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Barrister

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Barristers: traditional dress.
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Barristers: traditional dress.

In many common law jurisdictions, a barrister or advocate is a type of lawyer, particularly one entitled to appear before the superior courts of that jurisdiction. Details vary from jurisdiction to jurisdiction.

Contents

Barristers in England and Wales

The legal profession in England and Wales is divided between solicitors and barristers. Both are trained in law but serve different functions in the practice of law. Barristers act primarily as advocates with rights of audience in all courts within the jurisdiction. Some solicitors now have extensive rights as advocates (the lower courts and tribunals as well as preliminary hearings have long been open to them), but the Bar is uniquely linked with court work and the presentation of the lay client's case before it. However, many barristers hardly ever appear in court; they undertake specialist advice, given to clients in ‘cons’ or conferences, and they prefer to avoid the uncertainties of litigation. They may also give extensive written advice or draft legal documents. In the end, though, most barristers are probably properly equated with US trial lawyers in that they do not deal with the public (or lay clients) directly, but through the intermediary of a solicitor.

There are currently about 10,000 barristers in practice in England and Wales, of whom about ten percent are QCs. Many barristers are also employed in companies as ‘in-house’ counsel, or by local or national government or in academic institutions.

Appearance and forms of address

A barrister's dress in court depends on whether the hearing is "robed" or not. Trials in open court are almost always robed. Interim hearings and trials in chambers are usually unrobed, though this is at the discretion of the judge.

At a robed hearing, barristers must wear a wig (usually of horsehair), with a black gown and a dark suit and a shirt(of at least 50% white material), with strips of white cotton called 'bands' hanging before a wing collar. QCs wear slightly different gowns over short embroidered black jackets. By contrast, solicitors appearing as advocates do not wear wigs, though they must still wear a gown. The question of barristers' and judges' clothing is currently the subject of review, and there is some pressure to adopt a more "modern" style of dress, with European-style gowns worn over lounge suits.

Traditionally, barristers refer to each other in court as "my learned friend", and solicitors as "my friend"; this harks back to the days when the legal profession was small enough for all practitioners to know each other personally. Some barristers believe that the distinction in form of address is potentially insulting to solicitors and try to refer to other barristers and solicitors in the same way.


The Inns of Court

While solicitors are regulated by the Law Society, barristers are governed by the General Council of the Bar and the individual Inns of Court. There are four Inns, all situated in the area of London close to the Law Courts in the Strand. Gray's Inn is off High Holborn, Lincoln's Inn off Chancery Lane, the Middle and Inner Temples, situated between Fleet Street and the Embankment.

The Inns bear more than a passing resemblance to Oxford and Cambridge colleges, with communal dining halls and libraries as well as living and working rooms: arguably, this facilitates the transition from public school to Oxbridge college to the Bar. Each of these institutions looks (and some say are) remarkably similar. Another element of life at the Bar which is similar to public schools, is that the High Court of Justice, sits in "terms", some of which were adopted as the "term" dates traditionally observed by the public schools. It should be noted that "public schools" in England are in fact private schools. "Public Schools", in the sense understood in the USA, are referred to and known in England as "state schools".


Qualifying as a barrister

Intending barristers must first complete the academic stage of their legal education by obtaining a qualifying law degree (usually an LL.B., but in some universities B.A. - a first degree in the United Kingdom) but many undertake a one year conversion course having initially graduated in a non-law subject. This conversion course used to be known as a CPE (Common Professional Examination) or PGDL (Postgraduate Diploma in Law), and is now known simply as a gDL: a Graduate Diploma in Law. The student then joins one of the Inns of Court and takes the Bar Vocational Course (BVC) at one of the accredited providers. It is still mandatory to 'keep terms' before the student can be called to the bar. This involves 'eating dinners', a quaint custom whereby all students must dine at their Inn a requisite number of times. It used to be a pre-requisite that twenty-four dinners were eaten before call but the number has since been reduced to twelve. Dining credits are available for participating in specified training events e.g. a weekend at Cumberland Lodge organised by one of the Inns credits attendees with three dinners. It is also possible to "double-dine" on various special occasions, where the student is credited with two dinners.

