Lawyer and Barrister: What’s Different? (2020 Update) – Lawpath
Barristers are a type of lawyer, but not all lawyers are barristers. Find out the difference in this article.
The legal profession is one of the oldest in the world. Despite this, it’s more diverse than many people think. For many the word ‘lawyer’ is synonymous with a suit, high heels and the Courtroom. Similarly, the word ‘barrister’ brings to mind images of a white wig and black dress robe. However beyond legal attire, lawyers and barristers are different – with this difference being more significant in some jurisdictions.
A common misperception is that barristers and lawyers are inherently the same, in that they are legal advocates that spend their days in Court. However, in Australia’s common law system, many advocates you see representing their clients at trial are barristers. Simply put, a barrister is a type of lawyer – but a lawyer is not always a barrister.
In this article, we’ll discuss what makes lawyers and barristers different members of the same profession. Further, we’ll explain how these definitions also vary depending on which jurisdiction they operate in.
What’s the difference between a Lawyer and Barrister?
We often hear the words barrister and lawyer used interchangeably. However, there is actually a big difference between the two. Specifically, barristers are lawyers who specialise in advocacy. ‘Lawyer’ is a broader umbrella term, which also includes solicitors.
Advocacy means representing your client and ‘advocating’ for their interests. Although all lawyers do this, advocacy particularly refers to representing clients in Court. Being an advocate means you have to also understand Court etiquette and procedures in order to represent your case effectively.
In Australia, ‘lawyer’ is the broad term referring to any person who has been admitted to the legal profession. This can be either as a barrister or solicitor. To be a lawyer, a person must complete a bachelor or post-graduate degree in law. They also need to obtain their Graduate Diploma of Legal Training (GDLP).
Lawyers tend to focus on and build experience in certain areas of law. Although you can find generalist lawyers, specialist lawyers are experts in their field and can offer unparalleled advice.
For example, you can find:
- Commercial lawyers
- Construction lawyers
- Contract lawyers
- Employment lawyers
- Property lawyers
- Criminal lawyers
- Family lawyers
For small businesses seeking legal services, a business lawyer would be most helpful. They would be responsible for drafting contracts, commencing legal action, providing advice on regulatory issues and other legal services. Similarly, a criminal lawyer would have expertise in interpreting police reports, reviewing charges and negotiating with the prosecution.
Solicitors can appear in Court as ‘solicitor advocates’, however this isn’t necessarily their specialty. Solicitors have expertise in preparing documentation, advising clients and finding legal solutions. In most cases, a barrister will only become involved where a matter is going to trial.
When legal disputes enter the Court system, barristers are retained by the solicitor in charge of the matter to appear. Barristers are experts in courtroom advocacy and preparing matters for trial. Barristers will also sometimes wear a white wig and black robe when appearing. Similar to solicitors, barristers tend to specialist in particular areas of law. For example, a barrister who acts for you in a family law matter may not be the best choice to represent you at a criminal trial.
Due to this, barristers also command a higher fee than solicitors, but work independently as sole practitioners (not in a law firm). Barristers often work in quarters called ‘chambers’. These chambers are fundamentally a shared space, close to Court, where multiple barristers work. Barristers pay a ‘floor fee’ to rent out the room in chambers.
Barristers are also responsible for obtaining work. They are usually retained by solicitors on behalf of clients. Barristers build their client base by cultivating professional relationships with solicitors and law firms. Those who have significant experience and skill can also become Senior Counsel (SC).
Barristers have a duty to accept any and all briefs, so long as it is in an area of law they practice in, known as the ‘cab-rank rule’. However, this rule does not apply to solicitors who can accept work at their discretion.
Being called to the bar
Solicitors wishing to become barristers in certain jurisdictions have to pass a series of exams. They are also required to undertake a specialised course and undergo a year of training known as a ‘readership’ under the guidance of an experienced barrister. Upon successful completion of these, they are ‘called to the bar’.
These types of lawyers engage in litigation, advising on the outcome of cases and the strategic elements of running a court case. Barristers also draft and review Court documents. As a Court advocate, they will conduct court appearances, presenting their client’s case, arguing points of law and evidence while examining the witnesses.
A barrister is a lawyer, but a lawyer is not necessarily a barrister.
A fused (and unfused) profession
Rules for lawyers and barristers in Australia vary depending on State and Territory. In some Australian States, the legal profession is ‘fused’. This means that there is no difference between barristers and solicitors. They also both belong to the same professional society. Barristers can practice as solicitors in a law firm and vice versa. Further, solicitors can also appear in Court.
In New South Wales and Queensland, the legal profession is not fused. This means that barristers practice independently, and that solicitors do not usually appear in Court. Solicitors and barristers in NSW and QLD are also members of separate professional societies. For example, the NSW Bar Association and the NSW Law Society.
Lawyers and barristers have a natural overlap in their roles as members of the legal profession. However, they are not the same, most notably so in NSW and QLD. Barristers are vital where a matter is going to trial. Solicitors are instrumental at every step before that preparing claims, affidavits and correspondence. Both barristers and solicitors are lawyers – despite their roles in the legal process being different.
If you have questions on which type of legal professional is right for you, a lawyer can help you weigh up your options.
Jackie is the Content Manager at Lawpath and manages the content team. She has a Law/Arts (Politics) degree from Macquarie University and is an admitted solicitor in the Supreme Court of NSW. She's interested in how technology can help shape the future legal landscape.