Barrister is the distinctive name by which the advocates or pleaders at the English and Irish bars are known; and thus its derivation is perhaps sufficiently accounted for. They are admitted to their office under the rules and regulations of the Inns of Court (q.v.), and they are entitled to exclusive audience in all the superior courts of law and equity, and generally in all courts, civil and criminal, presided over by a superior judge. In the whole of the county courts solicitors are allowed to practise without the assistance of counsel; also at petty sessions, though at the quarter sessions where four counsel attend, the justices always give them exclusive audience (see SOLICITORS).
Barristers were first styled Apprentices, who answered to the bachelors of the universities, as the state and degree of a serjeant did to that of a doctor. These apprentices or barristers seem to have been first appointed by an ordinance of King Edward I. in parliament, in the twentieth year of his reign (Stephen's Commentaries, and authorities there referred to). Of barristers, there are various ranks and degrees, and among each other they take precedence accordingly; the general name, 'counsel,' being, in the practice of the court, common to them all. But they may be divided into two groups—barristers and Queen's Counsel. (The ancient order of serjeants-at-law, formerly a well-marked third group, was distinguished by the coif and other peculiarities, but has now ceased to exist. See SERJEANT-AT-LAW). Barristers simply, or utter barristers, occupy the position of junior counsel, wearing a plain stuff-gown and a short wig; King's or Queen's Counsel, or His (or Her) Majesty's Counsel learned in the law, as they are more formally called, are selected from the outer or junior bar. They are the leaders of the bar, and are distinguished by a silk gown; on state occasions, and always in the House of Lords, they wear a full-bottomed wig. For further details, see KING'S COUNSEL. Besides these three orders, the crown sometimes grants letters-patent of precedence, whereby the grantee is entitled to such precedence as may be assigned to him (see PRECEDENCE).
Barristers have exclusive audience in all the superior courts, where upon terms and conditions, and according to an etiquette, which are all well understood, they take upon themselves the protection and defence of any suitor, whether plaintiff or defendant. With the Brief (q.v.), or other instructions, barristers receive a fee, or such fee is indorsed on the brief or instructions, and afterwards paid. Such, generally, is the existing practice at the English bar, differing in this respect from the practice of the bar in Scotland—and, we believe, to a great extent in Ireland also—where prepayment of the fee is the rigid etiquette. The barrister's fee is not a matter of express contract or stipulation, recoverable at law like a solicitor's bill of costs, but is regarded as a mere honorary reward—quiddam honorarium, as it is called in law-books. There is therefore no means of enforcing its payment; but where it can be proved that the client or party gave money to the solicitor with which to fee the counsel, the latter may maintain an action against the former for the amount in some special cases.
In order to encourage due freedom of speech in the lawful defence of their clients, and at the same time to give a check to unseemly licentiousness, it has been held that a counsel is not answerable for any matter by him spoken, relative to the cause in hand, and suggested in his client's instructions, although it should reflect upon the reputation of another, and even prove absolutely groundless (though the publication of the counsel's statement by a third party may expose such third party to an action); but if he mentions an untruth of his own invention, or even upon instructions, if it be impertinent to the cause in hand, he is then liable to an action from the party injured; and counsel guilty of deceit or collusion are punishable by the statute Westm. I. (3 Edw. I. chap. 29) with imprisonment for a year and a day, and perpetual silence in the courts—a punishment which may be inflicted for gross misdemeanours in practice, although the course usually resorted to is for the Benchers of the Inn of Court to which the person so offending belongs, to disbar him (see INNS OF COURT, DISBAR).
Besides advocacy and forensic disputation, barristers in England advise on the law by giving an opinion on a case stated—'opinion of counsel'; they also draw or prepare the pleadings or statements of fact on which an action is founded; and they prepare or revise the drafts of deeds and other instruments and of private bills (see the article CONVEYANCING). As a correlative privilege of the position in which they stand in respect of their fees, barristers are not personally liable for the injurious consequences of any erroneous advice they may give; and they claim absolute control over the conduct of all litigation in which they may be engaged, even to withdrawing it from court, unless the client expressly dissent; and until lately, it was the opinion of the profession that counsel might at any time, during the progress of a cause, compromise the matter in dispute; but the exercise of such discretion has been successfully opposed, and it is now admitted that barristers have no ex officio privilege beyond the guidance and conduct of actual litigation in court.
It is from the body of barristers that all the judges in England, superior and inferior, are appointed; and barristers are also always chosen for the office of paid magistrate. The only exception to the exclusive appointment of barristers to judicial offices is the case of justices of the peace (see QUARTER SESSIONS).
The bar in Ireland stands on the same footing, and has the same ranks and degrees, and is subject very much to the same rules and regulations, as the English bar; and in that country, barrister also is the name by which the profession of an advocate is distinguished. In Scotland, the same office is simply called by its own name of Advocate (see ADVOCATES, FACULTY OF).
At the bar of the House of Lords, and before parliament generally, before the privy-council, and also, it is believed, in all trials for high treason, whether in England, Ireland, or Scotland, the three bars rank on a footing of equality, taking precedence according to the date of their call and admission to their own respective bars, with the exception of King's Counsel. In Scotland, the latter are next in precedence to the Lord Advocate (see ADVOCATE, LORD), the Solicitor-general of Scotland (q.v.), and the Dean of the Faculty of Advocates. It was at one time disputed between the Lord Advocate of Scotland and the Attorney-general of England, which of them should lead the other at the bar of the House of Lords; and a struggle for precedence occurred in 1834 in the House of Lords, before Lord Chancellor Brougham, between Lord Chancellor Campbell as Attorney-general, and Lord Jeffrey as Lord Advocate. The latter contended that as he was not only the first law-officer of the crown in Scotland, but also a high political officer, he was entitled to lead the former. But the House decided that the Attorney-general of England has precedence over the Lord Advocate of Scotland, in all matters in which they may appear as counsel at their lordships' bar. The relative rank of the Irish law-officers to English is the same. It only remains to add, that as the three bars are on a footing of equality in the House of Lords, and before the other imperial tribunals above mentioned, the English bar have no exclusive audience in these, even in English cases.
Revising Barrister is a barrister appointed annually by the English judges to revise the lists and settle who are the persons entitled to vote for members of parliament. For this purpose, all England is subdivided into districts, and a barrister is appointed for each district by the judges of assize. Though the appointment is only for one year, the same person is usually reappointed for a series of years. The barrister must be of seven years' standing at least. The revision of the lists takes place generally between August and October of each year. The powers and duties of the revising barrister are defined by the Registration Act of 1878. There is an appeal from his decision to the Queen's Bench Division of the High Court of Justice.—Similar duties are performed in Scotland by the sheriff-substitute.