The Modern Era 1700-1969

A. Context

In the early-1700s the term ‘profession’ began to be used to describe learned and self­governing occupations.⁷³ By this time, the Bar, through the Inns, had control over admission, imposed educational requirements and controlled a well-defined field of expertise.

During the nineteenth century a burgeoning urban middle class produced an increased demand for technical services. The process of solicitor professionalisa- tion coincided with the birth of industrial capitalism. The client base was limited by a small middle class and the fact that the poor could not afford legal services.⁷⁴ Capitalism also led to the development of the corporate form and large organisations. These are characterised by bureaucracies driven by an ideology of efficiency and expert decision-making.

⁷⁰ ibid, at 446-47.

⁷¹ ibid, at 442-43.

⁷² ibid, at 647.

⁷³ ibid, at 450.

⁷⁴ Larson (n 8) ch 1.

B. Community

i. Institutions

a. Serjeants at Law

The order of serjeants was eventually abandoned and no more were appointed after the Judicature Act of 1873.

b. Barristers

Towards the end of the nineteenth century the Inns began to develop collective insti­tutions. In 1852 the Inns of Court established the Council of Legal Education, a body containing members of each Inn. This established five professorships to provide lectures which student had to attend as a condition of call. In 1883, a mass meeting of the junior bar complained about the failure of benchers to support a campaign against procedural reform.

c. Attorneys

While the Bar rose in reputation and esteem, the standards and behaviour among other lawyers attracted criticism. An Act of 1729 responded to anxieties about the proliferation of lower branches, both attorneys and solicitors, by imposing training requirements on prospective attorneys. They would be required to serve five-year articles to an attorney who could only take two clerks at a time. They would also take an oath and be admitted and enrolled by a court on qualifying.^[240]

In 1739, 28 elite London attorneys and solicitors established the Society of Gentleman Practisers in the Courts of Law and Equity (‘The Gentleman Practisers'), partly in order to try and improve the situation.^[241] The Gentleman Practisers declared their support for the 1729 Act and resolved to police it against ‘unworthy' attorneys.^[242] This promise was not effectively carried out because of the weak infrastructure of regulation for attorneys and the lack of resources of the Gentlemen Practisers. It did however serve as a declaration of serious intent.

The Gentleman Practisers belatedly recognised the importance of community in pur­suing their aims. In the early-1800s they decided to erect a headquarters. In 1831 a Royal Charter was granted to ‘The Society of Attorneys, Solicitors, Proctors and others not being Barristers, practising in the Courts of Law and Equity of the United Kingdom'. Although the cost of membership was originally pitched at a price beyond the reach of ordinary practitioners, the society swiftly lifted artificial restrictions on membership so that it could speak with the authority of a broad base. It assumed responsibility for all legal professions, including attorneys, under the title ‘solicitor’. The society is still constituted under replacement charter granted in 1845 but did not change its name to the Law Society until 1903.^[243]

The Law Society is said to have copied three major policies of professionalisation from the Bar; controlling entry and training, monopoly and self-government.

The Law Society raised funds, by members’ subscriptions, to erect an impressive home, the Law Society Hall, in Chancery Lane, which it entered in 1832.^[245] This was in the middle of the area surrounded by the Inns of Court and next to the Supreme Court. The Hall had its own library, meeting rooms, dining rooms, a large members’ room and an atmosphere like a gentleman’s club. The Victorian vogue for public bodies linking learning, science and the public interest through public lectures was also influential.

Following the formation of the Law Society, the legal profession became two branches, barristers and solicitors. Membership of the Law Society reflected tension between elite, litigation-focused London solicitors and non-elite London and provin­cial conveyancing-focused solicitors. In 1870 only 10 per cent of provincial solicitors were members of the Law Society, despite being two-thirds of the profession.^[246]

d. Legal Executives

Other groups carrying out legal work, scriveners, trade mark attorneys and nota­ries for example, were neither solicitors nor barristers. Legal executives, unquali­fied clerks employed in solicitors’ offices, were numerically significant from the nineteenth century. The more experienced clerks were designated as managers of other clerks, becoming known as managing clerks. In 1892 the Solicitors Managing Clerks’ Association was formed. From the 1950s and 1960s the Law Society chose to strengthen the Solicitors Managing Clerks’ Association, and improve the career struc­ture for clerks, rather than relax its examination standards.

