Barristers vs Solicitors: What barristers want

Barristers and solicitors form the ultimate legal partnership, with an essential mutual reliance at its heart. But it is not always smooth sailing in the courtroom. Lawyers Weekly finds out the opinions of barristers.

Show me the money (and don't rip off your clients)!

According to marriage experts, money is well and truly at the top of the "contentious issues" list. And, if money issues aren't sorted out, the whole thing can end in a nasty divorce. Perhaps not so surprising, then, is the discovery that the relationship between solicitors and barristers is no different, and discrepancies over dollars can lead to a parting of ways.

"The most annoying trait of solicitors, by far, is not having money in trust before we get briefed, then not paying us, or paying us recally late, for work," says a Sydney-based barrister who wishes to remain anonymous (Barrister X).

"It's not such a problem for me, [because I do mainly] legal aid and government work, which is promptly paid, but it is terrible for commercial practitioners."

Frederick Jordan Chambers barrister Daniel Petrushnko agrees, and cites the issue of non or late payment of fees as one of the causes of relationship strain between barristers and solicitors.

"There are firms which pay within 24 hours, [but] there are firms which have taken months, and I am not talking two or three months, but more like half a year, to pay. I am still owed a mention fee from November last year," he says.

"It is a relationship killer. It impacts negatively on the relationship. If another brief comes in [from them] you say, 'It's all well and good for me to do work for you, but I want to get paid!'"

"I think [solicitors] are atrociously undertrained. They do not know the most basic things.

No one seems to be teaching them"

Barrister X

Another money issue that irks Barrister X is the amount solicitors charge their clients, especially when she has done the bulk of the work.

"Solicitors ripping off their clients [really annoys me]. I am astounded by how much they charge, especially for smaller local court matters," she says.

"My fees are usually 10 per cent of the total charged, and I do 90 per cent of the work, even drafting letters for the solicitor to send off."

Please, just tell me what to do…

According to Petrushnko, some solicitors have a nasty habit of briefing him with insufficient instructions, then being conspicuously unreachable when he tries to clarify things, thus leaving him to the mercy of cranky judicial officers.

He says his pet hate is having to stand up in a courtroom full of his colleagues and utter the phrase, "Your Honour, I don't have those instructions".

"The judge wants to know - and quite rightly so - what is happening in the matter. So if they ask [you questions] and you have to say, 'I don't have those instructions', the judge will say, 'That's not good enough. Go and get some!'" he says.

"Occasionally this happens and it really annoys me, to be honest. It's like sending in a soldier to fight for you without giving [them] the necessary protection or ammunition to perform the job."

"[Giving insufficient instructions is] like sending in a soldier to fight for you without giving [them] the necessary protection or ammunition to perform the job"

Daniel Petrushnko

While Barrister X doesn't so much complain about the insufficiency of instructions, she does have a problem with getting instructions at the last minute.

"Brief counsel early," she says.

"You don't have to get us to do much, but we will fix pleadings, evidence and other matters before it's too late. A week before the hearing is tough; there isn't much we can do at that stage."

South Australian barrister Noelle Hurley, at Campbell Chambers, agrees: "Working together from an early stage in the matter, so that the direction of the matter is controlled [is so important]," she says. "Get counsel involved earlier, even just in a guidance role. Last minute, badly prepared briefs [annoy me]."

... if you know what it is

Perhaps the only thing worse than not being briefed on time, and with instructions fit for an IKEA manual, is being briefed by a solicitor who doesn't know what they are doing.

"I think [solicitors] are atrociously undertrained. They do not know the most basic things. No one seems to be teaching them. Surely partners know about litigation and the law but, for whatever reason, this knowledge is not passed down to the more junior solicitors," says Barrister X.

"I spend so much time - happily actually - training junior solicitors and letting them call me when they are in court and really stuck on something. What a disgrace that they can't call one of their seniors at their firm!"

The key, says Barrister X, is for senior lawyers to really take the time to mentor and train the juniors before letting them loose in the courtroom. She says this is essential, not least because she sees institutionalised practical training as superfluous.

"If the solicitors were lazy their lack of knowledge would infuriate me, but I see they are eager to do a good job, but they just don't know how. And College of Law is useless, of course," she says.

"Senior solicitors MUST mentor and train juniors but, then again, I know turn over [in firms] is high, so I guess many firms can't be bothered."

Petrushnko, too, has come across solicitors who are underprepared for the rigours of running a case in court, though concedes that this is perhaps a necessary evil.

"A solicitor has to start somewhere," he says.

"It is all about the people who have got a level of responsibility at firms training the solicitors better. We all start out from law school diving into deep water and not knowing what to expect … we all have to start somewhere. Even for the most experienced Silks there is a starting point."

Don't let me be misunderstood

According to Petrushnko, many of the relationship issues between barristers and solicitors could be resolved if they just understood each other a little better.

"Sometimes I find that solicitors don't really know what barristers' duties are. We all have to work together to achieve the best result for the client. One has to prepare the case well and the other has to present the case well in court," says Petrushnko.

Hurley agrees that, sometimes, the lines between what a barrister does and what a solicitor does are blurred.

"You need to have a proper division of roles so as to stop duplication and thus costs to the client," she says.

"But to be fair, it's only when you become a barrister that you actually realise what you need to do as a solicitor when you're briefing."

One way around misunderstandings, says Petrushnko, is to be a part of organisations such as NSW Young Lawyers, which fosters relationships between members who are solicitors, barristers and students.

"NSW Young Lawyers is an association where you are exposed to … the challenges that face all three [groups]. You realise where they are coming from, and they can see where you are coming from, and what challenges we all face," he says.

"If we had more organisations like it, it would improve and better the relationship between solicitors and barristers."

Barristers vs Solicitors

Given the chance to vent their frustrations and to say with all honesty how barristers really get on their nerves, solicitors seem to share a number of pet peeves, and didn't hold back when it came to the barristers who have let them down in the past.

>> Read Part 2 of our feature:

What Solicitors Say