Barristers in the English Legal System

The Legal Profession: Barristers

Learning Outcomes

• Understand the role and importance of barristers in society.
• Understand elementary terminology related to the role and practice of barristers.
• Appreciate the training process to qualify as a barrister in England and Wales, including the role of the Inns of Court.
• Understand the regulation of barristers and the main professional bodies involved.

Barristers: Specialization and Terminology

• Barristers specialize in trial advocacy, particularly in superior courts (Crown Court level and above).
• Solicitors typically handle a more general range of legal work.
• Barristers are also referred to as "counsel."
• Senior and accomplished barristers become "Queen's Counsel" (QC) or "King's Counsel" (KC, during the reign of a male monarch).
• As of April 1, 2024, there are approximately 18,141 practicing barristers in England & Wales.
• Barristers are a considerably smaller part of the legal profession compared to solicitors.

Role of Barristers

• Advocacy (presenting arguments in court) is the main function of barristers.
• Most of their work involves preparing for court and the actual court work itself.
• Associated work includes:
  • Meetings with solicitors and clients to 'brief/instruct counsel'.
  • Legal research to support arguments in court.
  • Drafting arguments in the form of skeletal arguments and detailed submissions.
  • Planning litigation strategy.
  • Preparing and organizing evidence.
  • Trial-related correspondence with the courts (courts also correspond with solicitors on other matters).

The Practice of a Barrister

• Barristers are required to be self-employed and cannot form partnerships.
• They can share office space and resources with other barristers.
• A group of barristers practicing together is called a set (equivalent of a 'firm' for solicitors).
• 'Chambers' technically refers to the office, but the terms 'set' and 'chambers' are often used interchangeably.
• Barristers in one chambers typically share a clerk (or a team of clerks in larger sets).
• The clerk manages the chambers, allocates work, and negotiates fees with solicitors and clients.
• The clerk is very important, especially for junior barristers seeking work.
• The case/job instructed by the solicitor is known as a brief.
• Barristers may also work at law centers, government departments, private corporations, or in academia.

Barristers' Pay

• Current barristers' pay ranges from around £25,000 to £300,000 per year.
• Renowned barristers (e.g., David Pannick QC, now Lord Pannick) dealing with private clients can charge sums running into six figures.
• Many junior barristers rely on publicly funded criminal defense briefs (legal aid).
• Pupils (apprentice barristers) are paid a minimum of £12,000 a year; pupillage salaries ('stipend') may be higher at commercial sets.
• An estimated 70% of barristers practice in the Greater London area and travel to attend court sessions elsewhere as required.

Direct Access to Clients

• Until 2004, barristers could not deal directly with clients; clients had to work through solicitors.
• Solicitors would often establish relationships with certain barristers, directing most of their work to them, which was not always the best option for the client.
• In 2004, the Bar Council amended rules under the Direct Access scheme to allow clients to contact barristers directly for advice or representation.
• Only barristers accredited by the Bar Council under the Direct Access scheme can do this.
• To qualify, barristers must have at least three years of practice and complete a short course on direct client contact duties and obligations.

The Cab-Rank Rule

• Traditionally, barristers are required to work under the 'cab-rank rule'.
• If available, a barrister must accept any case within their specialization for which a reasonable fee is offered.
• The objective is to ensure every client can have legal representation, ideally by a barrister of their choice.
• The rule has many exceptions, making it possible for barristers to avoid cases they do not want to take on.

Qualifications and Training Process

• Academic Stage:
  • Qualifying law degree (at least Upper Second Class) or the Common Professional Examination (CPE).
  • Join one of the four Inns of Court.
  • Complete a Bar Training Course (BTC) at a recognized provider.
  • Attend 12 dinners at the Inn.
  • Get called to the bar as an 'utter barrister'.
• Vocational/Professional Stage:
  • Complete a one-year pupillage ('chambering' of 9 months if done in Malaysia).
  • Usually done in two blocks of six months each under different pupil-masters (each period is called a 'six').

Qualifying Law Degree

• Requires completion of "foundations of legal knowledge" subjects:
  • Criminal Law
  • Equity and Trusts
  • Law of the European Union
  • Contract
  • Tort
  • Property/Land Law
  • Public Law (Constitutional Law, Administrative Law, and Human Rights Law)

The Inns of Court

• A form of professional association for barristers in England & Wales (besides the Bar Council).
• There are four Inns of Court in London: Lincoln’s Inn, Middle Temple, Inner Temple, and Gray’s Inn.
• During the BPTC year, aspiring barristers must join an Inn and attend at least 12 ‘dinners’ at that Inn (which are not free).
• These dinners are a long-standing tradition and are now often combined with training, seminars, or lectures.

