JOHN A. FLOOD Barristers ' clerks The law's middlemetr John A. Flood BARRISTERS' CLERKS THE LAW'S MIDDLEMEN Manchester University Press Copyright @John Anthony Flood 1983 Published by Manchester University Press Oxford Road. Manchester M13 9PL, UK 51 Washington Street, Dover, N.H. 03820, USA British Library cataloguing in publication data Flood. John A. Barristers' clerks. 1. Legal assistant-England I. Title 340 KD654 ISBN 0-7190-0928-6 Library of Congress utaloging in publication data Flood, John A. Barristers' clerks. Bibliography: p. Includes index. 1.Legal assistants-Great Britain. I. Title KD463.F58 1983 347.42'016 8S912 ISBN 0-7190-0928-6 344.2071 6 Printed in Great Britain by Redwood Burn Ltd, Trowbridge, Wiltshire CONTENTS Acknowledgements page vii Chapter 1 Background to the research 1 2 Career patterns and contingencies 15 3 The clerk and his barrister 34 4 Sources of work and relations with solicitors 65 5 Scheduling court cases 85 6 The social world of barristers' clerks The Barristers' Clerks' ~ssociation Conclusion Biography of a research project Solicitors' responses to requests for payment of counsel's fees BCA examination papers Bibliography Index ACKNOWLEDGEMENTS In producing this book, and the thesis from which it derives, I have incurred many debts. I would like to thank those who generously helped: William L. Twining, Anthony Bradley, Barbara Harrell-Bond, Luke C. Harris, John P. Heinz, Spencer L. Kimball, Geoffrey Wilson and David Farrier. I am also grateful to the Barristers' Clerks' Association for permission to reproduce their examination papers; and to its officers, past and present, for their assistance and permission to reproduce from their papers: they are Sydney G. Newland, Eric Cooper, C. B. Harrison and Cyril Batchelor. Her Majesty's Stationery Office kindly gave permission to reproduce extracts from the reports of the Royal Commission on Assizes and Quarter Sessions and the Royal Commission on Legal Services. The American Bar Foundation also gave permission to reproduce portions of my article which appeared in 1981 American Bar Foundation Research Journal 377. The Lord Chancellor's Office answered my questions with good will. The Social Science Research Council kindly awarded me a Socio-legal Studentship which supported the greater part of the research. I am grateful to the late Professor Otto Kahn-Freund and C. D. Wickenden, who provided valuable insights and suggestions. I would also like to thank Ed Atkinson and Caroline Bryant for their support and help. To those who put the book together I am truly grateful. Jean Fife and Lesley Jones patiently corrected and typed. And Antonia rigorously edited and typed the final draft. It is almost as much her work as it is mine. My final debt is to the barristers' clerks, necessarily anonymous, who encouraged and assisted me and without whom the study would not have existed. Chapter 1 BACKGROUND TO THE RESEARCH In this world there are three 'We's'. The Royal 'We'. The Editorial 'We'. And the Barrister and his Clerk 'We'. And the greatest of these is the Barrister and his Clerk 'We'.' The position ofthe English barrister's clerk is a unique and disturbing one.2 The two quotations represent, perhaps, the extremes of opinion about barristers' clerks. Most of the literature on the topic has been the result ofconjecture rather than systematic study. The purpose of this book is to provide that systematic study--and, I hope, a more objective picture than the quotations. The method I have used to examine the roles and functions of barristers' clerks is more commonly found in anthropology, and sometimes sociology, than law. The study is an ethnography of barristers' clerks. Appendix 1 sets out in greater detail the reasons for selecting this method and provides a context for the research. While the research was in progress the Royal Commission on Legal Services was set up to examine, among other things, whether any, and ifso what, changes are desirable in the public interest in the structure, organisation, training, regulation of and entry to the legal profession, including the arrangements for determining its remuneration, whether from private sources or public funds . [Benson (1979): I, vil Unfortunately the Royal Commission failed to take the opportunity to carry out any fundamental research on the legal profession, preferring instead to rely on evidence presented by the profession itself, and even this was constrained by the Commission's questionnaire. (See Benson, 1979: I, 4-5.) The Commission gathered large quantities of data but made little use of it to tell us what the legal profession does-which is a pity. Geoffrey Hazard, in discussing the failure of Smigel's study of Wall Street lawyers, pointed out that Smigel did not find out what lawyers actually do, their raison d12tre (1965: 52-3). 