By Akshay Dinesh Shah, NUALS
Editor’s Note: The author has traced the history and development of the legal profession in England since the twelfth century. This paper gives an insight into aspects like the Lawyers Inns’, Barristers and Solicitors, the King (Queen’s) Counsel, the beginning of professional legal education in England (by way of writ of 1292), Notaries and Scriveners, so and so forth.
The paper further continues to evaluate the more recent developments in terms of the abolition of the ‘conveyancing’ system, liberalizing the guidelines pertaining to an advertisement, new legislation like the Legal Services Act 2007 and also the Clementi Report. The Legal Services Act particularly contributed to the independence of the legal profession.
The main characteristic of the English legal profession is that it is divided into two, barristers and solicitors. This makes it unusual but not unique in worldwide terms. For centuries, each side has enjoyed certain protected monopolies in legal services but, since 1985, most of these have been abolished by degrees. This and the significant changes in the structure of legal services, wrought by the ‘Access to Justice Act 1999 and threatened by 2004 Clementi review, have left some members of the legal profession feeling insecure.[i]
The paper aims to analyze the changes that the English Legal Profession has undergone since the Twelfth Century to the present day. The paper has discussed the various changes that the profession has undergone by the means of legislation, Royal charters or the self-regulated professional bodies. The paper makes an attempt to chronologically discuss these changes and their effect on further development of the profession.
Any system of law has a very close relationship with the experts who operate it. The judges who interpret the law, the advocates who present cases in the court, the counselors who advise clients as to their effect and those who expound it by writing and teaching it. The emergence of common law of England was more or less coincident with the appearance of professional judges, who were soon followed by practitioners and its refinement as a body of rational principles in the thirteenth and fourteenth centuries was chiefly the accomplishment of the elite body of judges and advocates who belonged to the order of serjeants at law; a body which, in over six centuries of history numbered less than one thousand members, about the same as the number of the Queen’s counsel in the present day.
The strength and unity of this profession explain how the reasoning of a small group of men in Westminster hall grew into one of the world’s two greatest systems of law. For this particularly English professional structure was wholly independent of university law faculties, where only Canon law and Roman Civil law was taught and this factor as much as any other ensured the autonomous character of English law and its isolation from continental jurisprudence.
During the twelfth century, justiciarii (who were members of Curia Regis) toured the country on Eyre or sat in the Exchequer and Bench.[ii] Some of them were Clergymen while some others-including the more successful ones were Knights. The profession then didn’t require a degree in Roman law but the uniform administration of royal justice elevated the judicial role into distinct and technical profession. This tradition of King’s Justice was handed over to their successors. By 1200, continuity was facilitated by appointing to the bench, men who had previously served as clerks to the judges of the previous generation.
Early Legal profession:
Courts in England initially were highly local, tied to local systems of property ownership. This could roughly be related to a feudal system. People were obliged to their lord and the ties they had to the land. Courts were groupings of lords who would know the issues complained of and apply understandings of customary right. There was no distinction between legislation, advocacy, and judgment as we see today. Courts were multiple, from the moots to the hundred courts to the Eyre courts.[iii]
Around the Twelfth Century, the king initiated an attempt to impose a common law across England, overriding the judicial powers of the local lords. The king imposed King’s justice by sending out members of his household to sit and hear complaints that had accumulated since the previous circuit. Most notoriously, the king’s justice was imposed by the Star Chamber beginning in the Fourteenth Century.
It is very difficult to say at what date professional lawyers first appear in the common law system. The only trials in the Anglo-Saxon age which we can follow in any detail are important cases involving high ecclesiastical dignitaries, and yet even they seem to conduct their cases in person. There is no convincing evidence of a legal profession in the Anglo-Saxon period. A body of professional advocates and attorneys to mediate between the judges and the private litigants appeared a few decades after the 12th Century.
