) is a type oflawyerin. Barristers mostly specialise in courtroomadvocacyandlitigation. Their tasks include taking cases in superiorcourtsandtribunals, drafting legalpleadings, researching the philosophy, hypothesis and history of law, and giving expert legal opinions. Often, barristers are also recognised as
Barristers are distinguished fromsolicitors, who have more direct access to clients, and may do transactional-type legal work. It is mainly barristers who are appointed as judges, and they are rarely hired by clients directly. In some legal systems, including those ofScotlandSouth AfricaScandinaviaPakistanIndiaBangladesh, and the British Crown dependencies ofJerseyGuernseyand theIsle of Man, the word barrister is also regarded as anhonorifictitle.
In a few jurisdictions, barristers are usually forbidden from conducting litigation, and can only act on the instructions of a solicitor, who performs tasks such as corresponding with parties and the court, anddraftingcourt documents. In England and Wales, barristers may seek authorisation from theBar Standards Boardto conduct litigation. This allows a barrister to practise in a dual capacity, fulfilling the role of both barrister and solicitor.1
In some countries with common law legal systems, such asNew Zealandand some regions ofAustralialawyersare entitled to practise both as barristers and solicitors, but it remains a separate system of qualification to practise exclusively as a barrister.
Differences between barristers and other lawyers
Justification for a split profession
Crown dependencies and UK Overseas Territories
Differences between barristers and other lawyers
A barristers wigs, Parliament Hall, Edinburgh
A barrister, who can be considered as a jurist, is a lawyer who represents a litigant as advocate before a court of appropriate jurisdiction. A barrister speaks in court and presents the case before a judge or jury. In some jurisdictions, a barrister receives additional training in evidence law, ethics, and court practice and procedure. In contrast, a solicitor generally meets with clients, does preparatory and administrative work and provides legal advice. In this role, he or she may draft and review legal documents, interact with the client as necessary, prepare evidence, and generally manage the day-to-day administration of a lawsuit. A solicitor can provide a crucial support role to a barrister when in court, such as managing large volumes of documents in the case or even negotiating a settlement outside the courtroom while the trial continues inside.
There are other essential differences. A barrister will usually haverights of audiencein the higher courts, whereas other legal professionals will often have more limited access, or will need to acquire additional qualifications to have such access. As in common law countries in which there is a split between the roles of barrister and solicitor, the barrister incivil lawjurisdictions is responsible for appearing in trials or pleading cases before the courts.
Barristers usually have particular knowledge of case law, precedent, and the skills to build a case. When a solicitor in general practice is confronted with an unusual point of law, they may seek the opinion of counsel on the issue.2
In most countries, barristers operate as sole practitioners, and are prohibited from forming partnerships or from working as a barrister as part of a corporation. (In 2009, the Clementi Report recommended the abolition of this restriction in England and Wales.3) However, barristers normally band together intochambersto share clerks (administrators) and operating expenses. Some chambers grow to be large and sophisticated, and have a distinctly corporate feel. In some jurisdictions, they may be employed by firms of solicitors, banks, or corporations as in-house legal advisers.
In contrast, solicitors and attorneys work directly with the clients and are responsible for engaging a barrister with the appropriate expertise for the case. 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 barristers fees.
In court, barristers are often visibly distinguished from solicitors by their apparel. For example, in Ireland, England, and Wales, a barrister usually wears a horsehair wig, stiff collar,bands, and a gown. Since January 2008,solicitor advocateshave also been entitled to wear wigs, but wear different gowns.4
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 inGreat Britainthis 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 specializations, or who are only really trained for advocacy, are not prepared to provide general advice to members of the public.
Historically, barristers have had a major role in trial preparation, including draftingpleadingsand reviewing evidence. In some areas of law, that is still the case. In other areas, it is relatively common for the barrister to receive the brief from the instructing solicitor to represent a client at trial only a day or two before the proceeding. Part of the reason for this is cost. A barrister is entitled to a brief fee when a brief is delivered, and this represents the bulk of her/his fee in relation to any trial. They are then usually entitled to a refresher for each day of the trial after the first. But if a case is settled before the trial, the barrister is not needed and the brief fee would be wasted. Some solicitors avoid this by delaying delivery of the brief until it is certain the case will go to trial.
