Explain the difference between the role of a Barrister and that of a Solicitor. In giving your answer you should discuss how they are trained, paid and what they do. Reference should also be made to discipline, liability etc.
By Elliott Jones (AS Law)
Most countries operate with one kind of 'lawyer'. The English legal system operates with two ñ the barrister and the solicitor - together they make up the legal profession. The traditional view is that we have one legal profession with two branches but in practice they operate separately with their different traditions, training organisations etc. We can view the situation as a profession where the division of labour principle operates. Both carry out their separate roles with a view to administering the law.
Although Barristers and Solicitors are seen as members of one profession their training, traditions and governing bodies are entirely dissimilar to each other. No doubt if you were to confuse the two professions while in the presence of a Barrister or Solicitor you would be quickly and clearly informed of your mistake, for their tradition and values as professionals of the English legal system leads to a prowess not often seen in what some might call a job, but what many would call their duty.
History
The forerunners of today's barristers and solicitors were many and mixed. There were a selection of titles and functions.
In the thirteenth century the first lawyers were appointed who pleaded on behalf of the plaintiff in the King's Courts as well as court officials who acted as advocates who generally assisted those involved in court proceedings. Pleaders (barristers and sergeants) and attorneys both pleaded in court and received clients direct. In the mid-fourteenth century the organisation of the Inns of Court emerged, and then there was a gradual separation of functions. Attorneys were excluded from the Inns and the higher courts were reserved for barristers and sergeants.
Later, other types of lawyers appeared on the scene. Solicitors concerned themselves with property work in the Chancery Courts. Because cases in Chancery were long and cumbersome, to expedite matters people were employed to 'solicit' the court into 'getting on with it'. There was also the proctor who operated in the ecclesiastical and admiralty courts.
In 1875 the functions of solicitor, proctor and attorney were merged and the title of solicitor adopted. Sergeants were also abolished leaving barristers to represent that branch of the profession.
Training~ Barristers
There are about 9,000 barristers in practice in England and Wales, and they are specialists in advocacy or the presentation and arguing of a case in court. With 76% of the population of the UK employed, that is to say that 9,000 out of 44 million people working in the UK are barristers, which is approximately 0.0002% of the working population. This calculation shows the rarity of barristers in the population, which may be linked to the extreme training they must fulfil to become legal professionals. The calculation is very similar when relating to solicitors.
To become a barrister in the UK it is now a requirement to have a degree of at least an upper second class honours. If the degree is in law, the graduate may proceed to the next stage of training, but if the degree is in another subject then the student must ëconvertí it by taking the Common Professional Examination or a Postgraduate Diploma in Law. Once this has been completed, potential barristers must become a member of one of the four Inns of Court, which for historic reasons are all situated near the Royal Courts of Justice in London. Every barrister must belong to one of these Inns: Grayís Inn, Lincoln's Inn, Inner Temple, and Middle Temple.
Habitually there is a requirement to ëkeep termsí. This was completed, until recently, by dining at the Inns of Court on 18 occasions. The requirement has now been reduced to twelve, and an alternative is now to attend additional educational forums, such as weekend residential courses. This may take away some of the deep tradition from the profession, but it is more practical and lends itself to a greater degree of flexibility as the law profession enters the future.
Although this may sound unusual for a job its foundations lay in the history of the long profession, allowing legal professionals to explore the past and prepare for the future, as they are able to meet their contemporary counterparts.
The vocational part of a barristers training is the Bar Vocational Course. Until recently this could only be completed at the Inns of Court School in Law in London, but now several other institutions are authorised to run the course. The course emphasises the development of legal skills such as legal research, fact management and advocacy. Having completed this stage of training, applicants are then ëcalled to the Barí- they receive their vocational qualification at their chosen Inn of Court.
Those who are intending to practice must then spend 12 months doing ëpupillageí with a senior barrister. This stage forms the practical training. Once qualified, barristers are self-employed, although they normally join a set of chambers where they share the services of a clerk and working expenses.