This added a new class of legal experts which soon outnumbered the judiciary. This necessitated the judges to be comparable in the background and forensic skills with those who appeared before them. By the end of the thirteenth century, it had become a general rule that the judges of benches must be appointed from the professional bar. This did not become an absolute rule until the fourteenth century but the exceptions were only temporary appointments.[iv]
Thus, English possessed from an early date a bar and bench united by their membership of common profession. This new profession had arisen independently of the church and universities and was rooted in the practice of the law of the land.
The Medieval Legal Profession:
The need for a regular legal profession has been pressing since the Royal Courts. The non-clerical legal profession appeared in the course of the thirteenth century. How far litigants would have access to expert assistance before that is unclear. The clergy was according to canon law not allowed to practice in lay courts for gain, though it is possible that they provided some legal assistance to the litigants until a lay profession came into being.
From the very start, the legal profession in England was divided into two functions. There was a forespeaker (advocatus or prolocutor) who stood beside a litigant and spoke for him while there was a representative (attornotus or procurator) who acted on behalf of somebody else in his absence so as to bind him in his absence. Thus, in the English Legal Profession, the division of function preceded the appearance of a profession, but the allocation of functions has shifted over centuries.
Even for the central courts, there were no professional advocates. The proceedings were informal where the parties to the conflict presented their own cases to the best of their abilities before the king or the nobles or the clergy. The proceedings resembled a family dispute, where the disputing family members presented their case in front of an elder. The king’s intervention, measured by royal writs, was now relegated to a group of courtiers. Now as soon as the role of adjudication was delegated to deputies, it became necessary to confine them with a routine, strict procedure set of forms, and a set of pleading. These in turn necessitated the growth of a legal profession, for the public could hardly be expected to understand the newly invented office machinery of the King’s Court.[v]
The first instance of a legal profession of substantive size which involved men following the law for a living and subject to some form of discipline only became visible in the middle of thirteenth century, and an element of professional regulation was then introduced. The first elements were present as early as 1200-10, when the names of a few pleaders, attorneys and essoiners[vi] are found to recur in the rolls of the Curia Regis, but this habitual practitioners did not yet act to the exclusion of others, nor where their functions always mutually exclusive. [vii]
Some of the regulations that came in the thirteenth century include a 1275 enactment that professional lawyers found guilty of deceit should be punished.[viii] Another enactment was in 1280 when the city of London made regulations concerning practitioners in the mayor’s court, for the administration of an oath to those newly admitted, and for keeping separate the functions of the pleader, attorney, and essoiner.
In the records of the fourteenth century, it is found that the pleaders in the Common Bench were selected by the judges, made to take an oath and were to remain aloof to the lesser practitioners. In fact, even before 1300, a small group of highly skilled advocates dominated the bar.[ix] Around the same time, the advocates of the Royal Courts became a distinguishable and larger profession whose roles included representing clients in the formal aspects of litigation, managing suits for the absent clients, taking out writs and instructing counsel and were subject to disciplinary control of the bench. The separation of pleaders and attorneys, then was a natural separation of different skills between quick-witted and learned courtroom lawyers and managerial, clerkly lawyers.[x] A similar distinction was reproduced by barristers and solicitors much later.
Pleaders and Attorneys:
Under Henry II it is already apparent from Glanvill’s treatise that parties can appear in person or by substitute referred to as ‘responsalis’. Early in the fourteenth century, a fuller type of representation became general in the form of an attorney. The Attorney was proven to be much more useful than responsalis. The Attorney was appointed by a party in court with some safeguards. His appearance in the court was equivalent as that of his master and he had the power to commit the master to a particular plea.
Such a lawyer needed the integrity to act in the interest of his master and diligence skills, but no specialized intellectual abilities other than procedural. An attorney was of great advantage to wealthy landowners who were constantly involved in various suits in the court and found it troublesome and time-consuming to appear personally. They were also very ecclesiastical bodies, but the law was becoming furthermore complicated and the public needed further assistance of a different kind.
In Common Bench, the pleaders were already an distinguished class in 1230. They were often referred to as forespeakers of the bench or vulgarly called ‘narratores’.[xi] Their main job was to narrate the plaintiff’s count (narration) and to engage in the arguments that further ensued.
