What’s the difference between solicitors and barristers?

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Created on March 15, 2018

What's the difference between solicitors and barristers?

Lawyer, solicitor, barrister, brief, counsel, advocate – these are all terms used to describe members of the legal profession who represent clients in court.  Solicitors and Barristers are all “Lawyers” in the same way that your GP and a surgeon are both “Doctors”.  So what really is the difference between them?

Barristers are the ones who stand up and speak in court wearing the silly wigs, right? 

Barristers, especially barristers specialising in criminal law, are primarily advocates.  This means that they stand up in court and argue their case.  They have rights of audience in all criminal courts from the Magistrates’ Court to the Crown Court and the Court of Appeal or the Supreme Court.  But, these days, many solicitors also hold these “Higher Rights of Audience” which entitle them to appear in the same courts…and to wear the same silly wigs.

Yes, but barristers handle all the really difficult cases though? 

Traditionally that has been the case but it is changing, slowly.  Solicitors with Higher Rights of Audience, or “Solicitor Advocates”, have been growing in number in recent years and many of them are now quite experienced and will deal with the most serious types of cases if their client wishes them to.

As things stand though, barristers still handle the vast majority of really serious criminal cases in the Crown Courts while solicitors still do the majority of work in the Magistrates’ Courts.  This is why you might come across a “Duty Solicitor” in the Magistrates’ Court but you won’t find a Duty Barrister.

How do Solicitors and Barristers get their work? 

Most cases (again, focusing on criminal cases) come to solicitors in the first place.  Either the solicitor is called to represent the suspect at the police station and then deals with the case throughout the court process that follows or a client who has already been charged will instruct a solicitor to represent them in the Magistrates’ Court.

The solicitor may instruct a barrister to represent their client in the Magistrates’ Court on their behalf.  Or, in more serious cases, a barrister might be instructed to appear in the Crown Court.  The solicitor will retain conduct of the case as the “litigator”.  They will receive all the evidence, take the client’s instructions and correspond with the police or the Crown Prosecution Service.  So the client instructs the solicitor and the solicitor instructs the barrister.

Does that mean that solicitors hold all the power then? 

Not really.  Although the solicitor may “instruct” the barrister, it is the function of the barrister to “advise” their professional client (the solicitor) and their lay client (the defendant).  In other words, the barrister will often direct the strategy of the case and the solicitor will work with the client, witnesses and experts to produce the evidence that the barrister will utilise at trial.  Both need to do their respective jobs to a high standard to stand a chance of winning the trial for the client.

Are Barristers completely reliant on Solicitors for their work? 

That used to be the case entirely and it remains largely the case now.  But barristers are now able to apply to accept work directly from the client.  This is called “direct access” work.  More and more barristers are making themselves available for direct access work.  This can work well in some aspects of law but, as things stand, it doesn’t work so well in criminal law where the solicitor still retains a very important role.  It might also be because most barristers don’t want to be woken up in the middle of the night to attend upon their clients in the police station!

Solicitors can be Higher Courts Advocates and Barristers can accept Direct Access work.  What really is the difference then? 

In truth, the gap between the two sides of the profession has significantly narrowed over the last decade or so.  In general however, solicitors work within firms and either run their own practices or are employed.  Whereas barristers are members of the Bar and their respective Inns of Court (of which there are four), but they generally remain self-employed.

Well at least that’s clear 

That said, of the Directors at Old Bailey Solicitors, Rod Hayler is a solicitor with Higher Rights of Audience whilst David Osborne is a barrister.

Also, some very high profile Queen’s Counsel have aligned themselves with Old Bailey Solicitors and are available to be instructed via this firm.

OK, so who earns the most? 

Queen’s Counsel.  Every time.

Rod Hayler

Rod Hayler

Rod has specialised in criminal defence work since 1998. He is a trial advocate of 17 years’ experience and, as a Higher Courts Advocate, he represents clients in Crown Courts and in the Court of Appeal.

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