Briefing a Barrister for In-House Counsel

As in-house counsel or a government solicitor, you can brief a barrister directly without going through a law firm. Involving a barrister, whether directly or through a solicitor, is a strategic and ultimately cost effective move.

In-house counsel including corporate and government solicitors, with a current Victorian practising certificate, can brief a barrister directly. 

While barristers are typically engaged by law firms many in-house teams are increasingly engaging with the Bar directly to great effect. Direct briefing provides the opportunity to increase the speed and efficiency with which in-house matters are resolved.

Talk to a barrister or a barristers' clerk for advice on which course of action to take.

Why brief directly?

Direct briefing of barristers can be beneficial in the effective management of costs and also in giving in-house counsel greater control over the strategic direction of a case. While barristers are specialists in advocacy and appearing in court, a barrister's skills also lie in the early identification of key issues in a case, the development of litigation strategy and in providing specialist advice on matters of law.

Barristers provide advice, both written and in conference, in a variety of matters from transactional work, the drafting of documents, regulatory compliance and risk management and proactive dispute resolution before proceedings commence. With their ability to identify the critical aspects of written contracts or agreements and provide targeted advice on the merits of a potential dispute, a barrister's involvement at the outset presents an opportunity to avoid conflict arising in the first instance.

When you can brief directly

A barrister can be retained by in-house counsel on behalf of their organisation either for advice, in advance of a dispute arising or to advise and appear in respect of a dispute. Early engagement presents opportunity to strategically and cost efficiently manage an in-house matter whether it be for advice or in litigation.

Further information and a Corporate Counsel information kit is available on the Victorian Bar's Commercial Bar Association Website.

A barrister may also be instructed directly by other professionals such as patent attorneys, accountants, town planners and insolvency practitioners to appear or give advice in matters without an instructing solicitor. See our page on Direct Access for more information on direct access briefing by non lawyers.

The process of briefing

Once engaged, the barrister will provide a standard costs agreement and a disclosure statement.

The costs agreement will identify the barrister's fee rates and method of charging. The disclosure statement will include an estimate of the barrister's fees for providing the legal work required.

A brief for the barrister will then need to be prepared.  

Ideally, a well-designed brief will identify and enable the barrister to:

  • understand the information, documents, issues and client objectives; and
  • focus on the key points of your case in the time available.

This, in turn, will promote the efficient use of the barrister’s time (which will save costs for the client), and facilitate teamwork between the barrister and in-house counsel to produce the best result for the client.

Prior to sending the brief to the barrister, it is a good idea to call the barrister you have in mind or their clerk.  Ask about their availability to undertake the work and their fees, and whether the subject matter of the brief falls within that barrister’s area of practice.  Discuss with them what materials they would be assisted by inclusion in the brief.

When preparing a hardcopy brief, it is typically best structured with the Memorandum to Counsel at the front, followed by the index, and then each document referred to in the index behind a separate tab.

The aim of the Memorandum to Counsel is to provide an overview of the factual and, if known, the legal issues relevant to the brief. 

The key points to include in the Memorandum to Counsel include:

  • a statement of the client’s objectives,
  • a statement of the tasks that the barrister is being asked to do, and
  • any deadlines or timing sensitivities.