They were the leaders of the profession from whom the judges were selected and whose arguments at the bar were noted down by reporters for future learning.[xii] During the fourteenth century this selected group of counters in the Common Bench was organized in the fraternity as the order of serjeants.
The Writ of 1292 and Apprentices at Law:
By the early thirteenth century a professional element had developed in the legal practice. An inevitable consequence of such a development was the tendency to perpetuate itself by a system of legal education, and it was in this connection that we find official recognition in the new state of affairs. . In 1292 a royal writ was sent to Meetingham, C.J., and his fellows of the Common Bench, in these terms:
“Concerning attorneys and learners (‘apprentices’) the lord King enjoined Mettingham and his fellows to provide and ordain at their discretion a certain number, from every county, of the better, worthier and more promising students . . . , and that those so chosen should follow the court and take part in its business; and no others.”[xiii]
The writ merely made attempts to perpetuate the profession by putting the aspirants under the control of the court, instead of touching the system of existing pleaders. The learners have been referred to as apprentices who were students attached to practicing lawyers who assisted them in minor matters in return for instruction regarding legal procedure and practice. The nature of apprenticeship was very general in the middle ages. The provisions of the writ that attorneys should be classified based on the counties they practice in was certainly put into effect.
According to medieval evidence, the attorney’s practice was confined to the business arising in that county only. Remarkably, the writ had a policy to put the control of legal education under the control of the court and successful students were promised a monopoly of practice.
Thus, the branch of attorney’s was a closed profession; reserved for those who had been educated about it, admitted to it, in the official course.[xiv] This was the beginning of professional legal education in England. Apart from this, the establishments of successive archbishops of Canterbury were an effective but informal school of law in the twelfth century. Also, there was something like a Law School in the middle of twelfth century.
The Lawyer’s Inns:
By the fourteenth Century, London suburbs, especially those in the west were filled with the inns of the numerous politicians, bureaucrats, and lawyers who came to the city when the parliament and courts were in session. The Judges and serjeants had their own houses but the apprentices and clerks found it convenient to live in shared accommodation.
Some of these residences were permanent while others were temporary. ‘About 20 inns are known to be used by these apprentices, and most of them were in the parishes of St. Andrew Hofborn and St Clement Denes. Of all these only the inns of the Archbishop of Canterbury at Lambeth has retained their original character and identity.’[xv]
They weren’t foundations or incorporations like the colleges at Oxford and Cambridge. But, by the Fourteenth Century, some of them had taken the responsibility of educating lawyers. Lectures and disputations were held in halls and discipline was enforced. In this connection, four inns achieved predominated position by 1420 and they were known as the Inns of Court.[xvi] These four inns were: 1. The honorable society of Lincoln’s Inn; 2. The honourable society of Inner Temple; 3. The honorable society of Middle Temple; 4. The honourable society of Grey’s Inn.
The Inns of Court’s origins are not precisely known. But, they were central to the development of English law and the Legal Profession. In fact, by 1422, the serjeants were almost exclusively drawn from the four inns of the court. At this inns, readings were given, which were not restricted to common law but also on certain aspects of Roman law.
Almost all the Judges taught here and thus, came back to attend such readings, the inns weren’t aloof as to the developments of common law. But, the primary function of the inns was to ‘preserve and elaborate the settled learning concerning real actions and real property, and it was in that sense that the law schools made tough law.’[xvii]
According to Maitland, the inns signified the idea that law was not something that was made by acts or statutes only, but also be influencing and refining the profession which will produce the future legislators and judges of the future. But, in the sixteenth and the seventeenth century, the inns lost their authority. Now readings became more random, with varied quality of individuals. The commentaries were more of a display of ingenuity rather than with a purpose to instruct.