C. Work

i. Occupations

a. Barristers

The status of judges and of the Bar increased following the Glorious Revolution. The Bar was treated by the state as self-governing and barristers began to assert their independence as practitioners. By 1720 a barrister, on being called, was ranked by the College of Arms above a gentleman and equal with an esquire.^[247] Although the Bar was rooted in London, it served circuits around the country, and barristers followed judges around the circuits. The Circuit Mess and its Grand Council were given disci­plinary powers over the travelling bar.^[248]

The formation of the Law Society put on a more solid footing the Bar’s preference for specialisation in advocacy. There was only occasional conflict between barristers and solicitors over the higher status advocacy. This was most notable over the juris­diction of the County Courts, where solicitors had rights of audience. For 100 years, from the 1820s onwards, the Bar tried to ensure that only low value claims could be brought in the County Courts. It also strove to retain control of divorce work.^[249] In other ways the Bar actively tried to give up work. It continued to avoid dealing with clients direct, preferring to appear only for clients introduced by solicitors.

b. Solicitors

The Law Society was half-hearted in competing with the Bar for higher court advo­cacy. This was probably because solicitors held a lucrative statutory monopoly of their own; the right to conduct the legal transfer of land, or conveyancing. This was gained almost by accident by the Gentlemen Practisers in the late-1700s. In 1785 Pitt the Younger imposed a tax on the annual practising certificates of solicitors and attorneys.

In addition to conveyancing, solicitors had two other significant monopolies. As a result of barristers’ aversion to dealing with clients direct, solicitors launched and conducted litigation, which also gave them control of the investigation process. They were therefore best placed to brief barristers, when they needed either specialist advice or advocacy in higher courts. Barristers, for their part, only accepted instructions from solicitors.

Dealing with the most important client affairs, from litigation to land transfer, gave solicitors a commanding position over the wider field of business. The solicitors’ limited monopolies provided a foundation for servicing a growing demand for legal services in the second half of the nineteenth century. The solicitors held a powerful position through historic associations with aristocratic members and patrons^[251] and a wide client base. Firms and individuals had considerable social and political connec­tions, through lawyer politicians, lobbying and other work for clients.^[252] Solicitors did not exploit their dominance of business as effectively as they might have done, largely because of the profitability of conveyancing.

Between 1910 and 1970 conveyancing equalised salaries across the solicitors’ pro­fession.^[253] This was comfort brought at the expense of over-reliance. By the 1960s, conveyancing and legal aid represented almost 50 per cent of solicitors’ work.^[254] Solicitors missed an opportunity to dominate insolvency practice and accountancy, which was based in solicitors’ firms in the nineteenth century. During the twentieth century, accountancy firms grew profitable more quickly than solicitors’ firms. The folly of this was demonstrated when, in the late-twentieth century, accountancy firms threatened to dominate the market for business advice.^[255]

c.

Managing clerks worked in the same areas as solicitors and were notionally under their supervision. Many clerks achieved considerable reputations as lawyers in their own right. Because of the historic relationship with solicitors, however, legal execu­tives had no exclusive monopolies over work.

ii. Regulation

a. Solicitors

Self-regulation was the last of the three professionalising strategies achieved by the Law Society. Such moves were often a reaction to concerns about the behaviour of solicitors or a public scandal. By 1834, the Law Society initiated its first disciplinary proceedings and began to collect and publish ‘best practice’ on issues of etiquette and costs,^[256] often supporting a hard line over solicitor infractions.^[257] By the Solicitors Acts of 1888, 1910 and 1919 the Law Society’s disciplinary committee was given powers of discipline, including suspension and removal from the roll. The Law Society also sup­ported harsh penalties for solicitors, such as those under the Larceny Act 1901. One solicitor was sentenced to four years’ penal servitude despite having returned money taken from client account.

