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There are two branches of the legal profession in England and Wales – solicitors and barristers. This essay focuses upon the work of barristers.
There are approximately 15,000 barristers and, with about 50% of the barristers' chambers located in London, many barristers will be found in the city itself. Barristers work from offices which are known as chambers and which are shared with other barristers. There are a number of benefits to sharing chambers, not least being that collectively they share overheads according to their seniority and contribute to the costs and expenses of running the chambers according to an agreement. This means that individual barristers are free to pursue their own areas of specialization but are able to share running costs.
The barristers' work is managed by a clerk who must be familiar with court procedures and etiquette and often become experts in the type of law undertaken by their chambers. The clerk will keep a diary of dates when the barrister is available for court appearances and will negotiate fees and cases according to the requirements of the client and such matters as the barrister's experience as an advocate and area of the law involved.
Many barristers' chambers now have their own website detailing the profiles of the barristers sharing chambers. Such profiles are organized according to seniority (when the barrister was called to the bar), and provide information about court cases and disputes with which they have been involved and the area of law that they specialize in.
The present state of the legal profession means, in effect, that many newly qualified barristers find that it is practically impossible to find a tenancy in chambers. Competition for tenancies is fierce and it is not uncommon for new barristers to take a third six-month pupillage (which is over and beyond what they need to do to qualify), as a method of getting their foot in the door so to speak, and stay on in order to secure a tenancy.
Barristers usually work for themselves i.e. they are self employed. As such it is extremely important that individual barristers gain recognition and a good reputation. There is a saying that barristers are only as good as their last cases – meaning that they stand or fall by their skills and expertise.
Unlike solicitors, barristers are not allowed to form partnerships and this reinforces the need for them to acquire a strong identity and following early in their careers if they are to become successful.
For many barristers advocacy will become a key part of the work they do. Advocacy work means that they will be retained by a client to present their case in court on their behalf. This includes criminal as well as civil cases although it is usual for barristers to concentrate on one area of the law – either criminal or civil. Advocacy includes presenting legal arguments to the judge and the examination and cross examination of witnesses. It requires experience and skill if it is to be carried out effectively.
The work of the courts varies and so does the work of an advocate and this depends upon the courts in which they appear. Advocacy for some may include regular appearances in the superior courts (Crown Courts, High Court, Court of Appeal and the Supreme Court). It is probably fair to say that the work of these courts, including the cases listed for hearing in them, are likely to be more complex or involved than cases in the lower courts such as the Magistrates' Courts and County Courts. This seems to be borne out when it comes to the qualification and rights of audience needed when applying to join the judiciary.
Not all barristers are known for their advocacy skills – some specialize in giving legal advice in specific areas of the law and become experts in their field of the law for example human rights, tax, immigration, planning or Chancery Law (estates and trusts). In these circumstances specialist barristers will provide written advice in the form of opinions, as required by instructing solicitors.
These opinions do not necessarily form part of a legal dispute but may be given as part of a plan to avoid or minimize the risk of a client falling foul of the law. The client may wish to test whether what they are doing, or propose to do, is considered legal by asking a senior barrister for a considered legal opinion on the matter. Such opinions might involve new schemes to minimize liability for tax or the setting up of trusts to protect proprietary interests of some kind.
Barristers may also be asked to draft legal documents which may be needed as part of court proceedings and this might include statements of claim in complex cases where there are multiple parties. In a claim for negligence where there are several tortfeasors and arguments about contributory negligence, or where a detailed defence and counterclaim is required a barrister would have the specialist knowledge to advise. These types of complex cases may involve considerable legal argument and attention to detail where the facts of the cases are particularly complicated. Such work may also involve counsel in considering all the evidence in a case with a view to advising about the merits or chances of success.
In these types of cases counsel are seen as the experts. It is sometimes argued that at times barristers are able to be more objective about the merits of a case as they are not so closely involved with the case and the client as a solicitor may be.
The nature of a barrister's work is affected to an extent by the fact that they are usually instructed indirectly by being engaged by the solicitor on behalf of the client. So instead of advising the client face to face it is often the case that the barristers work is carried out in opinions passing to the solicitor who then communicates the legal advice to the client.
