In New South Wales, there are two types of legal practitioners: solicitors and barristers. Barristers are legal practitioners whose principal work involves presenting cases in courts and other formal hearings such as tribunals. They also undertake a variety of other work, providing specialist legal advice and acting as mediators, arbitrators, referees or conciliators.

Barristers work in private practice as independent sole practitioners. In many cases people make contact with a solicitor first who will carry out the preliminary background work on a particular case to prepare a ‘brief’ for a barrister.

Independence
The independence of barristers is vital to our system of justice. It ensures legal representation for everyone, without fear or favour. Barristers cannot form any business association with partners which might compromise, or even appear to compromise, that independence. Although most barristers group themselves together for convenience in offices known as 'chambers', and while they may gain from the general expertise of their colleagues in these chambers, they practice as individuals. No shared financial interest in fees or profits connects them. Every barrister is solely responsible for his or her own work. Fees are not shared.

Nor are they tied to any particular client. A barrister can appear for the government one day and against it the next.

Some barristers work for the government full-time, including crown prosecutors and public defenders. These barristers have statutory independence, which means that parliament has passed a law that enables them to provide their services to the government of the day, no matter which political party is in office.

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The ‘cab-rank rule’
The full range of the Bar's expertise is available to anyone who needs it. No client is disadvantaged by being unable to brief a barrister because that barrister is in partnership with the opponent's lawyer.

The 'cab-rank' rule ensures a barrister's independence. The individual barrister is available to be instructed on behalf of the clients as the need arises and to bring to bear the barrister's specialist advocacy and advisory legal skills to the client's particular and individual problems. The barrister is the 'servant of all'.

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Duties to the court
All barristers have a duty to their clients. In a position of trust and confidence, they must, by any legitimate means, devote themselves entirely to clients' legal needs.

However, when they are admitted, barristers are sworn in as 'officers of the court'. As such, they must observe duties to the law and to the court. When acting as advocate and counsel, while pursuing a client's case by all legitimate means, a barrister must not mislead the court or an opponent and must acquaint the court with the true state of the law whether or not it favours a client's case.

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The New South Wales Barristers' Rules
Duties to the law and to the court require barristers to maintain a high standard of legal learning with a commitment not to assist or participate in a breach of the law.

These duties are reflected in greater detail in the New South Wales Barristers' Rules. The fulfillment of these duties, which ensures that the client is properly advised and represented according to law, requires the barrister to be independent and truthful in advising and representing a client. In that sense the barrister is 'servant of none'.

New South Wales Barristers' Rules are made by The Bar Council of The New South Wales Bar Association. They are required to be consistent with the Legal Profession Act 2004 and regulations made under it. The New South Wales Attorney General may disallow rules if he or she receives advice they are restrictive, anti-competitive or not in the public interest. Copies of the current New South Wales Barristers' Rules are available from this web site.

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What does QC or SC mean?
The letters QC or SC after the name of a barrister indicate that he or she is a senior counsel. Before 1993 such barristers were known as a QC or Queen's Counsel. In New South Wales, QCs were appointed by the governor of the state, upon advice from the Attorney-General, usually after consultation with the president of the New South Wales Bar Association. In 1992, the New South Wales Government announced that no further appointments would be made. The Bar Association established its own equivalent rank of senior counsel (SC) who are appointed after an exhaustive process of consultation with members of the profession and the judiciary. The Senior counsel selection protocol is available from this web site.

Senior counsel comprise about 14 per cent of the practising Bar. They are barristers of seniority and eminence. Barristers apply to 'take silk' when, in their judgment, their standing in the profession will sustain the changed status. It is a career decision similar to many other occupations, for instance an academic who applies for promotion to a professor.

Senior counsel appear as advocates at trial or on appeal and advise in particularly complex or difficult cases. They are often instructed in addition to other counsel because of the importance or the complexity of the case. The second lawyer will usually be another barrister or may be a solicitor of appropriate skill and experience.

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Finding the right barrister
Anyone in need of legal advice can contact barristers directly, but only for work which barristers may undertake, according to the New South Wales Barristers' Rules. However, the barrister then has an obligation to inform their client whether or not the case requires the involvement of a solicitor. Barristers must also inform their client if the legal service they seek is not barristers' work. Barristers cannot pick and choose their work if it is referred by a solicitor and are bound to accept those matters 'without fear or favour'. The only restrictions are those made in the best interests of the clients, or the practical dilemmas of cases for which the dates overlap or which are matters outside the barrister's expertise. These restrictions are set out in greater detail in the Barristers' Rules.

