ìExplain the difference between the role of a Barrister and a Solicitor. Discuss how they are trained and what they do. Make reference to discipline and liability etcî.
Written by Nicola Brian (AS Law Student)
Barristers and solicitors have become more similar in many ways in recent years. I will be discussing their qualifications and their jobs, as well as discipline and liability. I will undertake this under the aforementioned headings.
Qualifications:
Barrister:
After completing A Levels, the person must go to a reputable university and attain at least an upper second class honours. If the degree is something else, the student must then convert it by taking the CPE (common professional examination) or PDL (post graduate diploma in law). The student then had to join one of the four Inns of Court: Grayís Inn, Lincolnís Inn, Middle temple or Inner temple. An important part of becoming a barrister is developing contacts. The recognised way to do this is to dine at the Inns of Court 12 times. Alternatively, they can now attend educational forums such as residential courses like weekend residential courses. The number of times a potential barrister has to dine at the Inns of court has been reduced form 18, making it slightly easier for people coming from different backgrounds. The next part of a barrister's training is the Bar Vocational Course. In previous years, this could only be completed at he Inns of Court school of Law, but now other institutions are qualified to run it. This again helps people who cannot afford an additional year in London. This part of the training emphasises the development of legal research, fact management, advocacy as well as core criminal and civil litigation. It also concentrates on evidence and sentencing. Applicants are then called to the bar to receive their vocational qualification at their chosen Inn of Court celebration. The final part of the training is spending 12 months on a ìpupillageî with a senior barrister, although these are very rare and they receive very little financial support. Some chambers do pay up to £6000 for pupillage, but training barristers still have to pay for books and clothing and living expenses.
Solicitors:
Like barristers, solicitors are required to have a law degree or CPE. They then have to take a legal practice course at a college of law run by the Law Society or at an authorised university. Then, again like barristers, solicitors must undertake a period of apprenticeship with a practising solicitor. Following this, the solicitorís name is then ìput on the rollî.
Once a barrister has been practising for 10 years, an application to become a QC (Queens Counsel) can be put in, although it is rarely successful the first time and only the top barristers will be chosen. Another way a barrister can be promoted is to become a judge, although solicitors can now do the same but in lower courts to go to the higher ones from there.
Solicitors:
They are the first person that people will see when they ask for legal advice. Solicitors specialise in one or two specific areas of law such as matrimonial disputes. However some solicitors take on a variety of cases and rely on barristers for specialist help.
Barristers:
Barristers are controlled by the bar council, which is made up of benchers. They can set rules for training and education as well as investigating complaints against its members. If a complaint is made against a barrister, then it falls upon the ìbenchersî to investigate. In turn, the Legal Ombudsman investigates the way the bar council handled the complaint.
Until recently, barristers could not sue for fees, as there was no contract between the barrister and the solicitor or the barrister and the client. It also meant that barristers could not be held liable for negligent advice or advocacy. However, in Saif Ali v Sydney Mitchell and Co (1977), it was held that barristers could be sued for giving negligent advice before court proceedings. In 2000, a case heard in the House of Lords (Hall v Simons), completely overruled the original position so both barristers and solicitors can be held liable for negligent advice and advocacy. This should also overrule the position that barristers could not be paid as in other professions.
Solicitors:
Solicitors have to abide by the rules set up by the Law Society, and they are responsible for the education, training and conduct of solicitors. They have the choice to work in a partnership, a firm or with public services.
If a complaint is made against a solicitor, it is investigated by the Office for the Supervision of Solicitors, and this may result in the wrongdoer appearing before the Law Societyís disciplinary committee. Solicitors now have to take out professional conduct insurance so any offended parties can be sufficiently reimbursed.
The courts and Legal services Act has changed the way solicitors work, making more similar to barristers. For instance, they have been allowed to represent their clients in magistrates and county courts for a long time but now they can stand in higher courts if a certificate of competency is obtained. They can also now advertise, this was previously seen to be inappropriate.
There are still large gaps between the professions in the way that barristers are still seen as the higher branch of the profession and they can still not sue for fees, although it may change. Generally, there are some similarities such as the degree, the CPE and the training with a trained member of the profession. However it looks like to be come a barrister, you need to know the right people a well as the training and this is shown through having to dine at the Inns of Court. It also fits in with the traditional view that barristers are aloof and have to come form upper middle class backgrounds in order to be able to afford to train. This can be seen through the figure that 1/3 to ‡ of qualified barristers quit in their first 2-3 years because of financial problems.
However, it does appear now there will eventually be a merger between the two professions. Now solicitors can appear in the higher courts, there is less need for barristers. This is also seen through the solicitors becoming judges. The joining of professions could also eliminate the need for Queenís Counsel, as one of its functions is to allow barristers to command higher fees. This could be seen as a good thing and a bad thing because there would no longer be the same gap between the general public and members of the legal profession. It would also mean however that solicitors would have to be just as skilled at advocacy in higher courts and may have to spend more time in education to learn everything they need to. It could also lead to solicitors being as detached towards their clients as barristers are now.
October 2002