules, a newly qualified barrister is apprenticed to an experienced barrister of at least seven years' experience. This apprenticeship is known as pupillage or devilling. Devilling is compulsory for those barristers who wish to be members of the Law Library and lasts for one legal year. It is common to devil for a second year in a less formal arrangement but this is not compulsory.
Legal professionals in Japan are mainly divided into two branches. The term "lawyer" usually refers to barristers, while scrivener means solicitor. There are also two kinds of scriveners: administrative scriveners and judicial scriveners.
The Netherlands used to have a semi-separated legal profession comprising the lawyer and the procureur, the latter resembling, to some extent, the profession of barrister. Under that system, lawyers were entitled to represent their clients in law, but were only able to file cases before the court at which they were registered. Cases falling under the jurisdiction of another court had to be filed by a procureur registered at that court, in practice often another lawyer exercising both functions. Questions were raised on the necessity of the separation, given the fact that its main purpose – the preservation of the quality of the legal profession and observance of local court rules and customs – had become obsolete. For that reason, the procureur as a separate profession was abolished and its functions merged with the legal profession in 2008.[15] Currently, lawyers can file cases before any court, regardless of where they are registered. The only notable exception concerns cases brought before the Supreme Court, which have to be handled by lawyers registered in the district of South Holland, mainly for qualitative reasons.
In New Zealand, the professions are formally fused. Practitioners are enrolled in the High Court as "Barristers and Solicitors", although their annual practising certificate may (by choice) nominate them as either or both. A significant proportion however practise solely as barristers, usually in "chambers" (following the British terminology), and receive "instructions" from other practitioners, at least nominally. They usually conduct the proceedings entirely.
In Nigeria, there is no formal distinction between barristers and solicitors. All students who pass the bar examinations – offered exclusively by the Nigerian Law School – are called to the Nigerian bar, by the Body of Benchers. Lawyers 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 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 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 (SAN).
In April 2003 there were 554 barristers in independent practice in Northern Ireland. 66 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 of Northern Ireland 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.
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 the Faculty of Advocates (as opposed to an Inn).
In the Bailiwick of Jersey, there are solicitors (called ecrivains) and advocates (French avocat). In the Bailiwick of Jersey, the Bailiwick of Guernsey and the Isle of Man, Advocates perform the combined functions of both solicitors and barristers.
Dr. Willem Eduard Bok (1880–1956),
South African lawyer, dressed in barrister's robes and
wig
In South Africa the employment and practice of barristers (known as advocates) is consistent with the rest of the Commonwealth. Advocates carry the rank of Junior or Senior Counsel (SC), and are mostly briefed and paid by solicitors (known as attorneys). They are usually employed in the higher courts, particularly in the Appeal Courts where they often appear as specialist counsel. South African solicitors (attorneys) follow a practice of referring cases to Counsel for an opinion before proceeding with a case, when Counsel in question practices as a specialist in the case law at stake. Aspiring advocates currently spend one year in pupillage (formerly only six months) before being admitted to the bar in their respective provincial or judicial jurisdictions. The term 'Advocate' is sometimes used in South Africa as a title, e. g. 'Advocate John Doe, SC' ('Advokaat' in Afrikaans) in the same fashion as 'Dr. John Doe' for a medical doctor.
There is no distinction between two branches. A person who passed the national bar exam, after 2 years of national education, becomes a judge, a prosecutor or a "lawyer" in accordance of their grades upon graduation. A "lawyer" does not have any limitation of practice.
Spain has a division that somewhat corresponds to the division in Britain between barristers/advocates and solicitors. Procuradores represent the litigant procedurally in court, generally under the authority of a power of attorney executed by a civil law notary, while abogados represent the substantive claims of the litigant through trial advocacy. Essentially, Procuradores are court agents and their practice is confined to the locality of the court to which they are admitted. 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.
The United States does not draw a distinction between lawyers as pleaders (barristers) and lawyers as agents (or solicitors). All lawyers who have passed a bar examination and have been admitted to practice may prosecute or defend in the courts of the state where they are admitted. Historically, a distinction was made, and a separate label for barristers (called "counselors") existed in certain states, though both professions have long since been fused into the all-purpose attorney.[citation needed] Attorneys specializing in court procedure, combining advocacy and case preparation, are called trial attorneys.
South Carolina still requires attorneys to be licensed separately to plead in a courtroom. Additionally, 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 to practice before it. At the state appellate level and in Federal courts, there is generally no separate examination process, although some U.S. district courts require an examination on practices and procedures in their specific courts. Unless an examination is required, admission is usually granted as a matter of course to any licensed attorney in the state where the court is located. Some federal courts will grant admission to any attorney licensed in any U.S. jurisdiction.
