Many barristers provide free advice under schemes run by legal charities such as the Bar Pro-Bono Unit which provides advice and representation for people who do not qualify for Legal Aid but who cannot afford to pay a lawyer. However, such schemes aside, barristers do not generally provide free advice as part of their normal practice whereas many solicitors firms will provide 30 minutes free advice to new clients. This article tries to explain why there is this difference.
First of all it is necessary to give some historical background about the roles of barristers and solicitors. Originally the role of solicitors (or attorneys-at-law as they were historically known) was quite limited. They did not give legal advice - only barristers gave legal advice - but carried out certain administrative tasks which were made necessary by the court process, on behalf of the client. Originally there was no rule which required a client to go to a solicitor, rather than direct to a barrister - it was simply a matter of convenience given that, particularly before the development of railways in the 19th Century, it was easier to go to a solicitor in a local town rather than travel to a city where the courts and, in consequence, where barristers, were located.
However, gradually over the course of the 18th and 19th Century a practice became established whereby it was not possible to go to a barrister directly but only via a solicitor. As a result, throughout the 20th Century the normal sequence of events, where someone had a legal dispute or problem was as follows (and this is still the case where someone goes to a solicitor rather than, as is now possible, direct to a barrister).
The client makes an appointment to see a solicitor and, at the meeting, the solicitor takes down outline details about the dispute and takes copies of any relevant letters, contracts, or other documents which the client may have brought with them. This may well be a meeting of about 30 minutes provided free. At this initial meeting the solicitor would give some general information about legal principles which might be relevant and about the process to be put in hand - i.e. letters would be written to the other side, hopefully agreement might be reached, litigation might be a possibility if persuasion by letter failed to achieve a result.
After the meeting the solicitor writes to the client. This letter might be a bit more definite than the discussion at the meeting because before writing the letter the solicitor will have an opportunity to at least skim-read the documents which the client had provided (if they are not to long or too numerous) and time to think for 5 or 10 minutes about the case. The letter might contain what could be called "advice" but would typically not be very definitive advice, for two reasons. First, solicitors have a wide general knowledge of the law, sufficient to be able to suggest possibilities, but not usually sufficiently in-depth to be able to come down on one side of a question or the other. Secondly, and in any event, the solicitor, at this stage, will not have all the information which the client has since the information gathered at the meeting will have been at a summary level. The letter would probably conclude by saying that the next step would be for the solicitor to write to the party with whom the client is in dispute, and that if the client wishes to proceed then payment of a certain amount of money "on account" will be required.
Assuming that the client wishes to proceed, the next thing which happens is that the solicitor writes to the other party. This letter, like the letter to the client, will typically be worded fairly generally. It would make some reference to some legal principle such as "breach of contract", "duty of care", "negligence", "trespass", etc. which was said to be the legal basis of the client's claim, and then make a demand e.g. that a sum on money be paid, that liability be admitted, or that the party ceases to act in some way.
The result of writing the letter might be that the other party does as demanded - i.e. pays the money, agrees not to cross the client's land, etc. so that the problem is resolved. This does happen in some cases. More often, however, the other party will write back, either personally or via a solicitor they have engaged, refusing to do as demanded and saying why they are refusing. The reasons why may be a legal argument or they might be factual. For example they may say that, yes they entered into a contract but it was later agreed that there would be an extension of time, given that it was agreed that further work would be done. If a factual argument such as this is made, the solicitor will probably not know, immediately, whether the client would agree with what is said or not (because only information at a summary level has so far been obtained from the client), so the solicitor will write to the client, enclosing the letter received, and asking the client to give their response to the factual assertions made by the other side. And then the solicitor will write a further letter to the other party.
The process of writing letters may continue over many months until all that can be said, has been said (often more than once) and at this point the solicitor will write to the client saying that the next step would be to issue court proceedings but, before that step is taken, it is important to get a barrister's Opinion. The solicitor would then write Instructions to Counsel, which is essentially an account of the factual information provided by the client (gleaned from the initial meeting and from the client's responses to queries raised as the correspondence continues, plus some additional question the solicitor may put to the client for clarification) accompanied by the documents the client has provided.
The barrister would then consider the material and write a fairly detailed Opinion, analysing the facts in the light of the barrister's detailed knowledge of the law, and providing an assessment of the strength of the case if court proceedings were to be issued.
The barrister's Opinion may be to the effect that there is a strong case, or that there is a reasonable case, or a relatively weak case, or the barrister might conclude, perhaps because of a particular legal rule, that, unfortunately there is no arguable case at all.
