The legal profession in England and Wales has historically been split into solicitors and barristers, each with their clearly defined roles. Solicitors have focused more on the client and matter management side of a dispute or transaction, whereas the role of a barrister has been to provide specialist advice on the law, draft pleadings and conduct the advocacy before the courts.
As a result of the above demarcation of roles, it was not possible for a client to directly instruct a barrister without going through a solicitor (unless the client himself happened to be a UK qualified solicitor working in-house, for example).
In recent years the lines between the two professions have been blurred, offering a greater choice to consumers of legal services in the English jurisdiction:
(i) Since 1990, solicitors can obtain the qualification of solicitor-advocate, which allows them higher rights of audience and the right to appear before all courts including the UK Supreme Court (thereby performing a combined role of solicitor and barrister); and
(ii) Since 2004, barristers can be directly instructed by a lay client (i.e. a non-lawyer or a non-UK lawyer, as the case may be) provided they have undergone the relevant training and been authorised by the Bar Standards Board (BSB) to undertake ‘Public Access’ work.
While a public access barrister can accept instructions directly from a lay client, they are still prohibited from issuing proceedings, accepting service of documents and certain other activities related to the litigation process (known as “conducting litigation”).
There is provision in the BSB Rules for a barrister to become authorised to conduct litigation, but the take up of this authorisation is much lower in practice, although a large number of barristers have become authorised for public access and can thus accept instructions directly from non-solicitor clients.
Do I need a solicitor, a barrister, or both?
The answer to the above question depends on whether the client in question is able to handle some of the aspects of the matter themselves. To take a few examples:
- If the client is an unsophisticated individual with no experience of or familiarity with the UK legal system, then he or she will need to instruct both a solicitor and a barrister to run the case in the traditional way as described above.
- If the client is a medium to large corporate with its own legal department and/or legal advisers in its home jurisdiction, and needs representation before the English courts or in arbitration, then it may benefit from working directly with a barrister and avoid a duplication of roles between itself and/or its legal advisers on the one hand, and a firm of solicitors in the UK on the other. In this case, for example, the client itself or its home advisers can prepare drafts of the pleadings and witness evidence and conduct any correspondence (with the assistance and under the supervision of the instructed barrister in the usual way).
- If the client has no internal legal department (or not one of a sufficient size or expertise to handle complex legal proceedings) and does not have legal representatives, then it will need to instruct solicitors to deal with the matter, and if the solicitors in question are qualified as solicitor advocates, then there may not be a need to further instruct a barrister as well to appear in court to argue the matter.
The changes to both sides of the legal profession in the UK as outlined above have been introduced to offer greater choice to users of the legal system and to further the administration of justice and promote access to justice in the face of growing legal costs.
While there is no one-size-fits-all option, an informed choice of whether to instruct only a firm of solicitors, or a barrister, or both (as the case may be) can have a significant impact on keeping legal spending under control and avoiding a duplication of efforts in proceedings.