Solicitors and Barristers - See the Difference

Speaking about the legal profession in England and Wales, many experts claim that there is a fundamental problem with having it split into barristers and solicitors. Traditionally, a barrister gives specialist advice on detailed legal issues and represents clients in court on both civil and criminal cases, whereas a solicitor gives initial legal advice, instructs a barrister, if necessary, and liaises between the client and the barrister.

For centuries there have been essential distinctions between barristers and solicitors which can be traced back along the following lines:

Training and Payment

When barristers are doing their pupilage, they have to find the money themselves for their specialized clothing, including their wigs and gowns, books, accommodations and travelling. Only a few Chambers will pay up to £6,000 for pupilage, however in reality this sum is nothing to live on. Thus it is very hard part of training, as most people cannot afford not to be paid for 12 months, and still to carry on paying out money for things that they need for their career. A solicitor, however, will receive a minimum rate of pay during his/her apprenticeship. Even once they are fully qualified and working, barristers' payment is often up to 18 months late, and they cannot sue for their fees. However barristers traditionally receive an 'honorarium' which is not a payment, but a voluntary contribution regarded as a gift, or a "thank-you-gesture'. Although barristers may get paid less whilst training, they seem to get a lot more money when they are fully qualified.

Advocacy and written advice

Barristers specialize in advocacy. They also prepare written advice when asked to by solicitors. However solicitors can now become certified advocates. Solicitors can also obtain a certificate of competency, so they can appear in higher courts, as well as in Magistrates' and County courts.

Solicitors generally specialize in more than one area of law, such as conveyance, matrimonial causes, taxation, probate or commercial contracts. Barristers are more focused on one point, so that they can specialize in presenting,

and arguing a case in court. Although solicitors may have a wider field of expertise, barristers have a more detailed and specialized knowledge of certain aspects of law. Therefore solicitors can deal with a wide range of cases and give people varied advice, whereas barristers know much more about the case that they will be taking to court.

Career Opportunities

Once qualified to become a solicitor or a barrister, a person can take steps to go further up in the profession. For example, a barrister can apply to become a Queen's Counsel (QC) after being in practice for 10 years. However only those at the very top of their profession are likely to be selected by the Lord Chancellor for this honour, and it is extremely rare to be appointed on one's first application. QC's can command higher fees. They may be accompanied by a junior barrister in court but this is not a formal requirement any more.

Solicitors can also train more and go higher up in the profession. These days they can become certified advocates, and present cases in the higher courts. They are now also eligible to become district judges or circuit judges, and can then be elevated to the senior judiciary. The possible appointment of solicitors as High Court judges was introduced by the Courts and Legal Services Act 1990.

All this taken into account, we can now see that the roles of barristers and solicitors in society are quite different. Many people think that barristers and solicitors are either very similar, or that barristers stand higher up on the professional ladder than solicitors. But in fact they do different jobs and specialize in different subjects.

Merging of the Legal Profession

The English legal profession is atypical for the majority of the rest of the world due to the fact that it is divided. Unlike other countries, in England they have two different types, each with different roles and responsibilities within the system. The principal distinguishing factor between them is that solicitors primarily do the paperwork whereas the role of barristers is mainly concerned with advocacy. But over recent years there has been a sequence of changes resulting in gradual progression towards the merge of the two legal professions.

For decades there were great restrictions on contact between the two professions. A barrister could not advertise and could not even hand out a business card unless he was asked for it. He was not supposed to interview witnesses other than his lay clients and experts. It was not considered appropriate for a member of the Bar to visit a solicitor's office. The solicitor had to visit the barrister in his Chambers. In recent years those restrictions have been greatly relaxed. Solicitors are now appointed to the higher judiciary and can act as advocates at trials in the High Court and Crown Court as well as on appeals.

The Courts and Legal Services Act 1990 has been one of the most significant feature of the history of the movement to merge the two legal professions. It brought about numerous changes: certain professional clients now have direct

access to barristers, there is access to higher levels of judiciary for solicitors, formations of partnerships between lawyers and members of other professions are permitted and there are extended rights of audience to "suitably qualified person». In addition, in 1992 recommendations were introduced that solicitors can appear for either prosecution or defence in the higher courts by obtaining a Solicitor's Advocate Qualification. This was a fundamental change as it meant lessening the gap between solicitors and barristers.

Traditionally barristers are from a narrow social background and a lot of social networking and nepotism take place. Therefore even if solicitors do gain qualifications to give them rights of audience it is very difficult for them to be accepted by barristers and judges. There is a fear among solicitor advocates that they or their clients would be subject to bias and prejudice from judges if they were to use their rights of audience in the higher courts. This has led to many being reluctant to put their qualifications into practice.

