A Guide to Instructing a Barrister

Barristers: Overview

The legal profession of England and Wales is divided between solicitors and barristers. While barristers have traditionally undertaken advocacy in the courts and other tribunals, and have provided specialist advice, solicitors have been principally responsible for transactions, legal documentation, initial advice, and dispute management.

Today, there are exceptions to these general descriptions. For example, some barristers now rarely appear in court, and instead spend the majority of their time drafting documents and advising on contracts. Nevertheless, barristers are still regarded mainly as specialist advocates.

Barristers: Education and Training

Barristers are all graduates - whether in law or a non-law discipline – who undergo postgraduate training in advocacy and other legal skills via the Bar Vocational Course (BVC). Provided by eight higher education institutions, the BVC stage of a barrister's training is sometimes referred to as 'Bar School'.

Barristers' training used to be the responsibility of the London Inns of Court, university-type institutions of medieval origin. Although this is no longer the case, all barristers must, even now, belong to one of the four remaining Inns (Gray's Inn, Lincoln's Inn, Inner Temple and Middle Temple) and it is the Inns who call newly qualified barristers to the Bar.

As well as offering financial assistance in the form of scholarships and prizes to those training for the Bar, the Inns fulfil a vital role in the provision of legal education. As part of the qualification process, all trainee barristers must attend a specified number of formal dinners at their Inn - a stage known as 'Dining' – with dining now being largely linked to educational activities. During pupillage (see below) and the early years of practice all barristers must attend compulsory advocacy training and ethics courses. Much of this training is provided by the Inns through specially trained barristers and judges.

Barristers: Pupillage

Graduates who pass the BVC successfully apply to become pupil barristers. Known as 'pupillage', this stage lasts for twelve months, although it is not uncommon to undertake two pupillages of six months each in different places.

Pupillage is effectively a form of apprenticeship. The pupil is assigned to a pupil-master or pupil-mistress, who oversees the development of the pupil's legal skills by giving them drafting work and allowing them to help with research in case preparation. Pupils may get the chance to appear in small cases themselves during the second half of their pupillage.

Although the step of being 'Called to the Bar' at one of the Inns now takes place on passing the BVC, one can apply for a Practising Certificate only on successful completion of pupillage. The Practising Certificate, which gives entitlement to practise as a barrister, is granted by the Bar Council (the statutory body which administers training, qualification and professional standards of the Bar), and is renewed annually.

Barristers' Chambers

After successfully completing pupillage, the newly qualified barrister can start practising. Most choose to go into independent practice at a set of chambers, although a few choose to become employees of companies or organisations like the Crown Prosecution Service (and are referred to as the 'Employed Bar').

Members of chambers are known as 'tenants', and obtaining a 'tenancy' is crucial for a newly qualified barrister. Competition for tenancy is fierce: from several hundred applicants for pupillage, most chambers only accept three or four and, at the end of the year's pupillage, typically only one (or exceptionally, two), is offered tenancy.

All the barristers in chambers are self-employed. Instead of drawing a salary, their income is derived from the fees they earn individually. The costs of administration, the chambers' staff, the library, the computer systems and other related costs of chambers are, however, shared between the barristers.

In London, many sets of chambers occupy buildings within or just outside one of the Inns of Court.

Barristers: Independence

The self-employed nature of practice means that fierce independence is at the heart of the ethos of the Bar. Two barristers from the same chambers can therefore appear against each other in the same case. To ensure confidentiality, stringent provisions are put in place in such cases. It occasionally happens that the appointed arbitrator practices from the same chambers as one or more of the advocates.

By contrast, there may be barristers from different chambers working together as part of the advocacy team on a major case. The leader, usually a Queen’s Counsel (see below), will want as a junior the best specialist available, who may be from the same chambers or from another set. Again, the independence of the Bar means using a barrister from another chambers is not an issue - all that matters is putting together the best team for the case.

Barristers' Chambers in Operation

All chambers are run by a number of different groups, and decisions are made by the barristers themselves working within a committee structure. The selection and training of pupils is the responsibility of the Pupillage Committee. An Estates Committee looks after the running of chambers. The Strategy Committee will look at how both client services and the chambers itself can be developed.

