Barrister or Solicitors?

There are many different answers to the question “what is the difference between a barrister and a solicitor?” but this article concentrates on how dealing direct with a barrister differs from dealing with solicitors (who may in turn engage a barrister on your behalf from time to time).

First, some history : civil courts have always worked on the principle that a judge makes a decision after having heard from both parties and having considered the evidence which each party produces, and in any given case there will be a number of stages at which a judicial decision of some kind is made, before the final hearing (trial) at the end of the process at which a judge will make the final determination.

For reasons of efficiency, at some initial stages a judge may make a decision “on the papers” after reading written submissions from each party, or a judge may pro-actively make a decision which is unlikely to be contentious without first having submissions from the parties but with both parties having a right to request a hearing within 7 days at which the decision will be revisited.  But the fundamental principle is that each party has an opportunity to address the judge when a decision is to be taken.

In past centuries, at the initial pleadings stage, each party’s overall “case” - i.e. argument - was “pleaded” by each party’s barrister before a judge at a hearing, but nowadays, at the pleadings  stage, pleadings are simply presented in written form and are sent to the other side and filed at the court office without a judge needing to be involved at that stage -  unless one side claims that the other side’s pleading is defective in which case there would then be a hearing to decide that question.

A party may wish an advocate to represent them at each stage where there is a hearing, and to draft written representations at a stage when a decision is to be made “on the papers”, or draft pleadings at the pleadings stage, and for many centuries the courts have controlled who is allowed to represent a party at such stages, restricting representatives to those who are “learned in the law” who have been formally “called to the Bar” - i.e. barristers.

The number of barristers available to appear at a hearing in any particular locality, particularly before the invention of the railways, was often limited so it was important for barristers not to be “conflicted out”, and it has traditionally been the case that each barrister is an individual practitioner: barristers are not in partnership nor does one barrister employ another.

This means that each barrister personally undertakes discrete items of work at each stage of the litigation - and prior to litigation in the pre-action advice stage. Each piece of work, whether it be representing a client at a hearing, drafting a pleading, or providing comprehensive advice in the form of a written Opinion, is a discrete piece of work with a start and end, generally for a fixed fee, and it is important that this is so because many tasks undertaken require concentrated effort - particularly representation at a hearing - such that a barrister can only carry out one piece of work at a time.

This meant that there was a “gap in the market” for people who could keep the litigation process going, over the many months between each key stage when a barrister would be engaged to do a particular piece of work. To take one example, at one time the court in Westminster has a practice of  putting up a notice outside requiring parties to a case, or their representatives, to appear before the court the next day and if they failed to do so for three consecutive days their whole case would be “struck out”. So there was a need for an agent to check the board every day. That gap in the market is the origin of what are now termed “solicitors” who, in order to be able to provide a continuous service, normally practice in partnership with other solicitors, and have employees some of which are qualified solicitors and some of which have lesser qualifications and have a lower charge-out rate.

Courts and other tribunals nowadays are a little more user-friendly than in previous centuries, and what is now the solicitors’ profession has developed over the years so that there is now considerable overlap between what barristers do and what solicitors do, with solicitors providing legal advice, and drafting some documents, and generally only turning to the cadre of barristers where more specialist advice or drafting is required as well as, of course, if there is a hearing.

At one time solicitors were always needed - the Bar Code of Conduct used to actually prohibit a barrister from dealing direct with a client without a solicitor intermediary. That rule was abolished in 2004 so it is now possible for clients to engage a barrister directly to provide an initial written Opinion and subsequently to carry out each piece of work required at each stage of litigation. So you can now choose whether to engage solicitors or whether to engage a barrister direct.

If you engage a firm of solicitors then you can normally send them an email at any time, asking a question, and you should receive a reasonably prompt response, if not from your usual contact at the organisation then from someone else in the organisation. But barristers do not work in that way. In order to manage their workload, they "package" the services they provide into specific defined pieces of work, with a Client Care Letter for each piece of work specifying the work and the fee.

If you engage a barrister directly you may find that when you ask for something (for example if, following receipt of the initial written Opinion, you pose a series of questions which you would like detailed answers on) the barrister explains that that is not included in the work for which a fixed fee has been paid, but would be a new piece of work for which a further fixed fee will need to be quoted. This way of working provides transparency about costs but some clients can find it somewhat artificial. Most clients get the hang of it and can see its advantages but for a minority of clients it seems alien and, for example, after agreeing the terms of a Client Care Letter setting out work to be done for a fixed fee based on the barrister considering a set of documents obtained, the client will, immediately upon paying the fee, send the barrister further specific questions (or perhaps further documents which they have just got round to scanning in) so that a new fixed fee, taking account of the extra work which will be entailed, needs to be quoted and a replacement Client Care Letter sent.

By contrast if you engage a firm of solicitors the firm will not itemise charges for each piece of work as the matter proceeds, and will (within reason, at least in the early stages) be unfazed by some material turning up in a haphazard way, as the firm will simply charge an hourly rate for all work done, asking you initially to provide a lump sum "on account" and only troubling you for further payment when the lump sum is about to run out and a further lump sum payment is needed. Although it is the firm which decides who within the firm does the work and who your contact within the firm is to be - so that you don’t necessarily have direct contact with the person in the firm doing the work, and certainly don’t have direct contact with any barrister the solicitors engage - nevertheless some clients prefer this as they don't have to think in terms of specific pieces of work being done (it is all just one overall matter which the firm of solicitors are, one way or another, taking care of) nor be as disciplined in thinking in one go of all the questions they want to ask at a particular stage.

Being able to fire off an email to a firm of solicitors at any time (rather than having to marshal your thoughts at each significant stage, when it is natural for a further written Advice to be provided, so that the Advice can cover all the questions you wish to ask) sounds a useful facility but it is not necessarily as useful as it sounds. If you think about it, it is obvious that even the solicitor who you usually deal with (let alone any solicitor who has to stand in to answer an email) cannot keep all the details of all the many cases they are dealing with in their mind all the time, and for reasons of efficiency and cost-effectiveness they are not going to want to spend a long time reading the file every time they receive an isolated email query, so there may be a tendency for answers to isolated email queries to become fairly broad-brush standard responses. Or when pressed a solicitor may say “well in this sort of case it is often X but sometimes it will be Y and, at the appropriate time we will seek Counsel’s opinion on that…”.

In fact there is not really any realistic alternative to a lawyer – whether barrister or solicitor - doing work in discrete units from time to time with each unit being of sufficient substance to justify taking time to properly refresh their memory of the case before completing that unit of work. A solicitor answering isolated email queries from the client between substantive units of work can provide a feeling of reassurance for the client but the actual information imparted in response to each isolated query is often only a repetition, in fairly general terms and perhaps in slightly different words, of advice previously given. It saves you having to look back for advice previously given but that is all.

Once you get into the rhythm of firing off an email query to the firm of solicitors every time you think about the case, rather than looking back at past advice to see if it covers the point, the fact that a large number of emails accumulates means that it would not be easy to find past advice in any event, and if you did find an email on the point it may not be as definite as you might have liked because it was asked and answered in a particular context. By contrast a more formal written Opinion or Advice from a barrister, as well as answering any specific questions posed, will give an overall view and context which is likely to still be useful for reference in a few weeks time. 

So you have the choice of engaging a barrister directly or going to a firm of solicitors. If you engage a barrister directly it is likely to be less expensive, all other things being equal, but you need to be aware of the way barristers work. On the other hand if it is essential to you to have a lawyer to be available to you all the time, you need to engage a firm of solicitors.

This page was lasted updated in June 2026          Disclaimer