On my recent trip to London for a conference with the Ecclesiastical Law Society, I was sure to make time for something I didn’t get to do on my previous trip to London—a tour of the Inns of Court. It was an informative tour done by a retired solicitor. I hadn’t known what to expect, as it was something I signed up for just by a quick internet search. Surprisingly to me, though, it seemed like I was the only American on the tour. There were a few Canadians and some Australians—it seemed like we were all participants in the common law system, but their systems hewed much closer to the British it seemed. They still maintained the distinction, at least in form, between solicitor and barrister, although each jurisdiction varied slightly on the English system. I was also the only currently practicing lawyer. There were a couple judges, one still sitting on the bench, one retired.
I had a couple reflections after the tour. It didn’t leave me with grand feelings towards Coke, Selden, Hale, and the like as I’d expected if not hoped—their presence seems muted, perhaps as the English legal profession has moved on to become just as modern, if not more modern, than the American one—and of course the Inns are not historical relics but working institutions.
But the distinction between solicitor and barrister seemed an important one that, I would imagine, leads to a healthier profession. The distinction between the two professions had been cloudy to me before, and I was finally able to get clarity on it. Namely, solicitors are those that actually go out and solicit business, and who do simple legal work directly in consultation with the client. When a matter reaches a threshold of requiring serious court proceedings, however, the solicitor must engage a barrister to actually undertake the court proceeding.
It seems to me that the American court system goes wrong in how closely it lets the client direct the court proceedings. Of course, this is not how it’s supposed to be, and serious lawyers who have enough of a reputation and ability to tell a client no—or institutional lawyers who have a higher interest at heart—can maintain a level of seriousness and decorum in court proceedings. But lawyers who are more reliant on fees and business can present legal and factual arguments that border on the frivolous and get away with it—and if you’re rich enough and capricious enough, you can always find a lawyer to present your petty grievance in a demand letter or lawsuit. We’re never short of that, particularly in this day and age.
Barristers, then, in not having to go out and get business from the general public, in not taking orders directly from the client, would seem to have the ability to maintain a sense of duty and fidelity to the profession by default that requires virtue and sacrifice for an American lawyer to maintain.
I’m sure there are downsides—but at least in the particular hot points that have frustrated me in my legal career, it seems like it’s a system that works better.
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