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How to contact a barrister
The Bar Association maintains a database on its web site called ‘Find a barrister’, which contains the contact details of New South Wales practising barristers who are also members of the Bar Association, and who have agreed to their details being made available. It is not a comprehensive list of all New South Wales practising barristers.

The Association also has a register of holders of local practising certificates, which is available for inspection at the Association's office during normal business hours.

The majority of barristers' chambers are located in Sydney, but some are based in Parramatta, Newcastle, Wollongong, Canberra, Lismore, Orange and other country centres.

Barristers grouped in particular chambers usually share a clerk who organises their workload, negotiates their fees and can answer questions about the expertise or type of service which members of the chambers provide.

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Barristers' fees
Inquiries concerning fees should be made of individual barristers or their clerks.

Fees may be charged on a time basis, by the hour or by the day, or may be charged upon a fee for service basis as a 'brief fee'. For instance, if a barrister charges a brief fee for an appearance in court, that fee might cover all preparatory work and the first day of the hearing, but additional fees may be charged for conferences, consultations and preparation. If a brief fee is charged, there may be further fees on a 'refresher' basis for subsequent days.

The Legal Profession Act 2004 includes requirements in relation to the legal fees which may be charged by barristers and solicitors. A barrister's fees should generally be the subject of a costs agreement, entered into in accordance with the Act.  Barristers usually enter into such an agreement with the solicitor, not the client directly. The exception to this is when a client is briefing the barrister directly, without the involvement of a solicitor.

The Act also requires barristers (and solicitors) to disclose to their client a range of matters including the basis of calculation of legal costs and an estimate of total legal costs (or a range of estimates). The disclosure should be made before the barrister (or solicitor) is retained, or as soon as practicable after the barrister is retained. The disclosure must be made in writing.  If the disclosure is not made in accordance with the Act, the client need not pay the costs until they are assessed under the Act.

The provisions of the Act relating to costs are extensive.  The provisions are found in Chapter 3 of the Legal Profession Act 2004 and Part 9 of the Legal Profession Regulation 2005.

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Pro bono instructions
The Bar has a long tradition of providing legal help to the community free of charge. This commitment continues today although it is not recognised as widely as it should be. It involves the provision of legal services without cost to members of the public. It also takes the form of legal assistance to the legislature and individual members of parliament with regard to proposed legislation or amendments to existing legislation.

Barristers may undertake work on the basis that they are paid only if their client's case succeeds. Many donate their services in matters where there is no likelihood they will ever receive payment. Most barristers undertake some pro bono work.

Inquiries can be made directly to LawAccess New South Wales, the state government’s 'one stop shop' providing access to legal services and assistance on 1300 888 529 or by visiting their web site at www.lawaccess.nsw.gov.au.

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Dispute resolution services
Many civil matters can be settled without having to go to court by using a range of methods known as dispute resolution services. These include the use of barristers as arbitrators and mediators.

Lists of barristers available for alternative dispute resolution may be obtained from this web site.

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The role of barristers: Remarks by Sir Owen Dixon
One of the finest statements of the role and functions of barristers is found as part of the remarks of Sir Owen Dixon, Chief Justice of the High Court of Australia from 1952 to 1964, a Justice of that Court from 1929 to 1952, and a barrister from 1910 to 1929.

From the remarks of Sir Owen Dixon on his swearing in as Chief Justice of the High Court of Australia:

The Bar has traditionally been, over the centuries, one of the four original learned professions. It occupied that position in tradition because it formed part of the use and the services of the Crown in the administration of justice. But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.

The work of solicitors in the administration of justice has the greatest possible importance, but their allegiance is perhaps more to their clients who have a more permanent or at all events a longer relation with them than the transitory relations between client and counsel when the full enthusiasm and force of the advocate are attached to the individual for a short space of time. I would like to say that from long experience on the Bench and a not much shorter experience at the Bar there is no more important contribution to the doing of justice than the elucidation of the facts and the ascertainment of what a case is really about, which is done before it comes to counsel's hands. Counsel, who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.

I think it is hardly useful to refer to the past except to explain the present. But my work at the Bar covered a period when I was younger and when perhaps according to the ordinary nature of man he derived greater pleasure and excitement from his activities. The activities at the Bar are greater than those on the Bench, and the responsibilities are no less.

21 April 1952 85 Commonwealth Law Reports XI-XII

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