Some benefits of maintaining the split include:
Having an independent barrister reviewing a course of action gives the client a fresh and independent opinion from an expert in the field distinct from solicitors who may maintain ongoing and long-term relationships with the client.
In many jurisdictions, judges are appointed from the bar. Since barristers do not have long-term client relationships, and are further removed from clients than solicitors, judicial appointees are more independent.
Having recourse to all of the specialist barristers at the bar can enable smaller firms, who could not maintain large specialist departments, to compete with larger firms.
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.
Expertise in conducting trials, owing to the fact that barristers are specialist advocates.
In many jurisdictions, barristers must follow thecab-rank rule, which obliges them to accept a brief if it is in their area of expertise and if they are available, facilitating access to justice for the unpopular.
Some disadvantages of the split include:
A multiplicity of legal advisers can lead to less efficiency and higher costs, a concern to SirDavid Clementiin his review of the English legal profession.
Because they are further removed from the client, barristers can be less familiar with the clients needs.
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 Reeves 1986 book,Are Two Legal Professions Necessary?7
Barristers are regulated by theBarfor the jurisdiction where they practise, and in some countries, by theInn of Courtto 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.8
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, eitherde factoorde jure, that the Bar is invested with regulatory powers over the manner in which barristers practise.
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 afused profession anyone entitled to practise as a barrister may also practise 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.
In the Australian states ofNew South WalesVictoriaandQueensland, there is a split profession. Nevertheless, subject to conditions, barristers can accept direct access work from clients. Each state Bar Association regulates the profession and essentially has the functions of the English Inns of Court. In the states ofSouth AustraliaandWestern Australia, as well as theAustralian Capital Territory, the professions of barrister and solicitor are fused, but an independent bar nonetheless exists, regulated by the Legal Practice Board of the state or territory. InTasmaniaand theNorthern Territory, the profession is fused, although a very small number of practitioners operate as an independent bar.
Generally counsel dress in the traditional English manner (wig, gown, andjabot) before superior courts, although this is not usually done for interlocutory applications. Wigs and robes are still worn in the Supreme Court and the District Court in civil matters and is dependent on the judicial officers attire. Robes and wigs are worn in all criminal cases.9In Western Australia, wigs are no longer worn in any court.
Each year, the Bar Association appoints certain barristers of seniority and eminence to the rank of Senior Counsel (in most States and Territories) or Queens Counsel (in the Northern Territory, Queensland, and Victoria). Such barristers carry the title SC or QC after their name. The appointments are made after a process of consultation with members of the profession and the judiciary. Senior Counsel appear in particularly complex or difficult cases. They make up about 14 per cent of the bar in New South Wales.
In Bangladesh, the law relating to the Barristers is the Bangladesh Legal Practitioners and Bar Council Order,1972 (President Order No.46) as amended which is administered and enforced by the Bangladesh Bar Council. Bangladesh Bar Council is the supreme statutory body to regulate the legal professions in Bangladesh and ensure educational standard and regulatory compliance by the Advocates on roll of the Bar Council. The Bar Council, with the help of government, prescribes rules to regulate the profession. All law graduates educating from home or abroad have to write and pass the Bar Council Examination to be enrolled and admitted as professional Advocates to practice law both as Barristers & Solicitors. The newly enrolled advocates are permitted to start practice in the lower (District) courts after admitting as members of the local (District) Bar Associations. After two years of Practice in lower court the Advocates are eligible to be enrolled in the High Court Division of the Supreme Court of Bangladesh. By passing the Bar Council Examination, the advocates are issued with certificates of enrollment and permission in prescribed form to practise in the High Court Division of the Supreme Court also. Only those advocates who became Barristers in U.K. maintain their honorific title of barristers. In Bangladesh there is an association called Barristers Association of Bangladesh that represents the such U.K. bases barristers.
