Engaging a Barrister
Members of the public
In most cases, members of the public who wish to initiate (or respond to) a legal action in Victoria against another person, company or organisation will first instruct a solicitor who holds a current practising certificate. The solicitor might be a partner or employee of a law firm, or might operate as a sole practitioner.
Before initiating legal action, the solicitor will provide you with relevant advice such as whether you have a cause of legal action, who you will be taking legal action against and under what law and rules, what type of legal action is involved, in which court the matter will be heard and what procedures will be followed and, importantly, the cost involved and the likelihood of success.
If a member of the public initiates legal action, it is a civil action. A civil action usually starts by filing a legal document (usually referred to as a complaint, application or writ) which launches your claim in the relevant court.
The instructing solicitor will very often engage a barrister on behalf of the client for a court appearance. The instructing solicitor may recommend a particular barrister, or select the barrister in consultation with the client. In many cases, the instructing solicitor will liaise with at least one barrister's clerk and seek a recommendation on who to engage, based on expertise, experience and availability.
Once the barrister has been selected, the instructing solicitor will be able to provide a stronger indication of the likely costs involved. Further information about costs is available on our Fees page. The solicitor will then be responsible for finalising the arrangement via the barrister's clerk and providing relevant documentation.
If you believe that you may not be able to afford legal representation, there are a number of services that may be able to assist you.
Corporate counsel (solicitors employed by companies, organisations or government bodies as in-house counsel)
Corporate counsel who hold a Victorian practising certificate may engage a barrister directly in the same way as their law firm counterparts. A corporate counsel can engage through direct contact with a barrister, or by liaising with a barrister's clerk and seeking their guidance, if required.
Once engaged, the barrister will provide a standard costs agreement and a disclosure statement (see examples below). The costs agreement will identify the barrister's fee rates and method of charging; this agreement would usually be made between the barrister and the corporate counsel's employer as the client. The disclosure statement will include an estimate of the barrister's fees for providing the legal work required.
The corporate counsel is then responsible for compiling a brief for the barrister, which will include detailed instructions and a copy of all the relevant documents. All documentation should be forwarded to the relevant barrister's clerk. Payments for the barrister's services are also made to the barrister's clerk.
In some circumstances a barrister may accept instructions from a client or approved professional organisation directly (without also needing to engage an instructing solicitor). Further information can be found in the Legal Profession Uniform Conduct (Barristers) Rules 2015, specifically Rule 22, click here.