Training~ Solicitors
The method of entry is by a student obtaining a three year law degree. For non-law graduates the student must pass the CPE, the Common Professional Examinations, a one year course.
This is followed by vocational examinations. The vocational course is known as the LPC, the Legal Practice Course and is one year in length. A student can be expected to pay anything between £4,000 and £7,000 to follow a course of study. The course is very practical in nature and consists of the students learning a variety of skills and techniques. For instance they will learn how to interview clients, how to draft contracts, how to advocate before the courts and so on. Students will also learn how to draft both business and solicitor accounts. The course is therefore very demanding and requires much time and dedication from students in order to successfully pass it.
Having completed the LPC, the next and final step is to obtain a training contract with a fully qualified solicitor. Usually this is with a firm of solicitors, but may also involve working ëin-houseí with a private company or a local authority. This is a two year contract and is very similar in nature to a barristerís pupillage. The trainee solicitor will be required to adopt the many skills and techniques learnt combined with the knowledge he has acquired throughout his studies. During the two years the trainee will gain experience of day-to-day business of a solicitor and will in short be expected to exercise the same degree of professionalism as a qualified solicitor. The only problem with this is that a trainee does not receive anywhere near as much as a qualified solicitor does for the work he does. Trainees could previously receive as little as £5,000 a year, however the Law Society has improved the situation placing a duty on firms to pay trainees a minimum of £12,000 a year for their work. Again, a major difficulty experienced by many students is that of actually obtaining a training contract, as there appear to be more students than placements, which is something that is not explained in any detail to students before paying thousands of pounds to study the LPC.
On completion of the training contract (formerly known as articles) and all exams passed he will then apply to the Law Society to be 'admitted'. This is done formally by the Master of the Rolls adding the name of the new solicitor to the roll of officers of the Supreme Court of Judicature, making him an officer of the Court.
A solicitor wishing to practice must take out an annual practicing certificate issued by the Law Society. It must be paid for together with an extra payment to the compensation fund.
As a result of the Courts and Legal Services Act 1990 there have been some changes made and the general move is now towards setting up a common educational system for both solicitors and barristers. The Act introduced an Advisory Committee on Legal Education (ACLEC) to help the Lord Chancellor when making decisions about training and education.
What they do~ Barristers
The Barrister is mainly thought of as an 'advocate' since this is the work he undertakes the most. He has had exclusive rights of audience as an advocate in all the superior courts. Barristers are often referred to as 'counsel' and after practising for a number of years a 'junior barrister' may apply to the Lord Chancellor to be appointed as a Queenís Counsel (QC), i.e. taking silk, which involves the wearing of a silk gown and of course charging higher fees.
There are about 8,000 practising barristers and senior judges are chosen from the ranks of experienced counsel, as well as the judicial offices of Lord Chancellor, Attorney-General and Solicitor-General almost always being filled by barristers.
A barrister's specialism is said to be advocacy. Yet this can be varied. He may be called upon to prosecute in one case and defend in another, prepare pleadings and take the case of a claimant in civil proceedings and do the same for the defendant next time.
A barrister must also contend with paperwork, which comes in the pre-trial stages of a case. He may be asked to give written advice on a legal matter, this is known as 'taking counsel's opinion'.
Barristers who have specialised in a particular area of law will work mainly from their chambers and will deal with documentary evidence, appearing in court as advocate only on rare occasions.
Barristers are not allowed to form partnerships but can and do share chambers and perhaps a clerk who serves other barristers.
Barristers have various duties to the court and their clients. The duties they owe the court are based on professional etiquette and whilst they are not strictly subject to control by the courts, they can be fired or imprisoned for contempt of court. To be heard in court they must be 'robed'. As officers of justice their prime function is to assist the court.
