Barristers in England and Wales - Key Differences From The Profession of Solicitor

Key Differences From 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 clients. These differences have been eroded by recent deliberate changes, although in many fields of legal practice the distinction is largely retained in practice.

Barristers have full rights of audience to appear in all courts, from highest to lowest. Solicitors, on the other hand, have traditionally only been able to appear as advocates in the inferior courts (that is, the magistrates' and county courts) and tribunals. Indeed the bulk of such 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. Solicitors who attain these rights are known as solicitor-advocates. However, in practice the number of solicitor-advocates exercising their right to do so remains fairly small, and solicitors often continue to engage a barrister to undertake any required advocacy in court. Not only is this division traditional; in higher value civil or more serious criminal cases, it is often tactically imperative to engage a specialist advocate (because if one side does not the other might).

Until 2004, barristers were prohibited from seeking or accepting "instructions" (that is, being hired) directly by the clients whom they represent. The involvement of a solicitor was compulsory. The rationale was that 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 case, working strictly from the evidence that would be admissible in court. In addition, being less involved in the current affairs of clients, including many matters that might never come to court, barristers had more time for research and for keeping up to date with the law and the decisions (precedent) of the courts.

Theoretically, this prohibition has been removed. In certain areas (but not crime or conveyancing), barristers may now accept instructions from a client directly ("Direct Access"). Only a solicitor, however, may undertake any work that requires funds to be held on behalf of a client.

A barrister is in principle required to act for any client offering a proper fee, regardless of the attractions or disadvantages of a case and the personal feelings of the barrister towards the client. This is known as the "cab-rank rule", since the same rule applies to licensed taxi-cabs. However, there are some modifying conditions, namely, that the barrister is available to take the case and feels competent to handle the work. A barrister who specialises in, for example, crime is not therefore obliged to take on employment law work if he is offered it. He is also entitled (and, indeed, obliged) not to take a case which he feels is too complicated for him to deal with properly.