Counsel's opinion

[Sara]

I was interested in the thread about wills to see that someone was
advised to get Counsel's opinion about something, and that that
generally means a barrister's opinion.

In this sort of case, what is the main difference between a barrister
and a any other kind of specialist lawyer? I understand barristers (or
should it be Barristers?) are the ones who stand up in court (on tele at
least) and represent people there, but are they the only specialists?

Would a barrister have a better informed opinion than (in the case that
was being discussed) a solicitor who specialised in will writing?

In either case it would be a more specialised opinion than a general
jobbing solicitor felt able to give, and I would expect it to be at a
premium price, I just wondered what the real difference was.

--
Sara

cats cats cats cats cats

[The Todal]

That's a very good question and you might get lots of different answers.

In the old days (ie 30 years ago) the solicitor was regarded as the
equivalent of a GP and the barrister was regarded as the equivalent of a
specialist. That really isn't the case today.

Nowadays most solicitors specialise, and they use barristers only to
prepare papers for court hearings and to argue the case in court.
Sometimes a solicitor obtains counsel's opinion as a way of passing the
buck when he doesn't know the answer to a question. Sometimes it is to
obtain a second opinion. The cost of that opinion is often no more than
the solicitor himself would charge.

The flaw in the system though is that the barrister is just as likely to
get the law wrong as the solicitor, and the client can sue either of
them for negligence.

[steve robinson]

Barristers typically specialise in one area of the law solicitors
never used to

[Percy Picacity]

Not to disagree, but in a rapidly changing area of law, such as the
application of judicial review to various new and oppressive laws the
government has introduced in recent years, barristers working in the
field may make a valuable contribution to predictions about what the
higher courts will do.

--

Percy Picacity

[The Todal]

On 15/2/13 11:45, Anthony R. Gold wrote:

> On Fri, 15 Feb 2013 11:05:01 +0000, The Todal <deadm...@beeb.net> wrote:
>
>> The flaw in the system though is that the barrister is just as likely to
>> get the law wrong as the solicitor, and the client can sue either of
>> them for negligence.
>

> Will a client who accesses and compensates that barrister through a
> solicitor have privity or standing to sue the barrister?
>

I believe so. The barrister owes a duty of care to the client, not
merely to the solicitor.

I daresay everyone will remember that the immunity from suit that
lawyers used to enjoy was abolished as long ago as 2000. This was the
case in question:
http://www.bailii.org/uk/cases/UKHL/2000/38.html

Here are a few examples of claims against barristers and solicitors:

http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/B39.html
http://www.bailii.org/ew/cases/EWHC/QB/2009/2906.html
http://www.bailii.org/ew/cases/EWHC/QB/2006/64.html

and this one is perhaps the easiest to understand:
http://www.bailii.org/ew/cases/EWCA/Civ/2001/934.html

[The Todal]

On 15/2/13 11:50, August West wrote:

>
> The entity calling itself The Todal wrote:
>>
>> In the old days (ie 30 years ago) the solicitor was regarded as the
>> equivalent of a GP and the barrister was regarded as the equivalent of
>> a specialist. That really isn't the case today.
>

> The other, related, argument is that the barrister has better developed
> research skills, and better resources that the solicitor.

That ought not to be a valid argument in most cases. Both have access to
online libraries and are likely to read lots of journals notifying them
of updates in the law, and both have to undertake continuing
professional development (regular training courses).


Also that
> counsel will also have a better idea of how a particular point might
> play out in court.

That is a good point, in relation to litigation. If a barrister is going
to be presenting the case to a court he should be able to decide on tactics.

If someone asks for advice about how to word a clause in a will, one
would expect a solicitor who specialises in wills to be able to draft
it. If he wants to get counsel's opinion the onus is on him to persuade
his client that the point is so unusual and complex that it requires
counsel's help, otherwise he will have a dissatisfied client and perhaps
the option of admitting that he isn't sufficiently experienced and that
the only fee that will be charged will be a nominal one.

A solicitor is professionally obliged to turn down work which he knows
to be outside his area of competence.

>
> Whether the former still holds, in these days of Westlaw and LexisNexis,
> is debatable, but I think the latter still has a certain persuasiveness.
>

[Chris R]

>
>
> "The Todal" wrote in message news:ao6is4...@mid.individual.net...

Just to add a few points:

Counsel tend to be good at expounding on the law in a theoretical way and on
the way a court is likely to apply it. Their remoteness from the client can
give them more rigour, as solicitors tend to be swayed by what their client
wants to achieve. Solicitors are usually better attuned to the commercial
consequences of the advice, and how it relates to the practical situation of
the client.

Although most solicitors are specialists, you can almost always find counsel
who are more specialised in a given area of law. Even specialist solicitors
spend far less time thinking about pure legal problems in their field than
barristers do. Many solicitors have largely forgotten the theoretical
foundations of what they do - try asking a conveyancer about the details of
land law.

Barristers are often cheaper for legal research. They have lower overheads.
they probably have access to a wider range of research tools and better
libraries than most solicitors. But they are used to give opinions on points
of law less frequently than they used to be, as Todal says. there are
exceptions, eg in tax.

