Lay people often struggle to understand the difference between different types of lawyer. All solicitors are lawyers, not all lawyers are solicitors. Other lawyers may be barristers, legal executives, licensed conveyancers or legally unqualified paralegals.
Magistrates (also known as justices of the peace or JPs) are not lawyers, apart from the Chief Magistrate who is. (That may be an over simplification, there are no doubt some lay magistrates who are solicitors or barristers, but their legal qualifications are in fact rather coincidental; they are not magistrates because they are legally qualified, but because they are publicly motivated. I’m sure that they use their legal training when sitting as magistrates, as it would be impossible to simply turn this off, but they are not professional magistrates. I recall a senior criminal law lecturer (and solicitor) when I was reading law at university who was also a lay magistrate. Local lawyers were apparently wary of appearing before him because, unlike most magistrates, he knew a lot more law than they did and was much fussier about granting the police search warrants than his lay brethren. (See my blog here about the problem with magistrates, written in the days before hearings became largely paperless).
In particular, people do not always appreciate the difference between a solicitor and a barrister. I usually explain to my clients that the difference been a solicitor and barrister is a bit like the difference between a doctor and a surgeon. A doctor can treat patients and perhaps undertake minor procedures, in the same way that a solicitor acts for clients and represents them in preliminary court hearings. However, if the patient’s needs are more serious, then they may need surgery and it will of course be a surgeon who does it, not the doctor; in legal cases where more complex hearings are involved, then the client may be represented by a barrister.
Of course, as with all analogies, this one breaks down if you try to stretch it too far. There are many differences. A patient’s first call is usually to his or her general practitioner. While legal clients’ first call would probably be to a solicitor, we aren’t really like GPs, as we tend to be much more specialised. GPs have to be able to provide care for patients with an enormous variety of medical problems. In contrast, solicitors tend to specialise in one or at most two areas of work once they are legally qualified. In fact, a solicitor who was a general practitioner would probably be regarded by other solicitors as a jack of all trades. If I have learned anything over the years, it is that it is better to be a specialist and to avoid dabbling in unfamiliar areas of work.
For example, I only undertake family work. If I am contacted by someone who needs a will, or is moving house, or is facing criminal charges or wants to sue someone for personal injury, I cannot help them, and I would refer them elsewhere. Therefore, perhaps the analogy ought to be that solicitors are like consultant physicians and barristers are like surgeons.
However, that analogy is also not perfect. There are some solicitors who will represent clients in complex legal hearings. They are often solicitors have qualified as higher courts advocates, giving then the right to appear in the High Court, Court of Appeal and Supreme Court. Some of them are even King’s Counsel. I am told that when these changes were introduced in the 1990’s, some barristers did not approve of this challenge to their monopoly. Support for wig wearing in court, which was in decline, apparently grew when solicitors could qualify as HCAs. Some barristers liked wigs because they were a way of distinguishing themselves from johnny come lately solicitor upstarts. HCA solicitors were granted the right to wear wigs in court in 2008. (Fun fact: while researching for this blog I discovered that barristers traditionally wear wigs to avoid people thinking that they may have syphilis. Well, sort of. Wig wearing became popular when the balding King of France started to wear a wig as he was a bit thin on top and baldness was widely regarded at the time as evidence of syphilis. Eventually the fashion for wigs ended, but barristers kept wearing them. I finally realise why another barristers’ tradition is that they never shake hands.
There are also barristers who are trying to move in on areas traditionally regarded as the preserve of a solicitors. Traditionally, barristers could only act in cases where solicitors had instructed them to do so. However, nowadays it is possible for barristers to undertake direct access work where the client instructs them direct, rather than using a solicitor to do so.
Direct access to counsel is an example of ways that the legal profession is trying to provide legal services in a way that meets clients’ needs better, particularly for clients who might have qualified for legal aid in the past, but no longer do so due to the withdrawal of most legal aid by the government. I find that the direct access route meshes quite well with me doing work for the same clients on a pay as you go basis. Pay as you go is a way that solicitors can do limited work as and when necessary for the client, rather than being fully involved throughout. For example, I can provide advice or draft documents on a pay as you go basis, and the client might also decide to instruct a direct access barrister to represent them at court or for more specialist advice. This is not as good as having a solicitor (and when necessary, also a barrister) fully involved throughout, but it may be more affordable for clients with limited means.
