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Barristers
Since the end of the fourteenth century, barristers have been
organised in Inns, of which there are four: Middle Temple, Inner
Temple, Gray’s and Lincoln’s. Even during the fourteenth
century the Temple was a meeting-place for lawyers and a residential
college for students of law/ the Inns are now administered by
‘Benchers’, who are generally judges or other senior
members of the Bar.
Originally, barristers were known as counsellors, whose practice
it was to accompany the judges on circuit, assisting the court
itself and plaintiffs and defendants in civil actions and prisoners
in criminal actions. Counsellors only acted for a party if they
received instructions to do so, and this gave rise to the need
for solicitors, who could act as intermediaries between clients
and counsellors.
A person who wishes to become a barrister must first obtain
a good honours degree (not necessarily in law, but if it is
not in law an extra year’s study is necessary), must become
a member of one of the four Inns, and must ‘keep terms’;
by dining at the Hall of his inn on a number of occasions over
a period of one or two years, thus giving him an opportunity
to meet judges and senior barristers. He must attend courses
of study and then pass the examinations which are organised
jointly by the Inns through the Council of Legal Education.
He is then ‘called to the Bar’ as a barrister. If
he wishes to practice in the courts he must, shortly before
or after being called, commence a period, usually of one year,
in the chamber of a barrister with an established practice in
order to gain experience. This is known as pupillage: the pupil
reads his master’s paper, attends his master’s conferences,
and accompanies his master to court. After six months, although
still a pupil, he may take his own cases.
Many barristers do not practise in the courts, but instead they
take up positions in industry and commerce. Such persons may
serve a ‘commercial pupillage’ under a practising
barrister, and if they do so and later decide that they wish
to practise in the courts, they are exempt from three months
of the normal period of pupillage. The barrister under whom
a pupil serves has pupillage must be a barrister of at least
five years’ standing.
Practising barristers are divided into Queen’s Counsel
(Q.C.s) and junior barristers. A barrister who wishes to become
a Q.C. must have had long experience and must be recommended
by the Lord Chancellor. The process of becoming a Q.C. is known
as ‘taking silk’ because Q.C.s are entitled to wear
silk gowns. A Q.C. is also known as a leader, or leading counsel.
Normally, High Court judges and Circuit judges are selected
from amongst Q.C.s, but there is no rule to this effect, and
juniors are occasionally appointed.
The practice of appointing Q.C.s is considered by many to be
unsatisfactory. Appointments are at the discretion of the Lord
Chancellor, and successive Lord Chancellors have adopted
a highly restrictive attitude in making appointments. The result
is that in general the demand for Q.C.s exceeds the supply,
so that they are able to charge extremely high fees, which is
one reason why the cost of litigation is so high.
Barristers have a duty to the court as well as to their clients.
In conducting a case a barrister must inform the court of all
relevant statutes and precedents, whether or not they support
his argument, although, of course, he may criticise the statutes
or precedents which are against him. In criminal cases, if prosecuting
counsel is aware of facts which support the defendant’s
case or lessen the gravity of the offence, he must state them:
it is his task to see that justice is done, and not necessarily
to attempt at all costs to secure a conviction.
Apart from their duties in court in conducting cases, barristers
are frequently called upon to give ‘opinions’ on
difficult points of law, possibly on matters unconnected with
impending litigation. Juniors are also very often responsible
for the drafting of pleadings, that is, the written statements
setting out details of a claim or defence, as the case may be,
and for giving advice on matters arising during the preliminaries
to a trial.
Counsel have no direct contact with their lay clients, apart
from conferences arranged and attended by the instructing solicitor,
through whom all a barrister’s work must come. He is not
permitted to advertise.
A barrister is expected not to refuse a brief in any case, unless
he has a financial interest in the matter or has already been
instructed by the opposite party.
Newly-qualified barristers who have not yet built an established
practice sometimes accept what are known as dock briefs in criminal
cases, where persons are charged with indictable offences and
have not instructed anyone to defend them. This is an exception
to the rule that counsel can act only on instructions received
from a solicitor. Fees for dock briefs are very small.
Unlike the majority of solicitors, each barrister works on his
own account, but groups of them commonly share ‘chambers’
(offices) and collectively employ a barristers’ clerk,
but it is one of the oddities of English law that this agreement
is binding in honour only, so that a barrister cannot sue for
unpaid fees, although a solicitor who does not pay may be reported
to the Law Society. On the other hand, a barrister cannot be
sued for negligence in the conduct of a case in court or matters
which occur before a trial and which are essentially connected
with the conduct or management of the case in court. He is,
however, liable for his negligence in connection with other
work which he may perform.
Barristers are subject to regulation by the Senate of the Inns
of Court and the Bar, whose members include the Attorney-General,
the Solicitor-General, and representatives appointed by each
Inn. The Senate formulates policy on a variety of matters affecting
the profession, including general policy on education, although
the day-to-day administration of education is in the hands of
the Council of Legal Education.
Complaints against barristers are referred to a committee of
the Senate known as the Professional Conduct Committee.
The
Committee has the following powers:
-it may admonish a barrister;
-it may refer the case to the Treasurer of the barrister’s
Inn for a reprimand;
-it may refer a case to an ad hoc Disciplinary Committee appointed
by the President of the Senate. If the Committee finds a case
proved, the barrister may be disbarred, temporarily suspended,
fined or reprimanded. Against a decision of the Committee there
is no appeal to the normal courts, but the Lord Chancellor and
all High
Court judges sit as ‘visitors’ to hear appeals
and exercise supervisory powers.
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