The Modern Legal Profession:
As the seventeenth century approached, various developments took place in the legal profession. Now the attorneys were looked down upon by the barristers. They were considered as glorified clerks. That was because, now they were technically a part of the clerical staff of the court. The attorney came into direct contact with the client and referred the barrister when difficulties arose. Thus, attorneys in this way, did most of the straightforward conveyancing and drafting of pleas while the barristers acted as consulting experts.
In fact, the attorney was like a client to the barrister, while the layman first engaged with the attorney. The barrister asserted his superiority by declining to sue for his fees (the rule appears in 1629-1630) while the attorneys continued to do so. Now, during this time many students of the inns of the court, discussed earlier, specialized to become ‘pleaders’, ‘equity draftsmen’ and ‘conveyancers’.
There was no need for them to be part of the bar, and so they were called ‘practitioners under the bar’. They were still part of the Inns and were governed by the inns’ internal discipline. Meanwhile, the attorneys were thrust out of the bar in the middle of the sixteenth century and were in a difficult position, until 1729 when “Society of Gentlemen Practicers in the Courts of Law and Equity” was established for the good governance and regulation, together with the Solicitors.
Until the eighteenth century, these various branches of the legal profession continued to exist side by side. Subsequently, an act of 1729 made an attempt to impose and regulate the attorneys and solicitors, while at the same time imposing heavy taxation upon the practitioners.[xviii] Around nineteenth century, the profession of solicitors had gained definite lead over the other branches of the profession. And though a few pleaders and conveyancers were licensed to practice in the courts, for all practical purposes, there remained only two branches of the profession: the barristers and the solicitors.
An interesting suggestion has been made by Sir Fredrick Pollock about the development of the profession in the eighteenth century. According to him it was the fact that Roman Catholics were prevented from practicing in the Bar because of the Test Act.[xix] Thus, instead of becoming barristers they became pleaders and conveyancers.
Notaries and Scriveners:
Of the other branches of law which function under the bar, the only one that survives is that of the notaries. In 1884, it was stated that there were only forty-eight notaries in England.[xx]
The scriveners were scribes originally, but soon started drafting for the common public, especially bonds. At an occasion, it seemed, that scriveners were to become professional conveyancers but other professions withheld them. Gradually, they went back to their original job.
Kings (or Queen’s) Counsel:
The most rewarding offices open to the bar were the judicial positions while the lowest included the recorderships of boroughs and stewardship of manors. Of the offices appropriate to practicing advocates, the most rewarding were those relating to the litigation of the crown. Now, from 1530, a new system came into place wherein the King’s solicitor would succeed the office of the King’s attorney.
This way, gradually they extended their functions and soon became general legal advisors to the king. By the Elizabeth’s era, they were elected members of the House of Commons or summoned to the House of Lords to explain the Government’s policy to the House. But, for a due course of time, the House of Commons declined their entry because there was an opinion among the lords that the influence of the crown will be enhanced to a great degree. Eventually, the attorney general was regularly elected from the House of Commons.
The rapid rise of such legal positions was because the medieval king’s sergeants were not capable of coping with the sixteenth-century legal conditions. The monopoly of the serjeants now became restrictive and irksome. With the forming of new courts and extension of the jurisdiction of the old courts, administration of justice was no more an area in which only the judges, barristers and attorneys were concerned. The Crown was constantly attending with anxiety the activities of the court.
‘The Reformation Settlement brought with it number of questions which had to be settled in the courts: question of dissolution of land titles arising out of dissolution of monasteries, questions of criminal law created by the insecurity of dynasty, and still more issues of constitutional law due to the inadequacy of the medieval financial system.’[xxi] Thus, a chance was created by the crown to engage civilians for working on a new technique of law and government, but in the end a compromise was worked out.
Now, the attorney- and solicitor-general were, as discussed earlier, regularly elected members of the House of Commons. Therefore, they served as a link between the executive and the legal system. Also, the practise of promoting the attorney general and other such legal officers to the highest of the judicial offices ensured that they not only had legal training like the serjeants, but also experience of working in higher political circles.