Solicitors and barristers have other differences. Solicitors tend to work for law firms as employees, partners or as sole practitioners. Barristers, on the other hand, are usually self-employed sole practitioners. They usually cluster together in chambers (not offices – I rolled my eyes at recent news reports about an alleged bomb plot against barristers where the paper talked about an explosion outside a barrister’s “office”). They share support staff, most notably their clerks who are like business managers or agents, but they are otherwise entirely independent of each other. Therefore, barristers from the same chambers can act for opposing parties in the same case, whereas two solicitors from the same law firm would not be able to do.
The above may give the impression that the two professionals are fiercely competitive, but in fact we work together well. While to a certain extent the bar and solicitors now compete for business, most of the time we have a pleasantly symbiotic relationship. Most solicitors prefer not to handle more complex legal hearings and to instruct a barrister to do it instead. In complex cases, we need to get specialist advice and have our clients represented in court by from barristers. I suspect that most barristers would prefer not to be involved with some of the more tedious legal work that solicitors do all the time.
There are things that barristers are unlikely ever have to deal with which solicitors do all the time. For example, a barrister was recently quoted in The Times as saying that the new no-fault divorce law introduced in April 2022 had created a two-tier system between those who could afford to pay a court fee to start a divorce application using the government online portal and those who still started divorces with a paper application who , he said, did not have to pay a court fee. Unfortunately, this barrister was wrong. All divorce applications, whether they are online or on paper, incur the same court fee of £593. People on low incomes or with minimal assets may qualify for Help with Fees so that the court fee is waived or reduced, but it makes no difference if the divorce is online or on paper. It would be nonsense if it did, given that HM Courts &Tribunals Service wants to encourage people to use the portal, rather than commence paper applications which are far slower and probably require more court resources.
The Times would have been better getting a quote from a solicitor about this. Very few barristers will ever have been involved in divorce applications. They are undertaken by solicitors all the time. Defended divorces (when you might need a barrister) were rare under the old fault-based divorce and are impossible under the new no-fault system. Disputed divorces (on jurisdictional grounds) are likely to be rarer still under the new system.
When I was a young and inexperienced solicitor, turning up to court and finding that the other side had instructed a barrister was sometimes a discomforting experience. Nowadays, I am pleased to see that the other side is represented by another a lawyer who can be relied upon to be competent and sensible, but back then I will admit to being slightly in awe of barristers’ advocacy skills. They appear in court most days, whereas I would have at most a handful of hearings every month. Inevitably, they were often better advocates than me.
Nevertheless, there were some hearings where you never encountered barristers. In those days, my local court used to hold Conciliation Appointments, an excellent process for reaching an agreement about child arrangements at an early stage and avoiding further hearings. I was told they used to resolve disputes in 80% of contact cases. (Inevitably, it has been replaced by a far less efficient and slower system). Nowadays, it is common to find a barrister at modern equivalent, a First Hearing Dispute Resolution Appointment, but back then it was unheard of (in Colchester anyway; the system varied around the country in those days). These hearings were pretty much exclusively the territory of solicitors and legal executives.
I recall one client who was very worried about what was going to happen at a Conciliation Appointment, and who wanted me to instruct Queen’s Counsel (as they then were) to represent him. I advised him that instructing a silk would be massive overkill; not only would it very expensive and over the top, but it was unlikely that a QC would have any real experience of such hearings, whereas they were my bread and butter. Barristers would usually only get involved if the application wasn’t resolved in conciliation and further hearings were needed, and very few clients would need a silk.
In another case, I turned up at court for a conciliation appointment and was alarmed to find that a very experienced junior barrister was there for the other side. She was an excellent barrister who I had instructed on a number of occasion and who I considered to be one of the best counsel in our circuit. To be frank, a conciliation appointment was well below her pay grade.
“Uh oh”, I thought “What’s going on? Are they going to make some kind of weird, unexpected, complicated application to the court?”
The barrister approached me and murmured “Mr Armstrong, can I have a word?” We disappeared into the advocates’ room to speak privately, and I braced myself for bad news.
“I’ve never done one of these before” she said, “What do we do?”
If you would like to arrange a consultation, please call 01206 848426 or click here.