In 1906, the Law Society promoted a bill to ensure that solicitors could not use client money for their own purposes. The following year it gained power to refuse practising certificates to bankrupt solicitors and investigate their accounts. It also established a fund to protect clients against the consequences of misappropriation.^[258] In 1933, rules were introduced requiring solicitors to keep client money separate from their own. Other powers of self-governance followed. In 1941, the Law Society com­pleted its structures of self-regulation when it acquired powers to inspect the accounts of practitioners and with the creation of the compensation fund.^[259]

The Law Society adopted meritocratic criteria for entry. It introduced an examination in 1836. In the 1860s, it introduced an intermediate examination, taken during the five- year articles. In 1877, legislation gave the Law Society authority to take over the control of these examinations from the judges,^[260] giving it control over admissions. In 1906, it introduced an examination in accounts and bookkeeping. Numbers entering the profes­sion were, however, controlled by the examination process. At the beginning of World War Two, for example, the pass rate for each examination was only 50 per cent.^[261]

Entry was also restricted by substantial indirect costs, for example, the premium clerks paid to established practitioners for training, or articles of clerkship. This could run to several hundreds of pounds in 1903 when average industrial earnings were only £60 per annum.^[262] Clerks also had to pay stamp duty of £80 and received no pay for five years.

b. Barristers

By the mid-eighteenth century legal education in the Inns and in the universities was perfunctory. This was partly because class, not legal education, was a decisive criterion for the selection of barristers. At the beginning of the nineteenth century barristers were upper class and co-opted by their peers. Entry to an Inn was at the benchers’ discretion. Candidates had to keep five terms, eat six dinners in each and have references from two barristers. The number of terms for university graduates was reduced to three, during which they only had to take three dinners per term. All candidates then served two years’ pupillage, after which they opened their own cham­bers. This was an extremely selective and expensive process. University degrees were rare and the whole process took 10 years. During this time fees and expenses were a constant drain on resources. There was no legal component to degrees, nor formal training in law in the Inns.^[263]

In 1872, the Inns of Court were pressured to follow the Law Society’s example and adopt examinations for entry. Examinations were more meritocratic and appeared to justify the claim to expertise that could not be assessed by outsiders.^[264] Following its formation in 1895 the Bar Council assumed responsibility for laying down rules of etiquette, such as that requiring that a barrister be briefed by a solicitor.^[265] It also developed a disciplinary role over the whole Bar. Although the Bar became more cen­tralised, the Inns continued to have substantial responsibilities. It was not until 1966, for example, that the four Inns delegated the authority of each Inn over training to a Senate of the Inns of Court.

c. Legal Executives

The objects clause contained in the memorandum and articles of Association of ILEX included the regulation of members by ensuring compliance with published standards. The Institute controls its own admission process by examination, although exemptions and a fast track are available for law graduates. ILEX was authorised to discipline its members and hearings began around 1968. Members who work for solicitors’ firms can also be made subject to an order of the Solicitors Disciplinary Tribunal controlling their employment by solicitors.^[266]

D. Ethos

i. Independence

The independence of the Bar remained relatively undisturbed during the nineteenth century and most of the twentieth century. Assisted by its unparalleled influence in law reform, the Law Society achieved a similar standing and independence over the same period. Close ties with government began in the 1830s, when the Law Society established a committee containing solicitor MPs to lobby on proposed legislation. Since the civil service was relatively small, this evolved into involvement in legislative drafting. In 1838 the Law Society was invited to draft the Solicitors Act 1844.^[267]

The Solicitors Act 1844 created the office of Registrar of Attorneys and delegated the role to the Law Society. Consultation by the Attorney General on other legisla­tive measures followed. The Law Society subsequently prepared the Acts of 1860 and 1870. A solicitor, Edward Wilkes Field, led the effort to concentrate the dispersed London courts and the Royal Courts of Justice on the Strand, just behind the Law Society Hall, were completed in 18 8 2.^[268] By the end of the nineteenth century, the Law Society had developed a relationship of trust with government.^[269] This reached new heights in 1948 when it was allowed to manage significant public funds under the new legal aid scheme.^[270] Solicitors were a key group in formulating, articulating and binding together the great middle class revolution of the nineteenth century.^[271]

By the latter half of the nineteenth century the elite London firms had extensive social networks and strategies for establishing embedded relations with major clients, such as banks. The partners in leading firms sent their sons to elite schools and univer­sities where they could befriend the sons of banking families and other big businesses. It was common to send one son to the Bar and take one into the firm.^[272] The elite London-based commercial firms dominated the Law Society and used their extensive social networks for its benefit.

