Francine M. Schlingmann1

THE ENGLISH LEGAL PROFESSION

Divided they fall?

INTRODUCTION

What better way to start an article than saying you are not qualified to write it! I am neither a barrister nor a solicitor. I am admitted to practice as "advocaat" in the Netherlands, where there is no division of the legal pro- fession which is comparable to the division of the English legal profession into barristers and solicitors. Practising Dutch law in the London branch office of a Dutch law firm I sometimes come across this idiosyncratic feature of the English legal system, e. g. when a Dutch client wishes to institute legal proceedings against a customer in England who fails to pay under a contract for the sale and purchase of tulip bulbs. I refer such a client to a solicitor who, subsequently, instructs counsel (a barrister) to act on behalf of the Dutch client in the High Court. Usually, the Dutch client can only see the disadvantages of the system. However, there must also be advantages and surely, it is not just a matter of advantages and disadvantages; developed over the centuries in a legal tradition that very much differs from the civil law system in continental Europe, the division of the English legal profession deserves a much more subtle approach. As always, this requires knowledge of how the system works. In this article I will describe some basic features of both professions. It may prove that not being a barrister or solicitor - and therefore perhaps not qual- ified to write about all this - is an advantage and leads to an unprejudiced view.

BRIEF HISTORICAL NOTE

The reason for the division of the legal profession is historical. The predecessors of the barristers and solicitors such as we know them today were a mixed group of professionals with different titles and functions over the centuries. In the thirteenth century there were lawyers who pleaded in the King's courts on behalf of litigants and there were court officials, acting as "attorneys ", who helped people who were involved in court proceedings, which included appearing in court. Both the pleaders ("barristers and ser-

' Attorney at law, De Brauw Blackstone Westbroek, London, UK. jeants ") and "attorneys " pleaded in court. Both types of professionals could receive clients direct. In the mid-fourteenth century lawyers organised them- selves into the Inns of Court. From then onwards a gradual separation of functions developed. Eventually, "attorneys were excluded from the Inns of Court and the higher courts reserved the right of audience for "barristers and serjearas ". Also other types of lawyers appeared. There were "solicitors" who dealt with property matters and appeared in the chancery courts. The word "solicitor" is derived from "soliciting" the chancery court into pursuing matters, which would in these courts otherwise continue for a long time. In the ecclesiastical and admiralty courts the so called "proctor" had appeared. In 1875 the functions of "solicitors ", "proctors and "attorneys were merged. They adopted the single title of "solicitor ". After the "serjeants" profession ceased to practise under that name, only "barristers remained as representatives of the branch of the legal profession that dealt with pleadings in court.

THE BARRISTER

How to qualify as a barrister?

Normally, at least a second-class degree (not necessarily in law) is required. The barrister-to-be joins one of the Inns of Court (Gray's Inn, Lincoln's Inn, The Inner Temple or The Middle Temple) and has to dine there three times in each quarterly "dining term" for a period of two years. The most important year is that of the Bar examinations and the vocational training course at the Inns of Court School of Law. In this vocational year aspiring barristers have to take part in mock trials and advocacy exercises which are conducted by experienced barristers. This course also consists of lectures and seminars in which the more practical aspects of the work of a barrister are dealt with. After having passed the Bar exams and after having been called to the Bar, it is necessary for a barrister who wants to practise at the Bar to do twelve months of so called "pupillage" in chambers (the term for barristers' offices). During this pupillage, the barrister attends conferences with his "pupil master", a more senior barrister, goes to court hearings with him,. researches points of law for him and does general paper work. During the pupillage the barrister is not paid. However, in the second half of the pupillage year the young barrister is allowed to take on work of his own. There are discussions about the question as to whether the pupillage as it is today is a good means of introducing a barrister to his profession. Some criticisms are that it is actually only open to those that can afford it and that pupillage is not very secure, because the pupil does not receive any guarantee that he will be able to stay in the same chambers after the year of pupillage has been completed. It is only possible for a barrister to practise if he is offered a "seat" or "tenancy" in a set