Bewigged and Bewildered?

A Guide to Becoming a Barrister in England and Wales

Adam Kramer KC, Ian Higgins

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509905393
• Edition: 1
• Topic: Derecho
• Subtopic: Profesión legal

Misunderstandings and jargon prevent many from seriously considering a career as a barrister in the belief that such a career is not for them or that they are not for it. Others know that they might want to become barristers but not how to go about it, or just want to know more about this somewhat mysterious profession. This book, written by two barristers, clearly but informally explains the traditions, terminology and institutions of the Bar, and what it is actually like to be a barrister. With this aim, several barristers practising in different fields describe in detail a typical week in their life. Advice is then given on how to be accepted into, fund and survive the various academic and other stages that precede qualification as a barrister, including work experience, Bar School and pupillage (the barrister's apprenticeship). It explains how to transfer to the Bar, for the benefit of solicitors, overseas lawyers or those in a non-legal career. This third edition is fully updated to take account of the most recent changes to the Bar, training for it, and the process of recruitment to it.

1

Introduction to the English Bar

BARRISTERS AND SOLICITORS

Unlike in America, but not dissimilar to practice in Europe, the English legal profession is what is referred to as a ‘split profession’. This means that there are two types of English lawyer: solicitors and barristers.¹ Solicitors are overwhelmingly the primary legal professionals in that there are more of them, cases come to them first, and they are the more important in the vast majority of cases. There are about 130,000 practising solicitors in England and Wales as compared with about 15,000 barristers. Of these barristers, 3,000 are at the Employed Bar (see later) and the rest are self-employed, which mode of operation was, until recently, referred to as being ‘at the independent Bar’. We’ll talk more about why being self-employed is important to what a barrister does and the working environment he or she does it in. While we’re dealing with terminology, you should know that while lawyers in the US are called attorneys, that term has not been used in the UK since the nineteenth century. Two terms you do need to know are counsel, which is another word for barrister or barristers (counsel is both the singular and the plural), and the Bar, which is the collective term for all barristers and their profession.

Lawyers in England and Wales

130,000 practising solicitors

(of whom 6,500 are qualified as solicitor-advocates)

15,000 barristers

(of whom 12,000 are self-employed and 3,000 are at the Employed Bar; and 10,000 are in London and 5,000 are outside London) and

22,000 legal executives.

The key to understanding the interaction between barristers and solicitors is knowing that, normally speaking, clients (ordinary people who are not lawyers) cannot go directly to barristers for help but must go to solicitors. Solicitors can then get a barrister involved if appropriate. The Bar is a ‘referral profession’; as one author puts it, solicitors are ‘the GPs of the legal profession’, leaving barristers as the specialists (Charlotte Buckhaven, Barrister By and Large (London, Pan Books, 1985), p 11). To elaborate:

As distinguished from the barrister, the solicitor deals over-all with his professional work, the barrister piece-meal. The solicitor may be a good ship’s captain but a poor engineer; the barrister develops or rather is developed with experience, and as work from solicitors increases he becomes an expert specialist. The solicitor usually gives more of his time to the work of his office and developing his business, whereas the barrister looks forward to the interlocutory or final litigation at hand and its event. The solicitor has, at call, a comparatively large number of barristers, who are specialists and experts.

(Barnett Hollander, The English Bar: A Priesthood (London, Bowes and Bowes, 1964) 22)

However, it should be remembered that this split professional aspect of the law is really only important to litigation (meaning legal disputes, as opposed to other general situations in which people may want advice on how to act within the law): in most transactional work (buying a house, merging companies, drafting contracts, managing company employment policies, advising on tax) solicitors do everything and barristers have little or no involvement, at least until the legal dispute arises. Much lower court litigation and non-court litigation (such as arbitration) is also handled by solicitors. However, within the relevant fields of litigation (and alternative dispute resolution) in which barristers primarily operate, barristers can be said to be specialists in three broad areas:

The first thing barristers are specialists in is the law. This may seem strange as solicitors are also lawyers and have studied the law for the same number of years and at the same universities as barristers. However, solicitors, particularly young solicitors, spend a large amount of their time collecting evidence and generally administering and managing a transaction, inquiry, trial or project. Barristers get to spend more time working on legal points, and their expertise builds up accordingly, and so solicitors often come to barristers for advice on points of law (although there are many solicitors whose knowledge of the law is at least the equal of that of most barristers and who handle most or all legal points themselves).