Note the principle confirmed by the House of Lords in Rondel v Worlsey (1969) that a barrister cannot be sued for negligence whilst acting as an advocate has been overruled by the House of Lords in Hall v Simmons (Times 21 July 2000). Thus barristers are now open to be sued for negligently representing their clients at any stage. It had already been established, in Saif Ali v Sydney Mitchell (1978) that a barrister is not immune, as a result of pre-trial acts or omissions, in connection with civil proceedings.
A barrister's obligations are governed by professional etiquette, which may change from time to time, and altered by the Inns of Court or by the Senate of the Inns of Court and the Bar.
As a matter of etiquette barristers refer to each other as 'my learned friend', do not shake hands and do not use headed notepaper. A most important rule is that subject to exceptional cases counsel can only accept instructions from a solicitor. Advertisements are clearly contrary to etiquette, so is profit-sharing and the formation of partnerships.
What they do~ Solicitors
We saw that the barrister is mainly thought of as an advocate although he has much paperwork to contend with. The solicitor is more familiar to the public as a general legal advisor. Compared with approximately 8,000 barristers, there are approximately 50,000 solicitors in practice in around 7,000 firms in England and Wales. Although there are many one-man practices, most solicitors generally practice together in partnerships.
Members of the public can call at a solicitor's office to seek his advice. There is no end to the variety of matters brought to a solicitor to deal with, although conveyancing always forms a great part of a solicitor's work (i.e. the transfer of real property).
Eddey in 'The English Legal System' states three fields of activity, which a solicitor may concern himself with: conveyancing, probate, and litigation, but there is no limit to topics involving legal considerations.
If the solicitor is negligent the client may have an action against him in tort for damages.
In equity the solicitor/client relationship is regarded as a fiduciary one. As a result the solicitor must act in good faith in all dealings with his client. He is in a position of trust and must refrain from using 'undue influence' upon his client.
The solicitor has an obligation to preserve 'confidence', i.e. he owes a duty of confidentiality to his client.
In addition, a solicitor is liable:
To disciplinary proceedings where his conduct falls short of a criminal offence before the Solicitors Disciplinary Tribunal. As the Tribunal members are officers of the High Court and Court of Appeal (which together make up the Supreme Court), they have jurisdiction to strike his name from the roll or suspend him for misconduct.
As an officer of the court, he owes a duty to the court. For example, the solicitor may personally have to pay costs, which are incurred through neglect such as failing to warn the court that an action has been settled. A solicitor, like a barrister, can be liable for contempt of court.
Payment~ Barristers
The relationship between counsel and client is not a contractual one and as such the pay they receive as a brief fee is an ëhonorariumí rather than a contractual payment. Thus a barrister cannot sue for his fees. Remuneration of barristers is negotiated for him by his clerk and the fee is then marked on the brief i.e. the instructions in the case. In practice solicitors are responsible for the fees and the Law Society regards it as a professional obligation to settle the fees of a barrister they have instructed. Barristers must preserve their clientsí confidences and conduct proceedings on behalf of the client (acting in an agency capacity).
Payment~ Solicitors
The remuneration of a solicitor is to some extent controlled. In litigation (i.e. contentious business where proceedings have begun) the costs claimed by a solicitor are examined by an officer of the court. In non-contentious business the cost must be 'fair and reasonable' having regard to the circumstances of the case. It is possible for a client to challenge a charge by forcing a solicitor to obtain a certificate from the Law Society. Some points about the solicitor client relationship: The relationship between solicitor and client is contractual and as such is subject to the ordinary law of contract. The solicitor can therefore sue for his fees.
Control over Barristers
Barristers are subject to control by the Bar Council, which is made up of senior members of the profession, known as ëbenchersí. They may set provisions for training and education of their members, and investigate complaints against members. The Legal Services Ombudsman may investigate the way in which the Bar Council has investigated a complaint, but cannot investigate the complaint itself.
In Rondel v Worsley (1969), the precedent was set that bad advocacy could not give rise to negligence actions. This was extended to solicitors also. In Saif Ali v Sydney Mitchell and Co (1977), however, although confirming the position of Rondel v Worsley, the court held that barristers could be held liable for negligent advice before a court action had begun. This meant that barristers and solicitors would be treated alike, in that neither could be sued for negligent advocacy, but both would be liable for negligent advice.