2 Barristers' clerks My own study is an attempt to set out what clerks actually do. In it I have explored the relationships they establish with other members of the legal community. Among these three are important: that with the barrister, that with the solicitor, and that with the court list officer. In addition I have analysed the networks that clerks form among themselves. Little is known about barristers' clerk^.^ And so, in this chapter, I outline the background to the occupation. I start with the structure of the legal profession. Secondly, I show where the clerk appears in it. Thirdly, I briefly describe his tasks. Finally, I sketch an outline of the physical environment and give some details of the history of clerks. Conventional works on the English legal system portray the profession as divided into three groups: the judiciary, barristers and solicitor^.^ My main concern is with barristers and solicitors. Together they constitute the largest element, numbering approximately 38,000.5 They do similar work, such as advising, drafting, negotiating and advocacy, but under different conditions. Solicitors administer primary legal care to clients, calling in a barrister ifspecialist attention is requiredor if the case is to go to trial. There are more than 34,000 solicitors. They are situated in most parts of the country, and generally practise in partnership^.^ Solicitors enjoy two monopolies in their practice. Section 20 of the Solicitors Act, 1974, gives them the right to commence litigation proceedings for others; section 22 of the Act forbids unqualified persons to undertake conveyancing for a fee. Only limited rights of audience in some of the lower courts are granted to solicitors. Despite the overlap of tasks, including advocacy, barristers are ostensibly the specialists in advocacy. They are a much smaller group than solicitors, numbering around 4,400. Barristers are solo practitioners, although they join together in groups known as chambers to share expenses but not profit^.^ They have a monopoly over the right of audience in the higher courts and so tend to congregate in London, where most High Court matters are heard. In addition, barristers are not permitted to communicate direct with clients, only through solicitors-hence the barrister's clerk is the conduit between the two sides of the professi~n.~ A person who wishes to join the legal profession must decide, while in law school, whether to join an Inn and become a barrister, or the Law Society and become a solicitor. He (or she) cannot do Background to the research 3 both. From this time, usually during the second year of law school, the student barrister will start to keep terms, that is, eat dinners in haL9 After law school a year must be spent in postgraduate education acquiring practical skills such as drafting and advocacy. The next step is finding a pupilage,1° and--which is more difficult--a tenancy in chambers. l1 If successful in both endeavours, the new barrister will rely almost entirely on the clerk to build his or her practice. This means the barrister will spend the early years of practice on small cases (lesser criminal matters, traffic offences, landlord-and-tenant disputes, and the like) and drafting pleas and other documents. Much of this work will be sent to the chambers by solicitors the day before trial, or even the day the case is heard. Occasionally a barrister will walk into the clerks' room to be told that there is a case to be dealt with in the next half-hour. Thus the barrister has very little control over the progress of his or her career in the early stages; it all depends on the barrister's clerk. Essentially the clerk is the middleman, or mediator, between the diverse interests of the legal system, namely those of barristers, solicitors, judges, list officers, and occasionally the client upon whom the system depends. Although these groups are discrete, they are interdependent. But their interdependence does not prevent them from pressing divergent demands that must somehow be resolved into a common aim if the legal process is to function reasonably smoothly. How is this resolution effected? By the clerk-and in so doing he assumes different roles to satisfy the demands, but keeping in mind his own interests. Broadly, there are three such roles: counsellor, negotiator, and 'fixer'.I2 Perhaps the most important is that of fixer, since the others are variants of it. While performing these roles the clerk carries out a number of tasks. The main ones are negotiating his barristers' fees and collecting them, obtaining work for his barristers, supervising their and the chambers' accounts, helping to schedule cases and checking the daily court lists for his barristers and the solicitors. His other tasks are subsidiary. In its evidence to the Royal Commission on Legal Services the Barristers' Clerks' Association (BCA), an organisation representing barristers' clerks in negotiations with other bodies, divided the clerk's functions into three groups: the administrative function, the advisory function and the public interest function.