Lawyers in England
In England and Wales there are two types of lawyers for the purposes of family and civil law: solicitors and barristers.
Solicitors have offices, either on their own or in partnership with other solicitors as firms. Some are very specialised and some are more general practitioners. As a client, you will contact a solicitor who will run your case, advise you initially and then represent you. The solicitor will
- advise you in the first meeting and in writing
- talk to you on the telephone as the case continues
- write to you regularly
- write to the other party in the case or their solicitor if they have one (they are not allowed to write to the other party if they are represented by a solicitor)
- draft court papers, statements and applications for you and start court proceedings
- represent you at some hearings; otherwise a barrister will represent you.
Solicitors have “rights of audience” (i.e. can represent you) in most proceedings in the Family Court and the County Court and High Court. Nevertheless, depending on the case, the solicitor’s workload etc., your solicitor may instruct a barrister to represent you at a hearing.
Solicitors’ charges are almost always based on the time spent, based on an hourly rate plus 20% VAT (unless you live outside the EU). They record their time at units of 1/10 of an hour. You will probably be asked to pay money on account at the start of the case and you will then be sent regular bills (often monthly, or less often if not much happens in your case) and then be asked to top up the amount on account. Money on account is kept in a separate bank account and the solicitor cannot touch it until you have been sent a bill. Until then it remains your money. The solicitor’s bill will also include any expenses, such as court fees, expert fees and barrister’s fees.
When deciding on a solicitor, hourly rates can be a poor guide to overall costs: an experienced solicitor can get something done in half the time needed by an inexperienced solicitor whose hourly rate is 30% less: you would still save money with the more experienced solicitor. Some solicitors now charge fixed fees for specific stages. That means that on some cases they will spend a lot less time than average and you pay more and the solicitor makes a higher profit while in other cases the solicitor might spent a bit more time on the case and has to find money to cross-subsidise that. There will come a point when the fixed fee will no longer work and there is probably a clause in the terms of business that allows that solicitor to charge on an hourly basis at some point.
Barristers usually specialise in one or two areas of law. They mainly do two things:
- represent parties in court and
- advise in writing or in a conference at strategic points in a case.
The solicitor will send the barrister written instructions (or a “brief” if it is for a hearing), which is a document summarising the case and setting out the issues that the barrister needs to advise on or bear in mind when representing the client at court. This will also enclose copies of all relevant documents and correspondence in the case.
Barristers work in chambers, which are effectively shared offices. In London they are traditionally based in or around the Inns of Court around Chancery Lane. They have clerks, who deal with the administration of the chambers and negotiate the barristers’ fees. They have meeting rooms and mostly a desk in a shared room because they are not there a lot of the time, but in the library doing legal research, at court or in a conference. In some chambers (especially those dealing with criminal law) barristers hot-desk.
Some barristers receive a special recognition of seniority from the government and the title Queen’s Counsel. This does not in fact mean that they work for the Queen, but it gives them the right to put “QC” behind their name and wear different gowns (with silk trimmings so QCs are sometimes called “silk”). In complex cases and appeals a QC would sometimes work together with another barrister who is not a QC (a “junior counsel” as opposed to a QC, who is a “senior counsel”) and both would charge separate fees. However, QC can now also act alone. It is very competitive to be awarded the title QC and there are many experienced and very good barristers who do not get the title. Each year many barristers apply and only a small number are made QCs.
Barristers’ overheads are generally lower than those of solicitors and their hourly rates are also therefore generally lower. Nevertheless, your solicitor will in most cases negotiate a flat fee each time your barrister is instructed, e.g. a conference to advise you or a hearing. For hearings that last more than a day, barristers tend to charge a “brief fee” for the preparation and the first day and any conference just before the hearing, and a “refresher” for each further day, which is usually lower. Sometimes the clerks will only quote a fee once the barrister has had a look at the instructions or the brief and can say how many hours work will be involved. It will also of course depend on the seniority of the barrister. QCs charges are higher than those of other barristers.
A fee is usually payable for a hearing even if the hearing is cancelled, e.g. because the case settles at the last minute, because the barrister can then not find other work for the time kept free. The clerk will usually tell the solicitor when the brief for the hearing is deemed to be due.
Direkt Access for Barristers
Some barristers have an additional qualification which allows them to work on the basis of “direct access”, that means that any member of the public can instruct them direct without a solicitor. This can be an efficient way to get representation at a hearing for someone who is representing themselves because they cannot afford the legal fees of full representations. However, there are a number of drawbacks:
- Barristers on direct access usually charge a higher free than if they are briefed through solicitors (because the case will not be prepared for them).
- Barristers are not allowed to file court papers so you still need to do that yourself.
- As a result barristers also have no experience in completing forms and drafting standard documents. It may take them a lot longer (and be more expensive) if you get a barrister to help you to complete a divorce petition form, for example, than if a solicitor did it for you.
- Barristers spend most of their work in court, so a barrister you may have consulted directly may be on a long case when you need urgent advice.
- Either way you should get comprehensive advice early on, so you do not make applications (or defend applications) that have poor chances of success because that would be a false economy and you could be spending more on costs overall.
Direct access works for some people in some cases, but it is not a solution to save money in all cases..
12 May 2016 by Andrea Woelke