Reform of the Legal Profession: An Alternative ‘Way Ahead’
| Published date | 01 November 1999 |
| Author | Gwynn Davis,Roger Kerridge |
| Date | 01 November 1999 |
| DOI | http://doi.org/10.1111/1468-2230.00239 |
THE
MODERN LAW REVIEW
Volume 62 No 6November 1999
Reform of the Legal Profession:
An Alternative ‘Way Ahead’
Roger Kerridge and Gwynn Davis*
Introduction
In this article we consider the future organisation of the legal profession in the light
of government proposals intended to promote solicitors’ take-up of higher court
rights of audience. It is our contention that in focusing upon rights of advocacy the
current debate is framed too narrowly. We take this view partly on the basis of a
recent empirical study, which we briefly review. In the light of that evidence we
suggest an alternative approach to distinguishing legal expertise which would, if
implemented, convey a more accurate sense of lawyers’ skills. Our research has
convinced us that if there is to be reform of the legal profession, then proposals for
change should encompass all aspects of the delivery of legal services. The debate
should be not only about rights of audience, but ought also to encompass legal
education, the organisation of court hearings, and the role of the judiciary.
Accordingly this essay includes some consideration of the degree to which these
other aspects of the legal environment influence the way the profession is organised.
First, a brief history. The legal profession in England and Wales has always been
divided into branches or sub-professions. Apart from scriveners and notaries, there
have in the past been attorneys, solicitors, proctors, conveyancers, special pleaders,
equity draughtsmen, advocates1and barristers. But there have been two principal
branches, solicitors2and barristers. The relationship between these two branches
had become settled by the end of the eighteenth century and changed relatively
little between about 1790 and 1990. During the course of the nineteenth century the
other sub-professions were swallowed up or amalgamated into the two principal
branches. Attorneys amalgamated with solicitors; proctors joined them; special
pleaders and advocates became barristers. There was a real possibility during the
middle years of the nineteenth century, the age of reform, that the final fusion
might come about. But it did not, and the two branches of the profession remained
separate.
ßThe Modern Law Review Limited 1999 (MLR 62:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 807
* Department of Law, University of Bristol.
We are grateful to our colleagues Jonathan Hill, Julia Pearce and Chris Willmore for their comments on an
earlier draft of this article, and to Pat Hammond for secretarial support. We alone are responsible for the
views expressed.
1 Members of the College of Advocates, known as Doctors’ Commons, ie those who practised before the
Court of Admiralty and the ecclesiastical courts before 1857.
2 Using the term ‘solicitors’ in the wider sense – to include attorneys.
Solicitors have always dealt directly with lay clients and, until recently, had a
monopoly of conveyancing3and of the conduct of litigation other than advocacy.
They also had rights of audience in the lower courts.4Barristers have not been
permitted to deal directly with lay clients,5but they have always enjoyed full rights
of audience in all courts, including until recently an effective monopoly of rights of
audience in the higher courts.6Decisions as to rights of audience, who could appear
in which courts, were left by and large to the judges (who had themselves all been
recruited from the Bar7). It was they who, de facto, created or maintained the Bar’s
monopoly8in relation to rights of audience in the higher courts.
The distinction between the two branches of the profession has never been confined
to these matters of access by lay clients, conveyancing, and rights of audience. It was
clear during the latter part of the eighteenth century and throughout the nineteenth
century that barristers were in general better educated than, and socially superior to,
solicitors. Even in the 1870s only five per cent of those admitted as solicitors were
graduates,
9
in contrast to some seventy per cent of those practising at the Bar in
1885.
10
Barristers were all based in London and had good access to libraries. Solicitors
were more scattered and generally did not have such access. Barristers were the senior
branch of the profession, and solicitors, who were regarded as general legal
practitioners, went to them for advice as well as for advocacy. As to their relative
positions in society, it can be discerned from the novels of Jane Austen that solicitors,
at least at the start of the nineteenth century, were ‘not socially acceptable’.
11
There was a gradual change over the course of the twentieth century, to the point
where the solicitors’ profession became almost entirely graduate. As solicitors
formed larger partnerships, specialisation within partnerships increased, again
facilitated by improved access to libraries. It was no longer true that most solicitors
were general practitioners. Many of the best graduates chose to become solicitors
rather than barristers,12 and it could no longer be asserted that solicitors were, as a
group, socially inferior to barristers.13
3 The art of creating and transferring rights in or over land by deeds. Solicitors obtained their
conveyancing monopoly during the early nineteenth century as a quid pro quo for paying stamp duty on
practising certificates and duty on articles, ie they were granted the monopoly in exchange for paying
tax: R. Abel, The Legal Profession in England and Wales (Oxford: Basil Blackwell, 1988) 141.
4 Principally, the magistrates courts and the county courts. In fact, for solicitors to be granted rights of
audience in the newly created county courts in 1846 was thought at the time to be a step on the road to
fusion.
5 Since 1989, members of designated professions (other than solicitors) have been allowed to approach
barristers directly for advice. This is ‘DPA’ (Direct Professional Access). At the time of writing (June
1999) the General Council of the Bar is preparing to launch BarDirect, a new scheme which will enable
some other organisations to consult barristers directly, and not via solicitors. This scheme is now in its
pilot stage.
6 The Crown Court, the High Court, the Court of Appeal and the House of Lords.
7 There were no solicitor judges before 1949. The Justice of the Peace Act 1949, s 29, enabled solicitors
to become stipendiary magistrates. Under the Courts Act 1971, solicitors became eligible to become
circuit judges but were not eligible to be promoted to the High Court bench. Under s 71 of the Courts
and Legal Services Act 1990, solicitor circuit judges became eligible for promotion to the High Court
bench – at the time of writing, one solicitor has become a deputy High Court judge.
8 As Parke B said in 1831: ‘No person has a right to act as an advocate without the leave of the Court,
which must of necessity have the power of regulating its own proceedings in all cases where they are
not already regulated by ancient usage’: Collier vHicks (1831) 2 B & Ad 663, 672. See also D. Pannick
Advocates (Oxford: OUP, 1992) 175.
9 Abel, n 3 above, 143.
10 ibid 47.
11 G.H. Treitel, ‘Jane Austen and the Law’ (1984) 100 LQR 549, 550. The vulgarly effervescent Mrs
Bennett in Pride and Prejudice was an attorney’s (ie a solicitor’s) daughter.
12 P. Reeves, Are Two Legal Professions Necessary? (London: Waterlowe, 1986) 101–103.
13 Abel states, n 3 above, 170, that as late as the Second World War barristers were automatically granted
commissions; solicitors were not.
The Modern Law Review [Vol. 62
808 ßThe Modern Law Review Limited 1999
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