Barristers’ main work is advocacy and litigation. They have the rights of audience in all courts; they also give written opinions to solicitors on cases and draft documents for litigation. Barristers are self employed but work in groups in order to share overheads such as rent and the cost of secretaries and clerks. To consult a barrister you must do this through a solicitor who will in turn contact the barristers’ clerk at chambers. To become a barrister a person must be “called to the bar”. This involves joining one of the four “Inns of Court”- Inner, Middle, Grays and Lincolns. They have control over who becomes a barrister; by having the power to allow a person to join the inn or not. You also need a law degree or have a non law degree plus a legal diploma, have ate six dinners per term for four terms, attended a vocational course leading to Bar Counsel’s final examination and then complete 12 months pupilage with a qualified barrister (this is unpaid). Once a junior barrister has completed the pupilage they must find a place in chambers. They then remain a junior barrister until they are made a QC (Queens Counsel). These are senior barristers appointed by the Queen on the advice of the Lord Chancellor. Barristers are governed by The Senate of the Inns of Court and the Bar. The senate regulates admission to the bar, organises legal education and is the disciplinary body. Not all barristers work in chambers and there has been a growth in employed barristers who seem to do similar work to employed solicitors, non-contentious and case preparation for their employer. Barristers cannot sue for their fee but solicitors are obliged to pay them even of they are not paid themselves. Barristers are not liable in the tort of negligence for work done in court or their opinions in cases referred to them by solicitors but can be sued for work done in pre trial preparation.
There are three classes of legal executive; Student membership;
These people are in the process of sitting part 1 and 2 Ilex and are registered with Ilex.
Member membership;
These people have passed part 1 and 2 of the Ilex examinations. (Part 1 is equivalent to an A Level, and Part 2 is equivalent to a degree.) Fellow membership;
These people have passed part 1 and 2 Ilex, are at least 25yrs old, have at least 5yrs qualifying legal experience and at least two of those years proceed passing part 2 Ilex.
(Once qualified as a fellow and have 5yrs experience you are then exempt from doing the training contract to become a solicitor
Legal executives hold very similar roles to solicitors; an important distinction is that the legal executive has responsibility to the solicitor, who is their principal, rather than directly to the client. As a legal executive you will interview clients, peruse documents, draft documents, conduct research and negotiate. As a legal executive you hold limited rights of audience in the magistrates and the county courts; apart from matters concerning liberty.
B) A solicitor, once they have got to grips with the case, must duplicate a brief for the barrister. They then must accompany their client whilst visiting the barrister in chambers. Once the case has reached the courts the barrister is handed the reins of a case but the solicitor must remain present even though he has no "voice" in the court. A classic example was recorded in The New Law Journal by Tony Holland. A newspaper was summoned by the judge to appear the next morning in court to answer allegations of contempt. The solicitor, a specialist in this field, asked if he could speak in court to explain there was no contempt under S.5 of the Contempt Of Court Act. This was not allowed and the hearing had to be conducted with a barrister, with solicitor present, the case lasting two minutes, the total cost doubled [1992]
A Q.C. will also have junior counsel adding still further to the cost.
The duplication of work may also lead to mistakes. A solicitor may, having spent many months or years collecting evidence, forget to brief the barrister on a fundamental point in the case. The barrister may not find the brief sufficient and because they might have spent little time with the client they fail to get a feeling of the case and miss vital evidence. An active solicitor who has a barrister with no enthusiasm for his client feels frustrated. Barristers who have worked with a solicitor in pre-trial opinions may be substituted before the case comes to court losing all continuity. Barrister diaries are especially difficult to timetable as they never truly know the length of each case. This could be stopped with a one-stop legal profession with a lawyer taking the case to its conclusion. It must seem frantically disorganised to a client to not see the barrister until the morning of the trial. Research by Bottoms and McLean showed 96% of defendants pleading guilty did not see their barrister until the day of the trial and 79% who were pleading not guilty did not see their counsel until the day of the trial either. 50% of briefs from the C.P.S. and Government Legal Services Department reached barristers only two days before the hearing [1992]
The division of the legal profession also robs society of some of the very best lawyers. The forced separation at degree level does not allow for an exploration of the different sides of the profession. Many students still believe money is the key to becoming a barrister. Good advocates may be lost because of the division, only able to practice in the lower courts as a solicitor. It is also said that the advocacy skills of a senior solicitor who has spent much time in the lower courts will arguably be as good as most barristers and better than most new arrivals. Opening up the franchise could enhance the skills of both professions and bring a bigger pool from which to choose our judges. As the system now stands both professions are insulated. The solicitor can hand his hard work to the barrister for "opinion" and the barrister has little or no insight and input into the preparation of the case.
The case for fusion seems to be clear but the Law Society and the Bar Counsel are both frightened of losing their identity. The Bar, strongly vocal in its calls for the status quo, are supported much by the judiciary. In the words of Many Rice-Davies "...well they would wouldn't they..." especially as the vast majority of judges are old barristers. They argue that such fusion would eradicate the identity of the skilled advocate who is seen as a specialist. These skills of advocacy are available to all solicitors through the cab-rank system. Fusion could create a vacuum where litigation could become under represented, lawyers preferring to take on lucrative non-contentious work. Along with the decline in advocates comes a decline in standards. Unqualified and inexperienced lawyers may try to undercut their opposition to keep clients. It is often said that the greatest aid to learning is experience and the more time lawyers spend in their office the less time they may have for court work, thus decreasing their advocacy skills. At present standards are maintained by peer pressure on the barristers close knit family.
