I began my tour last week with a podcast talking to Andrew Hopper QC about the regulatory framework for solicitors
The Solicitors Regulation Authority (SRA) is overly aggressive, unaccountable, and is failing to differentiate between deliberate dishonesty and human errors of judgement, according to leading regulatory solicitor Andrew Hopper QC.
...“If there is one message I would like to convey to the SRA it is ‘please have some humanity; understand the consequences to individuals of what you do’,” he said.
It seems logical that I begin the analysis by looking at what lawyers are and what they do. The law is all pervasive in our society. On Monday I record podcasts with two leading academics: Professor Gary Slapper, global professor of Law, NYU and and Professor Richard Moorhead, Chair in Law and Professional Ethics at University College London
My podcast with Professor Gary Slapper – to be recorded in Gary’s office, the former office of Lord Eldon, Lord Chancellor, will be on the pervasiveness of law in our society, The Rule of Law and why lawyers, popular or not in our society, are so necessary. Professor Moorhead will talk about the importance of ethics in the legal profession and focus on what the ethical principles are
By Professor Gary Slapper
The contribution of lawyers to society is enormous and very important. They do not, however, enjoy a universally good reputation. Naturally, stories like the one concerning Cyrus Inches QC, a renowned Canadian lawyer, do not help. As he lay on his side in bed after an operation in 1955, he turned, contrary to instructions, to rest on his other side. He was rebuked by the nurse but replied: “My dear young lady, I’m a lawyer, and I’m used to lying on both sides.”
To help their public image, Canadian lawyers considered establishing a “truth and reconciliation” panel in 2005 to discover why they do not enjoy greater respect. Among possible public misgivings is the alleged propensity of some lawyers to argue something perverse in order to benefit their clients, particularly in protecting civil and criminal defendants. Such criticism, however undeserved, has long roots. The first treatise on adoxography – skillfully praising worthless objects – was published in England in 1593 by Anthony Munday. It contained essays celebrating poverty, drunkenness, and stupidity, and its preface claimed it would be especially useful to lawyers.
In modern, complex, developed democracies, there are many thousands of rules that affect people directly in their lives, and people require the expertise of specialists in those rules. You might need a lawyer not just because you have been arrested for a crime you are alleged to have committed, but also in situations where you have been sued or wish to sue, where you want to set up a company, or make a will, or get advice about a mentally ill family member, sell a property, avoid an eviction, protect your rights to an invention you have made, or get a divorce.
So lawyers enable people to protect or vindicate their rights. In addition to that, though, they also help to develop the law. Historically, law courts provided the forum for dispute resolutions. In the earliest periods of legal history, the court’s main function was to provide the process and principles of evidence by which disputes were resolved, as opposed to applying a detailed set of rules about whatever was in dispute.
The early courts, when there was no great body of recorded decisions and legislation, were prone simply to reflect customary social rules about right and wrong, how property was owned and transferred, and who was liable for what. Law courts were places whose authority and set procedures were good venues for settling disputes. From merely implementing social codes, the courts – through the arguments of lawyers – came to define, refine, and then redefine what became the common law. This was characterized by the distinguished legal academic AWB Simpson in this way:
Instead of the courts simply saying what is to happen to murders, the experts who deal with the murders may begin to develop their own ideas as to what is to count as murder. They begin to sharpen up customary or conventional or ethical conceptions or standards; they begin to develop their own definitions of murder. In the common law system this began when jury trial began to supersede divine and therefore infallible modes of trial, for jurymen could obviously make mistakes. The experts become nervous about leaving to the layman the whole business of adjudication, for example not only the decision as to what the accused had done, but also whether it ought to count as murder. So they began to take over the job of adjudication, at least in part. Thus what is to count as murder becomes a matter for the experts to settle, what we call a question of law.
Today, the country’s 124,000 lawyers are engaged in a massive social enterprise. Apart from vindicating rights, protecting the interests of individual and organizational clients, and helping to develop the law, they are a significant part of the economy. The law firms of England and Wales generated income of £15 billion in 2005 and if the rate of growth in the profession continues at the rate at which it has been expanding since the 1970s then by 2055, we shall have one million lawyers. Whether such a development is an index of a healthy, rights-conscious society or an unhealthy, disputatious society is an interesting question. The global lawyer-citizen ratio is 1:2,370, whereas in England and Wales it is 1:444.
There has certainly been a significant increase in the proportion of lawyers in the general population. In 1968 there were 54 million people in Britain of whom 23,000 were solicitors, whereas today we have a population of 60 million (11 per cent growth) and 90,000 solicitors (290 per cent growth). The law in the library has also grown considerably over the years. In his inaugural lecture at Oxford in 1883, the distinguished constitutionalist A.V. Dicey noted that even until well into the 19th century it was possible for a person to read the entirety of English law (presumably within the compass of an ordinary adult life). It could be contained in fewer than 200 volumes. Today, an earnest reader would probably need to live for over 600 years to read all law and regulations applicable in Britain.
Useful resource: Chapter Three on the legal profession from Professor Slapper’s book How the Law Works