Funding and Competition

• Funding is generally limited for the BTC; barristers' sets do not typically sponsor candidates.
• Students may be able to secure funding from their Inn.
• Competition for pupillage places is intense: approximately 450 places are available compared to 1,400 BTC graduates each year.
• Upon completing pupillage, barristers compete to join a set/chambers; typically, around 300 tenancies are available each year, which is fewer than the number of pupillage places.
• Junior barristers who fail to secure tenancy may have to do a further six (another six months of pupillage-level employment) in order to survive.

King’s Counsel (KC)

• Senior barristers (and solicitor-advocates) with at least 15 years of experience and an accomplished record may apply for recognition as King’s Counsel (KC) or Queen’s Counsel (QC).
• This is referred to as 'taking silk' because KCs can wear silk gowns in court.
• Benefits of taking silk:
  • A 'quality mark' of a barrister’s accomplishments.
  • Able to receive more high-profile cases with higher fees.
  • Much of their paperwork can be delegated to junior counsel.
  • More sought-after by clients and other sets/chambers.
• Barristers who do not become KC are referred to as juniors (regardless of age and experience). KCs often act as leading counsel, with juniors being 'led' by them.

Queen’s Counsel Selection Process

• Previously, the selection process was similar to that of judges and involved a non-transparent 'secret soundings' process.
• In 2004, a new appointments process was set up with an independent panel reviewing applications and deciding based on merit following structured references from judges, lawyers, and clients.
• The title of QC (Honoris Causa) can be bestowed on eminent lawyers not involved in court work, such as academics and solicitors in transactional work.
• Other jurisdictions like Hong Kong and Singapore have similar systems recognizing Senior Counsel (SC).

Regulation of Barristers

• Barristers used to be self-regulated by the Bar Council, but the Legal Services Act 2007 divested the regulatory role to the Bar Standards Board (BSB), supervised by the Legal Services Board.
• The BSB:
  • Makes and updates the rules governing barristers
  • Takes decisions concerning admission, training, and practice at the Bar
  • Investigates and acts on disciplinary issues
• Barristers must complete at least 45 hours of continuing education in four subjects within the first three years of practice:
  • Case Preparation and Procedure
  • Substantive Law or Training relating to Practice
  • Ethics
  • Advocacy Training

Bar Statistics:

• Statistics obtained from the Bar Standards Board on April 1, 2024, revealed that there are 18,141 barristers in England and Wales.

Total Barristers in Practice (2020-2024)

• 2020: 17,078
• 2021: 17,263
• 2022: 17,538
• 2023: 17,782
• 2024: 18,141

Total Practising Bar - Gender (2020-2024)

Total Practising Bar - Ethnicity (2020-2024)

Split Profession: Pros and Cons

Advantages:

• Specialization: Separate roles allow barristers and solicitors to specialize in their areas.
• Quality of service: Specialization leads to better quality of service.
• Competitive pricing: Solicitors can choose the most cost-effective option for their clients.

Disadvantages:

• Higher costs: Clients may need to pay for both barristers and solicitors.
• Lack of coordination: Can lead to delays or misunderstandings.
• Limited access to justice: Difficult for clients to navigate the legal system.

Regulating Legal Professionals – Recent Reforms

• Legal Services Board (LSB, established in 2009 under the Legal Services Act 2007):
  • Oversees the way professional bodies regulate the professions.
  • Regulates the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB).
  • Can remove a body’s regulatory powers if necessary.
  • Also regulates regulatory bodies for chartered legal executives (CILEx), the Council for Licensed Conveyancers, and the Intellectual Property Regulation Board.
• The Legal Ombudsman (2010):
  • Investigates and resolves complaints about lawyers' services.
  • Can recommend any remedy, including refund of fees and up to £50,000 compensation.
• The Solicitors Regulation Authority may also institute a case before the Solicitors Disciplinary Tribunal in the case of malpractice by solicitors.

Summary: Solicitors and Barristers

Conclusion

• The legal profession in England and Wales comprises solicitors and barristers, along with affiliated roles like licensed conveyancers, chartered legal executives, and paralegals.
• Recent reforms have brought the two 'branches' closer, with solicitors exercising privileges traditionally reserved to barristers.
• While there are arguments for the eventual 'fusion' of the two branches, the profession will likely remain 'split' due to traditional reasons.