Legal Professional Culture

The account of the development of the legal profession outlined in this chapter concludes at 1970. The period arguably represents a high-water mark of distinctive cultures in the barristers’ and solicitors’ professions.

A. Identity

i. Constitutional Role

By 1970 the legal roles of barristers and solicitors were well established. Barristers were advocates and consultants to solicitors. Solicitors had diverse practices, typically organised around conveyancing, litigation and various legal tasks supporting busi­ness. The core areas of work, advocacy, litigation and conveyancing, were protected by statutory monopolies. Burrage argues that it was widely assumed that the Bar enjoyed constitutional protection, under guarantees given by William of Orange fol­lowing the ‘Glorious Revolution’ of 1688.^[285]

The Bar had a tradition that placed their expertise at the heart of an ideology of the rule of law:

Lawyers supplied the ideological rationales for the great ‘bourgeois’ revolutions of England, France and America by converting the specialized, technical, languages of law into a general discourse of liberty and rights. The common law, for example, was turned from a collection of writs and specialized sciences of pleading and property interests into a repository of pub­lic law maxims and fundamental law, the constitutional rights of freeborn Englishmen, and eventually of all men everywhere.^[286]

The idea that lawyers were key guarantors of the rule of law was linked with the adversarial ethic in litigation. This required a highly trained elite, able to reconcile cli­ent loyalty and wider responsibilities to the administration of justice. Solicitors, by a different route, had achieved a position of trust and security within the state, but they did not have a claim to a position of similar constitutional significance.

ii. Separation

Between the seventeenth and eighteenth centuries the work performed by barristers and attorneys was less important than differences in qualification, discipline, class background and education.^[287] The education of barristers was by mooting, discus­sion, reading and reporting, while that of attorneys was by ‘apprenticeship’ to a prac­titioner.^[288] This difference, between a theoretical and a practical education, reflected the attorneys’ emphasis on procedure and the barristers’ emphasis on legal doctrine and courtroom skills.^[289] Call to the Bar was often regarded as preparation for entering the House of Commons by children of the nobility and gentry.^[290] By the eighteenth century aristocratic entry had declined at the Bar. Barristers were predominantly, and attorneys almost exclusively, drawn from the gentry and ‘middling wealthy’.^[291]

Government first proposed fusion of barristers and solicitors into one profession during the period of reconstruction following the First World War. The idea was that solicitors would later transfer to the Bar if they wished to specialise in advocacy. The professions resisted and government backed down. A minority opinion of the Evershed Committee in 1953 proposed that fusion was in the public interest, but the idea was not pursued.

The division of roles between solicitor and barrister gave rise to different ethical pri­orities, most obvious in the lawyer and client relationship. Solicitors handled clients on a day to day basis and were under direct pressure. Barristers might only see lay clients once before a court hearing, even in serious cases, making it easier to observe a primary loyalty to the court. Numerous rules in the Bar Code supported the barrister’s role as a specialist advocate. For example, a barrister could not conduct a case in court if he had previously investigated or collected evidence for that case, unless he reasonably believed that the investigation and collection of that evidence was unlikely to be challenged.^[292]

The expertise of solicitors in the process of settlement was complementary to the advocacy expertise of barristers, thus supporting different roles and ethical priorities.

iii. Status

The status of professions is determined by their public standing and recognition, and by their relationship to other occupations in the field. Higher status professions define not only their own field of practice but also those of subordinate groups. This is obvious in a work-place like a hospital, where physicians define the work of nurses, technicians and therapists.^[295] The relationship between the Bar and the solicitors was not quite like this. The barristers’ higher court advocacy monopoly and the solicitors’ conveyancing monopoly were treated as a ‘settlement’ between the professions. The work of legal executives was, however, defined by solicitors. In the twentieth century, the Bar continued to be regarded as the superior branch of the legal profession, because of its consultancy role and relationship with the judiciary. Judges were appointed from senior advocates and were therefore, barristers. Many judges kept their chambers in an Inn.

Judges and barristers were invested with status and mystique by the highly distinc­tive artefacts of their role, the court clothes, wigs and gowns. Wigs were considered a regency affectation even in the 1700s,^[296] but, in 1970, the wearing of full court regalia was rigorously enforced by judges.

In 1973 the Bar and the Law Society made a statement affirming their equality,^[297] but most solicitors’ professional relationship with barristers tended to be subservient, particularly in litigation.^[298] This was not true of the large commercial solicitors’ firms, which had the considerable advantage of controlling the gateway to lucrative commer­cial work.

