Updated May 2018
We often hear various legal terms thrown around in conversations or from numerous media sources. Judiciary, adversary, jurisdiction, mens rea, etc. Such terms can be confusing if you are not commonly exposed to the legal industry. In my experience, the two most frequently confused legal terms are ‘solicitor’ and ‘barrister’. Often people use them interchangeably, not being aware that the two roles are entirely separate. It is important to be aware of the correct meaning of these terms in order to properly use them in the appropriate context.
What is a Solicitor
A solicitor spends a great deal of their time out of the courtroom. A solicitor is heavily involved in the day-to-day legal affairs of their client. Such day-to-day affairs can include telephone and email communication, taking instructions from clients, drafting letters and court documents, conveyancing, out of court negotiations and the administrative conduct of the legal file.
A solicitor can appear on behalf of their client in court, which is often why people get confused between solicitors and barrister. In family law for example, solicitors often attend court on behalf of their client, predominately for preliminary and interim hearings.
What is a Barrister
A barrister spends most of their time in the courtroom. Primarily a barrister undertakes trial work. Trial work is the courtroom work you would commonly see on television where there is a judge and witnesses and a myriad of questions being posed to that witness (although you must be made aware that television dramatizes such trial work and in reality, it is a much more pragmatic and sensible process).
A barrister can also be retained for a matter in order to provide specialist advice on a particular legal issue, or be involved in the drafting of court documents with the solicitor. In being absent from the direct day to day running of a file, barristers are able to specialise in, and become better skilled at conducting arguments and knowing intricate parts of the law.To avoid unnecessary duplication, barristers are often engaged for specific tasks, when their skills are most needed.
A client cannot retain a barrister without retaining a solicitor first. The solicitor needs to keep a copy of the complete file and notes of all correspondence and is therefore responsible for all of the communication with the barrister on behalf of the client. Therefore, a client is not permitted to telephone or communicate with a barrister directly unless is special or allowable circumstances.
There are clearly notable differences between a solicitor and a barrister and sometimes it can be crucial to have both involved in your case. For example, if your matter involves a complex area of the law, a barrister may have specialist knowledge in that area. Or if your matter is proceeding to trial, a barrister will have the requisite knowledge to represent you during that process. Your solicitor will advise you when and if it is appropriate for a barrister to be retained for your matter.
Jenny has recently retained a solicitor to act on her behalf in relation to a Family Law matter; a matrimonial property settlement. Her matter has escalated quickly and court proceedings have already been started by her husband.
Jenny’s solicitor has advised her that it may be necessary to retain a barrister to appear on her behalf in court. Jenny is confused, she was under the impression that her solicitor would be appearing for her in court. Why is it necessary that she have both a barrister and a solicitor?
Jenny’s confusion between the role of a barrister and a solicitor is very common among clients involved in legal proceedings.
Whilst a solicitor in South Australia can appear in Court on behalf of their client, it is common in Family Law matters to engage a barrister to do so. A solicitor can appear on behalf of their client in court, however, a solicitor mainly appears for preliminary and interim hearings, before the parties engage in formal argument. To avoid unnecessary duplication, barristers are often engaged for specific tasks, when their skills are most needed.
In Jenny’s case it is possible that her solicitor recommended that a barrister be involved in her matter for a number of reasons. The solicitor has the understanding of the facts of the file and will consider how to get the best possible result in Court. If they believe that the client is best served by retaining a barrister then they will advise accordingly. They will also recommend a barrister that they believe is suited to the case in all the circumstances. Perhaps Jenny’s matter involves a unique difficulty which a particular barrister specialises in or perhaps the solicitor anticipates a particular hurdle in litigation which would be more appropriately handled by a barrister.