LEGAL TRAINING IN ENGLAND
Having said what I think is required of a lawyer, I want to consider the English system of training. Here we have solicitors who instruct barristers, barristers who appear before judges, and judges who have been practising barristers.
That system has stood the test of many centuries and, as I go round the world, I find that most lawyers in foreign countries have a great admiration for our English system of justice. My American friends say they cannot understand how a barrister ‘tries’ an action when he has not interviewed the witnesses, but, nevertheless, they agree that our legal system commands respect. In England, where we have the two branches, a client consults a solicitor and in the appropriate case the solicitor goes, sometimes with the client, to the barrister. The solicitor, in addition to his legal knowledge, must be a practical man, and a substantial part of his training must be on the practical side. The solicitor in general practice (as the majority of them are) never knows what problem will come to him next. The barrister, on the other hand, always has the solicitor between him and the client; and the barrister has no hope of succeeding at the Bar unless, by what he does, he can convince solicitors that he is to be trusted with their work The barrister, therefore, always becomes a Common Law man, or a Chancery man or a man who practices in the Probate, Divorce and Admiralty Division. There are, of course, other specialized lines and many become specialists in a very narrow sphere, but it is not necessary for them to be practical people and no part of their training is practical. The Council of Legal Education provides courses in law, and when a barrister is called to the Bar he need have no training beyond that which he has had in his law classes. I should mention here that if a barrister intends to practise in England he must spend a year as a pupil in a barrister’s chambers, but that rule does not apply to those who go overseas to practise.The solicitor, then, has to have a wide knowledge of law, of the way the law works, and of people. When I was adumbrating the qualities required in a lawyer I mentioned that he should be learned in law and in understanding of people. Where there is fusion of the profession those qualities must all be found in the one man; while where we have the two branches the solicitor provides the practical side in its entirety. So the person who wants to be a solicitor, after satisfying the Law Society that his basic education is of a standard high enough to enable him to pursue his legal studies, becomes articled to a practising solicitor, and he must spend a substantial part of his articles in that solicitor’s office. There he will learn the every-day practice of the law, how to draft documents, how to issue process and deal with the various steps of actions in various courts, how to get probate, how to make a man bankrupt, in fact all the practical side of the lawyer’s practice. He will also learn how to deal with clients and will often see and learn something of their businesses. He will learn to understand a balance sheet—in fact he has to pass an examination in Trust Accounts and Book-keeping. He will learn the etiquette of the profession; and in that connexion I particularly want to mention a solicitor’s undertaking. A great deal of work is only possible on solicitors giving undertakings, and these are so important that the Law Society will always compel solicitors to honour them. I hope I have said enough to show the importance of the practical side to a solicitor’s training. The barrister who practises in England does not need that practical side to enable him to do his work.
As I am dealing with the work of a solicitor, and many may not realize the extent to which a solicitor can practise advocacy, I must emphasize that he has a right of audience before every court and Tribunal except the High Court, the Court of Appeal and the House of Lords, Assizes and most Quarter Sessions; and here and there one may find a Court of Special Jurisdiction where he has no right of audience.
Many solicitors spend most of their business life on advocacy in magistrates’ courts, county courts and before administrative tribunals or Government inspectors.My American friends are always interested to heat about the division between the English solicitor and the English barrister, and time and time again I have had them say to me: ‘But you fellows, you solicitors, are what we call lawyers.’ Of course, I always point out to them that that is not quite the right way to put it, because in England we do regard the barrister as a lawyer; but the feet is that the bulk of the work that the average firm of lawyers in America does is the work that a solicitor does in England. Put another way, to the man in the street the most important part of a lawyer’s work is the work done by the solicitor in England. In case that comes as a surprise to you just remember that there are, in round figures, some 20,000 practising solicitors in England and only 2,000 barristers, of whom it is said that not more than 1,500 make a living. Certainly solicitors are overworked, and at the present time we have ample scope for more solicitors. I am glad to say that I understand that work at the Bar is increasing too, but for our present purpose the important thing that I want you to bear in mind is that we have ten times as many solicitors as we have barristers. On those figures it means that ten-elevenths of a lawyer’s work is the work that solicitors do. While I am dealing with figures, you may be interested to know that the last figures given to me of lawyers practising in the United States was 273,000. That figure astounds me. The population of America is about three times as great as the population of England, but they have about twelve times as many lawyers.
Before I deal with legal education in Africa I want to say something about the question of division or fusion within the legal profession. I am satisfied that England is far better off with two separate branches of the profession than it would be with fusion; and while we have two separate branches the system of training for the Bar serves its purpose.
I expect you know that there has been much talk of late about bringing the training of the two branches more into line with each other, and of making it easier to transfer.from one branch to the other. I think that would be all to the good, but this is not the place to discuss it. I should be horrified, however, if it were suggested that today’s training for the Bar fitted a man to be a solicitor. Once a young barrister told me that he thought that fusion would be a good thing and I asked him why. He said, ‘I have difficulty in making a living now but if I could practise as a solicitor I could make a good living.’ To that I said, ‘Let me suppose that fusion comes about tonight and tomorrow morning you can practise as a solicitor. The first client to come to you says, “I have been in business for twenty years. During the last five years things have been going from bad to worse. Now they are desperate. I want you to file my petition for me.” What would you do?’—and of course he had no answer. But there are many things more difficult than that. The barrister is not required to know anything about accounts. Many firms of solicitors deal with millions of pounds of clients’ money each year and the Law Society requires every penny to be accurately accounted for. The Law Society has the right to inspect any practising solicitor’s books at any time and the solicitor whose books are not in order will probably be struck off the Rolls. Again, it is the commonest thing for a client to come in with accounts—either his own or those of a concern in which he is interested—and ask for information upon them. The solicitor must be able to deal with that. He cannot always say ‘Go and ask your accountant’, as often the client will have come to him with the accounts because a question of law has arisen. It is impossible to over-emphasize the importance of the practical side of a solicitor’s training.A law degree does not confer a right to practise, either as a barrister or a solicitor, in England. In the case of a solicitor it merely exempts him from compulsory attendance at Law School and from part of his examinations.