Barristers Flashcards
Barristers
There are about 12,000 barristers in independent practice in England and Wales. In addition, there are about 3,000 barristers employed by organisations such as the Crown Prosecution Service, businesses, local government and the Civil Service.
Collectively barristers are referred to as ‘the Bar’ and they are controlled by their own professional body – the General Council of the Bar. All barristers must also be a member of one of the four Inns of Court: Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn, all of which are situated near the Royal Courts of Justice in London.
The Bar Council, like the Law Society, has tried to separate its representative functions from its regulatory functions, and has therefore established
a Bar Standards Board responsible for regulating the Bar. The Board makes the rules and takes the decisions affecting entry to, training for, and practice at the Bar, including disciplinary issues.
Training
Entry to the Bar is normally degree-based, though there is non-degree route for mature entrants, under which a small number of students qualify.
As with solicitors, graduate students without a law degree can take th one-year ourse for the Common Professional Examination (CPE) (Graduate Diploma in Law – GDL) in the core subjects, in order to go on to qualify as a barrister.
All student barristers also have to pass the Bar Professional Training Course. On this course students study:
Case preparation legal research Written skills
Opinion writing (giving written advice) Drafting documents such as claim forms Conference skills (interviewing clients) Negotiation
Advocacy (speaking in court)
Students also study specific areas of law related to their future profession, such as civil litigation, criminal litigation and the law of evidence.
All student barristers must join one of the four Inns of Court and used to have to dine there 12 times before being called to the Bar. Students may also attend in a different way, e.g. a weekend residential course.
This helps students on the courses outside London as travelling costs are lower. The idea behind the rule requiring all trainee barristers to dine was that they met senior barristers and judges and absorbed the traditions of the profession.
In practice, few barristers dine at their Inns and students are unlikely to meet anyone except other students.
Once a student has passed the Bar Professional Training Course, he or she is then ‘called to the Bar’. This means that they are officially qualified as a barrister. However, there is still a practical stage to their training which must be completed – pupillage.
What are the training routes to become a barrister?
Law degree
Membership of an inn of court-dine or on course
One year full time bar professional training course
Call to the bar
Pupillage
Non law degree
CPE
Membership of an in of court- dine or on course
One year full time bar professional training course
Call to the bar
Pupillage
Non graduate mature student
Two year CPE
Membership of an inn of court- either dine or on course
One year full time bar professional training course
Call to the bar
Pupillage
=practice as a barrister
Pupillage
After the student has passed the Bar Professional Training Course there is ‘on the job’ training where the trainee barrister becomes a pupil to a qualified barrister.
This effectively involves ‘work shadowing’ that barrister, and can be with the same barrister for 12 months or with two different pupil masters for six months each.
There is also a requirement that they take part in a programme of continuing education organised by the Bar Council. After the first six months of pupillage, barristers are eligible to appear in court and may conduct their own cases.
During pupillage trainee barristers are paid a small salary by the chambers they are attached to.
Barristers’ Work
Barristers practising at the Bar are self-employed, but usually work from a set of chambers where they can share administrative expenses with other barristers.
Most sets of chambers are fairly small, comprising about 15-20 barristers. They will employ a clerk as a practice administrator – booking in cases and negotiating fees – and they will have other support staff.
One of the problems facing newly qualified barristers is the difficulty of finding a tenancy in chambers. Many will do a third six-month pupillage and then ‘squat’ as an unofficial tenant before obtaining a place.
The rule on having to practise from chambers has been relaxed, so that it is technically possible for barristers to practise from home.
However, despite the fact that a tenancy in chambers is not essential, it is still viewed as the way to allow a barrister to build a successful practice.
The majority of barristers will concentrate on advocacy, although there aresome who specialise in areas such as tax and company law, and who rarely appear in court.
Barristers have rights of audience in all courts in England and Wales. Even those who specialise in advocacy will do a certain amount of paperwork, writing opinions on cases, giving advice and drafting documents for use in court.
What does the clerk do?
Work as a practice administrator- booking cases and negotiating fees- along with other support staff
Direct Access
Originally it was necessary for anybody who wished to instruct a barrister to go to a solicitor first. The solicitor would then brief the barrister. This was thought to create unnecessary expense for clients, as it meant they had to use two lawyers instead of one.
As a result of criticism, the Bar first of all started to operate a system called Bar Direct under which certain professionals such as accountants and surveyors could brief a barrister direct without using a solicitor. This was extended to other professionals and organisations.
Then in September 2004, the Bar granted direct access to anyone (business or individual). It is no longer necessary to go to a solicitor in order to instruct a barrister for civil cases. However, direct access is still not allowed for criminal cases or family work.
Cab Rank Rule
Normally barristers operate what is known as the cab rank rule under which they cannot turn down a case if it is on the area of law they deal with and they are free to take the case.
However, where clients approach a barrister direct, the cab rank rule does not apply. Barristers can turn down a case which would require investigation or support services which they cannot provide.
Employed Barristers
The employed Bar, which includes those barristers working for the Crown Prosecution Service, can appear in the Magistrates’ Court, but used not to be able to conduct cases in the Crown Court, High Court or appellate courts.
As these barristers will have done exactly, the same training as the independent Bar, this was seen as being unnecessarily restrictive. The Access to Justice Act 1999 allowed barristers working for the CPS or other employees to keep their rights of audience.
The Act also allowed barristers who work in solicitors’ firms to keep the right to present cases in court.
Complaints against Barristers
Where a barrister receives a brief from a solicitor, he or she does not enter into a contract with his client and so cannot sue if their fees are not paid. Similarly, the client cannot sue for breach of contract.
However they can be sued for negligence. E.g. Saif Ali v Sydney Mitchell and Co (1980): 1. It was held that a barrister could be sued for negligence in respect of written advice and
opinions.
- In that case a barrister had given the wrong advice about who to sue, with the result that the claimant was too late to start proceedings against the right person.
Bar Standards Board
This is the body which regulates the profession of barristers. It sets training and entry standards. It also sets out a Code of Conduct which barristers should comply with.
The Board investigates any alleged breach of the Code of Conduct. It can discipline any barrister who is in breach of the Code. If the matter is serious it will be referred to the Disciplinary Tribunal of the Council of the Inns of Court.
In extreme cases a barrister can be disbarred from practising by the Disciplinary Tribunal.
The Legal Ombudsman
Sir David Clementi (2004) looked at the complaints system and concluded that it
favored the lawyer over the complainant. He recommended establishing a completely
independent body that would consider complaints against all lawyers. The position of Legal Ombudsman was therefore created in 2010 to investigate and resolve complaints about the service provided by lawyers, including barristers and solicitors. The Ombudsman can recommend any remedy from a simple apology, a refund, or up to £50,000 compensation.
problems with the legal ombudsman
While the establishment of the Legal Ombudsman has improved the handling of com-
plaints and saved money, the Office of Fair Trading still considered in 2013 that the com-
plaints system was too complicated, with a third of dissatisfied clients stating they had not
complained because they did not understand how to make a complaint.
