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Qualified Barristers of the Legal Profession

 

Authentic “Barristers” as Officers of the Court

 

Authentic Barristers as Officers of the CourtSince medieval times, “lawyers, who are called to the Bar, or licensed to plead, are termed Barristers, an appellation equivalent to licentiate in other countries.” [1] The term “The Bar” thus became “equivalent to the profession of Barrister”, such that the “Call to the Bar” actually means a lawyer being “converted into a Barrister”. [2]

 

“Barristers are… in other countries called Licentiati in Jure [Licentiates in Law]. Anciently Barristers at law” were required to have substantial experience before arguing cases at Bar in the High Courts:

 

“The time before they ought to be called to the Bar, by the ancient orders, was eight years, now [by 1829 AD] reduced to five”, including training and litigation “exercises… performed in the Inns [of Court]” during a period of about two years. [3]

 

Barristers Represent the Judiciary

 

Early 19th century scholars noted that “The duties of a Barrister are to be considered honorary, and… his fees… are reckoned a gratuity, not a hire” [4] [5]. Clients traditionally pay an “honorarium” only to the Chambers (not to the Barrister), such that the Barrister is ethically free to represent the balanced Judiciary perspective of the Court.

 

Related to this practice, Barristers would receive “instructions” only from the client’s Solicitor, or a Solicitor from supporting Chambers, allowing to objectively focus on merits of the case, concentrating on the evidence which is admissible in Court.

 

As a result, being free from various current affairs of clients which may never come to Court, Barristers invest more time on advanced scholarship and engagement with the Independent Judiciary Profession.

 

It should be noted that this enhanced degree of objectivity and independence for Barristers, providing greater reputational protections, thereby enables and thus imposes a higher level of responsibility:

 

Barristers are generally required to accept cases following the traditional “Cab Rank Rule” (by which taxi cabs at the head of a queue must accept the next requesting passenger), without any prejudice nor discrimination, provided that the matter can be handled within the Barrister’s availability, competence and sphere of specialty.

 

These customary rules of practice for Barristers demonstrate the legal fact, that just as “The Bar” authentically belongs to the Court (and not the State), Barristers are actually “called to the Bar” as Officers of the Court, who are thus primarily responsible for upholding the integrity of the Court.

 

As Barristers are specially trained under Judiciary authority, they are also responsible for upholding the independence of the Judiciary.

 

For these reasons, the term “Barrister… applied to the highest class of lawyers who have exclusive audience in all the Superior Courts, the word being derived from the ‘Bar’ in the law Courts.” [6]

 

Higher Qualifications of Barristers

 

In addition to being called to the Bar as a status within the Courts, Barristers must also be specially trained under authority of the Court, in traditional “Inns of Court”:

“Every Barrister in England must be a member of one of the four ancient societies called Inns of Court”. [7]

 

Additionally, “The rank of Barrister is a necessary qualification for nearly all offices of a Judicial character… Not only the Judgeships in the Superior Courts of law and equity… but nearly all the Magistracies… are restricted to the Bar” comprised of Barristers [8].

 

This confirms that the Bar is necessarily governed by the Independent Judiciary, as those same Barristers are recruited to operate its own Common Law Courts.

 

It is noteworthy, that these principles constitute the essential reason why being a “Barrister” is traditionally considered a more prestigious higher class of the legal profession, different from “Solicitors” as entry-level lawyers providing general legal work for hire.

 

Because of the specialized training and practice requirements, and closer interaction with the Judiciary, Barristers do have a higher level of qualification, genuinely setting them apart from the basic lawyers who are State licensed in most jurisdictions to also present cases in the Courts.

 

For these same reasons, the famous “Barrister’s Opinion” is frequently sought and heavily relied upon as authoritative. The renowned practice of a Barrister’s Opinion (generically called a “Counsel’s Opinion”) is a written report, as a certified expert legal opinion. Issued by a Barrister, it is as close as possible to a Judicial Opinion, essentially representing the perspective of the Courts.

 

A Barrister’s Opinion is traditionally requested for resolving any complex legal matters, or for certifying legal facts, legal validity of a status or action, enforceability of legal rights, or the merits and prospects of success of a proposed litigation.

 

Esquire Courtesy Title for Barristers

 

Properly, only “Barristers have the rank of Esquires”, which does not apply to Solicitors as State licensed lawyers. The designation “Esquire” is essentially a courtesy title for Barristers, and not an actual peerage, by the custom of titled nobility treating them as a basic rank of nobility, as a courtesy of respect. [9]

 

However, “no dignity or title confers any rank at the Bar.” Regardless of holding even the highest nobility titles, “all [Barristers] rank at the Bar merely according to their legal precedence.” [10]

 

These historical facts further confirm that just as the true Bar of the Independent Legal Profession does not belong to the State, it is also entirely separate from nobility, and thus exclusively belongs to the Independent Judiciary Profession.

 

“When once called to the Bar, no hindrance beyond professional etiquette limits a Barrister’s freedom of action… A member of an Inn of Court retains his name on the lists of his Inn for life” [11].

 

This customary rule embodies the Magna Carta principle that lawyers must remain independent, free to challenge the authorities and oppose the interests of the State, to uphold and enforce the rights of the people.

 

This confirms that the essential role of the Independent Judiciary Profession is to govern and support an equally free Independent Legal Profession.

