The legal profession in Ireland is divided into two branches: solicitors and barristers. The solicitor is the public’s first contact for their legal problems. If the problem is neither complex nor involving courts at a senior level then the solicitor can handle the matter and it goes no further. But if it is a matter where special expertise is required or which involves the Circuit, High or Supreme Courts, then the engagement of a barrister (or ‘counsel’) is made (if the client consents to it).
Strictly speaking the client of the barrister is the instructing solicitor, but in effect they are acting for the client with the legal problem. The barrister’s fees are discharged by the solicitor on behalf of their client so all financial matters are conducted between the client and the solicitor.
While barristers engage in advisory work they are mainly employed in litigation. Barristers are experts in presenting and arguing cases in court or tribunals.
Barristers are self-employed and under our system a solicitor can access the leading barristers in the country for a client, thereby enabling a small law firm, which may have a case against one of the biggest law firms in the country, to engage a top barrister to even out the playing field.
Barristers draft the court proceedings, prepare legal submissions in writing and present the client’s case in court. The solicitor will have gathered the information from the client and prepares a ‘brief’ for the barrister. The brief sets out the client’s case with copies of relevant correspondence. The barrister devises a course of action from the brief and advises the solicitor. They in turn advise the client. In some instances the barrister will advise there is no case and it would be a waste of money to pursue any action. Here the case ends and the client is informed by their solicitor. In other cases it may require the barrister to meet the client for a consultation to ascertain further information. Otherwise, the barrister may feel there is a case to answer and advise accordingly.
Courtroom skills of advocacy are central to a barrister’s training. Documentary evidence for court proceedings can be required in evidence but often a case will be won or lost by the oral evidence of witnesses. Here the barrister’s skill is best served. A well-argued case can be influential in persuading a judge (or jury) in your favour. Cross-examination of witnesses by your barrister could destroy or damage their case.
Barristers with specialist skills in court are in a good position to advise on the strengths and weaknesses of their client’s case and whether to fight the case or settle it through negotiations. Many of the cases coming before the courts are settled and it is the barrister who can advise you on the best settlement and do the negotiations for you.
Increasingly, barristers are engaged outside the traditional courtroom setting such as in mediations, arbitrations, tribunals and disciplinary hearings.
Barristers are obliged by their professional body (the Bar Council) to give a written estimate of fees prior to undertaking work unless this is impossible due to the urgency of the matter or the work is undertaken under the Civil or Criminal Legal Aid Schemes (under which, in certain cases, the State pays a fee set by the State for the barrister to act for a client in their case).
Obtaining such an estimate will allow you and your solicitor to shop around to ensure that you obtain the best representation in terms of quality and price. Furthermore, the barrister must update the fee estimate as necessary if circumstances change.
Solicitors often have a list of barristers whom they regularly use and with whom they have a good working relationship. However, for cases with a particular specialty solicitors will go outside this list. If a client wants to use a specific barrister that is often agreed to by the solicitor provided they are happy the barrister in question has, in the solicitor’s opinion, the experience to deal with the matter.
There is no set scale of fees charged by barristers and the fee is usually negotiated by the solicitor on the client’s behalf. The level of any particular fee has to be based upon the work done having regard to the factors mentioned above. Like any profession, the most successful barristers, who are extremely busy, will charge more. The fee is for their time and expertise; there are no extras such as outlay or travel expenses.
The barrister profession has a tradition of ensuring that no one is left without proper representation simply because of their means. In these circumstances they provide services at less than the normal commercial rate or at no cost to the client. In appropriate cases which are not covered by legal aid schemes a barrister may be willing to take on a case on a ‘no foal, no fee’ basis. This means that the barrister will not require the payment of fees unless the client is successful (in which case the fees are usually ordered by the court to be paid by the other side).
Barristers are either junior or senior counsel. When a barrister commences practice they are junior counsel. A barrister can remain a junior counsel throughout their career or, after ten years or more, they can apply to become a senior counsel, sometimes referred to as a ‘silk’. It is a position reserved for barristers of particular ability and experience. About 12 per cent of barristers are senior counsel. Judicial appointments are usually from the senior counsel ranks.
When a solicitor engages a barrister they normally bring in a junior counsel. If, in the opinion of the junior counsel, a senior counsel is required the solicitor will be informed. As this has a cost exposure the client will be consulted before a decision is made. In very complex cases more than one senior counsel may be brought onto a case.
A client may feel they don’t need the addition of counsel, preferring the solicitor to represent them from beginning to end. This is of course possible but I would not recommend it. There will be a considerable workload on the solicitor who takes on the dual role of solicitor and the advocacy role of barrister. The courtroom is the workplace of the barrister and they are best placed to speak on behalf of the client there. Also there is the possibility of settlement and this will require good negotiation skills to bring about the best result for the client. Some solicitors would feel up to the challenge but it is a big ask, especially if on the other side there is a team of solicitor and junior and senior counsel.
The work division of senior and junior barristers is that the senior counsel will do most of the advocacy work while the junior will take instructions from the senior and conduct research, case preparation and legal submissions, which are approved by the senior. However, in less complex cases or where the junior counsel is very experienced they will share the advocacy workload.
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