So that, in outline, is what happens when a client goes to a solicitor. Now consider the following two situations:
1. You have a dispute with a neighbour over a right of way. You go to a solicitor for a free initial meeting of about 30 minutes and that results in the solicitor writing letters (for which the solicitor charges) to the other party over a period of several months. No agreement is reached and the solicitor then says that the time has come to seek a barrister's Opinion. The barrister's Opinion is to the effect that unfortunately you have no legal case.
2. You have a dispute with a neighbour over a right of way. Instead of going to a solicitor, you go direct to a barrister (which has been possible since 2004). You have a a free initial conference with the barrister of about 30 minutes and thereafter the barrister drafts letters for you to send to the other party (for which the barrister charges). No agreement is reached and the barrister then says that the time has come for them to look in detail at all the information which has come out in the correspondence, plus some further information which the barrister might ask for by way of clarification, and write an Opinion. The barrister considers all this and writes the Opinion which is to the effect that unfortunately you have no legal case.
Now I expect when you read (2) above your immediate reaction was that the barrister had provided rather poor service because the barrister has charged for drafting letters when, you may think, in the light of the same barrister's subsequent written Opinion, the barrister ought to have known that you had no case. I expect that when you read (1) above you thought that, whilst the end result is disappointing, that's life. Most people instinctively feel that it is more acceptable if they go to a generalist who does what they can without spending too much time gathering information, and then go to a specialist and are told that there is no case, and that it less acceptable if they ask a specialist at the outset to give an "off the cuff" view based on limited information and then later, after letters have been written, the same specialist provides a proper Opinion based on more information which says that there is no case.
Now if you think about it, this reaction is probably not very logical. There is nothing necessarily surprising or wrong in someone giving one view, off the cuff, based on limited information (providing they make clear that is what they are doing) and then giving a different view when they have more information and more time to consider. But, nevertheless, whilst it may not be logical, it is an entirely understandable human reaction.
This, then, if the first reason why most barristers (unlike solicitors) do not provide a free 30 minute consultation. They do not want to risk ending up in a situation where the client feels (rightly or wrongly) that they have received poor service.
The second reason is that, as a matter of professionalism, barristers like to get to grips with a case, obtain the available information, and start off on the right foot. If a job is worth doing it is worth doing well. The longest way round is the shortest way home. So the idea of obtaining only summary information from the client at the start, drafting letters with that incomplete information, and working on the basis that the rest of the information which the client can give will come out as a by-product of queries raised by the other side during the process of correspondence, is not how barristers instinctively wish to work. It is inefficient and costs the client more in the long run because many more letters end up being written than if sufficient information had been obtained initially and the correspondence had started off with a more detailed initial letter.
It might be argued that there is nothing to stop barristers giving free 30 minute consultations, followed by a further chargeable hour's consultation (say), so that things can be done properly, and that is true, but, in practice, the "selling point" of a free 30 minute consultation is based on the assumption that 30 minutes is all that will be needed by way of consultation, so free 30 minute consultations really go hand in hand with the way solicitors traditionally deal with matters based on limited initial information.
The third reason why most barristers do not provide free 30 minute consultations is to do with the different "business model" of barristers and solicitors.
Barristers are self-employed and generally have low overheads because they share office costs with other self-employed barristers in chambers. Barristers typically spend from nothing to very little on advertising, usually relying on a website and their reputation. And because barristers spend a lot of time either in court/tribunal or working from home, a barrister's chambers will typically have less floor space, person for person, than a solicitors' office. Also it will not need to be on the high street where property costs are higher.
Solicitors' firms consist of partners, who are the senior solicitors who own the firm and receive the profits, and a larger number of employed solicitors and other staff, and their business model typically uses the "one third rule" - i.e. out of the fee charged for a solicitor's work, one third goes on the salary of the solicitor, one third is spent on overheads, and one third is profit for the owners of the firm. The one third spent on overheads includes advertising and marketing which, of course, includes the cost of free 30 minute initial consultations.
Essentially when you pay for work to be done by a solicitor, only a third of the money is going to the solicitor themselves for that work and the rest is expended on other things, including free 30 minute consultations for the many other people who just take the free consultation and don't come back, as well as various expensive marketing operations, advertising, and profit. This means that not only do solicitor's firms charge more than barristers but that the solicitors actually doing the work receive less, on average, than barristers which inevitably means that on average solicitors firms have to use more junior, and therefore less well paid, solicitors or other less qualified staff.
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