Mason Hayes Solicitors

September 2014

Working with Counsel

There are continuing changes to the traditional relationship between the two branches of the legal profession.  It is still the case however that key distinctions still apply, albeit the lines have been blurred.

Traditionally, the bar has been a “referral profession” whereby a barrister is approached by a solicitor to act on behalf of the solicitor’s client.  Whilst it is now possible in some instances for a barrister to be instructed by a client directly, the norm is still very much for a barrister to be instructed by a solicitor.

It will however be interesting to see how the trend goes over the next few years.  From what I have seen clients who use chambers offering a direct access service will still require the service of solicitors in some shape or form.  There are commentators who suggest that there will ultimately be fusion of the two professions but I think that is unlikely to be the case, in the short term at least.   It will continue to be the case that clients will be assisted by a legal team consisting of a solicitor and a barrister.

Here at Mason Hayes we instruct from a list of preferred barristers.  There have been instances where the client has insisted upon use of a certain barrister.  However, on the whole the client will instruct one of the barristers recommended by us.

It is common practice, certainly in Commercial Litigation matters, for a barrister to be instructed in the early stages of a dispute and before the client commits to its position (either in pre-action correspondence or in pleadings).  That is so that the client is aware as early as possible what its prospects are, what the risks or evidential issues are, what the strategy is generally and what the best and worst case scenarios are.

It is important to have a barrister involved in that early stage as they will ultimately be the person who makes those arguments to the Judge.   As barristers have a better perspective of how evidence and/or legal arguments are likely to be received by the Court given their greater advocacy experience, it is important that a barrister is involved from the outset.

Equally and from the perspective of the barrister, they will have a better knowledge and understanding of the case if they have been instructed previously, rather than if they are instructed for the first time in advance of the Trial, having not been involved in the initial formulation of the client’s position or in considering evidential matters.

The best way of looking at the relationship between a solicitor and a barrister is to look at it as one of a team working together.  Whilst it is true to say that the role of solicitors and barristers can overlap in part, there is a distinct difference in skill sets and experience which means that a client will require services from both a solicitor and barrister in any substantial litigation dispute.

Until my next blog


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