The second thing barristers are specialists in is court practice and procedure. Again, because litigation solicitors are often tied up with collecting evidence and general management of the case, barristers are often more familiar with the tactics, procedures and rules of evidence of litigation and trials and other court hearings. This means that they have a better feel for what would happen if a case were to go to court, and are better able to make strategic decisions concerning the litigation (what applications to make to the court, what witnesses to rely on, what questions to ask, how much to offer in settlement). To make matters more confusing, some types of barrister do little or no litigation (such as tax barristers and a certain type of Chancery barrister: this terminology will be explained later).

The third thing barristers are specialists in is advocacy: arguing and presenting cases in court, arbitration or an alternative venue. Partly because of the other demands on solicitors’ time that have already been mentioned, in general barristers are more expert in advocacy than solicitors and so are often instructed by solicitors to conduct in court the litigation that the solicitors’ clients are involved in (in other words, making applications and speeches and asking questions of witnesses). Although many barristers spend more time out of court than in court, advocacy skills, taught at Bar school and by the Inns of Court and Specialist Bar Associations (see below), remain the distinguishing skills of the Bar.² All barristers, no matter how junior, automatically (ie from their first day in practice and without further examinations) have the right to speak in all courts of the land. Solicitors automatically have the right to speak in the lower courts (magistrates’ courts and county courts) and, given the number of solicitors, it is therefore not surprising that much advocacy in those courts is conducted by solicitors and not by barristers. Furthermore, for the last 10 years solicitors have been able to earn higher rights of audience (the right to appear not only in the lower courts but also in the Crown Courts, High Court, Court of Appeal, and Supreme Court) by passing further examinations and qualifying as what are known as solicitor-advocates. However, so far only about 6,500 solicitors have qualified as solicitor-advocates (see further below), and many of them only have time to do the occasional higher court hearing, so the upshot is that most hearings in the higher courts, as well as some in the lower courts, are conducted by barristers.

The solicitor—being the primary legal practitioner—is generally in charge of the case and of liaising with the client, and brings in barristers as sub-contractors for the specialist work described above (just as a builder might have a contract to construct a building and will subcontract part of the work to an electrician or roof specialist). The consequence of this is that the barrister’s clients are in fact solicitors, who are his or her paymasters (unless the government is paying under the legal aid schemes) and the ones to whom the barrister is providing the service. Nevertheless, the barrister also has duties to the client who is employing the solicitor, that is, the non-lawyer for whom all this is happening (who is distinguished from the solicitors by the label ‘lay client’: ‘lay’ simply means non-professional).

Bizarrely, however, barristers have traditionally not entered into contracts with solicitors for their services and fees and have instead worked on an honour system (although on standard terms set by the Bar Council and Law Society), meaning that solicitors could be sued if they don’t pay up, and that interest does not accrue even if solicitors are late paying their invoices. This contributed to cash-flow problems, discussed elsewhere, since, although solicitors almost always pay up, they often take a long time to do so. Since 1991 barristers have been allowed to enter into contracts with solicitors (rather than using this honour system), and since 2012 there has been a drive to adopt standard forms of contractual terms produced by the Bar Council or others by COMBAR. Uptake of such terms depends upon negotiations between the individual solicitor and barrister (or their clerk), and whether the terms give the barrister a right to sue the solicitor for fees even when the solicitor has not been paid by the lay client depends upon the particular terms adopted in a particular case.

Although solicitors can usually do nicely without engaging a barrister, most cases cannot proceed without a solicitor. Indeed, the barristers’ Code of Conduct (more about this later) forbids barristers in the usual case from holding money on behalf of lay clients, conducting correspondence on behalf of the client, or conducting litigation (eg signing claim forms). Only solicitors, or the lay client themself, may conduct these tasks (although, as with any rule, it is not as black and white as this suggests, and these rules are softening with each successive amendment). When a solicitor gives a barrister a case, the solicitor is said to give the barrister a brief (which means a set of papers, hence the word ‘briefcase’), or to instruct the barrister: a brief takes the form of a set of instructions to the barrister to answer a particular question, draft a particular document, or to represent the lay client at a particular hearing. Traditionally, the brief is tied up with a ribbon (usually pink), although sadly in many areas of practice this has become rare.

SETS OF CHAMBERS

Solicitors work in law firms. These are usually partnerships of one form or another (so the senior lawyers own the business), but basically firms are like companies, sometimes very big companies.

In contrast, the majority of barristers are self-employed (the minority who are not are discussed below) but usually gather together into an association (ie not a company) and rent offices from which they work, sharing the costs of secretaries (although they have far fewer than solicitors), receptionists, stationery, marketing, clerks, and perhaps a library and conference rooms. It is crucial to understand what this means: a self-employed barrister does not have a boss or a wage, only money they have earned doing their own cases.

