Lawyer is a generic term; solicitors and barristers are both lawyers. However, there are some very important differences between solicitors and barristers regarding their training, the work they do, how they work and how they are regulated.
In England and Wales we have a split system with a division of labour between barristers and solicitors. In other countries such as the USA there is a fused system where all lawyers can potentially, do all things.
It can be helpful to think of barristers as the “front of house” of the legal system (the Courts) and solicitors as making up the “back office”. However, there is no pecking order as such when it comes to solicitors and barristers, one is not better, more senior or more important than the other!
Role and purpose
Barristers are engaged by solicitors to work on their client’s case (referred to as “being instructed”). Solicitors will usually have a good knowledge of the different barristers chambers and the specialisms of the barristers working within them. This means they are in an ideal position to match up clients with the most appropriate barrister for their case.
Barristers are essentially advocates whose role is to explain an individual’s case in court and argue their position. They are less likely to be involved with a case until it is apparent that it will end up in a court hearing – many cases settle before this stage and so there is never any need to get a barrister involved.
Barristers can also advise clients on the strength of their case, assist with drafting documentation prior to any court hearing and help with negotiations but, generally this is something which will be handled by primarily a solicitor. Solicitors will often attend court with their barrister but, only to take notes and help with the documentation.
The caveats to all that…
For many years barristers were the only people authorised to present cases in the “higher courts” for example, the Court of Appeal and Supreme Court. However, some solicitors do now have rights of audience in the higher courts although this is still very much the exception.
We wouldn’t want anyone to get the impression that solicitors are always stuck behind a desk and never get on their feet to argue on behalf of their clients! In the lower courts such as the employment tribunal you are just as likely to see a solicitor as a barrister standing up to address the tribunal. However, when it comes to full hearings and complex cases, it is often more cost effective to hand the advocacy work over to a barrister.
Finally, in recent years it has become possible for members of the public to instruct barristers directly without first going through a solicitor. However, the ability to do this is still quite limited to certain types of cases and requires the individual to effectively act as their own solicitor.
Solicitors will go to law school prior to joining a law firm as a trainee. During their training contract they will learn on the job for two years, rotating through various departments before deciding which specific area of they wish to qualify into. This used to be referred to as “articles” and trainees were known as “articled clerks”.
Once they have reached the required standards, qualified solicitors’ names are placed on the roll of solicitors and in England and Wales are regulated by the Solicitors Regulation Authority, which issues practising certificates (renewable every year) to those wish to practise law. The Law Society is the professional body for solicitors.
It should be noted that there are some alternative routes to becoming a solicitor and, these are likely to increase in the future.
Barristers will attend bar school prior to obtaining a pupillage at a barristers’ chambers where they will work under the supervision of a qualified barrister, generally for 12 months (sometimes longer). Qualified barristers are “called to the Bar” and regulated by the Bar Standards Board Council which maintains the Barristers’ Register showing all those who are authorised to practise in England and Wales and who hold a current practising certificate.
Law firms v chambers
Solicitors are either employed by their law firm or, are a partner in their law firm or, work in-house as employed solicitors at a company or public sector organisation.
Barristers are self-employed individuals who are not allowed to form partnerships and tend to congregate together in offices known as chambers. Each individual barrister in chambers is independent – they group together simply to enable joint administration, marketing etc.. Consequently, two barristers who work out of the same set of chambers may be on opposing sides in a case. However, two solicitors working for the same firm would be prevented from working for clients who were on opposing sides in a case as this would be a conflict of interest and contrary to solicitors’ professional rules.
Payment and continuity
Solicitors still generally bill by the hour however, barristers are more likely to be paid by the piece of work, i.e. £x to attend for this hearing and £y to draft this document.
A solicitor will remain responsible for a client and their case all the way through from start to finish. This is because they are retained by a client to deal with matters as and when they arise. However, a barrister may not always be available for a client to attend a particular hearing because these dates are not previously known.
Barristers must honor any booking to appear for another client. This is called the ‘cab rank rule’ and helps keep barristers independent by preventing them from picking and choosing the cases they want to do. This means that a different barrister may have to be found for certain hearings.