Wriggling specimens

The International Journal of the Legal profession (three times a year)
October 17, 1997

The lord chancellor has announced that there is to be no more civil legal aid in those areas where it largely pays for itself (civil litigation about money). In future it is to be confined to areas where it is a colossal drain on public money without proved benefit (child care work). Apparently, the abolition of legal aid will assist justice for the middle classes. However, the middle classes did not qualify for legal aid and its abolition will touch them as much as the abolition of Maundy money would touch me.

When I return in my next life as a fox (for which life as a lawyer in modern Britain is no bad preparation), I expect to be asked to review Horse and Hound. Having reviewed the International Journal of the Legal Profession will give me a feeling of deja vu. The Journal is published and written mostly by professors of law and related academic fields, but it is not about the law. It is about the practice of law. We lawyers preferred it when academics confined themselves to Horatian odes or, at worst, privity of contract. We fear that under hard scrutiny we will find that we are unnecessary: just part of a great conspiracy against the public promoted by those whose interests are served by complexity and arcane habits. We might just disappear, leaving only the fading smile of the Cheshire fat cat.

The attention we receive at the hands of the daily press is rougher and far less well informed. We turn to this scholarly analysis with the same relief that the fox feels when hunted by a pink-coated throng (which is truly interested in his welfare) and not by a farmer with a 12 bore and trap.

The Journal does not support the thesis that the legal profession is unnecessary. The authors of many papers find great fascination in the law business. Naturally, they identify many faults with it in its cost, competence, training, recruitment, attitude to women, and (on occasion) integrity but the central concept which keeps us all so busy is accepted. Civilised societies need legal professions. So do uncivilised ones.

The profession in the United Kingdom is widely covered, although there is perhaps a disproportionate interest in large City of London firms of solicitors. These organisations serve their clients well, at a price, but those clients are big enough to look after themselves. It is hard to see why a professor of law would be much more interested in a City firm than in Kelloggs or BMW. The bar of England and Wales largely escapes attention.

Many types of solicitors' practices are analysed and compared and our Legal Aid system is subjected to a variety of analytical approaches. Volume 3 includes a special issue on the "Solicitors' profession in transition". It has six articles from a research project funded and organised by the Law Society. They include, next to each other, one called "Megalawyering in the global order" by John Flood and another called "Law for the poor" by Tamara Goriely. The first is an analysis of how our big City firms get on internationally and is a good argument against the government's handgun ban. I fear that "megalawyering" may be almost as unpleasant as it sounds. The second is a real attempt to say something useful about the development and future of Legal Aid.

The Journal is distinguished from a house journal of the legal profession by its rigour, its detachment and its international dimension. Here one can find out how the Australasian professions organise compensation for theft by their members from their clients, and how auditors and lawyers in Germany get on with each other. In 1992, the entire New Zealand Fidelity Fund was destroyed by the determination of both partners of a respectable firm of lawyers, who contrived between them the notable feat of stealing NZ$60 million (Pounds 30 million) from their clients. While in Germany it is apparently necessary to "switch from an analysis mainly concerned with organisational aspects to an analysis of the profession as a social system" in order to analyse the "full implication of the co-evolution of lawyers and auditors". Perhaps surprisingly, in view of this, we are told that there is "no open warfare in Germany between the legal and auditing professions".

The reasoning behind the existence of the Journal is sound: when I briefly viewed academic lawyers at work in the 1970s they were concerned with teaching and developing substantive law. This is an important dual role, but its two parts are quite different. Teaching is designed to prepare lawyers for professional practice: developing the law by criticism and analysis is intellectual work with a practical purpose. No one has much time for the development of the law in unexciting areas which therefore often does not occur. In exciting areas, such as the control of dangerous dogs and mandatory life sentences, the problem is even more difficult for the opposite reason. Universities tend to have more powerful intellectual resources than pressure groups and those resources of time, detachment and ability are valuable in what we love to call "the real world". Recent decisions of the House of Lords have drawn on academic work as a resource. This shows the success of one type of academic lawyer.

The attention of politicians, lawyers and judges is focussed on the legal system. Lord Woolf has reported on practical ways of improving the civil justice system. What is not widely known is that his concept is the devaluation of the principle that justice must always prevail whatever the cost and the stronger case always win. He prefers a procedural justice so that the side that runs its case more efficiently will improve its chance of winning. This is because the latter approach is cheaper and quicker and, he argues, therefore fairer to society as well as the litigant. Oddly, some politicians and perhaps even judges seem to think that the new approach will reduce the power and value of lawyers. It is obvious that the reverse is the truth. This conundrum shows the real need for the community to evaluate its justice systems and the lawyers which run them.

The practical consequences include a better trained and more competent profession, better publicly funded legal services, better value for the taxpayer, better courts and judges, and greater use of methods of dispute resolution other than expensive litigation. I did not find it expressly stated anywhere in these pages, but another practical consequence may be reduced lawyers' fees. Until now I had not seen myself as a specimen wriggling on the microscope slide under the gaze of Avrom Sherr and his contributors, but now it is an image which I cannot quell. I wonder if they would like to return to privity of contract? It desperately needs attention.

Andrew Edis QC is a practising barrister.

The International Journal of the Legal profession (three times a year)

Editor - Avrom Sherr
ISBN - ISSN 0969 5958
Publisher - Carfax
Price - £48.00 (individuals) £174.00 (institutions)
Pages - -

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