In terms of complex legal jargon used in the Australian court system, there are two terms that typically cause the most confusion among the average citizen; barrister vs solicitor. (There’s also conveyancer vs solicitor but we deal with that in a separate article.)
This confusion often stems from the fact that the term ‘lawyer’ is sometimes used interchangeably with barristers and solicitors. While the roles of lawyers, solicitors and barristers are not as defined as they once were, there is a significant difference in the role of a solicitor vs the role of a barrister in the Australian legal system.
Barrister vs solicitor: what does a solicitor do?
Typically, when clients are faced with a serious legal matter, they will first retain a solicitor to get some specialist legal advice. A solicitor is a legal professional that spends most of their time assisting clients in their everyday legal matters and affairs. They are responsible for an array of legal obligations and duties, and can provide clients with advice or a plan for handling virtually any legal issue. A solicitor might help somebody with the drafting of their Will, for example, and advise them regarding the obligations of the executors of a will.
Daily Role of a Solicitor
The main difference between barristers and solicitors is that solicitors spend most of their time in their office, handling the needs of their clients, instead of in a courtroom. The typical daily responsibilities of a solicitor include:
• Email and telephone communications
• Drafting court documents and letters for clients
• Handling negotiations out of court
• Managing client legal files
• Advising and instructing barristers on behalf of their client
There are some solicitors who are migrating towards the American legal approach of the ‘attorney’ and handling both in and out of court negotiations for their clients. However, traditionally solicitors spend very little time inside the courtroom.
Typically, solicitors will have their own unique legal specialties. Some examples include:
However, when hiring any solicitor, whether they have an official specialty or not, it is important that clients hire a professional with experience handling cases similar to their own.
Solicitors in Court
While a solicitor can legally appear in court on behalf of their client, they typically have barristers handle court appearances for them, and they advise these barristers on how to proceed while in court. In traditional situations, a solicitor will only appear in court on behalf of their client for preliminary and interim hearings. The solicitor typically does not appear during the formal argument portion of the proceeding.
However, there are some solicitors, particularly those with specific legal concentrations who will appear on behalf of their client, instead of retaining a barrister. In fact, the Law Society of NSW gives every solicitor a card stating they are entitled to practice as both a barrister and solicitor in NSW. This means, solicitors can legally take on all of the responsibilities in court that a barrister would have, should they deem it best for their client.
Barrister vs solicitor: what does a barrister do?
As legal practitioners, barristers spend most of their time in court. They’re not involved as much in the daily legal activities of their clients. A key differentiating factor with barristers is that they are not always required; as there are some situations where hiring both a barrister and a solicitor would be repetitive and unnecessary.
Typically, barristers are put on retainer for the following reasons:
• To make court appearances and appearing in trials
• Handling court applications
• Providing specialty advice on a specific issue
• Assisting a solicitor with the drafting of court documents
• To aid in understanding intricate areas of the laws
• Conducting engaging arguments
Typically, if a case requires a great deal of time in court, a barrister will be called upon by the solicitor or client; but they are often only needed for cases that will go to trial. For example, a breach of contract case.
The Role of a Barrister
The primary responsibility of a barrister is to act on behalf of a client during a serious criminal case in front of a jury and a judge. Barristers typically work as independent practitioners, and usually take instruction from the solicitor handling the case in terms of their in-court actions.
The Barrister in Court
In the past, it was only barristers who were trained at the ‘bar,’ and they were the only legal professionals that could represent clients in court. When this was the case, solicitors would meet with and advise their clients and then refer the case to the criminal barrister. From there, the barrister would run the trial, in court, if necessary.
Today, while barristers are still seen in court more often than solicitors, their roles are not as defined. Barristers aren’t always called upon, and when they are, they often work more closely with solicitors than they did in the past.
Traditionally, spotting a barrister in court is easy, as they will wear a formal wig and gown during the courtroom proceedings.
Do you need to hire a barrister or a solicitor?
As the legal system in Australia continues to transform with time, the lines between barristers and solicitors continue to become more blurred. Determining whether the services of a solicitor or barrister are needed for an impending legal matter can sometimes be difficult. A client seeking legal assistance cannot retain a barrister without first retaining a solicitor. This is why so many will retain a solicitor first and then seek guidance from their solicitor regarding the need for a barrister’s services.
When Only Solicitors are Needed
Clients will always need to go through a solicitor first before they start working with a barrister. There are, however, some situations where only solicitors or ‘solicitor advocates’ will be needed. As far as the barrister vs solicitor question is concerned, solicitor advocates come very close to performing the roles of both. Many times, they are just as familiar with running cases as barristers; particularly with court cases involving drunk driving, small drug charges, assaults and AVOs.
Why Solicitors Refer to Barristers
Much of the confusion regarding barristers and solicitors comes from the overlapping responsibilities of these two legal professionals; and the fact that many solicitors will take a case, and then determine if retaining a barrister is the smart choice for their client. In the past, barristers were the only ones trained to go to court, so solicitors had to refer to barristers for all legal matters that go to trial.
Now, even though solicitors could enter the courtroom if they wanted to, it is often best for the client to hire a barrister, or someone more experienced with courtroom proceedings. This gives the client access to a professional more seasoned with courtroom proceedings, and gives the solicitor more time to handle their daily client responsibilities.
Whether you only need the assistance of a solicitor, or you also need a barrister, the right law firm can help any client access the complete team of professionals that case requires. Owen Hodge Lawyers has an experienced team of professionals who can help any client further understand the difference between solicitors and barristers, and who can make certain you have the right type of experts supporting you during your case.
Owen Hodge Lawyers are here to guide you through all your legal issues, from commercial to personal matters. Contact us today to organise a consultation with the business and building lawyers or personal and family lawyers Sydney rely on. This Sydney area law firm offers free consultations with all new clients and can be contacted at 1800 770 780.
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