In Short
- In Australia, a “lawyer” is a broad term encompassing both solicitors and barristers.
- Solicitors typically handle legal work outside of court, offering advice and preparing documents.
- Barristers specialise in courtroom advocacy and litigation, usually referred by solicitors for representation in higher courts.
Tips for Businesses
When seeking legal assistance, understand the roles of solicitors and barristers. Engage a solicitor for legal advice and documentation needs. If court representation is required, your solicitor can refer you to a barrister. Knowing these distinctions helps you access the right legal expertise efficiently.
You have likely heard the terms ‘lawyer’, ‘solicitor’, ‘barrister’ and ‘attorney’ to describe a legal professional. For instance, the terms may have come up in a TV show. Or, if you have been involved in legal proceedings, your lawyer might have told you that you will need a barrister to help with legal work. While they all describe a type of legal professional that can help with legal issues, the four have key differences. This article will explore those differences.
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What is a Lawyer?
A lawyer is a person who has obtained a legal qualification. This is generally either a Bachelor of Laws or Juris Doctor degree, which provides them with the requisite legal training that permits them to give legal advice. Therefore, the word lawyer is a generic term to describe any legal practitioner who has been admitted to the legal profession and qualifies to give legal advice. This means that a barrister, a solicitor and an attorney are considered to be lawyers.
Just like in other fields such as medicine, lawyers (solicitors and barristers) can specialise depending on their area. For example, family lawyers focus on pre-nuptial agreements and child custody issues. On the other hand, a criminal lawyer focuses on criminal cases concerning clients accused of crimes, such as assault or rape.
What is a Solicitor?
The definition of a solicitor under the Legal Profession Uniform Law (NSW) is a legal practitioner who has completed a law degree and holds a practising certificate. This certificate is acquired after undergoing Practical Legal Training (PLT) and being admitted to legal practice. Solicitors must complete 18-24 months of supervised practice before receiving a practising certificate.
The term ‘solicitor’ is uncommon – most refer to themselves as lawyers. A solicitor is a lawyer who provides legal advice to clients in one or more areas of law. They are the first port of call when an individual or a business needs advice on a legal matter or legal services such as drafting contracts, protecting intellectual property, or assisting with business sales and purchases. They manage the daily legal affairs of their clients’ cases.
Solicitors will deal with most of the legal matters that arise and would often be the legal practitioners you seek to assist with your matter. However, solicitors will appear in court unless a barrister is required. The solicitor who is assisting you can retain a barrister on your behalf. If your matter is a complex litigation case requiring a barrister’s expertise for court appearances, you must generally maintain a solicitor before retaining a barrister.
What is a Barrister?
Where a court matter involves complex issues, a solicitor might instruct a barrister to appear in court on behalf of their clients.
The relationship between a solicitor and a barrister is similar to that between a general medical practitioner (GP) and a specialist they refer you to. Your GP will assess your problem, do some preliminary tests and give you their advice. However, they may refer you to a specialist to explore that advice and get their expert opinion. Your GP and specialist will often then work together to assist you.
A barrister will assist their instructing solicitor with drafting court documents. They will also focus on giving strategic advice on how the case will run. Barristers may also prepare submissions for when the case proceeds to a hearing. In other words, a solicitor engages a barrister for specific items of work that require their specialist skills and advice, and a client should not be concerned about duplication of work.
What is an Attorney?
In Australia, the ‘attorney’ or ‘attorney-at-law’ term is not familiar except in the case of ‘trade mark attorney‘. Instead, ‘lawyer’ or ‘solicitor’ is more common. For example, in the US, an attorney is a general term for a lawyer who has passed a bar examination and can practice law in a particular jurisdiction. Attorneys act as lawyers, but not all lawyers can perform the work of attorneys.
Unlike solicitors and barristers, a trade mark attorney will not represent clients in court. They are also bound by a different regulatory and disciplinary action system than lawyers. Indeed, a separate professional code of conduct outlines the very strict responsibilities that they are subject to. Significantly, the confidentiality between a trade mark attorney and their client does not extend to court cases.
What Circumstances Would I Need a Solicitor, Barrister or Attorney?
There are different circumstances that require either a solicitor, barrister or attorney. The common way for you to engage with lawyers is through a solicitor or attorney as a first point of contact. If the solicitor or attorney is in need of a barrister’s assistance, they can contact the relevant barrister. The following are examples of when you would engage with either a solicitor, barrister or attorney. This is not an exhaustive list but examples to provide you with guidance.
You may choose to engage with a solicitor to seek advice and document preparation for the following circumstances:
- buying a business;
- buying a premises;
- leasing a premises;
- suing an individual or a business;
- being sued by an individual or business;
- drafting or reviewing contracts;
- business transactions; and
- internal corporate governance.
A solicitor may choose to contact a barrister for assistance on the following matters:
- seek written advice on complex matters of law that the barrister is an expert in;
- assistance with drafting court documents;
- assistance in preparing court proceedings;
- court representation as advocates in litigation proceedings.
You may choose to engage an attorney for the following:
- trademarks and patents.
In Summary
| Aspect | Lawyer | Solicitor | Barrister | Attorney (in Australia) |
| Definition | Generic term for any legal practitioner | Legal practitioner providing advice and services to clients | Specialist advocate, often appearing in court | Primarily used for trade mark and patent attorneys in Australia |
| Qualifications | Bachelor of Laws or Juris Doctor degree | Law degree, Practical Legal Training, admission to practice, 24 months supervised practice | Same as solicitor, plus passing state Bar authority exams | Specific qualifications in intellectual property law |
| Primary Functions | Varies (encompassing roles of solicitors and barristers) | Provide legal advice Prepare legal documents Manage daily legal affairs Represents clients in lower courts | Provide specialist legal advice Represents clients in higher courts Draft complex legal documents Provide strategic case advice | Handle trademark and patent matters Advise on intellectual property |
| Typical Cases Handled | Business transactions Contract drafting/review Property matters General legal advice Preparatory work for litigation | Complex litigation Specialised legal matters Appeals | Trademark registrations Patent applications IP disputes (outside court) |
Key Takeaways
The term ‘lawyer’ is an umbrella term for solicitors and barristers. Solicitors provide general legal advice on various issues and handle their clients’ day-to-day legal affairs, often dealing with preparatory work for litigation. On the other hand, barristers are specialists in specific legal fields and are instructed by solicitors to appear in court on behalf of clients. In Australia, the term ‘attorney’ is not commonly used except for trade mark attorneys, who specialise in intellectual property law but do not represent clients in court. Each role has distinct qualifications and responsibilities within the legal profession.
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Frequently Asked Questions
Lawyer is a generic term to describe a person who has had obtained a legal qualification and had legal training. It applies to both solicitors and barristers.
A solicitor is a legal practitioner who has completed a law degree and holds a practising certificate.
A barrister is a solicitor who has completed the exams and requirements of their state’s Bar authority. This means they can appear in court.
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