Explain the Difference Between the Roles of a Barrister and that of a Solicitor
By Bryan A Bryant-Steeds (AS law Student)
Explain: Demonstrate good knowledge and understanding of both roles. Assess the differences.
1) What they do ñ Advocacy, (self-) employment, 1990 statute
2) Training ñ Academics, vocation, practical, enrolment vs. bar
3) Payment ñ Salary; wages vs. honorarium
4) Discipline ñ Suing for fees, etc
5) Liability ñ Negligence, etc.
Barristers and Solicitors, although considered to be relatively the same profession, have very different jobs. They differ in what they do in their day-to-day lives. They have similar training but for different periods of time and at different levels. Because of the difference of attention and prioritising cases, as well as level of importance, their payment is very different. Solicitors and barristers undergo different methods of discipline and liability. There are many other differences and also, there are similarities, but these are, in my view, the differences worth considering.
First and foremost, you will notice the difference between solicitors and barristers from the way they dress. Solicitors have regular work, dealing with different, but regular cases. They work in an office and where a business suit to work (or the equivalent). It is tradition that whilst in court, a barrister will where a black gown and a wig. This is merely for traditional purposes; it shows them as different, (possibly better) than the average working class. Barristers tend to have an aloofness from the public, as shown by their dress. Generally, being a barrister is very different to being a solicitor. A barristerís official job is to provide advocacy in front a judge in court. They also provide written advice (their legal opinion) on issues. Barristers who are ìprospectiveî belong to one of four ìInns of Courtî: Grayís Inn, Lincolnís Inn, Middle Temple or Inner Temple. Barristers get their work from solicitors. Solicitors were once the only people able to access barristers but now other professions may as well. Solicitors (also known as general practitioners of the legal profession) tend to specialise in one ore more areas of the law, whereas a barrister will cover a broader range. But since the Courts and Legal Services Act 1990, work has begun to overlap between the two professions. Some have seen this as an act of fusion, the joining of the two. There is now a possibility that solicitors may be appointed as judges and can become certified advocates. Solicitors can also obtain a certificate of competency, allowing them to not only represent their clients in a magistrateís and county courts, but now also the higher courts. Soliciting is now becoming an increasingly more difficult job. Solicitors will deal with conveyance of land, divorce, etc., and a barrister handles some breaches of contract, appeals to the House of Lords and other more important issues.
Training
Barristers and solicitors have a similar training agenda, but they are different when looking at specifics. Before a student can become a barrister, he must undergo the appropriate training. A Degree must be obtained beforehand. This can be any degree but if it is not in law then the Common Professional Law Exam (CPE) or Postgraduate Diploma in Law (PDL) must be taken in addition. The student then undergoes the vocational training, which is a yearlong Bar Vocational Course. This allows students to acquire the skills, knowledge of procedure and competence to prepare them for the specialised training of the twelve months of pupillage. But before the pupillage, a barrister-in training must attend twelve dinners at the Inns of Court, followed by the call to the bar.
A solicitor on the other hand must go through the same academic stages, a degree with a bridging course, but their vocational training is different. Solicitors will go through a Legal Practice Course, which is for a year. Then there is the more important training, the practical. A solicitor will undergo training for two years under a training contract. Finally, when the training is over, the solicitor must enrol with the Law society and join a Law Firm. A new solicitor will generally always have work to do but a new barrister will seldom have work. Often, a barrister will have to get another job because the money just does not come in until they are more senior.
Payment
The method of pay is very different from a barrister to a solicitor. Overall, a barrister will make more because of the difference in practice, but this money does not come for a long time. When a solicitor begins work in a firm, they are paid a salary. This salary can be anything from £23,000 to £50,000 p.a. The wage can increase as they become more experienced solicitors. Also there are different types of jobs a solicitor can do within the profession. Cases can be delegated amongst the more junior solicitors if a senior solicitor has got too many to handle at once. When a barrister begins work, cases seldom come and so the money does not come thick and fast. Barristers must wait up to eighteen months before they are paid, due to the high fees and so this is why so many people give up early in the game. They are paid an ìhonorariumî, which comes from the past when the people would give the barrister a voluntary gift in the back pocket of their gown and the barrister would see it after they had gone. Today, a barrister can determine the price of his advocacy beforehand but for whatever reason, the client does not have to pay this fee if there have been problems. But these problems all come because a barrister is self-employed. Solicitors have got a more solid ground on payment.
Discipline and Liability
One of the biggest differences between the two professions is that a barrister cannot sue for fees after a case. If problems occur between the solicitor and the client then the matter can be handled in court, whereas a barrister is not legally permitted to do this. If a client chooses not to pay the barrister, the only thing he or she can do is unofficially spread the word of the events (this is a difficult subject though as the barrister could be prosecuted for defamation).
In Hall v Simons (2000), the issue was raised if a solicitor or barrister should be liable for negligence in advocacy and written advice. Previous cases were referred to for the Lords to reach a decision. In the case Rondel v Worsley (1969), it was decided that bad advocacy could not give rise to negligence actions against the barrister. However, in Salif Ali v Sidney Mitchell & Co. (1977), the same was agreed but this time it was decided that the barrister could be held liable for negligent advice before a court action. As for civil negligence liability, Lord Hope, Lord Hutton and Lord Hobhouse were against liability and Lord Browne-Wilkinson, Lord Steyn, Lord Hoffman and Lord Millet were for liability. Because there was disagreement, an agreement was reached using the ratio decidendi. The majority said that they should be liable, and so they were.
A barrister and a solicitor are two very different professions. They do handle certain issues of the same effect but they are, ultimately, very different. One of the biggest differences between the two is also one of the most basic ñ the difference of their every-day lives. The professions handle separate issues. A solicitor specialises in an area and then must pass on their case to the barrister who then will argue in court. The point of this is that a barrister is qualified enough to do so, and clearly able. Becoming a barrister is a highly difficult thing to do. It takes determination and hard work. Not that being a solicitor doesnít, it is just that they differ in where and how their progression grows. Barristers need solicitors for their work and solicitors need barristers to continue their work for them. They are a partnership. In conclusion, they are different careers within the same profession. They handle different issues and provide different services to their clients but ultimately, support each other in their line of work.
October 2002.
Bryan A Bryant-Steeds