Their names are sometimes used interchangeably by the average person. However, they play two very distinct roles in the Australian legal system. This confusion generally comes from the overlapping responsibilities between these two legal professional, as they often work very closely together.
What is a lawyer?
A very simple explanation of a lawyer is a legal professional that focuses on the day-to-day legal matters of their clients. While they can sometimes represent their client in court when needed, the majority of their time is actually spent outside the courts and in the background laying the foundation.
Their day-to-day work would typically include drafting court documents and letters for clients, handling negotiations out of court, managing client’s legal files and advising and instructing barristers on behalf of their client.
Since there are hundreds of thousands of different laws and regulations that vary across each state of Australia, it is unlikely a solicitor is going to know it all. That is why solicitors tend to either be general practitioners where they refer complex matters on to others, or they specialise in one or two areas of law.
Clients will always need to go through a solicitor first before they start working with a barrister.
Well then, what is a barrister?
A barrister is someone who more commonly represents clients in legal disputes in front of a judge or jury and spends most of their time in court. They usually follow the instructions of the handling lawyer in terms of their in-court actions, and they do not give legal advice to clients – this is the role of a lawyer.
Barristers can sometimes be seen in a courtroom dressed in wigs and robes. This dress code is said to promote formality and maintain order and professionalism in the courts in Australia. It’s also a tradition from England that dates back centuries.
Most barristers are self-employed and work in Chambers with other barristers, so they can share the lease and other costs.
Barristers are also prohibited from picking and choosing their cases and who they would or would not like to represent. This is known as the cab-rank rule and obliges them to accept a brief if it is in their area of expertise and if they are available.
Lawyers and barristers have a natural overlap in their roles, but they are very different. Barristers are vital when a matter is going before the courts, while lawyers are instrumental at every step before it gets to the courts. If you require legal advice, you should first contact a lawyer to weigh up your options, then decisions can be made from there.