Barrister: Encyclopedia - Barrister

Barrister

A "barrister" ("advocate" in Scotland and the Channel Islands, "barrister-at-law" in Ireland and elsewhere) is a lawyer found in Common law jurisdictions who principally, but not exclusively, represents litigants as their advocate before the courts of that jurisdiction. In this regard, the profession of barrister corresponds neatly to that part of the role of legal professionals found in the civil law jurisdictions relating to appearing in trials or pleading cases before the courts. However, barristers, as a profession, are also known for specialising in certain areas of the law, and for giving advice in relation thereto to clients referred to them.

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 counties which had a split legal profession are now characterised by having a fused profession. In others, notably in England and Wales, the separation remains clearly evident, but the respective roles of barrister and solicitor are slightly overlapped. And in others, Scotland and Ireland, there is little overlap.

A barrister is regulated by a Bar (Faculty of Advocates in Scotland) which he becomes qualified to join. A Bar is merely a term for the society or association which comprises all members of the profession of barrister within a given jurisdiction. Unlike solicitors, they are not necessarily officers of the courts in the jurisidiction where they are qualified, but must still maintain a balance between their duty to the court and their duty to their client.

Barristers do not normally report directly to their "lay clients". They will meet and advise them but their principal contact is the solicitor or "professonal client" that "instructs" them. All correspondence, enquiries, invoices, etc. are addressed to the solicitor, who is primarily responsible for the barristers' fees. It is the solicitor who works directly with the client, and who is responsble for engaging a qualified and experienced barrister appropriate to the budget of the client and the nature of his or her case.

Barrister - Origin of the Profession of Barrister in England and Wales

The legal profession 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 one permanent place (in London). In order to dispense justice throughout the country, a judge and court would periodically travel a certain circuit around a part of the country to deal with cases that had arisen in the meantime. From this emerged a body of lawyers that were on socially familiar terms with the judges, trained near to, and appeared before, the superior courts, and had access to a greater corpus of research material and aggregated knowledge on the interpretation and application of the law. Some would also go "on circuit" with the court to act on behalf of those requiring representation. (On the other hand, solicitors were essentially local to the places where the courts sat.)

These "barristers", so called because they were "called" to the Bar separating the public from those admitted to the well of the Court, (and equally separating the students from the barristers within their Inn of Court), became specialists either in appearing in court, or in the process of using the courts, which would include 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 to select and engage a barrister to represent the client before the courts. Likewise, it became either useful or normal (but not compulsory) to engage an appropriate barrister when highly specialist advice is required. In fact, many barristers have largely "paper practices" where they rarely or never make court appearances.

Barrister - Key Differences with the Profession of Solicitor

Until recently, the most obvious differences between the two professions was that, firstly, only barristers had exclusive and wide rights of audience (that is, a right to plead)in all courts in England and Wales, and secondly, only solicitors could be directly engaged for payment by individuals and businesses at large. These differences have been eroded recently, although the manner and style of the distinction in practice has changed little

Barristers have always had full rights of audience to appear in all courts, both the highest and the lowest. Solicitors, on the other hand, have only but always been able to appear before many inferior courts and tribunals. Indeed the bulk of this work continues to be handled by solicitors. Since the mid- to late-1990's, solicitors with appropriate advocacy experience have been entitled to acquire "higher rights of audience", enabling them to appear in superior courts. However in practice few exercise the option to do so, and prefer to engage a specialist advocate or adviser, which the Bar is invariably able to provide. Several reasons are prevalent for this trend: firstly, it is traditional in the manner described above; secondly, in higher value or more serious cases, it is often tactically imperative to engage a specialist advocate in civil and criminal proceedings (because if one side does not the other might); and thirdly, the Bar is a specialist advocacy profession that has an abundance of adquately trained and experienced practitioners.

Until recently, barristers have been prohibited from seeking or accepting instructions (that is, being engaged) directly from the clients whom they represent. The intervention of a solicitor was compulsory. The reasons were and are more intuitive than rational; 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 client's case, on the basis of the evidence available for the court; being less involved in the current affairs of clients, barristers had more time for research and for keeping up to date with the law and the decisions (precedent) of the courts, the better to give appropriate advice.