The origins of this date from the time when not merely students but practitioners dined together and students picked up the elements of their education from their fellow diners and from readings given by a senior member of the Inn (Master Reader) after the meal. Even today, at least at Middle Temple, the students are required to be present both at the commencement of the formal meal and at the grace that completes it. Often moots (legal debates arguing for or against a point before a theoretical appellate court) are held in hall afterwards. At the successful completion of their BVC (where continuous assessment as well as examinations are now the rule) and the survival of the requisite number of dining nights, students have been entitled to be 'called to the Bar' at a ceremony in their Inn. This is conducted by the Masters of the Bench, or 'Benchers', who are generally senior practising barristers or judges. However, from 2008, only those who have successfully completed pupillage will be entitled to be called to the bar.

Once called to the bar, the new barrister has a choice whether or not to pursue a career in practice. There are far more applicants for "tenancy" in barristers' "Chambers" (see below) than there are places, and so many barristers, unable to obtain a tenancy in chambers, nowadays choose to go into commerce or academe and eschew the vagaries of life in the courtroom. Those who wish to become a practising barrister must first obtain a 'pupillage'. This is a competitive process which involves some 1500 students applying for some 600 places each year. The online pupillage application system, OLPAS enables applicants to submit their details to up to twelve barristers chambers. The OLPAS application rounds take place twice a year in summer and autumn with individual chambers recruiting in one or other of these seasons, or both, should they not find suitable pupils the first time around. The OLPAS system is utilised by most chambers to recruit their pupils; many, however, do not, and these chambers must be contacted directly by applicants. There is no limit to the number of non-OLPAS chambers that an applicant can contact, although such chambers' recruiting deadlines broadly mirror those of the OLPAS sets, in that some will recruit only in the summer and others only in the autumn.

Pupillage consists of a period of twelve months, where the pupil serves an apprenticeship (known as a "pupillage") to a barrister of at least five years experience. This is traditionally served in two six-month periods under different pupil-masters (three month periods are becoming increasingly common), usually in the same chambers. Traditionally, the pupil was paid nothing and could earn no fees until the second six month period, when he or she was entitled to undertake work independently. All sets are now required to pay their pupils a minimum of 10,000 per year. Some pay considerably more than that although others have applied for exemption and do not guarantee any income. The Bar is a very varied profession, both in terms of the specialism (or otherwise) of individual sets of chambers, and in the financial rewards available. For sets doing predominantly publicly-funded work, earnings are low for new practitioners, and tend to remain so for many years. In such areas, the Bar remains a career where supportive bank managers (and/or parents) are necessary. In other more specialised areas serving private clients, such as commercial, tax or chancery work, earnings are far higher and at least comparable to those of similarly experienced solicitors in big City firms (perhaps with the exception of the highest-earning partners at such firms). The Bar is perceived as something of an elite profession, both in the social sense and also academically: many barristers are educated in educational systems of the older universities where competition is encouraged.

After pupillage the new barrister must find a seat or 'tenancy' in a set of chambers. Chambers are groups of barristers, and tend to comprise between 20 and 60 barristers. The members of a Chambers share the rent and facilities, such as the service of "clerks" (who are a cross between a salesperson and a PA), secretaries and other support staff. Most chambers offer a system whereby the members contribute to these common expenses by paying a certain percentage of their gross income. However, there is no profit-sharing as in a business partnership, and individual barristers keep the fees they themeselves earn, beyond what they have to pay towards the chambers expenses. The Bar remains a highly individualistic profession. Nonetheless, earnings can be high, with the top Queen's Counsel (QCs or 'silks' as they are known, from their silk gowns) making well in excess of 1 million a year. Although not all barristers now practise from the Inns themselves (for reasons such as the limited amount of space available and the terms upon which Inns premises are habitually leased), the vast majority still practise from chambers. The names placed on boards at the entrances of many of the staircases of the buildings within the Inns are the names of the tenant barristers (and occasionally distinguished members now prominent in judicial or political life) practising out of the chambers in those buildings.

