An address recently delivered before the Birmingham Law Students’ Society by Sir Edward Clarke, English Solicitor-General, has given renewed vitality to the movement in England to break down the distinction between barristers and solicitors, and make the legal profession into “one body, each member of which should be entitled to do any part of the work of the profession.” The change is advocated as of benefit to the public, to barristers, and to solicitors.
The great hardship of the present system is the increased expense of litigation. The client engages a solicitor, and explains the case to him. In the County Court the solicitor can conduct the case alone, but, if the case comes up in a Superior Court, he must engage a barrister, for whose services the client pays. The barrister must then be instructed. All the facts are written out, the evidence copied, and a brief made out by the solicitor for the guidance of the barrister in pleading the case. All this is “written out in a big, round hand,” and a correspondingly round sum charged the client therefor. “Thus,” says Sir Edward Clarke, “at an enormous cost, the knowledge which the solicitor has is conveyed to another person, in order that he may put before the court the matters which probably the solicitor knows much better, and could explain just as well. In most cases the counsel is not the choice of the litigant, but is simply the counsel usually employed by the solicitor. Whether he performs his duty or neglects it, whether he does it well or ill, he is under no legal liability to the man by whom he is paid. The brief may not have told him all the facts; he may not have read it; he may be in another court when the case is being tried; but a client is absolutely in his hands, and cannot sustain any legal claim, even for the return of fees which have not been saved.” . . . Thus, “by the artificial rules, the litigants are obliged to bear very heavy costs in order to have their case argued by counsel who very often know less of the matter than the solicitors who employ them, and do not argue it as well. . . . It is even worse in criminal cases. There the necessity of this duplication of parts is a very heavy burden on poor men who are accused.”
The change is also urged as of benefit to both “the bar” and the so-called “inferior branch of the profession,” by the wider range of activity made possible for young and struggling members of the legal profession in both classes, the greater opportunity for exercise of special qualifications, the admission of barristers to the larger share of work done, and profits received by the solicitors, and the admission of solicitors to the greater honors and emoluments of the bar; also, it is claimed that the standard of the learning and eloquence of the bar will be raised by the admission of solicitors, from whom “a larger knowledge of law is required . . . . than is even now demanded for an admission to the bar;” also “stronger judges” would be obtained.
Sir Edward Clarke’s chief argument from example is, that “in the United States the (single) system has been long established, and while the incomes of the leaders of the legal profession are not, I believe, inferior to those earned in this country, and the part taken by lawyers in public life is very considerable, all who have read the reports of legal proceedings in the United States recognize the ability of their advocates and the sound learning which is found on their judicial bench.” He recognizes, in closing, grave objections to any sudden change in the existing system.
- The Irish Law Times and Solicitors’ Journal, Jan. 28, 1888.