Counsel's opinion still carries more weight than a solicitor's opinion
(partly, perhaps, because it is less likely to be slanted in the client's
favour). If you need to produce an opinion to a third party, such as the
Revenue, get counsel's opinion. Or even better, a QC.government bodies are
less likely to argue if you can produce counsel's opinion, and you are not
likely t get penalised for relying in god faith on counsel's opinion
(depending on the circumstances).

I don't think a solicitor can be held negligent for reasonably relying on
the opinion of counsel properly instructed.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[The Todal]

I agree with all that you say (including the very valid point that a
barrister's opinion is often cheaper than a solicitor's opinion), though
your final point has to be modified slightly. To copy and paste from one
of the judgments in the URLS I gave in my earlier post:

The balance of duties shared between solicitors and counsel is helpfully
summarised in Locke v. Camberwell Health Authority [2002] Lloyds Rep.
P.N 23 at page 29 it was stated:

"(1) In general, a solicitor is entitled to rely upon the advice of
counsel properly instructed.

(2) For a solicitor without specialist experience in a particular
field to rely on counsel's advice is to make normal and proper use of
the Bar.

(3) However, he must not do so blindly but must exercise his own
independent judgment. If he reasonably thinks counsel's advice is
obviously or glaringly wrong, it is his duty to reject it."

If you then look at the Kingsmill case, you find that the solicitor was
not able to avoid liability by saying that counsel had agreed with her
assessment of the case.

http://www.bailii.org/ew/cases/EWCA/Civ/2001/934.html

[Paul Rudin]

The Todal <deadm...@beeb.net> writes:


> Nowadays most solicitors specialise, and they use barristers only to
> prepare papers for court hearings and to argue the case in
> court.

Solicitors will seek counsel's opinion on uncertain questions of
law. This is partly reluctance to take responsibility for an opinion
when things are unclear and partly a recognition that barristers have
specialist training and experience.

This is also reflected in the content of the vocational courses for the
two professions. The BPTC (BVC as was) has specific training on opinion
writing; whereas the LPC does not.

[Francis Davey]

The specialist point is interesting. For much of my practice I have covered quite wide fields of law. I still do this to some extent - eg I am known in some areas as an expert on leasehold law (and publish a book on it) and in other areas as a copyright expert. Both are true. But this is typical of many barristers who may cover quite a wide variety of areas of law, possibly more than the solicitors they may be advising.

Now the solicitors' profession is much more varied than the bar, so its hard to generalise, but many solicitors who seek counsel's opinion may deal with the same area of law all the time (hence they are more "specialist") but will often not have seen it tested to destruction in many different ways.

This is because many solicitors are transactional. They help make deals. A barrister, by contrast, will usually only be involved when there is already an issue between parties. So barristers are exposed to - and therefore have to think about and gain experience of - many more tricky questions of law than some solicitors do.

So, a specialist property solicitor might ask me for advice on a difficult question of property law. They do property 100% of the time, I do it (say) 40% of the time. But what I do is much more likely to be a series of difficult questions whereas they will do many things which are routine. Hence I may be better at finding an answer than they are.

Other points already mentioned and I would endorse are: (i) we are trained to write advices quickly and to work through documents fast (so the hope is we can do it); (ii) our hourly rates tend to be lower than solicitors.

But there are plenty of solicitors who have very much the same sort of (varied, difficult questions of law and so on) as barristers. The head blogger at Nearly Legal (where I occasionally blog) is a really smart solicitor. Even when a trainee I'd have valued his opinion on housing law.

My first pupil master explained to me that the solicitors instructing him (generally magic circle firms) didn't need advice (from him) since they knew the law if anything better than he did. What they needed was someone who could convince a tribunal or court and at that he was unsurpassed.

So there is a huge variety out there.

[Sara]

In article <87mwv5o...@news2.kororaa.com>,
August West <aug...@kororaa.com> wrote:

> The entity calling itself Paul Rudin wrote:
> >
> > This is also reflected in the content of the vocational courses for the
> > two professions. The BPTC (BVC as was) has specific training on opinion
> > writing; whereas the LPC does not.
>

> Although, in Scotland, solicitors and advocates do the same post
> graduate training, the Diploma in Professional Legal Practice, and twoi
> years traineeship with a solicotor. Advocates do 9 a further months as
> an advocate's devil (similar to a bar pupilage).
>
> Yet counsel's opinion is still sought by solicitors.

Thanks all - really interesting insights there.

--
Billy doesn't clean his paws often enough. Mucky cat.

[A.Lee]

Francis Davey <fjm...@gmail.com> wrote:

> The specialist point is interesting.

Snipped just in case you wanted to keep slightly anonymous.

Excellent post, thanks very much.

--
To reply by e-mail, change the ' + ' to 'plus'.

[Roland Perry]

In message <05910530-c003-48c1...@googlegroups.com>, at
20:50:01 on Fri, 15 Feb 2013, Francis Davey <fjm...@gmail.com> remarked:

>This is because many solicitors are transactional. They help make deals.

>A barrister, by contrast, will usually only be involved when there is
>already an issue between parties.

That's a very important distinction. Solicitors will generally spend
much of their time (eg) drawing up contracts of employment and other
collateral for employers, and rather less advising employees on what to
do in an industrial tribunal. Others are drawing up far more wills than
they end up contesting in court, and so on.
--
Roland Perry