A long-established feature of every barristers' chambers, the clerks are the best known of all the groups. Primarily responsible for managing the workload of the barristers, the clerks help solicitors or clients to choose the most appropriate barrister for the particular case in question, check his or her availability, and arrange fees. They also deal with room bookings for meetings and conferences. For most people, the clerks are the first and ongoing point of contact with chambers.

The actual day-to-day running of chambers is done by an administrative team. Headed by a chief administrator or chief executive, the team deals with building services, information technology, library, finance matters, including collection of fee accounts, and many other aspects of chambers' organisation.

Barristers' Work

Historically, all cases had to be referred to barristers by solicitors. Today, this is how most work still comes to most chambers. Recently, however, the Bar Council has relaxed the rules on referral, and instructions can now come from a variety of sources, including architects, engineers or chartered surveyors, overseas lawyers and even clients direct. Solicitors' assistance is still highly desirable in major litigation for document management and case administration, neither of which is the specialist advocate's work. For an English court case, the use of a solicitor is a requirement.

English barristers' principal areas of work are as follows:

giving legal opinions in an area of specialism, including on non-contentious matters (i.e. where there is no dispute) such as advice on drafting a contract, warranty or other project documentation
giving advice on the merits of a case, the relevant issues and evidence needed to pursue it
oral and written legal argument and cross-examination of witness of fact and expert witnesses in court proceedings, arbitration and other types of hearing, relating to both UK cases and those in other jurisdictions
advising parties undertaking alternative dispute resolution techniques, such as mediation and adjudication
appearing as expert witnesses on English law in foreign litigation
acting as mediator to try to achieve settlement between disputing parties
acting as arbitrator or adjudicator in hearing and resolution of disputes.

Barristers in Action

In an English case, a barrister will typically undertake work having first been approached by a solicitor who, in turn, has been consulted by the client. The barrister chosen by the solicitor will often meet the client and will continue to liaise with the instructing solicitors throughout.

In non-UK cases, the client's own lawyers will usually continue to handle the work, bringing in the barrister as needed to provide advice and to undertake some or all of the advocacy.

Queen’s Counsel

In larger cases, the advocacy team is often led by a Queen’s Counsel (QC). This is a rank to which senior barristers may be appointed (by an independent commission set up by the UK Government's Department for Constitutional Affairs with the Bar Council and the Law Society).

The criteria for appointment as a QC can be summarised as high levels of achievement in the key elements of advocacy: integrity, understanding of the law, analysis of the case, case presentation, working with clients and the rest of the team. The QC appointment system provides a mark of quality for barristers who achieve the rank of 'silk', the colloquial term for QCs stemming from their entitlement to wear gowns of silk (unlike the ordinary material of barristers' gowns).

Of approximately 10,000 barristers in England and Wales, about 10% are QCs. In some of the bigger and more successful sets, particularly in London, the proportion of QCs is as high as 20% of the total number of members of chambers.

Barristers Outside Court

The usual public image of an English barrister is that of an advocate in a court room in robe, bands and wig. Barristers are still required to wear this traditional outfit when appearing in 'open court', although in the many interlocutory hearings and applications which, for example, might be heard in a judge's chambers, greater informality is accepted.

Today, a barrister may well spend little or no time in court. Other methods of dealing with disputes where possible are preferred in the commercial world, and these create considerable demand for advocacy and alternative dispute resolution (ADR) services. Arbitration is the most obvious example.

London is a thriving centre of international arbitration, and domestic arbitrations are carried on throughout the UK. As the home of the London Court of International Arbitration and the London Maritime Arbitrators Association, the city hosts arbitrations of major disputes in different branches of international commerce: shipping insurance, construction and engineering and commodities. English barristers are much in demand to appear as advocates in these cases, which are typically high value and technically complex. Although arbitrators are sometimes selected from the industry in question, a QC may be appointed if there are contractual or other legal issues involved, and it is particularly common for a QC to chair an arbitral panel of three. This pattern is repeated in most of the great arbitration centres of the world where English barristers are instructed to appear with, and against, practitioners from other jurisdictions, and to sit as arbitrators.

