The Journal of Legal Profession

Preface

This volume of the Journal of the Legal Profession was planned when I was preparing for a one semester sabbatical in England. A t that time, we thought it was suitable for the Journal to open its pages to discussions of comparative lawyering and legal professions. To this end we are publishing five pieces which deal with the legal professions and lawyering in countries other than the United States. Three of them deal with the English legal profession, and in this regard we are doing something a bit different from our four-year-old tradition. We are reprinting not only a chapter from a significant non-fiction work concerned with the Solicitor in England, but we are also publishing the first installment of a unique novel entitled Lawyer, Heal Thyself. Perhaps an explanation is called for. From the very beginning, it has been the Journal's policy to seek pub- lished work which was good enough, significant enough, to warrant reprinting. We believe that these two works are worthwhile and new to American readers.

In 1975, the book, The Modern Family Solicitor, was published in London. The author, Clive D. Wickenden, was a Solicitor who had practiced in Hampstead for thirty years. His purposes were to describe and define what "legal practice" is, to offer practical guid- ance to new practitioners, to offer insights and suggestions to law teachers, practitioners and others involved in the legal profession's endeavor to do a better job and to "stimulate the politicians and civil servants who can help either to fulfil or to destroy the new vision of legal education and vocational training in England and Wales. . . ." In all of these efforts Mr. Wickenden succeeded, and it is our good fortune to be able to reproduce chapter six entitled "Professional Conduct, Etiquette and Ethics." For American law- yers this chapter should throw some light on the solicitor branch of the English legal profession. Most of the articles describing the Eng- lish barristers and solicitors served to us are full of mythological rubbish, rarely giving any honest insight into the way the lawyers operate and practice.

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It is our feeling that our readers would enjoy learning more about English lawyers and their practices. At the same time we believe that we can present such a subject in an enjoyable fashion, i.e., in the form of a novel. As we said before, in this volume we have the first installment of a novel about an English solicitor-Lawyer, Heal Thyself.

The book, written by a practicing solicitor using the name Bill Mortlock as a pseudonym, describes the daily events and problems in an active life and law practice. The emphasis here is on what they think about.

I have spent two sabbaticals in England interviewing solicitors and barristers. Lawyer, Heal Thyself is a very good portrayal of the work a solicitor does, his or her relations with clients, barristers, and others in the legal profession. In this regard, John Flood's article on "Barristers' Clerks" is also a significant feature of this volume. Mr. Flood, of the University of Warwick in England, has done a study of the people who actually represent the barristers in their dealings with the outside world, in particular with solicitors. Although it has long been known that the barrister's clerk was an almost invisible but most powerful figure, to our knowledge this article is the first attempt to categorize the true facts through empirical research. As Mr. Flood says, "The clerk's world is the subterranean area of the law that is invisible to most people." The clerk is the one who fixes the fees of his principals and takes a percentage, sets their work- loads and standards, ("His most important concern is to regulate fees to maintain a consistent supply of work from the solicitor- clients and lay-clients") and who can control young barristers to the extent that a limitation on their work can force them out of the bar. Mr. Flood completed his work before a celebrated situation concern- ing the barrister's clerk arose in London. In the May 20, 1978, issue of the Economist (p.26), i t was reported that a senior clerk in the chambers of Sir Michael Havers, QC, the Tory shadow attorney- general a t the time, was dismissed after refusing to accept a cut in his percentage of the gross fees from ten percent to eight percent over a two or three year period. He agreed to accept the cut only if he did not have to pay the two junior clerks. The industrial tribunal hearing his complaint ruled that he was an independent contractor, not an employee of the chambers, and thus could not claim wrongful dismissal. The Economist said that senior clerks generally earn from $40,000.00 to $60,000.00 a year after paying their junior clerks. The episode could cause a renegotiation of the economic relationships

Preface 3

between the clerks and their chambers, but in the setting in which all of this occurs it is quite unlikely that much will happen to change the stereotyped manner in which the Inns of Court are run. I had the good fortune to participate in a meeting of the United Lawyers Association in February of this year wherein barristers favoring fusion of the profession (merging barristers and solicitors into one common group) confronted some of those who favor the status quo The conversations were filled with quiet tension and numerous questions were raised about the efficacy of the divided profession. For example, it was asked how the chambers of the Inns would accommodate the 500 to 600 students who wished to enter the Bar. The Bar officials answered that they could find places for only 200 but that these would be the best people. Numerous barristers dis- puted this assumption, which is not based on any kind of standard or objective criteria.