In Canada (exceptQuebec), the professions of barrister and solicitor are fused, and many lawyers refer to themselves with both names, even if they do not practise in both areas.10In colloquial parlance within the Canadian legal profession, lawyers often term themselves as litigators (or barristers), or as solicitors, depending on the nature of their law practice though some may in effect practise as both litigators and solicitors. However, litigators would generally perform all litigation functions traditionally performed by barristers and solicitors; in contrast, those terming themselves solicitors would generally limit themselves to legal work not involving practice before the courts (not even in a preparatory manner as performed by solicitors in England), though some might practise before chambers judges. As is the practice in many other Commonwealth jurisdictions such as Australia, Canadian litigators are gowned, but without a wig, when appearing before courts of superior jurisdiction. All law graduates from Canadian Law schools, and NCA certificates of Qualification (Internationally trained lawyers) from the Federation of Law Society of Canada after having completed more than a year article-ship in law firms write the Bar and Solicitor examinations as prescribed by their professional regulating body, the Law Societies (e.g. Law Society of Upper Canada). The passed candidates are called to the degree of Barrister-at-law and issued with Certificate of Barristers and Solicitors and admit to practice in Her Majestys Bar within the control of the Society.
The situation is somewhat different in Quebec as a result of itscivil lawtradition. The profession of solicitor, oravou, never took hold in colonial Quebec, so attorneys11(avocats) have traditionally been a fused profession, arguing and preparing cases in contentious matters, whereas Quebecs other type of lawyer,civil-law notaries(notaires), handle out-of-court non-contentious matters. However, a number of areas of non-contentiousprivate laware not monopolized by notaries so that attorneys often specialise in handling either trials, cases, advising, or non-trial matters. The only disadvantage is that attorneys cannot draw uppublic instrumentsthat have the same force of law asnotarial acts. Most large law firms in Quebec offer the full range of legal services of law firms in common-law provinces. Intending Quebec attorneys must earn a bachelors degree in civil law, pass the provincial bar examination, and successfully complete a legal internship to be admitted to practice. Attorneys are regulated by the Quebec Law Society (Barreau du Qubec).
In France,avocats, or attorneys, were, until the 20th century, the equivalent of barristers. The profession included several grades ranked by seniority:avocat-stagiaire(trainee, who was already qualified but needed to complete two years (or more, depending on the period) of training alongside seasoned lawyers),avocat, andavocat honoraire(senior barrister). Since the 14th century and during the course of the 19th and 20th in particular, French barristers competed in territorial battles over respective areas of legal practice against theconseil juridique(legal advisor, transactional solicitor) andavou(procedural solicitor), and expanded to become the generalist legal practitioner, with the notable exception ofnotaires(notaries), who are ministry appointed lawyers (with a separate qualification) and who retain exclusivity over conveyancing and probate. After the 1971 and 1990 legal reforms, theavocatwas fused with theavouand theconseil juridique, making theavocat(or, if female,avocate) an all-purpose lawyer for matters of contentious jurisdiction, analogous to an American attorney. French attorneys usually do not (although it they are entitled to) act both as litigators (trial lawyers) and legal consultants (advising lawyers), known respectively asavocat plaidantandavocat-conseil. This distinction is however purely informal and does not correspond to any difference in qualification or admission to the roll. All intending attorneys must pass an examination to be able to enrol in one of theCentre rgional de formation la profession davocat (CRFPA)(Regional centre for the training of lawyers). TheCRFPAcourse has a duration of two years and is a mix between classroom teachings and internships. Its culmination is thestage final(final training), where the intending attorney spends 6 months in a law firm (generally in his/her favoured field of practice and in a firm in which he/she hopes to be recruited afterwards). The intending attorney then needs to pass theCertificat dAptitude la Profession dAvocat (CAPA), which is the last professional examination allowing him/her to join a courts bar (barreau). It is generally recognised that the first examination is much more difficult than the CAPA and is dreaded by most law students. Each bar is regulated by a Bar Council (Ordre du barreau).
In Germany, no distinction is made and lawyers may plead at all courts with the exception of the civil branch of the Federal Court of Justice (Bundesgerichtshof) to which fewer than fifty lawyers are admitted12as of 25 September 2007. See thelist of lawyers admitted to the Bundesgerichtshof. Those lawyers may not plead at other courts, almost only deal with litigation, and are usually instructed by a lawyer who represented the client in the lower courts. However, these restrictions do not apply to criminal cases, nor to pleadings at courts of the other court systems (labour, administrative, taxation, and social courts, as well as the EU court system).
The legal profession in Hong Kong is also divided into two branches: barristers and solicitors.