In mediation and other forms of ADR, barristers are used as advisers to the parties. Increasingly, they also appear as mediators, since their specialist training and experience in identifying key issues and weaknesses in cases and of trying to negotiate settlements with opponents mean that they are particularly well suited to the task. Many undergo further training as accredited mediators.

Barristers assist with adjudication in a similar way. This form of summary decision-making is mandatory in most construction contracts in the UK (and has also been introduced into the construction industries of Singapore, Hong Kong, Australia and New Zealand) which has created new demands for legal services. Barristers advise the parties on bringing and resisting claims in adjudication, and appear as advocates in adjudication hearings or as the adjudicators themselves. They may also be instructed following an adjudication to enforce the decision or to challenge it in court.

Choice of Barristers

Typically, barristers are chosen by solicitors on the basis of their past experience, the specialism involved, the degree of urgency needed, the case's complexity, the sum in dispute, and the client's needs and resources.

Since the leading Chambers do not undertake all types of work, and since most members of any set have their own particular expertise, it is important first to find a set with the appropriate specialism. There are several ways of doing this.

Specialist sets and barristers are listed in the directories (either paper or online) of the specialist Bar Associations. These cover a range of disciplines including, for example, professional negligence, technology and construction and commercial law. The Associations keep their members up to date with law and procedure in their fields and advise government on law reform proposals.

The Professional Negligence Bar Associates can be contacted via www.pnba.co.uk

The Technology and Construction Bar Association can be contacted via www.tecbar.org.uk

The Commercial Bar Association can be contacted via www.combar.com

For details of other specialist Bar Associations, the Bar Council's website, http://www.barcouncil.org.uk/, contains a link to the official Bar Directory.
The Bar Council's website, http://www.barcouncil.org.uk/, links to the official Bar Directory, which allows an advanced search for barristers and/or for Chambers by keywords or area of specialism.
The commercial law directories are Chambers UK, a client’s guide to the UK legal profession, at www.chambersandpartners.com, and the Legal 500 at http://www.legal500.com/. For both, it is necessary to choose 'United Kingdom', followed by 'Barristers', and then search for the relevant area of work.
Lexis Nexis have a directory at http://www.lawyerlocator.co.uk/
Lexis or LAWTEL can be used to run a search identifying cases on a particular point or in a particular area. The case reports give the name of counsel who can then be searched via the Bar Directory.

Instructing Barristers

Once a specialist set has been identified, it is advisable to obtain details of barristers' experience from their CVs to match them against the features of the case in question.

Even experienced solicitors who know a particular set well will want to speak to the clerks to discuss the critical issues involved (specialism, size/complexity, urgency, client’s needs/ resources).

Other matters need to be considered, too: the availability of the barrister(s) identified to meet the client's time-frame, the level of fees payable (which will depend on the seniority and standing of the particular barrister), whether the fees will be on a lump sum or hourly basis, and the amount of work required. Arrangements for meetings (called 'conferences') with the barrister and any travel requirements e.g. to a site inspection should be considered early on.

Generally speaking, the earlier the barrister is involved in a dispute the better. That way, the barrister can advise on tactics throughout, and can begin to collect evidence and legal material (although much of this may remain in the hands of the instructing lawyers, especially if based outside the UK).

Once the barrister has been instructed, the instructing lawyer and the client have access to advice on the matter available as and when they need it.

They also have the assurance of the Bar Council's stringent demands in terms of education and training. The Bar Council requires barristers to undergo Continuing Professional Development, by which barristers must keep their knowledge up to date throughout their careers. The Bar Council also enforces the Code of Conduct on its members and deals with any complaints and disciplinary matters. All barristers are obliged to have professional indemnity insurance cover appropriate to their areas of practice.

The best reason for having confidence in a barrister, however, lies in the careful selection of a barrister with the experience and expertise to deliver the service required.

Further Information
For further information on how our members can assist you, please contact the Senior Clerks, John Munton and Nick Child, in the first instance, on +44(0)20 7544 2600. They and their teams of Clerks will be pleased to advise you on the member of Keating Chambers appropriate to your requirements.