Our next piece in the international sphere is Professor Louis Brown's "Comparative Lawyering: Visits to Lawyers and a Proposal for Continued Study. A Hitherto Unpublished Diary of Visits to Lawyers." This is a distillation of a diary which Professor Brown wrote while visiting lawyer offices in Germany, Austria, Hungary and Yugoslavia. The purpose of these visits was to begin the study of comparative lawyering or a study of the functions of lawyers in different countries. Louis Brown is one of the pioneers in the legal profession in that he has for many years endeavored to record and analyze the decisions and work patterns of lawyers in law offices. He has recently published, along with Professor Edward A. Dauer, the important book, Planning by Lawyers (Foundation Press, 1978). The authors believe that lawyers guide and shape client behavior and private relations in general in a more direct and powerful man- ner than courts and administrative agencies. "Preventive law" deci- sions made by lawyers in their offices are often final and unreviewed as well as invisible. The book gives innumerable examples of this thesis and systematizes a new approach to the teaching of law, and lawyer activities and work patterns.

Another unique article in our mini-symposium on comparisons of legal professions in various countries is Professor Barend Van Niekirk's "Silencing the Judges: A Comparative Overview of Prac- tices Concerning Restrictions and Inhibitions on the Free Speech of Judges." Professor Van Niekirk is Professor of Law a t the University of Natal in Durban, South Africa, and has been working on a major project relating to free speech in the legal professions of the world.

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As the title of this article suggests, the concern here is for the free- dom of judges to do their work with flexibility and fluidity. Professor Van Niekirk shows that in the United States, Germany and South Africa there are a vast number of provisions and customs which tend to inhibit and limit the ability of judges to express them- selves. It is hoped that Professor Van Niekirk will write an article on the similar problems with which lawyers are saddled.

As we stated in these pages last year, i t is not feasible or effi- cient use of our one volume a year resources to restrict our space to articles on one subject or area, and although these first five parts of our volume make up a neat package, we have two other important articles of general interest.

Dr. Robert S. Redmount, who contributed "Towards a Lawyer- ing Jurisprudence" to our second volume, and "New Dimensions of Professional Responsibility" to our third, has written "An Inquiry Into Legal Counseling" for this fourth volume. In many ways Dr. Redmount, who is both a Doctor of Psychology and a lawyer, is traveling a similar path to Professors Brown and Dauer. Dr. Red- mount sees legal counseling as an extensive and complex relation- ship affecting not only the immediate parties but also many others as well. He suggests that this activity has a profound impact on the operation of the legal system. As a starter, he points out that lawyers counseling clients may emphasize or distort many value choices (political, economic and social) and although i t is a private relation- ship dealing with the self-oriented perspective and private needs of the client, the temperment, desire, knowledge or position of the parties (lawyer and client) may determine the nature and kind of advice given and action taken.

The last article before our student commentaries is called "The Specter of Galbraithian Economocracy." Once again the Journal is publishing a rather unorthodox statement. Mr. George Swan, who was practicing law in Columbus, Ohio, when this article was writ- ten, strongly suggests that it is time for the legal profession to con- front other professionals who believe that they can do a better job than lawyers when governmental affairs are to be conducted. He attacked John K. Galbraith's rather inane notion that the "Ph.D. in economics has replaced a law degree as the basic license for practicing the science and art of public administration." Mr. Swan worries that the specter of "economocracy" is ultimately a much greater danger to the country than a "plague of lawyers" because of the very narrow view of things which these economists take of

Preface 5

public affairs. The great value of Mr. Swan's message is to spur more thinking among us of the work various professionals do and the place of the legal profession in the scheme of things. Comparisons of this type wherein detailed studies are made are sadly lacking.

Our student work in this volume is a smaller collection than in the prior three volumes, but we hope that we shall have many more than is usual in volume five. We hope that the topics this year are just as practical as before judging by the response we have had from our readers.

The student editors are, as is now our tradition, chosen from the top fifteen percent of our student body and they represent some of the best legal talent in this country. Not only do they write the comments which appear from year to year, but they research and edit all of the material which is printed. For one reason or another, their individual writings do not appear in our pages immediately, but each student's work will ultimately be published. The Journal of the Legal Profession publishes all that our students write which is considered good work, and the student who does not write worthy material does not appear on the masthead. Thus our student editors are not only hard working people, they are talented or they would not appear in these pages.

This year we were particularly lucky to have two outstanding student leaders in Jim Byram, the Chairman of our Board of Editors and Berry Flowers, our Associate Chairman. While the faculty edi- tor was away in England they worked hard and well with their Editorial Board and with Nancy Jones, our Editorial Supervisor, and produced this volume. As usual, Nancy deserves a great deal of praise for her determined and efficient guidance which is given to the students.

In all times, our law school publications need material re- sources and guidance from those who are ultimately responsible for the work of the institution. Once again, and I cannot say this too often, Dean Thomas Christopher is basically responsible for what- ever is done well in the Journal and his wise counsel and help cannot be overestimated. We are profoundly grateful.

Harry Cohen