Theoretically, this prohibition has been removed. In certain areas (but not crime or conveyancing), barristers may accept instructions from a client directly ("Public Access"). However, a barrister cannot undertake any work that requires him to hold funds on behalf of their client, which only a solicitor may do.

Barrister - Manner of Working

Barristers work in two main contexts: in "independent practice" or "employed". The distinction between the two is perhaps most easily summed up as that between being self-employed and salaried.

Most barristers are self-employed in "independent practice", but operate within the framework of a set of Chambers. Under a tenancy agreement, they pay a certain amount per month ("rent") to their chambers, which provides accommodation, clerical support and clerking (finding and booking work). Some chambers have elaborate sliding scale arrangements for sharing the rent and expenses between tenants. The Head of Chambers, usually a senior "silk" or QC, may exercise a powerful influence on the members (and the Head Clerk who finds all the work), and all members will offer informal help and guidance to each other. However they are not liable for each other's business (as partners are), and may indeed appear for opposites sides in a case. Each barrister remains an independent business, being solely responsible for the conduct of their own practice and keeping what they earn rather than drawing a salary. A barrister in independent practice will be instructed by a number of different solicitors ("professional clients") to act for various different individuals, agencies or companies ("lay clients"), and is in principle required to act for any client offering a proper fee, regardless of the attractions or demerits of a case.

In contrast, an "employed" barrister is a barrister who works as an employee within a larger organisation in either the public or private sector, as opposed to being a tenant in a set of chambers. For example, employed barristers work within government departments or agencies (such as the Crown Prosecution Service), 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 only do work on behalf of their employer, as opposed to accepting instructions on behalf of third parties (such as their employers' customers). Nevertheless they remain subject to the Code of Profesional Conduct, and their advice is entitled to professional privilege against disclosure.

It is now the case that new entrants to the employed bar must have completed pupillage in the same way as those in independent practice. The Bar Council produces exhaustive guidance regulating the way in which both groups operate.

In December 2004 there were just over 11,500 barristers in independent practice with a further 2,800 working at the employed bar.

Barrister - Appearance and forms of address

A barrister's dress 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 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 they continue to be worn more frequently in High Court proceedings.

At a robed hearing, barristers wear a horsehair wig, an open black gown, dark suit and a shirt, with, instead of a tie, strips of white cotton called 'bands' worn over a wing collar. QCs wear slightly different silk gowns over short embroidered black jackets and striped trousers. By contrast, solicitors wear a gown, wing collar and bands but no wig. The question of barristers' and judges' clothing is currently 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.

Traditionally, barristers will, in the context of the giving of advice and representation before the court, be described as "counsel". Outside this context the term is not used. This is not an additional qualification, nor would it out of necessity be reserved to barristers, but convention dictates that it is. Historically, its use partly emerges from the practice, particularly in criminal cases, of not knowing the identity of the barrister until a short while before the case was due to be heard. The barrister that was originally instructed may not be available because he is unexpectedly still occupied in another case. Only in particular cases was this regarded as a problem, because the standard of advocacy across the Bar was generally adequate. Therefore, rather than refer to the advocate by name, it became customary to give that person a generic title.

In court, barristers refer to each other as "my learned friend". Historically, this is a sign of mutual respect for the common heritage and position they occupy. It is also a reminder of the time when the Bar was small enough for all practitioners to know each other personally, which to some extent is still true; in an earlier generation, barristers would not shake hands or address each other formally, on the grounds that they were all "brothers-at-law". Outside, however, names are used in the conventional way. Solicitors in court, even those exercising rights of audience in the higher courts, are referred to as "my friend".

Barrister - The Inns of Court

Inns of Court (or the Faculty of Advocates, in Scotland) are independent societies that are titularly responsible for the training, admission (calling) and regulation of barristers. A person may only be called to the Bar by an Inn, of which he must first become a member.