Advocates in Scotland

In Scotland, members of the equivalent profession are known as ‘Advocates’, and they are regulated by the Faculty of Advocates in Edinburgh. The Faculty has about 750 members, of whom about 460 are in private practice. About 75 are Queen's Counsel. Advocates do not operate in chambers; they are entirely independent, although organised in eleven 'stables' for administrative purposes, and work out of the Advocates Library in Parliament House where the Scottish supreme courts (the Court of Session and the High Court of Justiciary) are situated, in a similar way to barristers in the Republic of Ireland and Northern Ireland. They do not act directly for members of the public, taking instructions from a solicitor, a non-Scottish lawyer, or another professional. The Faculty of Advocates is organised democratically, electing its office-bearers (Dean, Vice-Dean, Treasurer, Clerk) by annual secret ballot. It has a service company, Faculty Services Ltd, to which almost all advocates belong and which organises the stables and fee collection. This gives a guarantee to all newly-called advocates of a place. There is an agreement with the Law Society of Scotland, which is the professional body for Scottish solicitors, about the payment of fees, as traditionally advocates were not permitted to sue for their fees because these were honoraria. Advocates wear wigs, white ties, and gowns as dress in court.

In recent years, most advocates came to the Scottish Bar after some time as solicitors, but it is possible to qualify with a law degree, after a year's traineeship in a solicitor's office and almost a year as a 'devil', or apprentice advocate. There are exceptions for lawyers who are qualified in other European jurisdictions, but all must take the training course as devils.

Lawyers in other EU states (but not England and Wales) may have limited rights of audience in the Scottish supreme courts if they appear with an advocate, and a few solicitors known as 'solicitor-advocates' have rights of audience, but for practical purposes advocates have almost exclusive rights of audience.

Every year, a number of young European lawyers have a placement with advocates under the 'European Young Lawyers Scheme' organised by the British Council. They are known as 'Eurodevils' in distinction to the Scottish 'devils'.

Barristers in other jurisdictions

Barristers are also found in Northern Ireland, the Republic of Ireland, Hong Kong (where the Chinese language name 大律師 is also used), and Australia (in the states without a fused profession, namely New South Wales, South Australia, and Queensland). In Canada, the professions of barrister and solicitor are fused, and many lawyers refer to themselves with both names. However, in Quebec, which has substantive law under the civil law tradition, the practice is closer to that of the United Kingdom, with les avocats practicing before the courts, and civil law notaries or les notaires limited to most of the functions of solicitors.

In Western Australia and Victoria, the professions of barristers and solicitors are fused, but nonetheless an independent bar is in existence, regulated by those States' Legal Practice Boards.

Unlike its common law brethren, the United States does not draw a distinction between barristers and solicitors; all lawyers who pass the bar examination may argue in the courts of the state in which they are admitted, although some state appellate courts require attorneys to obtain a separate certificate of admission to plead and practice in the appellate court. This separate admissions process, where it exists, is usually a simple matter of paying a small application fee. Federal courts at each level (Federal District, Circuit Courts of Appeals, Supreme Court) require specific admission to that court's bar in order to practice before it, but there is no separate examination process for federal courts, and admission is usually granted as a matter of course to any attorney licensed in the state where the particular federal court sits.

Although most European countries have divided legal professions, with different kinds of lawyers performing different functions, only Spain has a division which generally corresponds to the division in Britain between barristers/advocates and solicitors. Procuradores represent the interests of a litigant in court, while abogados is the general term for other lawyers. Procuradores are regulated by Royal Decree 2046 of 1982, which approved the General Statute of the Procuradores, and the Organic Law no.6 of 1985. The General Statute regulates the qualifications and conduct of the procuradores. Thus, obligations to act pro bono are laid down by Article 13.

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