Since then, a group of cases of actions against solicitors have recently been heard in the House of Lords, Hall v Simons (2000), and these now appear to overrule the traditional position. For both barristers and solicitors, the immunity from legal action while conducting advocacy is removed. Presumably the case will also change the rule preventing the recovery of fees, giving barristers normal rights to receive payment for work as in other professions.
Control over Solicitors
Solicitors who transgress are subject to the rules of the Law Society, which is responsible for governing education, training and professional conduct. Solicitors tend to work in partnerships, although some may be employed by a firm, while others go into public service with local authorities or other commercial undertakings. Should a complaint be made against a solicitor, it will be investigated by the Office for the Supervision of Solicitors, which may require the offender to appear before the Law Societyís disciplinary committee. The Legal Services Ombudsman has the power to investigate the way in which the compliant has been handed, but not the complaint itself.
Like barristers, solicitors could be sued for negligent advice or activities (other than advocacy), and are required to carry substantial professional conduct insurance so that a client who has been adversely affected by their careless or wrongful activities can be adequately compensated. Until recently they were not liable for any loss resulting from negligent advocacy, but now will, like barristers, be subject to the judgement in Hall v Simons (2000).
Recent changes to the profession~ Barristers
Until the Courts and Legal Services Act (1990), barristers had a monopoly over advocacy in the higher courts, since only they had rights of audience. Now solicitors have the right to become certified advocates, the amount of work available for junior barristers has lessened, although the number of graduates wishing to enter the profession is continuing to increase. In March 2001 a report by the Office of Fair Trading called for the abolition of the status of Queenís Counsel. The report stated that while recognising that the most experienced barristers may command higher fees, it was ëextraordinaryí that this should be supported by the government officially, and that it causes distortion in the open market.
The bar has been granted the right to have direct contact in a limited way with corporate clients, such as accountants and surveyors, but there seems no reason at all why the public should not have direct access to barristers, particularly in light of the proposals to widen rights of audience further under the Access to Justice Act (1999).
Recent changes to the profession~ Solicitors
Solicitors have lost their exclusive right to conveyancing, but have been compensated for the loss of this monopoly by the granting of wider rights of audience and the right to advertise.
Solicitors have been allowed to represent their clients in the magistratesí and county courts for some time, but since the Courts and Legal Services Act (1990), solicitors who obtain a certificate of competency may also appear in the higher courts. It took four years for the first solicitor-advocate to obtain a certificate, and few took up the opportunity at first. The position then began to change much more quickly, however, and there are now about 1,000 certified advocates. The commitment in terms of time and money needed to obtain the certificate is high, and this could deter otherwise suitable people. There are proposals in the Access to Justice Act (1999) to give all solicitors wider rights of audience.
Conclusion
In conclusion to studying in depth the roles of solicitor and barrister in the English legal system of today, a clearer, but by no means simple picture can be drawn. From analysing the duties and requirements of these lawyers it is obvious that there positions in the system are almost completely different with few commonalities, however, the English legal system is at current in a time of rapid transition and with new acts passed by parliament the concrete boundary between the two positions has continued to decay and may lead to an eventual merging of the two into some kind of ësuper lawyerí. This would be a momentous folly in the continued success of one of the worlds most respected and admired legal systems.
Therefore, while the boundary between the barrister and solicitor may be seen by some as a concretion of historic tradition in English legality it provides the proverbial backbone of the Trojan horse, which is the unmistakable, unwavering and inescapable power of our law profession. The job of the lawyers is to bring justice and opportunity to all and in this time of opportune justice for all its fulfilment of its duties to the people is plain.
October 2002.
(Words: 3,377)
Reference:
English Legal System, CD-ROM, by Kenneth O. Edwards, LI.M et al.
The English Legal System, Textbook, by Jacqueline Martin.