Barristers in England and Wales

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. They are highly-trained legal advisers and courtroom advocates and appear in court when instructed by a solicitor. Strict rules are in place about what a barrister must do for the court, their client and how they must behave.
The word lawyer is a generic term, 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

The work of senior legal professionals in England and Wales is divided between solicitors and barristers. Both are trained in law but serve differing functions in the practice of law.
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 socially familiar 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 court to represent clients, or in 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 to engage an appropriate barrister when highly specialist advice was required. Many barristers have largely "paper practices" and rarely or never appear in court.
Historically, practising at the bar 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, banking and the civil and diplomatic services being the others. Many leading 18th- and 19th-century politicians were barristers; few were solicitors. In the 20th century, solicitors narrowed the gap greatly, especially in terms of earnings, and by the early 21st century the social gap was far less important.

Key differences from the profession of solicitor

Until recently, the most obvious differences between the two professions were:

Only barristers had exclusive and wide rights of audience in all courts in England and Wales;
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.
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 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, there are rather few of these solicitor-advocates, 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.
Until 2004, barristers were prohibited from seeking or accepting "instructions" 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 of the courts.
Theoretically, this prohibition has been removed. In certain areas, barristers may now accept instructions from a client directly. However, barristers must have additional authorisation to conduct litigation for the client. Furthermore, only a solicitor may undertake any work that requires funds to be held on behalf of a client; barristers are not permitted to handle client money under rC73 of the BSB Handbook.
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 they are offered it. They are entitled to reject a case which they feel is too complicated for them to deal with properly.

Manner of work

Barristers work in two main contexts: in self-employed practice or in "employed" practice.
Most barristers are in self-employed practice, but operate within the framework of a chambers, an unincorporated association whose members are barristers. Under a tenancy agreement, they pay a certain amount per month or a percentage of their incomes, or a mixture of the two, to their chambers, which provides accommodation and clerical support. The Head of Chambers, usually a King's Counsel 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. Members of the same chambers may appear on opposite sides in the same case. Each barrister remains a self-employed practitioner, being solely responsible for the conduct of their own practice and keeping what they earn, other than rent. They do not receive a salary from anyone. A barrister in self-employed practice will be instructed by a number of different solicitors to act for various individuals, government departments, agencies or companies.
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, 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. 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 self-employed practice. Pupillage for both employed and self-employed practice is regulated by the independent Bar Standards Board.
There are approximately 17,000 barristers, of whom about ten percent are King's Counsel and approximately twenty percent are young barristers. In April 2023, there were 13,800 barristers in self-employed practice. In 2022, there were about 3,100 employed barristers working in companies as "in-house" counsel, or in local or national government, academic institutions, or the armed forces.

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. KCs wear slightly different silk gowns over short embroidered black jackets and striped trousers. Solicitors wear a black gown, 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".