General Role of a Barrister
There is a modest overlap between the role which a barrister carries out and the role of a solicitor.
- The solicitor prepares instructions for the barrister he decides to instruct. The solicitor deals directly with the client.
- It is a barrister, who is removed from the client, who can provide the necessary objectivity and who advises the client on difficult issues of law, and of whether his case is likely to succeed.
- It is the barrister who presents the case in Court.
- The barrister never handles money. His fee is the responsibility of the Instructing solicitor, who collects a fee from his or her client and then forwards it to the barrister.
There are a number of core duties which define and shape the independent referral Bar. These are:
(a) Duty to the Court
Barristers have an overriding duty to the Court to act with independence in the interests of justice and to ensure in the public interest that the proper and efficient administration of justice is achieved.
(b) Duty to promote the client's interests fearlessly.
Subject only to their paramount duty to the Court, barristers must promote and protect fearlessly and by all proper and lawful means the best interests of their lay client and do so without regard to their own interests or to any consequences for themselves or any other person.
(c) Duty to accept instructions in any case in the field in which a barrister professes to practice at a proper professional fee unless justified by special circumstances.
This rule, known as the "Cab Rank Rule", ensures that a barrister is obliged to accept instructions in any case in the field in which he or she professes to practice at a professional fee irrespective of whether the client is paying privately or is publicly funded and irrespective of the parties on whose behalf the barrister is instructed, the nature of the case and the brief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of the person.
(d) Duty to act as a sole trader.
A core feature of the independent referral Bar in Northern Ireland is the obligation of each barrister to act as an independent sole trader.
(e) Duty of independence.
Barristers are individually and personally responsible for their own conduct and for their professional work and are required to exercise their own personal judgement in all professional activities and to be absolutely independent and free from all other influence. Section 6.06 of the Code of Conduct prohibits a barrister from "engaging in any other profession, carrying on or taking part in any other trade or business without first obtaining the consent of the Benchers..." This further safe-guards a barrister's independence and limits potential conflicts of interest.
The consequences that flow from these core duties are many. The chief ones are these:
(i) Confidence of the judiciary.
A barrister's responsibility to the Court ensures that the judge hearing the case has all the material necessary to enable that judge to make a decision. There is a proud tradition at the Bar of making sure that the Court is kept properly informed. In the very rare case where a barrister fails in his duty, it is regarded as a most serious breach of professional conduct and is almost certain to be the subject of a referral by the judge to the Professional Conduct Committee. The consequence of this is that judges here do not need law clerks as in the United States and can rely on those barristers appearing in Court to highlight all the relevant facts in cases and other materials necessary for his judgement. This system which is based on trust is not one that is acquired overnight. It is built up over the years, it is nurtured by the Members of the Bar and its importance is emphasised by all barristers, one to another, from Senior to Junior and from Master to Pupil. It is a principle interwoven in the fabric and the tradition of the Bar.
(ii) Independent fearless representation by the counsel of choice.
A number of perpetrators of the most savage crimes imaginable have been brought before the Courts in Northern Ireland. Regardless of the abhorrent nature of these offences, those charged with them have the right to choose (subject to availability) any advocate of their choice from the Bar. The members of the Bar have acted without fear or favour when so retained. The serial sectarian murderer, the child murderer, the bomber and the institutional child abuser have all been able to choose who they want to represent them. "The Cab Rank Rule" is not a rule to which mere lip service is paid. It has been followed to the letter. Moreover those advocates retained over the past years in crimes of the most horrific nature committed for the most unpopular of causes, have provided fearless independent representation to all those so charged.