Solicitors as advocates Our heritage and our future “If we are marked to die, “…and gentlemen in England now a-bed people to accept his belief, Henry was being an advocate – and an effective we are enough Shall think themselves accursed one given his victory. they were not here, To do our country loss; Advocacy has been around a lot longer than And hold their manhood’s cheap that, however, and in fact we will never know and if to live, whiles any speaks the name of the first advocate. Perhaps it The fewer men, the greater That fought with us upon Saint Crispin’s day.”1 was a particularly articulate Cro-Magnon in share of honour. No doubt Shakespeare was fanciful in his Upper Palaeolithic Europe arguing that the prose regarding Henry V, but it is a fair bet spoils of the hunt should be more evenly divided amongst the tribe, or maybe the God’s will, I pray thee wish that the King said something to his troops development was more recent. not one man more… to fire them to victory over the much larger French army. In doing this, in persuading 20 PROCTOR | December 2017 Food for thought by Christine Smyth, Stafford Shepherd and Shane Budden Whatever the motivations of the first The profession survived in the practice More so than a reaction to the class advocates, we know that those whose efforts of canon law and the courtesy title of system, the Australian solicitor-advocate took place in recorded history were driven by Esquire (still occasionally used today) is – so aptly in our secular, largely pomp- the mantra of assisting those in need. From evolved to identify substantial lawyers free nation – a product of pure practicality. the earliest times, the role of the advocate and jurists. A forerunner, perhaps, of our There are too many litigants and not was to help. modern day specialist accredited solicitors enough barristers, and the same spirit that and Queen’s Counsel. developed the stump-jump plough and In Latin, Advocatus meant ‘one called to aid the Hills Hoist drove solicitors to take on another’; in Middle English it denoted “one The coalescence of the legal profession court matters themselves, and discover who intercedes for another,” and “protector, from the sea of ecclesiastical experts that they were actually very good at them. champion, patron.” There can be no doubt almost immediately prompted the attempt Australian clients are also very practical that the traditional role of the advocate to regulate the practice of law, and the and have worked out that they need not underpins the fundamental duties which emergence of a true profession soon pay for two orators when one will do. now drive the growing ranks of the solicitor- followed. Of course, to truly organise advocate; that is to serve the public. It is a something you need, the English (true to Although solicitor-advocates have for the tradition with deep roots and archaic origins. their nature – and that is as true of the law most part avoided the appellate jurisdictions, as anything else) statutes were quickly this is simply a tradition – and it has passed In ancient Greece, Athenian orators began enacted that promulgated regulations its use-by date. There is no difference, the tradition of assisting a friend, albeit concerning conduct and admission. legal or otherwise, between our right of hindered by the rule that fees for oratory appearance and that of the Bar. The natural services were banned. Although that is far Almost immediately the profession split, evolution of solicitor-advocates is now taking from the norm today, echoes of this tradition with the modern barrister and what was them into the higher courts; the world, as remain in the countless hours of pro bono seen as a ‘second class’ (I use the term Tolkien might have said, has changed. work performed by solicitors every year; a advisedly) of legal agent appearing, meaning resource on which the state has come to us: solicitors. The English, as noted, are So often debates and discussions about (rather dangerously) rely. That is perhaps a good at organising, and the profession was the future of law revolve around AI and the topic for its own column. subject to this – barristers from the upper challenges it brings, without any examination class, solicitors not so much. From the very of what it is that lawyers actually do. All the The first professional orators appeared in beginning, it was solicitors who were the purple prose of submissions drafted by robot ancient Rome, when the Emperor Claudius advocates of the masses. lawyers will be useless without someone legalised advocacy as a profession – bear to deliver them, and laypeople remain that in mind the next time someone asks Perhaps it was this class-based distinction understandably reluctant to stand up in court what have the Romans ever done for us! that led to the long tradition of solicitors and deliver the submissions themselves. acting for clients, and barristers acting for By the fourth century, advocates had to be solicitors. Whatever the reason, for many The solicitors of the future will need the skills, enrolled on the bar of a court to argue before years the tradition remained largely that a ability and passion to conduct advocacy it, and they could only be attached to one barrister, instructed by a solicitor, did the work, and our role as the voice of the people court at a time. By the 380s, advocates court work; the solicitor did everything is neither new nor a bad fit. This has ever were studying law, and in 460, Emperor else. Just as a barrister would never sully been our mantle and it must be embraced Leo imposed a requirement that new himself (there were few if any hers on that if we are to thrive. The Society has taken this advocates seeking admission had to produce side of the profession, then as now) with a on board and launched initiatives such as testimonials from their teachers. How many conveyance, solicitors were unwelcome in the Modern Advocate Lecture Series and the of us would have been admitted when speaking roles on the stage of the court. Solicitor Advocate Course to embrace this endorsement from lecturers was required future so deeply rooted in our profession’s is thankfully a moot point in these more It was a system that may well have past. It is time for young dogs to learn old enlightened times. survived a less egalitarian society than tricks to prepare our profession for this ours, but Australians are perhaps a little The fall of the western Roman Empire and brave, new (but very familiar) world. less enamoured of the class system than the onset of the Dark Ages saw the virtual most, and solicitors have long had a right elimination of the profession, which in of appearance – enshrined in law – across hindsight illuminates the strong connection all jurisdictions (predating federation in fact). Christine Smyth is president of Queensland Law between civilised society and the ability to That even playing field has given rise to a Society, an accredited specialist in succession law have – and enforce – legal rights. No doubt long line of solicitor-advocates who feel no and partner at Robbins Watson. Stafford Shepherd is many a downtrodden peasant would have director of QLS Ethics Centre. Shane Budden is ethics need to don wig and robes to ply their trade given much for a valiant 21st century solicitor solicitor at Queensland Law Society. from the bar table, and who sometimes and a court system to match. chafe at the distinctly un-Australian tradition of barristers being regarded as more senior Notes by dint of title, rather than merit. 1 Shakespeare, W. “The Life of King Henry the Fifth”, Act 4, Scene 3, circa 1599. PROCTOR | December 2017 21.