In 1998 the Lord Chancellor promised plans to allow all barristers and solicitors to appear in any court. As a result, the Access to Justice Act 1999 gives solicitors automatic rights of audience but it requires them to undergo special training.

With regard to the history of the movement to merge, the evidence suggests that the majority of the opposition is coming from the Bar Council. The negative implications for barristers would firstly be that if there is no distinction between barristers and solicitors, they would both have equivalent amounts of advocacy and paperwork and would be of equal status. Such a situation might create more competition for employment, which may also force lawyers to reduce their rates and as a result they would not make as much money. At the moment fewer solicitors have gained rights of audience in higher courts than barristers, therefore barristers have a monopoly on the profession and can charge as much as they like. It is clear that barristers have vested interests as they would most certainly lose out if the professions were to fuse.

The amalgamation of the two legal professions would have major repercussions and there are coherent arguments both for and against it. The most significant advantage for the general public is that it would be considerably cheaper; instead of having to pay for both a solicitor and a barrister, clients would only have to pay fees to one lawyer. Solicitors would benefit as they would earn more than they do currently but barristers' earnings would most definitely fall.

Another current problem is the fact that in 96 per cent of cases with guilty pleas and 79 per cent of cases with not guilty pleas the clients don't even see their barrister until the morning of the trial. As a result this could mean that principal points may be overlooked or misunderstood. Merging the legal professions would combat these problems of inefficiency within the system.

Critics of the movement against the merger of the two professions claim that it is more effective to have two separate professions focusing on their different jobs than having one that does both. It is argued by the Bar that the fact that barristers

are independent ensures that all defendants are represented regardless of wealth or power of their challenger.

In England they have an Adversarial System. Judges do not have an investigative role and must make decisions based on lawyer's accurate presentation of the case, therefore good advocacy is important. It is suggested that if the two professions merge it would jeopardize the quality of advocacy.

Fusion would make appointments into the Judiciary more difficult, although there will be more candidates to choose from, they will be less eminent and therefore not as well known to the Lord Chancellor and his advisors.

Over recent years there has been much deliberation about the future of the legal professions and the inevitability and effects of them merging. The Courts and Legal Services Act 1990 was probably the first move by the government towards fusion. It was contended that if large number of solicitors took qualifications to use extended rights of audience the Bar would be under great threat and eventually the Bar would vanish, as the solicitors would become more dominant figures.

All of these theories have not yet proved correct as only a minority of solicitors has qualified for rights of audience and the Bar has actually increased in size over the last ten years from. Additionally, it is unlikely that the new rules will alter the long established practice of solicitors referring to barristers in times when they need specialist legal advice, and it is doubtful that the Bar would be in serious danger in the imminent future.

From the evidence above it is clear that there are logical and reasoned arguments both for and against the merging of the legal professions. Although there will be a few minor problems during the changeover period, in the long run merging of the two professions would be very beneficial for the majority of people and the advantage of it would prevail over the major disadvantages.

Call to Merge 'Two-Tier' Legal System

The Law Society, which represents solicitors in England and Wales, has called for the centuries-old distinction between solicitors and barristers to be scrapped under a united legal profession. The president of the Society dismissed the Bar as "an anachronism" and said the professions should merge within a few years. Speaking at the Society's annual conference, the president said: "We live in a multicultural, multi-racial and multi-faceted society. Yet we have a judiciary that is monochrome and one-dimensional. Most senior judicial appointments come from barristers' Chamber, with only one solicitor appointed a high court judge in the last five years!"

The Law Society is also calling on the government to abolish the rank of Queen's Counsel among senior barristers. The Society says the present system of creating QCs is outdated and elitist. About 900 of the country's top barristers, including the prime minister's wife are awarded QC status, which allows them to charge higher fees. The Law Society believes there is no place for the silk or

Queen's Counsel in a modern, competitive profession as it creates an artificial market for an exclusive group.

The president of the Law Society said: "The system we have for appointing judges and QCs is more appropriate to the 19^th century than the 21^st, and it has all the elements of an 'old boys' network' and discriminates against solicitors, women and ethnic minorities". The president also suggested that the Law Society was the "obvious choice" to regulate the new profession. The Bar Council, which represents barristers, "... passes neither the consumer interest test nor will it serves the interests of justice."

The Law Society wants a judicial appointments commission to be set up and open, objective criteria to be used.

The Bar Council said any system is capable of improvement but added that "QCs are recognized by the public as being supremely independent. People understand the principle of having a strong advocate in court."

The Law Society's proposal on judicial appointments will be submitted to an inquiry set up by the Lord Chancellor to look into the manner. However, the Lord Chancellor made it clear when he established the inquiry that it would consider modifications rather than wholesale reform.