 

 


 

Equal Opportunity in the Legal Profession

 

As of 2015, there are fewer than 16,000 Barristers in the British Commonwealth system (of 54 countries), including 35% women and 20% minorities [12].

 

Of an estimated 2.0 million licensed lawyers worldwide [13], Barristers thus comprise only 0.8% (less than 1%) of lawyers internationally.

 

Despite the authority of the Independent Judiciary over the standing of Barristers in the Bar of the Court, the Inns of Court have full autonomy regarding membership in their own Inn as a law society:  “The Benchers… have the right of rejecting any applicant for membership [in the Inn] with or without cause assigned.” [14]

 

As membership in an Inn of Court is a mandatory prerequisite to being called to the Bar, any dominant political factions obstructing membership thereby create an obstacle to achieving the rank of “Barrister”, even if otherwise earned by merit.

 

Unfortunately, that customary practice of the Inns of Court rejecting lawyers “with or without cause”, historically, has enabled a tendency towards an insider culture of elitism, promoting discrimination.

 

This has made advancement in the legal profession seem highly politicized, preventing many of the most free-thinking lawyers from being recognized as “Barristers”, despite having earned merits meeting or exceeding all of the requirements.

 

In modern practice, the British Inns of Court strive to provide equal opportunity, and promote diversity in their membership, even internationally. However, a greater problem outside of the Inns, possibly continuing old traditions of discrimination through a new form of elitism, comes from obstacles to completing the requirement of “Pupillage”:

 

To become a Barrister, in addition to membership in an Inn of Court, it is also traditionally required to complete a one-year apprenticeship, called “Pupillage”, which is full-time work in a litigation-based law practice, under the mentorship and supervision of experienced senior Barristers.

 

Opportunities for Pupillage are severely limited to only a select few Barristers’ Chambers (British law firms), which must be granted special status as an “authorized training organization” and “approved legal environment” [15].

 

As a result, it is extremely difficult for qualified Solicitors to ever obtain the required Pupillage. According to the real internal figures of the British Bar Council, only as few as 8% of candidates are given that opportunity allowing to become a Barrister, such that a full 92% are permanently excluded from career advancement in the legal profession. [16]

 

It is noteworthy that if 100% of qualified candidates from the Inns of Court were permitted to receive Pupillage to be called to the Bar as Barristers, this would increase the number of Barristers by 12.5 times.

 

In this scenario, Barristers would still comprise no more than 10% of lawyers worldwide, and would thus continue to maintain their traditional status and prestige as the exclusive higher class of the legal profession internationally.

 

Freedom of the International System

 

The traditional British Barrister system is currently practiced in only 11 countries: England, Ireland and Wales, the Crown dependency of Gibraltar, the former colonial territories of Hong Kong, New Zealand, and some regions of Australia and Canada, and otherwise only in Northern Ireland, Pakistan and Bangladesh.

 

Fortunately, the few countries of the British system do not have a monopoly on creating traditional Barristers. An international Court of the Independent Judiciary Profession has the official authority to admit lawyers to its own Inn of Court, providing its own Pupillage arrangements, and calling them to its own Bar.

 

Such Court of universal jurisdiction can thus create fully legitimate, traditional, proper and titled Barristers, licensed by the Court to practice law worldwide.

 

 


 

Source References

 

[1] London Encyclopaedia, 1st Edition, Thomas Tegg, London (1829), Volume 3, “Bar”, at p.515.

 

[2] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 3, “Bar, The”, at p.378.

 

[3] London Encyclopaedia, 1st Edition, Thomas Tegg, London (1829), Volume 3, “Barristers”, at p.585.

 

[4] London Encyclopaedia, 1st Edition, Thomas Tegg, London (1829), Volume 3, “Barristers”, at p.585.

 

[5] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 3, “Barrister”, at p.438.

 

[6] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 3, “Barrister”, at p.437.

 

[7] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 3, “Barrister”, at p.437.

 

[8] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 3, “Barrister”, at p.438.

 

[9] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 3, “Barrister”, at p.438.

 

[10] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 14, “Inns of Court”, at p.585.

 

[11] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 14, “Inns of Court”, at p.584.

 

[12] Bar Standards Board, Practicing Barrister Statistics (2015), The General Council of the Bar of England and Wales, Research Department (21 April 2015).

 

[13] ABA Lawyer Demographics: Year 2016, American Bar Association; indicating 1.3 million American lawyers, considered to comprise 70% of lawyers in all countries, resulting in an estimated 2.0 million lawyers worldwide.

 

[14] Encyclopaedia Britannica, 11th Edition, New York (1911), Volume 3, “Barrister”, at p.438.

 

[15] Bar Standards Board, Pupillage Statistics (2015), The General Council of the Bar of England and Wales, Research Department (21 April 2015).

 

[16] Bar Standards Board, Review of the Bar Vocational Course: Report of the Working Group, “BVC Report” (2008), “Summary of Conclusions”: Articles 5, 33; “Part A”: Article 28 (key figures), Article 32; “Part B”: Article 60; Note: The official percentage of Pupillages obtained has been increasing to 30-40% as of 2016, only because of the dramatic decline in formal applicants discouraged by the obstacle of unavailability, while the real internal number of potential candidates accepted continues to support the 8% statistic from 2008.

 

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