The quality of the barrister's work at these times may depend upon the quality and relevance of the instructions or 'brief' prepared by the solicitor when seeking counsel's opinion.
When undertaking work, barristers are required to take account of the 'cab rank' rule. The 'cab rank' rule, as the name suggests, requires that a barrister accepts instructions in a case if it relates to their area of expertise and they are available to undertake the work. The analogy of a taxi cab is quite helpful in that they appear to take the taxi at the front of the queue or rank as they are the next available. The principle behind this is that it allows for a fair distribution of work and it provides for equal access to representation and legal advice. This is to try to guard against barristers having to use their skills and expertise for a limited and presumably privileged group of clients. Barristers can refuse to accept a case if they feel that they do not have the resources to take on the case.
Barristers are now permitted direct access to clients on the basis that the old system of requiring instructions to be passed through a solicitor effectively meant that two forms of legal representative were required and that this added to the expense. Such direct access is however limited to civil cases. The public can contact a barrister direct for advice and representation in court, at a tribunal or in mediation and also for negotiation. There are times when a solicitor will still be needed as well as a barrister.
Barristers can also be approached via Licensed Access. Under this scheme organisations with the relevant experience and expertise (such as various Ombudsmen) and members of certain professional bodies (such as the Institute of Chartered Accountants, and the Incorporated Society of Auctioneers and Valuers) can instruct a barrister directly for specialist advice and advocacy without going through a solicitor first.
Volunteer barristers work with the Bar Pro Bono Unit which is a charity helping to find free legal assistance. They will provide advice, representation and help at mediation. They will assist in cases in all legal areas in all tribunals and courts in England and Wales if assistance can not be paid for and when members of the public cannot get legal Aid.
It should not be forgotten that some barristers are employed by organisations such as the Crown Prosecution Service, government departments, local authorities and businesses. Barristers in these positions have similar rights of audience as self-employed barristers. The Crown Prosecution Service prosecutes criminal cases on behalf of the state and therefore barristers employed by the CPS will usually find themselves dealing with criminal work and appearances in the Magistrates Courts and the Crown Courts at hearings of first instance and appeal with appeal hearing in the High Court and Court of Appeal.
Senior barristers are known as Queen's Counsel (QC) and such appointments are a matter of status and a recognition of a barrister's expertise in a certain area of the law. Barristers need to have been qualified for 10 years before they are entitled to apply to become a QC. Appointments are otherwise known as 'taking silk' which is a reference to the fact that their appointment entitles them to wear silk robes as opposed to cotton. An independent selection panel now oversees appointments and interviews candidates. The panel then makes its recommendations to the Lord Chancellor.
Such appointments are seen as extremely significant and can have a tremendous effect upon a barristers career and the nature and importance of cases which are referred to them along with the level of fees which they may charge.
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The work of Barristers
Taking instructions from clients or their solicitors or by Licensed Access;
providing specialist legal advice;
advising clients on the strength of their case – providing written advice or 'opinion';
understanding, researching and interpreting the law;
representing their clients in court - presenting the case, examining and cross-examining witnesses, putting their client's view of events into legal arguments and summing up relevant material and giving reasons why the court should support the case and obtaining the best result for their client.
Barristers have a duty to the court and to assist in the administration of justice. They must be independent and objective.
They must abide by the 'cab rank rule', which requires barristers to act for anyone on whose behalf they are instructed (with minor exceptions). In chambers they will also contribute to the running and management of chambers and participate in recruitment of pupils and other tenants.
Different types of work
a criminal barrister will be involved in a lot of advocacy in court;
a family law barrister may be involved in contact disputes or divorce settlements in court but may also be involved in mediation;
barristers practising chancery/commercial law will spend less time in court and more time advising on matters.
Barristers can be self employed working in chambers or employed barristers working with a private company or a crown office such as the Crown Prosecution Service or the institutions of the European Communities.
Their work can be privately funded or funded by Legal Aid or provided free in some cases by volunteer barristers working with the Bar Pro Bono Unit.
This essay looks at the work of barristers. It examines their relationship with their client and how they are instructed and how they give their advice.
As always the links provided allow you to further your resarch into the work of barristers and their role in the court system.
(Word Count 1613)
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