In theHigh Courtand theCourt of Final Appeal, as a general rule, only barristers andsolicitor-advocatesare allowed to speak on behalf of any party in open court. This means that solicitors are restricted from doing so. In these two courts, barristers dress in the traditional English manner, as do the judges and other lawyers.
In Hong Kong, the rank of Queens Counsel was granted prior to thetransfer of the sovereignty of Hong Kongfrom theUnited KingdomtoChinain 1997. After the handover, the rank has been replaced by: SC. Senior Counsel may still, however, style themselves as silks, like their British counterparts.
InIndia, the law relating to the Barrister is the Advocates Act, 1961 introduced and thought up byAshoke Kumar Sen, the then law minister of India, which is a law passed by the Parliament and is administered and enforced by theBar Council of India. Under the act, the Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country. For this purpose, the Bar Council of India is authorized to pass regulations and make orders in individual cases and also generally.
Each State has a Bar Council of its own whose function is to enroll the Barristers willing to practise predominately within the territorial confines of that State and to perform the functions of the Bar Council of India within the territory assigned to them. Therefore, each law degree holder must be enrolled with a (single) State Bar Council to practise in India. However, enrollment with any State Bar Council does not restrict the Barrister from appearing before any court in India, even though it is beyond the territorial jurisdiction of the State Bar Council which he is enrolled in. The advantage with having the State Bar Councils is that the work load of the Bar Council of India can be divided into these various State Bar Councils and also that matters can be dealt with locally and in an expedited manner. However, for all practical and legal purposes, the Bar Council of India retains with it, the final power to take decisions in any and all matters related to the legal profession on the whole or with respect to any The process for being entitled to practise in India is twofold. First, the applicant must be a holder of a law degree from a recognized institution in India (or from one of the four recognised Universities in the United Kingdom) and second, must pass the enrollment qualifications of the Bar Council of the state where he/she seeks to be enrolled. For this purpose, the Bar Council of India has an internal Committee whose function is to supervise and examine the various institutions conferring law degrees and to grant recognition to these institutions once they meet the required standards. In this manner the Bar Council of India also ensures the standard of education required for practising in India are met with. As regards the qualification for enrollment with the State Bar Council, while the actual formalities may vary from one State to another, yet predominately they ensure that the application has not been a bankrupt /criminal and is generally fit to practise before courts of India. Enrollment with a Bar Council also means that the law degree holder is recognized as a Barrister and is required to maintain a standards of conduct and professional demeanor at all times, both on and off the profession. The Bar Council of India also prescribes Rules of Conduct to be observed by the Barristers in the courts, while interacting with clients and even otherwise.
In theRepublic of Ireland, admission to the Bar by the Chief Justice of Ireland is restricted to those on whom a Barrister-at-Law degree (B.L.) has first been conferred.The Honorable Society of Kings Inns13is the only educational establishment which runs vocational courses for barristers in the Republic and degrees of Barrister-at-Law can only be conferred by Kings Inns. Kings Inns are also the only body with the capacity to call individuals to the bar and to disbar them.
Most Irish barristers choose to be governed thereafter by theBar Council of Ireland, a quasi-private entity. Senior members of the profession may be selected for elevation to the Inner Bar, when they may describe themselves as Senior Counsel (S.C.). Admission to the Inner Bar is made by declaration before theSupreme Courtpatents of precedencehaving been granted by theGovernment. Irish barristers are sole practitioners and may not form chambers or partnerships if they wish to remain members of the Bar Councils Law Library.
To practise under the Bar Council of Irelands rules, a newly qualified barrister is apprenticed to an experienced barrister of at least seven years experience. This apprenticeship is known aspupillageordevilling. Devilling is compulsory for those barristers who wish to be members of the Law Library and lasts for one legal year. It is common to devil for a second year in a less formal arrangement but this is not compulsory.
In Israel there is no distinction between barristers and solicitors, even though the judicial system is based mostly on English common law, as a continuation of theBritish Mandate in Palestine.
Japan adopts a unified system. However, there are certain classes of qualified professionals who are allowed to practise in certain limited areas of law, such as scriveners (shiho shoshi, qualified to handle title registration, deposit, and certain petite court proceedings with additional certification), tax accountants (zeirishi, qualified to prepare tax returns, provide advice on tax computation and represent a client in administrative tax appeals) and patent agents (benrishi, qualified to practise patent registration and represent a client in administrative patent appeals). Only the lawyers (bengoshi) can appear before court and are qualified to practise in any areas of law, including, but not limited to, areas that those qualified law-related professionals above are allowed to practise. Most attorneys still focus primarily on court practice and still a very small number of attorneys give sophisticated and expertised legal advice on a day-to-day basis to large corporations.
