Every industry has terminology or industry-specific knowledge that non-members of the industry do not think or know about. In the legal realm, I think this biggest non-industry piece of information is the difference between barristers and solicitors. The presumption I find is that people hear “lawyer” and believe the individual is a jack of all trades (which sometimes may be the case).
Aside from the variations of substantive law where one may find these two types of lawyer, barristers and solicitors serve different functions, goals, and employ alternative strategies.
Solicitors as a Shield
By and large, the role of a solicitor is due-diligence based.[1] This means that, as a client, you would approach a solicitor if you intend on entering into a new relationship (business, transactional, personal, etc.) to be advised of any risks or rewards associated with that relationship. A solicitor must understand both the substantive laws as well as practical considerations in the issues they address. For example, in real estate law, solicitors must be aware of title issues, by-law regulations, practical questions to be raised at the time of making an offer under an agreement of purchase and sale, etc.
Solicitors may be seen as the “shield” of law because their role is to protect their clients’ best interests so as to avoid any disputes. Solicitors must also fortify their clients so that, if a dispute does arise, the client will be well equipped with the right terms, evidence, and other materials that will eventually be relied upon throughout the course of addressing disputes. Thus, solicitors must take on a pro-active and forward-looking role, taking all sorts of contingencies into account.
Solicitors are typically more amicable in nature. In the context of business, estate, or family matters, solicitors are involved at the stage where all parties are still friends and are at the outset of their relationships. Unlike litigation, no one is at war with each other and – even where parties are trying to secure better terms for themselves – everyone involved looks to the optimistic future.
Barristers as a Sword
Conversely, a barrister – or litigators as we are commonly referred to – become involved when everything goes up in flames. It is for this reason that I often joke that my primary role is a glorified janitor. A barrister’s role is to represent their clients’ best interests once a dispute has been commenced or is on the verge of occurring. For this reason, a barrister must be intimately familiar with substantive and procedural laws in their area of practice, as well as be extremely versed in “strategy” and “game-theory” involved in litigation.[2] You also need to be good at writing angry letters.
Barristers are the “sword” (or glorified broom) of law since they are the champions of justice, zealously advocating on behalf of their clients’ case. Not every position will be the strongest – barristers will have clients who either have no case or will not have the means to pursue their case. This is why the end goal for every barrister is to achieve the best-possible result with the hand they are dealt.
Unlike solicitors, barristers must be both prospective and retrospective: they must understand the full context and circumstances involved with their clients, the sorts of relationships between the parties litigating, as well as the potential future outcomes that may benefit everyone. As such, barristers must be not only zealous but practical and cooperative. It is an unfortunate reality, however, that some barristers allow their zealousy to overtake the reality of their clients’ cases, which results in unnecessary costs, delay, and stress for all stakeholders in the legal process.
Barristers and Solicitors in Construction Law
Often, construction lawyers find themselves to wear both hats of barristers and solicitors. This industry is fast-paced with a plethora of individuals and organizations involved. It is not uncommon for a lawyer advising a construction client to be both litigating unpaid accounts and simultaneously drafting new agreements for the same clients – sometimes involving the same opposing party!
One benefit of embracing the barrister and solicitor approach in construction law is learning from the mistakes of others on former files and applying those wisdoms to new files. Do you have a client who can’t pay his subcontractors because they have not been paid by an Owner? Consider incorporating a pay-when-paid clause into the next contract. A municipality is being unreasonable because their request for proposal was vague? Ensure that the next bid is as detailed as possible.
In conclusion, while construction law is not the only area where lawyers must think both like barristers and solicitors, a melding of these two approaches and mindsets enhances a lawyer’s ability to better serve their clients.
The foregoing is for informational purposes only and should in no way be relied upon as legal advice. If you have any further questions, or would like to schedule an appointment for legal advice tailored to your circumstances and business, please contact me at dan@fridmar.com.
[1] Law Society of Ontario, “Entry-Level Solicitor Competencies” Law Society of Ontario (online): https://lso.ca/becoming-licensed/lawyer-licensing-process/licensing-examinations/entry-level-solicitor-competencies at paras. 28-167 (last accessed October 28, 2020).
[2] Law Society of Ontario, “Entry-Level Barrister Competencies” Law Society of Ontario (online): https://lso.ca/becoming-licensed/lawyer-licensing-process/licensing-examinations/entry-level-barrister-competencies at paras. 29-138 (last accessed October 28, 2020)