But then, one attorney- and one solicitor-general were not capable to handle the huge bulk of the cases of the sixteenth-century state. This necessitated for them a huge staff of permanent or temporary assistants. This gave rise to a new class of ‘King’s Counsel Learned in the Law.’
These were a bunch of barristers on whose services; the crown had a prior claim. They were to assist the attorney- and the solicitor-general whenever necessary. In Elizabeth’s reign, they ranked just below the serjeants and were given preference in the Parliament. But, towards the end of the eighteenth century, this rank was considered as merely a mark of distinction having nominal duties.[xxii]
Development of departmental Legal Staff:
Apart from the creation of the rank of the King’s Counsel, the eighteenth century saw the setting up of various commissions and boards for national administration. They usually looked at the Legal Officers of the crown for their legal assistance. Soon a need was felt to have a Legal staff of their own for other ordinary matters. Thus, we see them appointing other solicitors to appoint them.
‘The oldest and the most important is the Treasury Solicitor, whose office dates back from about 1655. He often acted for other offices besides the treasury[xxiii] and by statute was soon amalgamated with his and thus he became Director of Public Prosecutions[xxiv] for a time and is still the King’s Proctor.’[xxv]
Recent Developments relating to regulation of the Legal Profession in England:
1. Attack on Restrictive practices and encouragement of Competition:
A study published by the Monopolies Commission in 1968 began the attack on the restrictive practices of the Legal Profession. Late in 1976, a Royal Commission on Legal Services was established which reported its findings in 1979.[xxvi] The Commission, in its findings surprisingly reported that many changes were necessary to be brought out; many of the restrictive practices were in public interest. Further pressure was added when the Government of Margaret Thatcher came to power in England and Mrs. Thatcher was determined to make the British Economy, in general, more competitive.
2. Abolition of conveyancing monopoly:
In 1987, the conveyancing monopoly of the lawyers was broken. This was the first, most significant step change to lawyers’ restrictive practices. Earlier only solicitors were allowed to charge for the work of conveying the title in a real estate deed. The Administration of Justice Act 1985 allowed a system of licensed conveyancers, regulated by the Council for Licensed Conveyancers, to be established.[xxvii]
3. Right to litigate and Right to the audience:
Prior to 1990, only solicitors could prepare cases for the trial and only barristers had the rights to be heard before the court. Significant changes were made to this status quo by the Courts and Legal Services Act 1990. Instead of the professional bodies simply creating rules the act established a framework for authorized bodies to set the rules.
The Access to Justice Act 1999 changed the rules again. Among the numerous other progressive provisions, all barristers and solicitors were to have the right of audience before every court in all proceedings.
4. Rules relating to advertisements:
Apart from these, numerous other developments took place, particularly relating to the rules of advertisements. The rules were significantly relaxed so that solicitors and barristers can advertise about the services they offer. Now, these advertisements in England and Wales may not be comparable to advertisements done by lawyers in the United States, but the development per se is a significant break from past traditions.
The changes of the 1980s and 1990s were not a dead end of the reformation process but in fact, signaled more reforms to come. In July 2003, Sir David Clementi was appointed to carry out an independent review of the regulatory framework for legal services in England and Wales. His terms of reference were: to consider what regulatory framework would best promote competition, innovation, and the public and consumer interest in an efficient, effective and independent legal sector; and to recommend the a framework which would be independent in representing the public and consumer interest, comprehensive, accountable, consistent, flexible, transparent and no more restrictive or burdensome than is clearly justified.[xxviii]
Sir Clementi published his report in December 2004. His main recommendations were broadly accepted by the Government. The details of the government’s response to this report were published in the form of a White Paper, The Future of Legal Services: Putting the Consumer first, in October 2005, which in turn led to the passage of Legal Services Act in the Parliament in October 2007.
Legal Services Act 2007:
The new legislation created the new regulatory framework envisaged by Clementi. The potential impact of this legislation on the legal profession is enormous. It created two major provisions. First, both the Bar Council and the Law Society have re-organized themselves so that their representative functions, which were designed to promote their members’ interest to the wider public, have been separated from their regulatory functions. Secondly, the Legal Services Board has been established and has been fully operational since 2010. Apart from overseeing the regulatory activity, it has numerous other tasks which have never been set out in legislation.