TheNetherlandsused to have a semi-separated legal profession comprising the lawyer and theprocureur, the latter resembling, to some extent, the profession of barrister. Under that system, lawyers were entitled to represent their clients in law, but were only able to file cases before the court at which they were registered. Cases falling under the jurisdiction of another court had to be filed by aprocureurregistered at that court, in practice often another lawyer exercising both functions. Questions were raised on the necessity of the separation, given the fact that its main purpose the preservation of the quality of the legal profession and observance of local court rules and customs had become obsolete. For that reason, theprocureuras a separate profession was abolished and its functions merged with the legal profession in 2008.14Currently, lawyers can file cases before any court, regardless of where they are registered. The only notable exception concerns cases brought before theSupreme Court, which have to be handled by lawyers registered in the district ofSouth Holland, mainly for qualitative reasons.
In New Zealand, the professions are not formally fused but practitioners are enrolled in the High Court as Barristers and Solicitors. They may choose, however, to practise as barristers sole. About 15% practise solely as barristers, mainly in the larger cities and usually in chambers (following the British terminology). They receive instructions from other practitioners, at least nominally. They usually conduct the proceedings in their entirety.
Any lawyer may apply to become aQueens Counsel(QC) to recognize long standing contribution to the legal profession but this status is only conferred on those practising as solicitors in exceptional circumstances. This step, referred to as being called to the inner bar or taking silk, is considered highly prestigious and has been a step in the career of many New Zealand judges.
Unlike other jurisdictions, the term junior barrister is popularly used to refer to a lawyer who holds a practising certificate as a barrister, but is employed by another, more senior barrister. Generally, junior barristers are within their first five years of practise and are not yet qualified to practise as barristers sole. Barristers sole (i.e. barristers who are not employed by another barrister) who are not Queens Counsel are never referred to as junior barristers.
InNigeria, there is no formal distinction between barristers and solicitors. All students who pass the bar examinations offered exclusively by theNigerian Law School are called to the Nigerian bar, by the Body of Benchers. Lawyers may argue in any Federal trial or appellate court as well as any of the courts in Nigerias 36 states and the Federal Capital Territory. The Legal Practitioners Act, refers to Nigerian lawyers as Legal Practitioners, and following theircall to the Bar, Nigerian lawyers enter their names in the register or Roll of Legal Practitioners kept at the Supreme Court. Perhaps for this reason, a Nigerian lawyer is also often referred to as a Barrister and Solicitor of the Supreme Court of Nigeria, and many Nigerian lawyers term themselves Barrister-at-Law complete with the postnominal initials B.L..
The vast majority of Nigerian lawyers combine contentious and non-contentious work, although there is a growing tendency for practitioners in the bigger practices to specialise in one or the other. In colloquial parlance within the Nigerian legal profession, lawyers may for this reason be referred to as litigators or as solicitors.
Consistent with the practice in England and elsewhere in the Commonwealth, senior members of the profession may be selected for elevation to the Inner Bar by conferment of the rank ofSenior Advocate of Nigeria(SAN).
InPakistanto practice as a Barrister, law graduates have to complete three steps. They have to pass the Bar Practice and Training Course (BPTC), be Called to the Bar by an Inn of Court from England and Wales and attain a licence to practice as an advocate in the Courts of Pakistan from the relevant Bar Council, provincial or federal.
InPoland, there are two main types of legal professions:advocateand legal counsel. Both are regulated and these professions are restricted only for people who graduated five-year law studies, have at least three years of experience and passed five difficult national exams (civil law, criminal law, company law, administrative law and ethic) or have a doctor of law degree. Before 2015, the only difference was that advocates have a right to represent clients before the court in all cases and the legal advisors could not represent clients before the court in criminal cases. Presently, the legal advisors can also represent clients in criminal cases so currently, the differences between this professions are only historical significance.
InSouth Africathe employment and practise of advocates (as barristers are known in South