Barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include arguing cases in courts and tribunals, drafting legal pleadings, researching the law and giving legal opinions.
Barristers are distinguished from solicitors and other types of lawyers who have more direct access to clients, and may do transactional legal work. In some legal systems, including those of South Africa, Scandinavia, Pakistan, India, Bangladesh, and the Isle of Man, barrister is also regarded as an honorific.
In a few jurisdictions barristers are usually forbidden from "conducting" litigation, and can only act on the instructions of another lawyer, who perform 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, allowing a barrister to practise in a dual capacity.
In some common law jurisdictions, such as New Zealand and some Australian states and territories, lawyers are entitled to practise both as barristers and solicitors, but it remains a separate system of qualification to practise exclusively as a barrister. In others, such as the United States, the distinction between barristers and other types of lawyers does not exist at all.
Differences between barristers and other lawyers
A barrister is a lawyer who represents a litigant as an advocate before a court. A barrister speaks in court and presents the case before a judge, with or without a jury. In some jurisdictions, a barrister receives additional training in evidence law, ethics and court practice and procedure. In contrast, other legal professionals generally meet with clients, perform preparatory and administrative work, and provide legal advice. Barristers often have little or no direct contact with their clients. All correspondence, inquiries, invoices and so on will be addressed to the legal adviser, who is also primarily responsible for the barrister's fees.In England and Wales, solicitors and chartered legal executives can support barristers when in court, such as managing through large volumes of documents in the case or negotiating a settlement outside the courtroom.
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 another legal professional is confronted with an unusual point of law, they may seek the opinion of a barrister 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 Clemens Report recommended the abolition of this restriction in England and Wales. However, barristers normally band together into barristers' chambers to share clerks and operating expenses. Some chambers grow to be large and sophisticated. In some jurisdictions, barristers may be employed by firms and companies as in-house legal advisers.
In court, barristers may be visibly distinguished from solicitors, chartered legal executives, and other legal practitioners by their apparel. For example, in criminal courts 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 other legal representatives are gradually decreasing. Barristers once enjoyed a monopoly on appearances before the higher courts, but particularly within the United Kingdom this is no longer true. Solicitor-advocates and qualified chartered legal executives can generally appear on behalf of clients at trial. Increasingly, law firms 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 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 his or her 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 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 of the 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 advise the client of a separate possible claim against the solicitor.
- Expertise in conducting trials, since 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.
- A multiplicity of legal advisers can lead to less efficiency and higher costs.
- Because they are further removed from the client, barristers can be less familiar with the client's needs.
Regulation
Inns of Court, where they exist, regulate admission to the profession. Inns of Court are independent societies that are responsible for the training, admission, and discipline of barristers. Where they exist, a person may only be called to the bar by an Inn, of which they must be a member. Historically, call to and success at the bar, to a large degree, depended upon social connections made early in life.
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.
Barristers around the world
In the common law tradition, the respective roles of a lawyer, as legal adviser and advocate, were formally split into two separate, regulated sub-professions. Historically, the distinction was absolute, but in the modern age, some countries that had a split legal profession now have a fused profession. In practice, the distinction in split jurisdictions may be minor, or marked. In some jurisdictions, such as Australia, Scotland and Ireland, there is little overlap.Australia
In the Australian states of New South Wales, Victoria 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 and Western Australia, as well as the Australian Capital Territory, the professions of barrister and solicitor are fused, but an independent bar nonetheless exists, regulated by the Legal Practice Board of the state or territory. In Tasmania and the Northern Territory, the profession is fused, although a very small number of practitioners operate as an independent bar.Generally, counsel dress in the traditional English manner before superior courts, although this is not usually done for interlocutory applications. Wigs and robes are still worn in the Supreme Court and the District Court in civil matters and are dependent on the judicial officer's attire. Robes and wigs are worn in all criminal cases. In Western Australia, wigs are no longer worn in any court.
Each year, the Bar Association appoints certain barristers of seniority and eminence to the rank of "Senior Counsel" or "King's Counsel". Such barristers carry the title "SC" or "KC" 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.