The association (and the offices the barrister works in) is called a ‘chambers’ (treated as a singular: ‘where is your chambers?’, ‘I’m on my way back to chambers’), also known as a ‘set’ or ‘set of chambers’ (as in ‘which set are you in?’). The name of a set will usually be its street address (‘3 Verulam Buildings’, ‘7 Bedford Row’, ‘9 Old Square’), although nowadays more modern names are becoming common (‘Matrix Chambers’, ‘Landmark Chambers’).³ In some chambers all barristers have their own room, whereas in others, particularly in areas of the law which involve a lot of court-work (and so less time spent in chambers), barristers share rooms with one or two other barristers. Generally each individual barrister rents a room (or a share in it) from chambers, which, in turn, rents or owns the chambers’ building. In London the chambers usually rents its building from the Inn it is situated in, and the building will be rather old-fashioned rather than a modern open-plan office complex.

Chambers generally have one or two heads of chambers, who will be selected from the most senior barristers in the chambers. A small chambers would have 10 to 20 barristers in it, a large chambers 60 to 70, and the largest over 200, with the majority of sets falling somewhere in between. Even a large chambers, however, is dwarfed by a big law firm, which can be an international organisation with thousands of lawyers spread throughout the world.

Because a barrister is associated with the other barristers in his chambers, all the members benefit if a set has a good reputation, which is one reason why barristers spend time and money attracting good pupils. Many sets find it useful if all their barristers specialise in particular areas of work so that their reputation is also specialised, and solicitors may get into the habit of going to a particular set with a particular type of case, even if the individual barristers they know at that set are unavailable or too senior (and so too expensive) for the case. While many sets still do the full range of work, specialisation is a fact of the modern Bar and, in particular, a large number of sets do either criminal law or civil law (which means everything except criminal law) but not both. We are in a commercial law chambers and will, therefore, never handle a criminal case. (We are qualified to do criminal cases, however, and, even though commercial lawyers, barristers in our chambers will, for example, occasionally have to handle a judicial review or appear in the Family Division of the High Court.)

The common chambers specialisms are the following:

(i)Chancery law: specialising in property, trusts, taxation and wills.

(ii)Common law: a mixture of civil law work and sometimes crime, ie pretty much everything, often with an emphasis on personal injury and employment work.

(iii)Commercial law: specialising in the law of commerce, that is, business and trade (especially contracts, insurance, banking, shipping, etc) and company matters.

(iv)Commercial Chancery law: specialising in Chancery matters but with a commercial flavour (above all, company and insolvency law).

(v)Criminal law: specialising in crime.

(vi)Family law: specialising in family law (divorce, children’s care proceedings etc).

(vii)Intellectual property law: the law of patents, copyrights and trademarks.

(viii)Public law: specialising in administrative law, human rights, immigration and planning law.

A good idea of the types of things barristers specialise in can be gleaned from a list of the Specialist Bar Associations (which are clubs that hold conferences, lectures and training events and represent the interests of their members): ALBA (the Constitutional and Administrative Law Bar Association); the Chancery Bar Association; COMBAR (the Commercial Bar Association); the Criminal Bar Association; the Employment Law Bar Association; FLBA (the Family Law Bar Association); IPBA (the Intellectual Property Bar Association); the Parliamentary Bar Mess; PIBA (the Personal Injuries Bar Association); PEBA (the Planning and Environment Bar Association); the Professional Negligence Bar Association; the Property Bar Association; the Revenue Bar Association; and TECBAR (the Technology and Construction Bar Association). You do not need to learn these acronyms!

IT’S NOT JUST ABOUT LAW

Having explained chambers specialisms, this is a convenient point at which to explain something that is fundamental to the practice of the law, namely that law is only half of the picture. The law is a regulatory system that applies to all fields of human endeavour. Like many other service industries (accountancy, marketing, etc), but to a greater degree, the law gets deeply into all areas of society. As a result, there are two ways of looking at law and barristers, and accordingly two ways of coming at the question of whether you want to be a barrister. You may start at the law end, deciding that the law itself interests you, or that you have the skills that a barrister needs and are interested in doing the sorts of things that barristers do (advocacy in court or a tribunal or arbitration, drafting documents, solving difficult intellectual or practical problems).

Alternatively, however, you may come to the Bar from the other end of the microscope. You may be somebody who is interested by a particular field of society, such as science, medicine, crime and investigation, commerce, the environment and planning, immigration and asylum, employment, family relationships, or tax and finances. However, you may not want to go into those fields by the ordinary route, (respectively) as a scientific researcher, doctor, police officer, business employee, lobbyist or charity or council worker, trade union or human resources worker, counsellor or accountant. You may instead prefer to go in from a different angle, as a barrister, doing (respectively) intellectual property...