Barrister

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Barristers: traditional dress.

In many common law jurisdictions, a barrister, in England and Wales, or advocate, as they are known in Scotland, is a type of lawyer, particularly one entitled to appear before the superior courts of that jurisdiction. Details vary from jurisdiction to jurisdiction.

Barristers in England and Wales

The legal profession in England and Wales is divided between solicitors and barristers. Both are trained in law but serve different functions in the practice of law.

Until recently, the most obvious difference between the two professions was that only Barristers had a general right of audience in all courts in England and Wales. Barristers were therefore 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. In fact, many barristers have largely "paper practices" where they rarely or never make court apperances.

This difference between the two professions has been eroded recently. Solicitors have always been able to appear before many inferior courts and tribunals. Now many solicitors have what are called "higher rights", enabling them to appear in superior courts, although in practice many do not.

The key difference between the two professions is that a solicitor is an attorney, meaning that they stand in the place of their client, wheras a barrister merely speaks on behalf of their client. For example, a solicitor may hold funds on behalf of their client (for example in conveyancing) whereas a barrister is forbidden from doing so. Solicitors are also officers of the court, barristers are not.

A further difference is that a barrister may either be "employed" or in "independent practice". An employed barrister may represent only their employer -- and thus may not give general legal services to the public. Most representation is given by barristers in independent practice, who may not be members of partnerships (as solicitors usually are), but must act as sole traders with unlimited liability.

In order to function in the legal services market, most barristers in independent practice form themselves into groups, called "chambers" or "sets". Many common costs are shared between members of the set, including the finding of work.

Barristers in independent practice could not, in the past, accept work directly from members of the public, but could only be instructed through the intermediary of a solicitor. This is still the normal way in which such barristers are instructed, but many now offer various kinds of direct access.

Most barristers are probably properly equated with US trial lawyers in that they do not normally deal with the public (or lay clients) directly, but through the intermediary of a solicitor.

There are currently about 10,000 barristers in practice in England and Wales, of whom about ten percent are QCs. Many barristers are also employed in companies as ‘in-house’ counsel, or by local or national government or in academic institutions.

Appearance and forms of address

A barrister's dress in court depends on whether the hearing is "robed" or not. Trials in open court are almost always robed. Interim hearings and trials in chambers are usually unrobed, though this is at the discretion of the judge.

At a robed hearing, barristers must wear a wig (usually of horsehair), with a black gown and a dark suit and a shirt (of at least 50% white material), with strips of white cotton called 'bands' hanging before a wing collar. QCs wear slightly different gowns over short embroidered black jackets. By contrast, solicitors appearing as advocates do not wear wigs, though they must still wear a gown. 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.

Traditionally, barristers refer to each other in court as "my learned friend", and solicitors as "my friend"; this harks back to the days when the legal profession was small enough for all practitioners to know each other personally. Some barristers believe that the distinction in form of address is potentially insulting to solicitors and try to refer to other barristers and solicitors in the same way.

The Inns of Court

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.

Qualifying as a barrister

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 themeselves 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.

Barristers in Northern Ireland

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The legal profession in Northern Ireland consists of two separate and complementary branches - Barristers and Solicitors. They are trained and organised in distinctive ways which reflect the differences in their functions and the services they provide.

The solicitor is usually the first point of contact for any member of the public seeking legal advice. In the normal course of events the solicitor is often the only point of contact as he or she is qualified to see many matters through from beginning to end, for example in conveyancing, debt collecting, making and dealing with wills and matrimonial cases.

The practising barrister is essentially a consultant offering specialist services as an adviser and advocate in all matters involving the law. In the first instance the barrister does not meet the lay client, namely the person who may require advice or representation, but if it is necessary the solicitor takes instructions from the client and approaches a barrister to advise or to represent the client in court. The distancing of the barrister from the client is seen to be advantageous in that it helps maintain impartiality.

Where a case proceeds the solicitor carries out some of the preparatory work. Barristers, with their intimate knowledge of litigation, of the ways of the court and of the judiciary, concentrate on the presentation of the case. Meetings between barrister and client take place according to needs and circumstances. Often things go no further if the claim or defence is unlikely to succeed.

In April 2003 there were 555 barristers in independent practice in Northern Ireland.

There are 66 Queen’s Counsel, barristers who have earned a high reputation and are appointed by the Queen on the recommendation of the Lord Chancellor as senior advocates and advisers. The title does not imply an association with the State.

Those barristers who are not Queen’s Counsel are called Junior Counsel. This term is misleading since many members of the Junior Bar are experienced barristers with considerable expertise.

Benchers are, and have been for centuries, the governing bodies of the four Inns of Court in London and King’s Inns, Dublin. The Benchers of the Inn of Court of Northern Ireland governed the Inn until the enactment of the Constitution of the Inn in 1983, which provides that the government of the Inn is shared between the Benchers, the Executive Council of the Inn and members of the Inn assembled in General Meeting.

The Executive Council (through its Education Committee) is responsible for considering Memorials submitted by applicants for admission as students of the Inn and by Bar students of the Inn for admission to the degree of Barrister-at-Law and making recommendations to the Benchers. The final decisions on these memorials are taken by the Benchers. The Benchers also have the exclusive power of expelling or suspending a Bar student and of disbarring a barrister or suspending a barrister from practice.

The Executive Council is also involved with the education; fees of students; calling counsel to the Bar although call to the Bar is performed by the Lord Chief Justice on the invitation of the Benchers; administration of the Bar Library (to which all practising members of the Bar belong); and liaising with corresponding bodies in other countries.

The Bar Council is responsible for the maintenance of the standards, honour and independence of the Bar and, through its Professional Conduct Committee, receives and investigates complaints against members of the Bar in their professional capacity.

Barristers in other jurisdictions

Barristers are also found in the Republic of Ireland, Hong Kong (where the Chinese name da lu shi, 大律師 is also used), and Australia (in the states without a fused profession, namely New South Wales, South Australia, and Queensland). In Canada, the professions of barrister and solicitor are fused, and many lawyers refer to themselves with both names. However, in Quebec, which has substantive law under the civil law tradition, the practice is closer to that of the United Kingdom, with les avocats practicing before the courts, and civil law notaries or les notaires limited to most of the functions of solicitors.

In Western Australia and Victoria, the professions of barristers and solicitors are fused, but nonetheless an independent bar is in existence, regulated by those States' Legal Practice Boards. A similar arrangement exists in New Zealand.

Unlike its common law brethren, the United States does not draw a distinction between barristers and solicitors; all lawyers who pass the bar examination may argue in the courts of the state in which they are admitted, although some state appellate courts require attorneys to obtain a separate certificate of admission to plead and practice in the appellate court. This separate admissions process, where it exists, is usually a simple matter of paying a small application fee. Federal courts at each level (Federal District, Circuit Courts of Appeals, Supreme Court) require specific admission to that court's bar in order to practice before it, but there is no separate examination process for federal courts, and admission is usually granted as a matter of course to any attorney licensed in the state where the particular federal court sits.

Although most European countries have divided legal professions, with different kinds of lawyers performing different functions, only Spain has a division which generally corresponds to the division in Britain between barristers/advocates and solicitors. Procuradores represent the interests of a litigant in court, while abogados is the general term for other lawyers. Procuradores are regulated by Royal Decree 2046 of 1982, which approved the General Statute of the Procuradores, and the Organic Law no.6 of 1985. The General Statute regulates the qualifications and conduct of the procuradores. Thus, obligations to act pro bono are laid down by Article 13.