B. Communities

i. Collegiality

Larson contends that professions adopted a pre-industrial notion of community from the craft guilds. These communities are based on the idea of collegiality, which Durkheim traced to the Roman collegia)^[300] Collegia were craft organisations mem­bership of which carried duties and privileges and provided a focus of loyalty for members said to rival loyalty to their own families. The mediaeval European guilds were similar. Such groups may collect dues from members, have distinctive feasting rituals, claim ‘ties of brotherhood’^[301] and engage in common employment or pursuits. He described the primary motivation of such organisations as:

[J]ust to associate, for the sole pleasure of mixing with their fellows and of no longer feeling lost in the midst of adversaries, as well as for the pleasure of communing together, that is, in short, of being able to lead their lives with the same moral aim.^[302]

Pound observed that early professional constitutions had the aim of cultivating ‘a spirit of friendship and good will toward each other’.^[303] Collegiality, he wrote, ‘enables them to contest with their professional brethren all day in the forum, and meet outside on the friendliest terms and with respect for those with whom they have been engaged in the strife of litigation’.^[304] Larson argues that ‘[c]ommunity and ethi- cality are indissolubly related. In fact, profession is more often defined as an occupa­tion that tends to be colleague-orientated, rather than client-orientated’.^[305]

In modern usage, ‘collegiality’ describes both a model of occupational control, of which professionalism is an example,^[306] and a work relationship. Ihara, for example, defines collegiality as support and co-operation between colleagues, a reciprocal respect for colleagues’ ability to further professional ends through their knowledge and skills, a commitment to common professional values and goals, a willingness to have confidence in colleagues as responsible autonomous agents, a sense of ‘con­nectedness’, or sharing with others the bond of being part of a larger independent whole.^[307]

Larson argues professional culture includes a sense of craft and of work as self­identity and self-realisation.

The English Bar has an archetypal collegial structure. Arthurs, for example, observes that:

For the Canadian legal profession, the real (or imagined) culture of the English bar is the point of reference (not to say reverence)... Indeed, if there is any legal profession whose culture can be identified with some precision, it is surely this one. Accordingly, in the case of the English bar, culture can be seen as an important vehicle for the transmission of values and the regulation of behaviour.^[311]

The key features of Bar collegiality were the organisation of independent practitio­ners in chambers, contained within Inns, providing physical proximity and identity. By 1970, despite several small metropolitan locations, the Bar was still centred on London. Inns played an effective role in Bar life, for example, by helping to maintain discrete but effective discipline. The General Council of the Bar, while responsible for policy, was controlled by the Inns.

The Inns preserve Bar rituals collectively and individually within each Inn. An example of a collective ritual is dining in the Inn during the period before admission. This was originally introduced to establish residence in an Inn, and was then made a standard requirement across the Inns.^[312] An example of an individual ritual is that Middle Templars sign the roll of members called to the bar on a hatch cover from Sir Francis Drake’s ship, The Golden Hind. Dining was an increasingly controversial requirement, particularly when Bar students were allowed to study outside London.

The Inns eventually found an ingenious compromise to the dining requirement. Students are now required to complete 12 ‘units’ in order to be called to the Bar.^[313] These are known as qualifying sessions and are defined as ‘educational and collegiate activities arranged by or on behalf of the Inn for the purpose of preparing junior barristers for practice’. These sessions typically include ‘dining sessions’, with senior practitioners, but they need not be so. It is more common now for these sessions to have relevant talks and training workshops. Even these limited requirements are sometimes resented.^[314]

Solicitors had more difficulty in establishing a collegial profession. The national dis­persal of solicitors’ firms created more physical distance between solicitors and between and between local law societies and the Law Society. Nevertheless, a common education programme, and relatively few sites from which it was delivered, supported a sense of belonging to common group.

The effectiveness of The Law Society as the representative of all solicitors was evidenced by relatively few challenges to its authority from members.^[315] In the 1960s, however, a National House Owners Society was established to encourage people to do their own conveyancing. Sections of the profession criticised the Law Society for failing to defend the conveyancing monopoly effectively. This led to the establishment of a short-lived competitor, the British Legal Association.^[316]

ii. Hierarchy

The picture of professions as communities of equals is ideological.^[317] Professions have internal badges of status; hierarchies that may not relate to wider status hierarchies.^[318] In fact, the Bar is distinctive in having a formal hierarchy^[319] with judges, Queen’s

Counsel, benchers, readers and heads of the Inns. The Law Society, with fewer official degrees of hierarchy, has a more conventional internal elite in the long established and high status London firms. Both branches also have officers answering to elected councils and a president rotated annually. These elites dictate standards accepted by all in return for the esteem bestowed by association with elite reference groups.^[320]

iii. Education

Larson observed that appointment to elites, such as professions, is sponsored by exist­ing members in the UK.^[321] Barristers used ascribed characteristics, the kind of person who could become a barrister, well into the twentieth century, while solicitors were seen to use formal or achieved qualities.^[322] By the 1970s the legal professions were offering increased numbers from the aspiring middle classes the prospect of raising their status through work.