For the Bar of England and Wales, there are four Inns: 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 (Each is usually referred to in short form, e.g. Middle Temple, or "Middle")). All are situated in central London, near to the Royal Courts of Justice.

In Ireland, there is a single Inn: The Honourable Society of Kings' Inns, located near to the Fourt Courts, the premises of the High Court and Supreme Court.

Historically, there were more Inns, and in England at least, each Inn had sole responsibility for the training and tuition of its student barristers. In fact, call to and success at the Bar would to some extent depend upon the introductions that you made in an Inn of Court. But in the 1850's, efforts were made to unify the education of a barrister which had differed between the four Inns. A Council of Legal Education was established in 1852 - which is now known as the Inns of Court School of Law.

In Scotland and Ireland, the Faculty and Inn respectively have retained (or at least have not delegated) their educational responsibilities.

The other main function of an Inn is to attend, in a certain respect, to the personal development of a pupil barrister. A requirement for call to the bar is for the student to have attended a number of dinners in hall at their Inn. In contemporary society this requirement undoubtedly appears ludicrous, and indeed it is a relic of how barristers were trained in a bygone age. However, the "eating of dinners" has a simple and very contemporary purpose. It is a way for students, who will be colleagues in years to come, to be introduced to each other, and to established members of the bar and to the occasional judge, in what are fine, historical surroundings. Few qualified barristers will have regrets about the custom, and many are more likely to have fond memories!

Barrister - Qualifying as a barrister in jurisdictions with a split profession

Intending barristers must first complete the academic stage of their legal education by obtaining a qualifying law degree. If the primary degree is not is law, the student usually undertake a one year "conversion" course which covers the core subject of law. The conversion course used to be known as a CPE (Common Professional Examination) or PGDL (Postgraduate Diploma in Law), and is now known simply as a the Graduate Diploma in Law.

A student then joins one of the Inns of Court and takes the Bar Vocational Course (BVC) at one of the accredited providers. It is still mandatory to 'keep term' before the student can be [[Called to the Bar]. This involves 'eating dinners', a custom whereby all students must dine at their Inn a requisite number of times. It used to be a pre-requisite that twenty-four dinners were eaten before call but the number has been reduced to twelve. Dining credits are available for participating in specified training events e.g. a weekend at Cumberland Lodge organised by one of the Inns credits attendees with three dinners. It is also possible to "double-dine" on various special occasions, where the student is credited with two dinners.

The origins of this dates from the time when not merely students but also barristers dined together, and students picked up the elements of their education from their fellow diners and from lecures given by a senior member of the Inn (Master Reader) after the meal. Even today, at least at Middle Temple, the students are required to be present both at the commencement of the formal meal and at the grace that completes it. Often moots (legal debates arguing for or against a point before a theoretical appellate court) are held in hall afterwards. At the successful completion of their BVC (where continuous assessment as well as examinations are now the rule) and the survival of the requisite number of dining nights, students have been entitled to be 'called to the Bar' at a ceremony in their Inn. This is conducted by the Masters of the Bench, or 'Benchers', who are generally senior barristers or judges. However, from 2008, only those who have successfully completed pupillage will be called to the bar.

Once called to the bar, the new barrister has a choice whether or not to pursue a career in practice. There are far more applicants for "tenancy" in barristers' "Chambers" (see below) than there are places, and so many barristers, unable to obtain a tenancy in chambers, nowadays choose to go into commerce or academia. Those who wish to become a practising barrister must first obtain a 'pupillage'. This is a competitive process which involves some 1500 students applying for some 600 places each year. The online pupillage application system, OLPAS enables applicants to submit their details to up to twelve barristers chambers. The OLPAS application rounds take place twice a year in summer and autumn with individual chambers recruiting in one or other of these seasons, or both, should they not find suitable pupils the first time around. The OLPAS system is utilised by most chambers to recruit their pupils; many, however, do not, and these chambers must be contacted directly by applicants. There is no limit to the number of non-OLPAS chambers that an applicant can contact, although such chambers' recruiting deadlines broadly mirror those of the OLPAS sets, in that some will recruit only in the summer and others only in the autumn.

