Same Same But Different - Barrister, Solicitor, Lawyer, Advocate

Since becoming a barrister, the thing people most want to know is, what’s the difference?! It’s a good question, and one that can lead to real confusion if you are in the market for some advice. 

The answer starts with a bit of history.  New Zealand inherited its legal system from England.  There, the legal profession was, (and is still to a large extent), in two parts; solicitors, who gave legal advice and dealt with commercial affairs or transactions, and barristers who appeared in Court.  Although each ‘branch’ were lawyers, their role reflected specialised training and skills. 

When New Zealand was colonised, there was too small a population (and too few lawyers) to maintain this distinction.  So, the profession was fused – meaning solicitors could work as barristers and vice versa.  That practice has endured to this day.  New Zealand lawyers all receive the same mandatory training and are usually admitted to the bar as a “barrister and solicitor”.  Their authority to practice (which is granted by the New Zealand Law Society) does not limit them to either Court work or advisory/transaction work. 

Despite this, some lawyers choose to practice as a barrister sole (shorthanded to barrister).  These people focus on litigation and court work, although this does not preclude them from doing some advisory work.  A barrister might work in “Chambers” with other barristers, (the office equivalent of a flatting situation), but will not work in partnership.  This means that a barrister will not have conflicts of interest arising out of the work other lawyers he or she works with are doing.

Historically, barristers were only allowed to take instructions from other lawyers, not directly from clients.  That rule was based on the historical divide – ie your solicitor managed the issue up to the point there was a real dispute then brought in the litigation expert if necessary.  That rule has now relaxed significantly, although for some legal problems a barrister will still need an “instructing solicitor”. 

So – whether a person is described as a barrister, solicitor or barrister and solicitor, they are a lawyer.  They have completed a law degree, and been through the approval process set by the New Zealand Law Society.  This process requires the potential lawyer to prove that they are a “fit and proper person” – of good integrity and trustworthiness.  The High Court decides whether a person meets these criteria, and if they do, they can be “admitted to the bar”.  Those admitted to the bar are the only people allowed to act on behalf of another person in our courts. 

It is a privilege to be admitted to the bar, and it carries responsibilities.  A lawyer is subject to the Rules of Professional Conduct, which sets high ethical standards which must be adhered to.    A lawyer’s conduct, quality of work and fees remain subject to examination by the Law Society.  Some of those privileges extend to clients too – for example you can tell your lawyer anything and with only minor exceptions it can never be disclosed to hurt your interests.  This is called “legal professional privilege”. 

And what of advocates?  Confusingly, in America, lawyers are often referred to as ‘advocate’ (especially on television dramas!).  However, although lawyers frequently advocate, they will almost always refer to themselves as one or more of the ‘reserved’ names – barrister, solicitor, lawyer, or sometimes in Court proceedings “counsel”.  If someone describes themselves as an advocate, consultant (except perhaps a consultant to a law firm), representative, advisor or legal expert, they may be all of those things but they are probably not a lawyer.

There are many good advocates who do good work in their chosen fields.  However, some caution may be required – there is no minimum standard to meet or admission criteria to use one of these descriptions.  So, you may be dealing with a highly qualified expert or you may not – it pays to ask.  Additionally, they may or may not have membership of a professional organisation which monitors their ethical standards, work and fees.  Without an overriding accountability, there may be poor quality control, and no limits on fees.  Finally, there is a risk in legal proceedings that information you disclose to your advocate can be used against you.  Again, it pays to know what you are dealing with.

If you are interested in a lawyer’s professional obligations and responsibilities to you, they should be detailed in their Terms of Engagement (one of our obligations is to provide these to a client at the first opportunity), or you can look at the New Zealand Law Society’s resources online.  You can also use that website to search for a lawyer.