|
|
|
|
Barrister
|
| |
|
| |
A barrister is a lawyer found in many common law jurisdictions that 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 once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law.
Discussion
Ask a question about 'Barrister' Start a new discussion about 'Barrister' Answer questions from other users |
Encyclopedia
A barrister is a lawyer found in many common law jurisdictions that 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 once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely instructed by clients directly (although this occurs frequently in tax matters). 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 can act in the place of their client for legal purposes (as in signing contracts), 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 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, the barrister does so when instructed by a solicitor. This difference in function explains many of the practical differences between the two professions.
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.
Practical differences between barristers and solicitors
The practical difference between the two professions is twofold:
- The barrister will usually be the lawyer who represents litigants as their advocate before the courts of that jurisdiction. A barrister will usually have rights of audience in the higher courts, whereas other legal professionals will 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 used to have 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.
- Barristers often have a more specialised knowledge of case-law and precedent. When a solicitor in general practice is confronted with an unusual point of law, they sometimes seek the "opinion of counsel" on the issue.
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 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 Ireland, England and Wales, barristers usually wear a horsehair wig, stiff collar, bands and a gown. As of January 2008 Solicitor advocates will also be entitled to wear a wig, but will wear a different gown.
Common law division
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.
Justifications
The reasons for a split profession are normally historical, however a number of reasons are still advanced for maintaining split professions:
- Having an independent barrister reviewing a cause of action gives the client a fresh and independent opinion from an expert in the field, something that rarely happens in jurisdictions with fused professions.
- 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, more professionally run trials.
Against that, a number of disadvantages are put forward:
- A multiplicity of legal advisors leads to higher costs (something that caused no small amount of concern to Sir David Clementi in his review of the English legal profession).
- As barristers are dependent upon solicitors for referrals of work, it is open to question how willing barristers are to criticise those who instruct them to the client.
- Barristers are sometimes criticised for being "over-specialised" and not having sufficient general expertise outside of their fields in some highly specialised fields.
Regulation
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 she or 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.
Barristers in England and Wales
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". 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 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.
Direct Public Access to Barristers
Certain barristers in England and Wales are now instructed directly by members of the public. Members of the public may engage the services of 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 representation in court in almost all areas of law (see the ) 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 have 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.
Barristers in Northern Ireland
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.
Advocates in Scotland and the Channel Islands
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 Faculty of Advocates (as opposed to an Inn).
In the Bailiwick of Jersey, there are solicitors (called Ecrivains) and Advocates. Both in the Bailiwick of Jersey and in the Bailiwick of Guernsey, Advocates of the Royal Court perform the functions of both solicitors and barristers.
Barristers and Solicitors in Canada
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.
However, in Quebec, which has a civil law tradition, the situation is different from the rest of Canada. Advocates (avocats) practice before the courts, whereas civil law notaries (notaires) limit themselves to most of the functions of solicitors. However, many aspects of non-contentious legal matters are the concurrent domain of both advocates and notaries; with the result that advocates often specialise either as pleading advocates (i.e. litigators) or as non-pleading advocates (i.e. solicitor). The only exception is that advocates cannot perform notarial acts (i.e., essentially, certifications and authentifications of documents and the keeping of contracts and other legal records, en minute [in minute form]). Most of the large law firms in Quebec are firms of advocates (pleading and non-pleading) who perform the full range of legal services like those performed by law firms in the common law provinces, the only exception being notarial acts.
Barristers in Ireland
In the Republic of Ireland, entry to the bar is given to those on whom a Barrister-at-Law (abbreviated to "B.L.") degree has been conferred. The conferral of such degrees is exclusively by The Honorable Society of King’s Inns. 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. The profession is governed by the .
There is a single Inn that has retained (or at least has not delegated) its educational responsibilities: The Honorable Society of King’s Inns, (note: the historical spelling variant Honorable not the contemporary Honourable) located near to the Four Courts, the premises of the High Court and Supreme Court (as well as the Dublin Circuit Court). Unlike barristers in England and Wales, Irish barristers are sole practitioners and may not form chambers or partnerships. In order to practice, a newly qualified barrister is apprenticed to a more senior barrister of at least 7 years' experience. This apprenticeship is known as pupillage or devilling. Devilling is compulsory 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.
Barristers and Solicitors in Australia
In the Australian states of New South Wales, Victoria, and Queensland there is a split profession. Each state Bar Association has the functions of Inns of Court. Counsel dress in the traditional English manner (wig, gown and jabot) before higher courts, although are no longer robed for appearances in lower jurisdictions.
In Western Australia, the Australian Capital Territory and South Australia, the professions of barristers and solicitors are fused, but nonetheless an independent bar is in existence, regulated by those States' Legal Practice Boards. A similar arrangement exists in New Zealand. In Tasmania (Australia) the profession is fused although a very small number of practitioners operate as an independent bar.
Senior barristers appointed as "silks" are now referred to as "Senior Counsel" and append the letters S.C. to their names. "Queen's Counsel" are no longer appointed, except by the Federal Government and in the Northern Territory; however those who were appointed as Q.C. have the choice of either becoming S.C. or retaining the older title. (Since only people appointed before the system changed can be a QC the name retains a certain cachet, so most of the remaining QCs have been happy to keep it.)
Barristers in Hong Kong
The legal profession in Hong Kong is also divided into two branches: barristers (where the Cantonese name daai lut si, ??? is also used) and solicitors (where the Cantonese name lut si, ?? is also used).
In Hong Kong, the rank of Queen's Counsel was granted prior to the handover of 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.
Barristers in South Korea
The legal profession in South Korea is also divided into two branches: barristers and solicitors. Lawyer means barrister. Judicial scrivener renamed to ???.
Barristers in Japan
The legal profession in Japan is also divided into two branches: barristers and solicitors. Lawyer means barrister. Japanese solicitor is Judicial scrivener(????).
Barristers in other jurisdictions
The United States does not draw a distinction between barristers and solicitors; all lawyers (who have passed a bar examination and have been admitted to practice) may argue in the courts of the state in which they are admitted. However, 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 in order 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.
Spain has a division which generally corresponds to the division in Britain between barristers/advocates and solicitors. Procuradores represent the interests of a litigant in court, while abogados is the general term for other lawyers. 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.
In Germany, lawyers may only plead at the Federal Court of Justice (Bundesgerichtshof) if they are admitted to that court. Fewer than 50 lawyers are admitted to the Bundesgerichtshof; those lawyers may not plead at other courts, do in practice deal with litigation only, and are usually instructed by a lawyer who represented the client at lower courts. However, those restrictions do not apply to criminal cases, and not to pleadings at courts of the other court systems (neither to the labour, administrative, taxation, and social courts, nor to the EU court system).
In Nigeria, there is no formal distinction between barristers and solicitors. All lawyers who pass the bar examination and are called to the Nigerian bar by the Body of Benchers of the Nigerian Bar 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 are required to enrol or 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 France, although this organization is to be modified, advocates ('avocats') cannot plead alone in Courts of Appeal and must
go through an appeal court lawyer or 'avoué'. Additionally, there are civil law notaries (who basically deal with legacies and transactions) and 'Huissiers de justice' who act as formal witnesses and execute court orders.
In South Africa the employment and practice of barristers (known as Advocates) is consistent with the Commonwealth. Advocates carry the rank of Junior and Senior Counsel (SC), and are mostly briefed and paid by solicitors. They are usually employed in the higher courts, particularly the Appeal Courts where they often appear as specialist counsel. South African solicitors 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. Aspirant Advocates currently spend 8 months in pupillage (formerly only three 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.
Barristers in fiction
There have been a number of famous portrayals of barristers in fiction:
See also
External links
Australia
UK and Ireland
Other countries
Footnotes
|
| |
|
|