Pupillage consists of a period of twelve months, where the pupil serves a sort of apprenticeship to a barrister of at least five years experience. This is now usually served in two six-month periods under different pupil-masters (three month periods are becoming increasingly common), usually in the same chambers. Traditionally, the pupil was paid nothing and could earn no fees until the second six month period, when he or she was entitled to undertake work independently. All sets are now required to pay their pupils a minimum of £10,000 per year. Some pay considerably more than that, although others have applied for exemption and do not guarantee any income. The Bar is a very varied profession, both in terms of the specialism (or otherwise) of individual sets of chambers, and in the financial rewards available. For sets doing predominantly publicly-funded work, earnings are low for new practitioners, and tend to remain so for many years. In such areas, the Bar remains a career where supportive bank managers (and/or parents) are necessary. In other more specialised areas serving private clients, such as commercial, tax or chancery work, earnings are far higher and at least comparable to those of similarly experienced solicitors in big City firms (perhaps with the exception of the highest-earning partners at such firms).

After pupillage the new barrister must find a seat or 'tenancy' in a set of chambers. Chambers are groups of barristers, and tend to comprise between 20 and 60 barristers. The members of a Chambers share the rent and facilities, such as the service of "clerks" (who are a cross between a salesperson and a PA), secretaries and other support staff. Most chambers offer a system whereby the members contribute to these common expenses by paying a certain percentage of their gross income and/or rent office space. However, there is no profit-sharing as in a business partnership, and individual barristers keep the fees they themeselves earn, beyond what they have to pay towards the chambers expenses. The Bar remains a highly individualistic profession. Nonetheless, earnings can be high, with the top Queen's Counsel (QCs or 'silks' as they are known, from their silk gowns) making well in excess of £1 million a year. Although not all barristers now practise from the Inns themselves (for reasons such as the limited amount of space available and the terms upon which Inns premises are habitually leased), the vast majority still practise from chambers. The names placed on boards at the entrances of many of the staircases of the buildings within the Inns are the names of the tenant barristers (and occasionally distinguished members now prominent in judicial or political life) practising out of the chambers in those buildings.

Barrister - Barristers in Northern Ireland

In April 2003 there were 555 barristers in independent practice in Northern Ireland. Sixty six were Queen’s Counsel ("QC's"), 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 QC's are called Junior Counsel and are styled "B.L." or "Barrister-at-Law". The term "junior" is 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 the education; fees of students; calling counsel to the Bar although call to the Bar is performed by the Lord Chief Justice 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.

Barrister - Barristers in other jurisdictions

Barristers are also found in the Republic of Ireland, Hong Kong (where the Chinese name da lu shi, 大律師 is also used), and Australia (in the states without a fused profession, namely New South Wales, South Australia, and Queensland). In Canada, the professions of barrister and solicitor are fused, and many lawyers refer to themselves with both names. However, in Quebec, which has substantive law under the civil law tradition, the practice is closer to that of the United Kingdom, with les avocats practicing before the courts, and civil law notaries or les notaires limited to most of the functions of solicitors.

In Western Australia and Victoria, 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.

Unlike its common law brethren, the United States does not draw a distinction between barristers and solicitors; all lawyers who pass the bar examination may argue in the courts of the state in which they are admitted, although some state appellate courts require attorneys to obtain a separate certificate of admission to plead and practice in the appellate court. This separate admissions process, where it exists, is usually a simple matter of paying a small application fee. Federal courts at each level (Federal District, Circuit Courts of Appeals, Supreme Court) require specific admission to that court's bar in order to practice before it, but there is no separate examination process for federal courts, and admission is usually granted as a matter of course to any attorney licensed in the state where the particular federal court sits.

Although most European countries have divided legal professions, with different kinds of lawyers performing different functions, only 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.

Adapted from the Wikipedia article "Barrister", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki