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Barristers in England and Wales are one form of lawyer in England and Wales, where the legal profession is divided between solicitors and barristers. Both are trained in law but serve different functions in the practice of law.
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.
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 traditionally only been able to appear as advocates in the inferior courts (that is, the magistrate's and county courts) and tribunals. Indeed the bulk of this work continues to be handled by solicitors. Under section 17 of the Courts and Legal Services Act 1990, solicitors with appropriate advocacy experience are entitled to acquire higher "rights of audience", enabling them to appear in the 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 adequately trained and experienced practitioners.
Until 2004, barristers were 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 ("Direct 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.
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 Professional 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 , of whom about ten percent are QCs. Many barristers (about 2,800) are employed in companies as ‘in-house’ counsel, or by local or national government or in academic institutions.
Appearance and forms of address
The appearance and form of address of a barrister is bound by a number of conventions.
A barrister's appearance 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 (without fee pockets - see below) 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.
Public opinion polls, however, generally favour the preservation of wigs and gowns in criminal cases, as a reminder of the formality and seriousness of such proceedings. Originally, those who had offended society were spoken for in the royal court by local clergymen; the more unpopular the offender, however, the more the watching public despised his representative. Accordingly, the wig, gown and bands were introduced as a form of disguise for the advocate, so that the baying crowds would not recognise him when he left the court. Over time, representation of the criminal came to be remunerated; barristers could not be seen to be taking money from the sullied hands of their client, so would turn their back upon him. The grateful client would then slip a doubloon or two into the pocket that hung over the barrister's left shoulder. Junior (or "stuff") gowns today still have the traditional "fee pocket" in deference to the profession's history. Perhaps the only purpose these days is to add to the gravitas of the proceedings, although when the consequences for victim and accused are so significant, it is a worthy purpose indeed.
Traditionally, barristers will, in the context of the giving of written opinions and of 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.
When appearing in court against a solicitor-advocate, even one exercising rights of audience in the higher courts, the barrister typically will refer to his opponent as "my friend", that is to say without the "learned" honorific. Whilst it exists, and survives, by virtue of convention, most lawyers, either solicitor or barrister, would regard it as an anachronism that does not by itself dictate the nature of the relationship between the two professions.
Regulation
While solicitors are regulated by the Law Society, barristers are governed by the General Council of the Bar and the individual Inns of Court. There are four Inns, all situated in the area of London close to the Law Courts in the Strand. Gray's Inn is off High Holborn, Lincoln's Inn off Chancery Lane, the Middle and Inner Temples, situated between Fleet Street and the Embankment.
The Inns bear more than a passing resemblance to Oxford and Cambridge colleges, with communal dining halls and libraries as well as living and working rooms: arguably, this facilitates the transition from public school to Oxbridge college to the Bar. Each of these institutions looks (and some say are) remarkably similar. Another element of life at the Bar which is similar to public schools, is that the High Court of Justice, sits in "terms", some of which were adopted as the "term" dates traditionally observed by the public schools.
Education and training
Intending barristers must first complete the academic stage of their legal education by obtaining a qualifying law degree (usually an LL.B., but in some universities B.A. - a first degree in the United Kingdom) but many undertake a one year conversion course having initially graduated in a non-law subject. This 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 GDL: a Graduate Diploma in Law. The 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 terms' 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 since 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 date from the time when not merely students but practitioners dined together and students picked up the elements of their education from their fellow diners and from readings 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 practising barristers or judges. However, from 2008, only those who have successfully completed pupillage will be entitled to 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 academe and eschew the vagaries of life in the courtroom. 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 an apprenticeship (known as a "pupillage") to a barrister of at least five years experience. This is traditionally 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). The Bar is perceived as something of an elite profession, both in the social sense and also academically: many barristers are educated in educational systems of the older universities where competition is encouraged.
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. However, there is no profit-sharing as in a business partnership, and individual barristers keep the fees they 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.