Using a Barrister in Family Cases

Some solicitors undertake family cases themselves, whereas in other cases you might be represented by a barrister. Although in recent years the two professions have merged to some extent, and very recent changes have now given barristers the right to conduct a lot more by way of legal services than ever before, there are slightly different ethical considerations to be borne in mind between the two types of lawyers.

Differences Between Barrister and Solicitor

A solicitor’s duty is entirely to his or her client. That means that they are under a duty to act in your best interests at all times and cannot do anything likely to damage your interests. Barristers’ ethical duties are slightly different. Barristers have an equal duty to their clients and also to the court. What this means is that a barrister may not be able to act for you if you tell them, for example, that you want them to lie in court on your behalf. If this were to happen, in most instances your barrister would be ‘professionally embarrassed’ and would not be able to represent you.

A Barrister’s Expertise

Barristers are specialist court advocates who are specifically trained in relation to litigation and court scenarios. They have more formal advocacy training than solicitors and have higher ‘rights of audience’ than solicitors. This means that they are entitled to argue a case in any court in the land, including the Court of Appeal and Supreme Court. Unless a solicitor has obtained ‘higher rights’, he or she cannot appear in these courts (in which case their title would be ‘Solicitor Advocate.’) Barristers tend to specialise in a specific area of law, which means that a family law barrister is likely to have undertaken many cases in the Family Court before and will have expert knowledge on the particular case law that pertains to your case.

How Your Barrister is Instructed

While you may shop around for the right solicitor to represent you in your family law case, a barrister has no such choice in his or her clients. Barristers are governed by what is called the ‘cab rank rule’, in that as long as they are sufficiently experienced to do the case and are not already busy, they have to take the case. The exception to this is when a barrister is ‘professionally embarrassed’, such as in the above example, or in some instances if they are asked to represent someone for whom they have previously acted against.

What Your Barrister Wears in the Family Court

In the family court, barristers rarely wear a wig and gown. Most of the time your barrister will dress in the same way as a solicitor – in a dark suit and shirt. The exception to this in the family court is if someone has breached an injunction and the court has indicated that they may send them to prison, in which case wigs and gowns are required.

What to Do if You’re Unhappy With Your Barrister?

If you don’t like your barrister, or aren’t confident in the way they are representing you, it is possible to sack them. Through a final hearing may be a questionable time to do it, but if you are genuinely unhappy you should speak to your solicitor about getting a different barrister to represent you. If you are only unhappy with the way your case was dealt with afterwards, you can make a complaint to the Bar Standards Board (for barristers) or to the Solicitors Regulation Authority (for solicitors). That said, the vast majority of barristers are excellent advocates and work very hard on behalf of their clients, whether you are legally aided or privately paying. Remember, people tend to become barristers because they love to win!

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