I'm often asked what the difference is between a barrister and a solicitor. If you google that question you'll get all sorts of strange answers, including my personal favourite:
Barristers can be distinguished from a solicitor because they wear a wig and gown in court. They work at higher levels of court than solicitors and their main role is to act as advocates in legal hearings, which means they stand in court and plead the case on behalf of their clients in front of a judge.
That may be case overseas, but in New Zealand we did away with the wig about 20 years ago, and we have always had what is referred to as a "fused bar", meaning that both barristers and solicitors can appear in court.
So what is the difference? The key differences are these:
- With a few exceptions, barristers are lawyers who specialise in court work. They don't tend to do transactional work, such as advising on house or business sales and purchases, preparing wills, or forming trusts. That work tends to be done by solicitors.
- Barristers don't practice in partnership in firms with other lawyers. They do often share premises together, which are referred to as barristers' chambers, but where they do that they still operate their own practice separately and independently from each other.
- Barristers also do not operate trust accounts, and do not handle clients' money.
- In most cases barristers need to receive their instructions from a solicitor, rather than from the client directly. The solicitor is referred to as the barrister's "instructing solicitor". In much the same way as specialists in the medical field will sometimes require a referral from a GP, a barrister will often require a referral from a solicitor.
In many other respects barristers and solicitors are essentially the same:
- Both barristers and solicitors have the right to appear in Courts and Tribunals in New Zealand.
- Barristers and solicitors are "admitted to the bar" after completing a law degree and a professional legal studies course.
- Both barristers and solicitors can also be referred to simply as lawyers.
- All barristers and solicitors in New Zealand are required to belong to the New Zealand Law Society, which oversees the profession.
So why would you choose a barrister or a solicitor? In most cases:
- If you are involved in complex court proceedings, which require specialist knowledge or expertise and are likely to result in a court hearing, you are often best advised to instruct a barrister.
- If you have a transactional matter such as a business or house sale or purchase, lease, will, trust or contract you need advice on, you are best advised to see a solicitor.