Independence of the Legal Profession:
One of the major attributes of the Legal Profession is that it is independent. This is very important, constitutionally. This independence can be as basic as a lawyer giving independent advice to his clients irrespective of the policy of the government of the day. It also involves a professional obligation to take up any case, especially those, wherein the public opinion is against the same. The assertion of independence may also imply that the professions should be free to regulate themselves in accordance with their own rules of professional conduct, without interference by the Government. The Legal Services Act of 2007 takes this process further.
Author’s concluding note:
After a detailed study of the changes in the legal profession, it is seen that the English Legal Profession has traditionally been highly monopolistic; this is understood by various instances discussed above. English Legal Education, the process through which new legal professionals were created was also of hermit nature. Legal Education was taught at the inns of courts rather than the law schools.
The various branches of legal professionals prior to the sixteenth century like the serjeants, barristers, attorneys, notaries, scriveners, etc. have been reduced to two major branches, ie., the barristers and the solicitors. It is also seen that since the 1980s, the profession has undergone some major reform. The profession is now becoming more competitive and the lines of distinctions are disappearing due to law degrees. The reformation process is not over yet. In fact, this is just a start to make the legal profession, one of the liberal and competitive professions. These efforts have been initiated mostly at a legislative level.
Formatted on March 15th, 2019.
[i] Penny Derbyshire, The English Legal System, 8th ed. Ch 13.
[ii] J H Baker, An introduction to English Legal History, 4th ed. Ch 10.
[iii] Herbert M. Kritzer, Legal Systems of the World Vol. 2, p. 475.
[iv] Brand MCL, p. 135
[v] Theodore Frank Thomas Plucknett, A concise history of the common law (1956), Ch 12, p. 216
[vi] An essoiner was employed to make formal excuses for non appearance in court. In the 14th Century
[vii] this function was absorbed in that of the attorney.
[viii] J H Baker, An introduction to English Legal History, 4th ed. Ch 10.
[ix] Statute of Westminster 1, c, 29.
[x] Study of names of the pleaders in the records and yearbooks of Edward 1’s reign.
[xi] Coke, in the 17th Century said it was the distinction between officium ingenii and officium laboris: Co. Inst., vol. 2, p. 514.
[xii] Chronica Majora (Rolls ser.: 1872-83) vol. 3, p. 619.
[xiii] J H Baker, An introduction to English Legal History, 4th ed. Ch 10.
[xiv] Collected by Herman Cohen, History of the bar, 172 ff.
[xv] Theodore Frank Thomas Plucknett, A concise history of the common law (1956), Ch 12, p. 217
[xvi] J H Baker, An introduction to English Legal History, 4th ed. Ch 10.
[xvii] This English expression is found in Arnold’s Chronicle (1811 ed.), p. 291.
[xviii] V. W. Maitland, English Law and the Renaissance(1901), p. 25
[xix] H. H. L. Bellot, Exclusion of Attorneys from the Inns of the Court, Law Quarterly Review, xxvi. 137.
[xx] 25 Charles, c. 2.
[xxi] Christian, Short history of Solicitors, 226.
[xxii] The author gained significant leads for this analyses from Theodore Frank Thomas Plucknett, A concise history of the common law (1956), Ch 12
[xxiii] There numerous other important details which differentiate the King’s Counsel from the other Barristers.
[xxiv] Holdsworth,xii. 11.
[xxv] By the Prosecution of Offences Act(1884) until the offences were separated by the Prosecution of Offences Act(1908).
[xxvi] Theodore Frank Thomas Plucknett, A concise history of the common law (1956), Ch 12
[xxvii] (Cmnd 7648) (London, HMSO, 1979).
[xxviii] Martin Partington, Introduction to the English Legal System, eighth edn., Oxford University Press, 2013-2014.