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What is the Difference Between Barristers and Solicitors?

A person who is involved in a legal matter that goes to court may be assisted by both a solicitor and a barrister. Barristers and solicitors are both lawyers, but they do different types of legal work and operate differently. Barristers specialise in doing court appearances, particularly contested matters and complex matters such as trials and appeals. Solicitors take instructions from clients and do the preparation of a matter before it goes to court. While solicitors are employed by firms, barristers work for themselves. Clients are often unclear about the difference between barristers and solicitors. This article seeks to clarify the difference.

Solicitor takes instructions

If you have been charged with a criminal offence or if you are taking civil action against another party, your first step will most likely be to go to speak to a solicitor to get advice. The solicitor will ask you a lot of questions about your situation and advise you about what legal options you have. The solicitor will take instructions from you, meaning they will get information from you about what has happened and directions as to what you want them to do about it.

If you are involved in a civil matter, your solicitor may take an affidavit from you. This is a statement that sets out your evidence in a written form. It can be used to initiate or respond to a claim in court. The solicitor will liaise with the other party/ies involved in the matter and often make attempts to resolve the matter out of court. The solicitor may also attend court for preliminary mentions of your matter. This may be when the matter is mentioned and the court is informed of what is going to happen with the matter. The matter may be adjourned a number of times before it reaches final resolution. Your solicitor will generally handle these mentions as they are short and do not involve evidence or legal argument.

Barrister does court appearances

If you have a matter in court that is not going to resolve, your solicitor may brief a barrister to take care of the court appearances. The barrister who is briefed will be one who specialises in the particular area of law concerned. They will be provided with a copy of the instructions you have given to the solicitor and all the relevant documents.

If the matter is a criminal matter that goes to trial or contested hearing, it is likely that a barrister will be briefed to run the trial or hearing. If a person is pleading guilty to serious offences, a barrister may be briefed to deliver the plea and to run the committal proceeding or voir dire. This is because barristers generally have more specialised knowledge of the law than solicitors and more experience in court.

Barristers do not communicate directly with clients. They stay in touch with the client via the instructing solicitor.

Solicitors are employees, barristers are contractors

While solicitors work for firms, barristers work for themselves.

When a solicitor is retained by a client, they take carriage of the matter, generally until final resolution. The solicitor with carriage of a file is said to be ‘on the record’ and while that solicitor is on the record, no other solicitor can give advice or assistance to the client about the matter.

A barrister accepts a brief with a specific ambit, such as running a contested hearing in the Magistrates Court. They do not take carriage of the matter and do not remain involved beyond the stage of proceedings they are briefed to handle.

Barristers can charge by the hour or by the day. They generally provide an estimate of the likely costs of a matter to the solicitor when they accept the brief.

Barrister may give legal opinion

A barrister can also be hired to provide a legal opinion. This is a written assessment of a particular legal issue, which may be sought when a person is contemplating litigation and want a better idea of how their argument is likely to be received by the court.

Confusion about the difference between barristers and solicitors

A lot of people find the difference between barristers and solicitors hard to understand. The fact that solicitors sometimes do court work adds to the confusion. There is a range of reasons why a solicitor may handle a complex court matter themselves rather than briefing a barrister. This may occur because the solicitor is familiar with the area of law, because the client cannot afford to pay a barrister or because it is the firm’s policy that certain types of matters be handled in-house, rather than briefed to counsel. There is nothing to stop solicitors from doing court work – it is just sometimes preferable to brief a barrister.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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