The formidable front presented by the professional bodies may explain how they resisted change, such as fusion into one occupation, which had long been mooted.^[273] Abel-Smith and Stevens considered that the legal profession, which they describe as eighteenth-century institutions with an eighteenth-century outlook, must have ben- efitted from weighty lawyer representation in government, or the patronage of the Lord Chancellor or the judges.^[274] This may well be the case, although Burrage argues that the professions’ independence were part of the political settlement accompanying the Glorious Revolution in 1688.

The terms upon which William and Mary acceded to the throne guaranteed the rights of Parliament and the Bar, and hence the legal profession.^[275] While the Law Society grew in influence, it also adopted positions opposing the state. In the 1880s, for example, it advanced solicitors as a counterweight to state authoritarianism, or ‘officialism’, the growth of the state bureaucratic machinery and ‘state socialism’.^[276] In the early-twentieth century the Law Society was part of a broad coalition sup­porting conservative, laissez faire politics and resisting state encroachment on civil society.^[277]

ii. Public Service

During the nineteenth century the lack of a highly developed civil service forced the state to co-opt bodies like the Law Society to administer government. This led to dependence and ‘the blurring of the public and private spheres’.^[278] In the earlier- twentieth century occupational expertise continued to guarantee a measure of self­determination. It was believed that expert occupations defined the public interest in their sphere of operation and that the state would not interfere in the absence of an overwhelming public interest.^[279] This was accepted across society as a natural social order, in part because it guaranteed the autonomy of a range of social institutions.

The industrial age disrupted the status structure of the medieval period. The estab­lished hierarchy of trades was replaced by employment within a division of labour in factories. Larson suggests that professions sought to distance themselves from capital­ist production by incorporating into their ideology residues of the pre-capitalist era. She identifies these in three anti-market principles. First, work is valued for its intrin­sic reward, rather than for the income it provides, and is seen as a calling or vocation. Second, is the idea that services are universally available, which reflects the notion of community responsibility and gentlemanly disinterest. Third, the aristocratic idea that rank carries responsibilities, or noblesse oblige.

In the capitalist phase, the professions re-organised their works and markets to estab­lish a market monopoly based on expertise.^[280] They claimed exclusive competence to determine how legal tasks were performed. This represented an attempt to make the pro­fessionals, as producers, into a commodity that markets could understand. It required standardisation of ‘the product’ to ensure the uniformity of ‘producers’, and hence the standardisation of training. It also unified the professions. The establishment of a ratio­nal and scientific language and knowledge supported the appearance of neutrality and legitimated the professional monopoly.

Prior to the Second World War professions served a fairly exclusive market. Hanlon suggests that solicitors had as little to do with the poor as possible. The Law Society co-operated in a limited legal aid system for divorce in 1926, but resisted most other welfare-orientated proposals.^[281] They did, however, prioritise respectability, being per­ceived as gentlemen, over money. In the period following the Second World War, the British Government created a welfare state. This involved regulating the free market and a guarantee of social citizenship based on better health care, education, access to justice etc. The professional groups which controlled these resources called for ever­increasing expenditure. Between the 1930s and 1970 government spending grew from 30 per cent to 50 per cent of national income.

Much of the growth in national spending was in welfare, and specifically legal aid, which grew in scope to cover legal advice in the 1950s. As a consequence, lawyers were given greater control of state funding than any other professional group. The Law Society policy was to collaborate with this expansion provided lawyers remained in charge and it did not affect their interests. The Law Society opposed the expansion of civil legal aid eligibility during this period because it thought it could earn more from middle classes paying privately.^[282] It was complicit in a failure to expand criminal legal aid in the 1960s because of a perceived threat to its respectability.^[283]

The expansion of the legal profession from the 1960s, supported by legal aid, entailed a shift in professional ideology. Hanlon argues that the legal profession eventually entered a ‘bargain with the state’ to deliver social democracy as a right of citizenship.^[284] This embrace of ‘social service professionalism’, he argues, led to the adoption of characteristics such as an ideology of public service, lack of interest in money and control over clients.

V.