When I meet someone for the first time, and I say what job I do, I often get three questions:
- What’s the difference between a lawyer and a solicitor?
- Can I phone you if I get in trouble with the police?
- When you’re in court do you have to wear one of those funny wigs?
The answers are as follows:
- “Lawyer” is a general term used to describe someone who is qualified and who practices law. “Solicitor” is someone qualified to practice law, and who can appear in court – but only the “lower courts” (Sheriff Courts/ Justice of the Peace Courts / tribunals). Solicitors can’t appear in the Court of Session or High Court. I normally say I’m a lawyer, because I’ve convinced myself that it sounds slightly cooler than solicitor.
- You could but I don’t do criminal law so I probably couldn’t help
- No. Solicitors don’t get to wear wigs in court. Only Advocates, or “Counsel” wear wigs. And this leads on to the point of this article: what’s the difference between solicitors and Counsel (apart from the wigs)?
Who / What are Advocates / Counsel?
In the Scottish legal system, Advocates /Counsel, refers to a specific branch of the legal profession who specialize in courtroom advocacy and provide expert legal opinions. A rough equivalent of the difference between solicitors and Counsel might be the difference in medicine between a GP and a hospital consultant. GPs might deal with most cases that come their way – but if the matter needs specialist opinion, they might refer to the consultant. Also, just as you wouldn’t go directly to the consultant, you would be referred by your GP, similarly you wouldn’t instruct Counsel directly – you would instruct a solicitor who then instructs Counsel if it is considered necessary.
When Might a Solicitor Instruct Counsel?
Typically a solicitor might instruct Counsel in the following situations:
- If the case involves a court action that takes place in the Court of Session (civil cases) or the High Court (criminal cases) then the solicitor will HAVE to instruct Counsel. This is because solicitors (apart from a certain type of solicitor called solicitor-advocate – see later) cannot appear in these courts.
- The case, although taking place in a lower court like the sheriff court, involves a particularly complicated matter such that it would benefit from the specialist skills of Counsel
- The case is of high value or importance – and so, even though not especially complicated, requires the use of Counsel to reduce the risk of anything going wrong.
NB It doesn’t have to be a court matter. Counsel can be instructed whenever a legal opinion is needed on any area of law.
Are all Counsel the same?
No. There are two rankings of Counsel, Junior and Senior. As the name suggests, Senior Counsel are more experienced advocates, recognised for their particular expertise, and are typically instructed in the most important or complicated cases. Senior Counsel are also known by the – frankly much more impressive – title of “King’s Counsel” or “KC.” If instructing a KC in a court action, that KC will normally have a Junior Counsel, working alongside them.
Solicitor-Advocates
To slightly muddy the water, there are certain solicitors, called Solicitor-Advocates, who can also practice in the higher courts in Scotland. Solicitor-Advocates must pass “Rights of Audience” exams and demonstrate that they have the relevant skills and knowledge and be a fit and proper person to be able to practice in the higher courts.
Conclusion.
If you ever need legal assistance, you are likely only to need a solicitor. But if your case is complicated enough, or important enough, you can be assured that there is a body of lawyers who can assist you through the most demanding of situations.
And who, importantly, get to wear those cool wigs.
