Barrister or Solicitors - fixed fee or hourly rate?

There are many different aspects to an answer 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) in a civil (not family or criminal) legal dispute.

About Barristers

By way of background, note that litigation consists of several stages and can take up to a year or more because of the time between each stage. There are gaps of a month or several months between each stage, and these are built in to the deadlines specified in the directions given by the court or other tribunal. The reason why there are gaps is because each party has to have time to consider the pleadings or other documents put forward by the other side, and also because some stages require a decision by a judge and each case has to wait its turn for a judge to be available. And there will also typically be a staged process - such as an application to the Land Registry, or following a pre-action protocol - before the formal litigation even commences. 

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

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

This means that each barrister personally undertakes a discrete piece of work at each stage of the litigation - and prior to litigation in the pre-action stages and also initially when advice is first sought. 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 defined piece of work with a start and end, generally for a fixed fee. Many tasks undertaken require concentrated effort - particularly representation at a hearing - such that a barrister who is an independent individual, can only carry out one piece of work for one client at a time.

Solicitors - past and present

Long before the invention of the railways, and before there was a public postal system, the courts had a practice of requiring each party, or someone representing each party, to attend the court office at Westminster on "return days" to progress their case through the system administered by officials, which depended on the return of a succession of judicial writs by the sheriff. These were not hearings before a judge (at which each party would be represented by an advocatus - the forerunner of  barristers) but just formal steps in the administrative process of litigation. At the "return days" there were three days of grace, a fine for late appearance, and if the return was missed completely the case was discontinued and a new writ had to be issued for a new return date, probably in the next legal term.

There was no objection to a party's servant attending the court office at Westminster in place of the party themselves, but whether attending personally or sending a servant, it was an inconvenience for those who lived far from London. So there was a gap in the market for someone - an attornatus - who could go to the court offices in Westminster on the return days, on behalf of a party, and generally ensure that the correct administrative steps were taken at the appropriate time throughout the litigation process. That gap in the market is the origin of what are now termed “solicitors”. Originally "solicitor" referred to a function: progressing a party's cause or, in other words, being "solicitous" for the cause. At one time the courts took a dim view of "common" solicitors pursuing a business of attending the court office for multiple clients, but eventually they came to be accepted, and "solicitor" became the professional title for someone who helped clients through the jurisdictional jungle, giving general advice. 

Much has changed since the the days when the offices of the King's courts were based in Westminster Hall. His Majesty's Courts and Tribunal Service now has offices for courts and specialist tribunals throughout England and Wales. And the role of solicitors has expanded with the modern solicitor's profession taking in the work of attorneys, proctors, and scriveners. Solicitors now carry out conveyancing and other legal transactions, and handle Wills. Such work is known as  "non-contentious business" because although it may involve negotiation, it does not involve litigation. In the Victorian era the landed gentry would often engage solicitors on a continuous basis to manage their estates. Solicitors projected the image of being general problem solvers who were always on call. The "leave it all to me" and "we are always available at the end of the telephone" image continues in modern times, at least in theory, when most clients are  more modest landowners who only infrequently require a solicitor's services. Such continuous services will inevitably be charged at an hourly rate, rather than as a fixed fee, or rather at several hourly rates depending whether the work was carried out by a partner, by another solicitor, or by a lesser qualified, or unqualified, member of staff.

Because there are a large number of solicitors' firms throughout England and Wales, and because solicitors typically provide general, rather than specialist, advice, so there are many to choose from, the possibility of being "conflicted out" is manageable, even where solicitors practise in partnership, which they invariably do. Practising in partnership, and having employees, means that firms of solicitors can, where necessary, provide a continuous service - if one solicitor within the firm is away or busy on another matter, another can take up the slack. 

With regard to "contentious business" - litigation - whilst there do exist expensive niche firms of solicitors (colloquially called "City firms" though obviously not every firm which happens to be in a city is an expensive niche firm ) who have a high level of specialist expertise akin to specialist barristers, most solicitors' firms confine themselves to offering more general advice in legal disputes, relying on the fact that a barrister will be engaged from time to time for specialist advice, drafting and representation at hearings.

With regard to the original solicitor's specific function of "soliciting causes" in the court office, even before the reform of the court system by the Judicature Acts, towards the end of the Victorian era, the formal steps in litigation had become much fewer in number and could usually be completed by post if that was more convenient than physical attendance at the court office (and documents were served on other parties by post rather than requiring to be delivered by the sheriff). So instead of having to have detailed knowledge of the various judicial writs and the offices which issued them, the Victorian solicitor's skillset, with regard to "soliciting causes", became mainly a matter of being familiar with the process for serving and filing documents in accordance with court rules, and being able to offer reassurance and general advice to the client about the progression of their case, particularly in the long gaps between the stages at which a barrister would be engaged.

in the late 20th Century, the Civil Procedure Rules were redrafted to the process simpler and easier to navigate and, at around the same time, many of the rules which obliged litigants to engage solicitors in "contentious business" (such as the rule that a barrister could not be engaged directly - only via a solicitor - and the rule that only a solicitor - not a director - could file and serve documents on behalf of a limited company in the High Court and County Court) ceased to apply. Of course, for some procedurally complex litigation, solicitors are required anyway. A minority of cases involve multiple parties, perhaps even group litigation with hundreds of claimants, or an insurer might be suing in the name of the insured, or there might be an international element where proceedings in different countries are needed, or at least have to be considered. There might be risk-sharing between client and solicitors where a case is progressed on a "no win, no fee" basis. But, absent such complications, in the usual case, serving and filing documents, by post, email or via the court/tribunal's website is straightforward and, if carried out by a firm of solicitors,  is in fact invariably carried out by unqualified staff in the firm.      

So in most cases a litigant does not need solicitors to file and serve documents, but some litigants nevertheless would rather pay the extra cost of having a solicitor as well as a barrister, rather than engaging a barrister direct, in order to have the kind of  "leave it all to me - we are always available at the end of the telephone" support which solicitors have traditionally provided.

Do you need Solicitors or a Barrister?

So, in summary, if you want to buy or sell property, create a trust, or make a Will, then you should consult a solicitor.

On the other hand if you have a legal dispute then you need to engage a barrister.

It used to be the case that whenever you engaged a barrister you were obliged to also engage a solicitor as well, particularly if there was litigation, but now that the formal steps in the litigation process can be taken online or by email, it is possible in most cases for a client, with some advice from a barrister, to themself deal with those formal steps without requiring a firm of solicitors to "conduct litigation". But some clients still prefer to engage a firm of solicitors as well as a barrister for the reasons explained below.

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. As explained above, in order to manage their workload, as independent practitioners, barristers "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 fixed 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 actually 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 need 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 the barrister's opinion on that…”.

In fact there is no 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 first taking time to properly refresh their memory of the case. 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, 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 accumulate means that it would not be easy to find past advice in any event, and so the temptation is to always send another email whenever something occurs to you. But over time this can significantly increase costs. 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 if you have a legal dispute you have the choice of engaging a barrister directly or going to a firm of solicitors (who will engage a barrister on your behalf from time to time). 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 available to you all the time, you need to engage a firm of solicitors.

Note: under the Legal Services Act 2007 is is now possible from barristers to join law firms but this is unusual and the explanation above of the respective roles of solicitors and barristers still applies in the great majority of cases.

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