Barrister | History and definition of the Barrister

A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions. They can be contrasted with solicitors — the other class of lawyer in split professions — who have more direct access with clients and who are in general office based. Barristers are rarely hired by clients directly but instead are retained (or instructed) by solicitors to act on behalf of clients.

The historical difference between the two professions—and the only essential difference in England and Wales today—is that a solicitor is an attorney, which means they can act in the place of their client for legal purposes (as in signing contracts) and may conduct litigation on their behalf by making applications to the court, writing letters in litigation to the client's opponent and so on. A barrister is not an attorney and is usually forbidden, either by law or professional rules or both, from "conducting" litigation. This means that while the barrister speaks on the client's behalf in court, he or she can only do so when instructed by a solicitor or certain other qualified professional clients, such as patent agents.

Many countries with common law legal systems, such as the United States, do not observe a distinction between barristers and solicitors. In countries with civil law or other kinds of legal systems the legal profession is often separated into divisions but these divisions rarely shadow those of barristers and solicitors.

Essentially, barristers are the lawyers who represent litigants as their advocate before the courts of that jurisdiction. They speak in court and present the case before a judge or jury. In contrast, solicitors generally engage in preparatory work and advice, such as drafting and reviewing legal documents, dealing with and receiving instructions from the client, preparing evidence, and managing the day-to-day administration of a matter.

Other differences include the following:
  1. A barrister will usually have rights of audience in the higher courts, whereas other legal professionals will often have more limited access, or will need to take additional qualifications to do so. In this regard, the profession of barrister corresponds to that part of the role of legal professionals found in civil law jurisdictions relating to appearing in trials or pleading cases before the courts.
  2. Barristers usually have a more specialised knowledge of case law and precedent. When a solicitor in general practice is confronted with an unusual point of law, they sometimes seek the "opinion of counsel" on the issue.
  3. In most countries, barristers operate as sole practitioners, and are prohibited from forming partnerships or working as a barrister as part of a corporation (although in England and Wales the Clementi report has recommended the abolition of this restriction). However, barristers normally band together into 'chambers' to share clerks (administrators) and operating expenses. Some chambers grow to be large and sophisticated, and have a distinctly corporate feel. In some jurisdictions, some barristers are employed by firms of solicitors, banks or corporations as in-house legal advisers.
  4. Solicitors work directly with the client and are responsible for engaging an appropriate barrister; whereas barristers generally have little or no direct contact with their 'lay clients', particularly without the presence or involvement of the solicitor. All correspondence, inquiries, invoices, and so on, will be addressed to the solicitor, who is primarily responsible for the barrister's fees.
  5. In court, barristers are often visibly distinguished from solicitors by their apparel. For example, in Ireland, England and Wales, barristers usually wear a horsehair wig, stiff collar, bands and a gown. As of January 2008 Solicitor advocates will also be entitled to wear a wig, but will wear a different gown.
In many countries the traditional divisions between barristers and solicitors are breaking down. Barristers once enjoyed a monopoly on appearances before the higher courts, but in England, Wales and Scotland this has now been abolished, and solicitor advocates can generally appear for clients at trial. Increasingly, firms of solicitors are keeping even the most advanced advisory and litigation work in-house for economic and client relationship reasons. Similarly, the prohibition on barristers taking instructions directly from the public has also been widely abolished, but in practice, direct instruction is still a rarity in most jurisdictions, partly because barristers with narrow specialisations or who are only really trained for advocacy are not equipped to provide general advice to members of the public.

Historically barristers have had a major role in trial preparation, including drafting pleadings and reviewing evidence. In some areas of law, that is still the case. In others, it is relatively common for a barrister to only receive a "brief" from an instructing solicitor to represent a client at trial a day or two before the hearing.

The reasons for a split profession are largely historical, but a number of reasons are still advanced for maintaining the split:
  1. Having an independent barrister reviewing a cause of action gives the client a fresh and independent opinion from an expert in the field, something it is alleged rarely happens in jurisdictions with fused professions. However attorneys in a "fused" profession often serve differing roles for the same client, for example as in-house counsel and outside counsel.
  2. In many jurisdictions, judges are appointed from the bar; and because barristers are independent, this results in a more independent judiciary.
  3. Having recourse to all of the specialist barristers at the bar enables smaller firms, who could not maintain large specialist departments, to compete with larger firms.
  4. A barrister acts as a check on the solicitor conducting the trial; if it becomes apparent that the claim or defence has not been properly conducted by the solicitor prior to trial, the barrister can (and usually has a duty to) advise the client of a separate possible claim against the solicitor.
  5. Having trials conducted by experienced specialist advocates makes for smoother, more professionally run trials.
Against the above, a number of disadvantages are put forward:
  1. A multiplicity of legal advisers leads to higher costs (something that caused no small amount of concern to Sir David Clementi in his review of the English legal profession).
  2. As barristers are dependent upon solicitors for referrals of work, it is open to question how willing barristers are to criticise those who instruct them to the client.
  3. Barristers are sometimes criticised for being "over-specialised" and not having sufficient general expertise outside of what can be highly specialised fields.
A detailed examination of the justifications for a split legal profession and of the arguments in favour of a fused profession can be found in English solicitor Peter Reeve’s 1986 book, Are Two Legal Professions Necessary?

Barristers are regulated by the Bar for the jurisdiction where they practise, and in some countries, by the Inn of Court to which they belong. In some countries, there is external regulation.

Inns of Court, where they exist, regulate admission to the profession. Inns of Court are independent societies that are titularly responsible for the training, admission (calling), and discipline of barristers. Where they exist, a person may only be called to the Bar by an Inn, of which they must first be a member. In fact, historically, call to and success at the Bar, to a large degree, depended upon social connections made early in life.

A Bar collectively describes all members of the profession of barrister within a given jurisdiction. While as a minimum the Bar is an association embracing all its members, it is usually the case, either de facto or de jure, that the Bar is invested with regulatory powers over the manner in which barristers practice.

In the common law tradition, the respective roles of a lawyer—that is as legal adviser and advocate—were formally split into two separate, regulated sub-professions, the other being the office of solicitor. Historically, the distinction was absolute, but in the modern legal age, some countries that had a split legal profession now have a fused profession—anyone entitled to practice as a barrister may also practice as a solicitor, and vice versa. In practice, the distinction may be non-existent, minor, or marked, depending on the jurisdiction. In some jurisdictions, such Australia, Scotland and Ireland, there is little overlap.