The difference between solicitors and barristers in Victoria

What’s the difference between a solicitor and a barrister? It sounds like the start of a bad joke, and unfortunately, we don’t have the punchline. We can however explain the difference between the two, and also help you find out more about the other titles used in the legal profession.

In legal circles, titles and labels matter. “Solicitor”, “barrister”, “silk”, “lawyer”, “law clerk” and “paralegal” all have distinct meanings, which can differ depending on where you live.

In Victoria (and in much of Australia) a lawyer is a wide-ranging title used to refer to someone who is admitted to the State roll of legal practitioners and is qualified to advise and represent clients in legal matters.  Lawyers may be admitted to practice in more than one State of Australia and also in the High Court.

The title “attorney” is not used in Australia, and is generally used by lawyers in the United States and in countries which do not follow the legal traditions and practices of the United Kingdom (as Australia does).

In some Australian states, admitted lawyers can practice as both solicitors and barristers, however in Victoria the profession is “split”. We are all lawyers but some of us practice as solicitors and some as barristers.

A solicitor usually advises and represents their clients in practical aspects of legal cases, such as providing legal advice, negotiation, preparing legal documents, and representing clients in court in limited ways.

Solicitors are generally either employed by law firms or operating as sole practitioners. They might specialise in advising and representing clients in a particular area of law.  Even within the specialisation of personal injury law, there are solicitors who specialise in a particular aspect of personal injury law (such as medical negligence or TAC claims).

On the other hand, a barrister (often referred to as counsel) is a lawyer who mostly specialises in representing clients in court. Barristers usually have more experience and expertise in court procedure and advocacy than solicitors.

While barristers are often seen representing their clients in Court, they also provide written and verbal advice to clients in large or complex matters.

Barristers in Victoria generally work independently and are essentially self-employed, working alongside other barristers in “chambers” (the term used for their offices).

They are usually “instructed” (engaged) to advise and represent a party in a particular matter by a solicitor. Because they are independent and not employed by the firm of solicitors that engage them, they are more easily able to provide independent advice to a client.

In recognition of their experience and seniority, a very senior barrister may also be appointed as Kings Counsel (KC), or Senior Counsel (SC). For most of our lives, these senior barristers were known as “QC’s”, until the passing of Queen Elizabeth II in 2022.

Those who have not been appointed to be a KC or SC (also called “taking silk”) are called “junior counsel”.

On the robes worn by KC and SC, there is a small woven rose made of silk – hence the title “silks”!

Senior counsel generally charge higher fees than a junior barrister (as a result of their seniority and recognition of their skills and experience). This does not, however, mean that a KC will necessarily provide better advice or advocacy than a junior barrister.

Just as the most experienced player on a football field will not necessarily produce the best performance, there are many more factors which affect advocacy and the outcome of a case than just the price tag or experience of a barrister.

For this reason, solicitors won’t always seek to engage a KC for their client’s matter – thinking carefully instead about the best barrister for the job. Principally, we look to engage barristers with expertise and experience in the types of claims brought by our clients. Another key consideration is how we believe that the barrister will be received by the Court, our opponents and our client.

Yes.

Solicitors appear in Court without barristers, usually to address the Court about the progression of a case, whether a case is ready to proceed to a hearing, to contest or resolve a preliminary issue or obstacle arising in the case, and for applications to the Court for orders about something that one or both parties should do.

Other legal representatives, for example, a Law Clerk, may also “seek leave of the court” to appear on behalf of a client. This is only in minor matters, for example, mentions or adjournments. It is at the discretion of the court whether to grant leave, and the court will require that person to have some level of legal training – for example, completing a law degree or working as a paralegal for many years.

Law firms have a variety of titles for people doing legal work to denote their qualifications and experience, as well as their level of authority. Generally, titles in Victoria take the following rank:

1. Paralegal (do not hold a law degree and are not admitted to practice);
2. Law Clerk (may or may not have a law degree and are not admitted to practice);
3. Graduate Lawyer (hold a law degree but are not yet admitted to practice);
4. Lawyer;
5. Associate;
6. Senior Associate;
7. Salary Partner / Special Counsel;
8. Partner

Generally speaking, in Victoria, the main distinction between a barrister and a solicitor is the type of work that they do, how they are engaged/employed, and when they become involved in a case.