This section compares the difference between solicitors, barristers and legal executives. It details what a solicitor does on your behalf during divorce proceedings, and also covers how some solicitors act as mediators or as collaborative lawyers.
What is a Solicitor?
Briefly, a person cannot act as a solicitor unless they have the necessary qualification and hold a valid 'practising certificate', which is issued by the Solicitors Regulation Authority. All solicitors must also comply with the Code of Conduct. Note, however, that if you instruct a firm of solicitors to act on your behalf, then your work may not actually be carried out by a solicitor. The work may be carried out by a 'legal executive' (who may or may not be qualified - see below), and certain court work may be carried out by a barrister.
A great deal of divorce work is carried out by legal executives, employed by solicitors. Most legal executives hold an Institute of Legal Executives Professional Qualification in Law. It may be thought that legal executives work to a lower standard than solicitors, but this should not be the case. Many legal executives have spent years specialising in family law, and their knowledge and experience often exceeds that of the solicitors who employ them. Where it does not, they should be properly supervised by a solicitor.
Barristers must also have the necessary qualification, although their training is quite different from the training that solicitors undergo. In simple terms, barristers are trained primarily to represent people in court, whereas solicitors deal with all other aspects of the matter (although many solicitors do represent their clients at court, generally at preliminary hearings - see below). Barristers are also used by solicitors for expert advice on complex issues. Barristers must comply with their own Code of Conduct.
What does a solicitor actually do?
If you instruct a solicitor to provide a full service for you, that service will include all of the following that are relevant to your matter:
- Taking the details of the matter from you (called 'taking instructions');
- Advising you;
- Corresponding with the other party or their solicitors;
- Gathering evidence;
- Preparing court papers and other documents;
- Sending papers to the court;
- Representing you at court (usually at preliminary hearings only);
- Where appropriate, instructing a barrister to represent you at court;
- Ensuring that all steps are taken to implement any agreements or court orders.
As will be seen below, you can instruct your solicitor to do as much or as little of the work for you as you wish.
More about solicitors
A solicitor may only act for one party in any divorce/family proceedings (unless they are acting as a mediator - see below), as the parties are said to have a 'conflict of interest'. This rule applies even where the parties have agreed all matters before consulting a solicitor. Further, if the solicitor has acted for one or both parties on any matter previously there can still be a conflict of interest. Accordingly, if your spouse instructs a solicitor who has acted for you before, you can request that solicitor to stop acting for your spouse - a request that will usually be complied with.
Not all solicitors specialise in one area of work, so the solicitor that you instruct may not spend all of his or her time doing divorce and family work. They may, for example, also do other types of court work, or even conveyancing or probate work. This is particularly so for 'sole practitioners', who work on their own. They should, of course, be fully competent in all areas in which they practise, but you may prefer to instruct a solicitor who specialises in divorce and family work.
Whether or not they are specialists, all solicitors that do family work should comply with the Law Society's Family Law Protocol. The Protocol sets out 'best practice' guidelines for lawyers to follow when doing all types of family work. Note, however, that it is not compulsory to follow the guidelines, although if a solicitor departs from them, he/she should make a note on the file as to the reasons for departure, for example when the client has directly instructed them to do so.
As mentioned above, many solicitors do represent their clients at court, but this is usually only for preliminary hearings. For final and more complex hearings, most solicitors will instruct a barrister to represent you, as court work ('advocacy') requires special skills, for which barristers are trained. If your solicitor does not instruct a barrister for a final hearing, you should check their experience in conducting such hearings. Most solicitors cannot represent their clients in the higher courts (i.e. courts above county court level). If your solicitor does instruct a barrister to represent you at court, then the solicitor will not normally attend the hearing as well, as this will duplicate costs. Only in the most complex cases should it be necessary for your solicitor to attend court together with your barrister.
When you attend court your solicitor or barrister will conduct the case on your behalf, both inside and outside the courtroom. This will include negotiating with the other party or their legal representative, presenting your case to the court, examining and cross-examining witnesses. In court, you will only be allowed to speak when you are giving evidence or when the judge or magistrate addresses you directly. Otherwise, your solicitor or barrister will do all of the talking on your behalf.
The professional body for solicitors is The Law Society, and solicitors are regulated by the Solicitors Regulation Authority, which handles complaints against solicitors - see below. The professional body for barristers is The Bar Council, and barristers are regulated by the Bar Standards Board, which handles complaints against barristers.
Some solicitors are trained as mediators (although most mediators are not solicitors). Mediators are neutral, and help the parties try to resolve disputes by agreement. A solicitor-mediator may 'act' for both parties in mediation, but the job of a mediator does not include advising the parties, save to ensure that any agreement reached in mediation is reasonable. Once a solicitor has acted as a mediator, he/she may not then act as a solicitor for either party.
For further information regarding mediation, and to find a family mediator near you, go to the Family Mediation Helpline.
If you and your spouse are on reasonably good terms and you both wish to avoid contested court proceedings, you may consider each instructing a collaborative lawyer, rather than going to mediation, or after unsuccessful mediation. Collaborative lawyers are specially trained lawyers who will work with you, your spouse and your spouse's lawyer, in a series of face to face negotiations, to help you resolve disputes. Your lawyer will be with you to advise you throughout the process. If an agreement is reached then, at the final meeting, a document will be drawn up setting out the terms of the agreement, and signed by both parties. Note, however, that if no agreement can be reached then neither of the collaborative lawyers may continue to act for their client, so different solicitors will then need to be instructed.
Collaborative law is a relatively new process, so national coverage is not yet complete. If you reside in an area where there are few or no collaborative lawyers then you and/or your spouse may have to travel a substantial distance to instruct a collaborative lawyer. You can find a specialist collaborative lawyer by searching on the Collaborative Family Lawyers website.