Accessibility was improved by the abandonment of practical for academic quali­fication. Education had become more meritocratic and anonymous, being based on qualification and examinations. Linking educational programmes to universities initially helped professions to control the production of expertise.^[323] As the solicitors replaced apprenticeship with formal educational programmes, they could not control the numbers entering the profession as effectively.

C. Values

Larson argues that English legal professionalism fused gentlemen’s values with busi­ness values to produce the professional ethic. The legal professions held many values in common, for example, a duty of client loyalty reflected in obligations of fidelity and confidentiality. They also represent some values that are quite distinct from each other.

i. Bar Neutrality

The Bar’s commitment to neutrality is stronger than that of solicitors. This is consis­tent with barristers’ role as consultants in legal matters, whereby they had a profes­sional client, a solicitor, and a lay client. It is perhaps for this reason that barristers were able to remain very detached from client wishes. Indeed, barristers have been observed to sometimes take an almost judicial role, refusing unmeritorious claims and promoting settlement where they consider this advisable.^[324]

The ‘cab rank rule’ is the expression of the Bar’s commitment to neutrality. The rule is so called because barristers must accept briefs in the order they arrive. The Bar’s Code of Conduct required barristers, as advocates, to accept a case, unless they had a valid, accepted reason for not doing so.^[325] A separate rule required them to accept any brief to appear before a court in which they profess to practise.^[326] Having accepted that brief, barristers could not withdraw from a case except in specified cir­cumstances^[327] and subject to specific requirements for return of the brief.^[328]

The justifications for the ‘cab rank rule’ are, first, that it ensures that the smallest solicitors’ firm can instruct the best barrister on behalf of any client. This maximises equal access to justice. Secondly, it ensures representation, because advocates cannot be identified with their clients in the minds of members of the public. Rather than offering convoluted justifications of how they can represent murderers and rapists, barristers can say that their professional rules require them to do so. This is consistent with the presumption of innocence, but it also reduces, in the words of Geoffrey Robertson QC, ‘the excrement through the letter box’.^[329]

There are examples where advocates have attracted criticism by agreeing to act.^[330] Robertson alleges that the Bar Council prevented English barristers defending the accused in the Nuremberg Trails, that 21 QCs turned down briefs for the Old Bailey bombers in 1974 and that he was advised by a judge not to do so for risk of ‘join­ing the alternative bar’.^[331] Nevertheless, the cab rank rule is emblematic for the Bar. Solicitors have never been subject to an obligation to accept any client. Some solici­tors say that they would not act for certain types of client and argue that the principle behind the cab rank rule is outmoded.^[332] When solicitors acquired higher rights, the argument that solicitor advocates should adopt the cab rank rule was not accepted. Nevertheless, the cab rank rule has been compared favourably with other jurisdictions, like the USA, where there is no equivalent rule.^[333]

ii. Solicitor Honour, Independence and Integrity

The original values of The Law Society were shaped by the example of the Bar and a concern with status and social standing.^[334] The forerunner of the Law Society, The Society of Gentlemen Practisers, formed in 1739, expressed this in its aim of

supporting the honour and independence of the profession [and the] moral elevation of its members, [who] being placed under the constant observation of the whole body, the least tendency to Ungentlemanly conduct or dishonourable or illiberal practice will be immediately noticed and checked.¹⁷⁰

The solicitors’ leaders sought a protected market for a narrow range of preferred, high status work within a framework of institutional independence.

When provincial solicitors sought County Court rights of audience in the nineteenth century, the Council of the Law Society rejected the proposal because ‘gentlemen did not frequent the county court’.¹⁷¹ They promoted the image of the professional as a ‘the solitary, disciplined, highly educated, and deeply ethical practitioner dealing with clients one by one’.¹⁷² Sole practitioners were seen as the most ethically powerful lawyer. ¹⁷³ Only they could make autonomous decisions on representation, most other lawyers being constrained by the policy and bureaucracy of organisations.

The picture of responsibility and reliability was continued into the organisational form for solicitors. Each partner had personal responsibility for all partnership debts.¹⁷⁴ Solicitors presented themselves as reliable men of business. Goriely suggests that solici­tors consistently avoided low grade work, even if it promised to be profitable,¹⁷⁵ but were often forced to accept it by the threat of competition. She suggests that a pattern developed. First, the Law Society denied the need for legal services in the particular area. Secondly, having accepted a need, it devised a plan but did nothing about it. Thirdly, the advice sector developed the area of work and involved local solicitors. Fourthly, the profession defended the market that had been established.

VI.