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GAZETTE
SEPTEMBER 1987
The state, i.e. the government of
a country, can step in with a
system of legal aid or the funding
of advice centres but this has three
disadvantages:
(a) Governments will not pay
adequately for good lawyers in
private practice, and the system
becomes stuck in the treacle of
bureaucracy.
(b) He who pays the piper calls
the tune and the employment by
the state of an advocate will
ultimately colour the nature of the
advice given to an individual.
Pressure will be brought upon the
lawyer in all kinds of subtle ways.
However altruistic may have been
the original intention the resultant
oppression is almost certainly in-
evitable.
(c) Good lawyers, by nature,
possess independent minds and
the best of them may well not wish
to be engaged in what they will
regard as a servile role.
There can be no doubting the
high costs of litigation which puts
it out of reach of the majority of
private clients. This is partly due to
the over bureaucratic structures of
the legal machine itself. It is also
true to say that people as a whole,
in the free world, take their free-
dom for granted and do not expect
to pay for it. They undervalue how
precious freedom is. They will pay
enormous sums of money for a
shiny new motor car full of
gadgetry or elaborate commodity
products, but are prepared to pay
little or nothing for the quality of life
that enables them to enjoy these
things, namely — freedom of ex-
pression and from oppression. To
this extent, the consumer is his
own worst enemy.
Conclusion
From the above sketchy synopsis
of the modern environment the
following conclusions can be
drawn:
(1) Lawyers are divided into two
categories which need different
regulation:
(a)
The Contentious Lawyer
who will give general advice and
act as an advocate. He will have
right of audience before every
court, although he may need a
special licence to appear in the
final court of appeal. He will
possess a high degree of
academic knowledge. He will
employ paralegals who the
lawyer, himself, will largely have
trained to assist him by means
of drafting documents, plead-
ings, letters etc. The education
of paralegals will be general.
Their training in an office will be
specific and narrowed to a par-
ticular function. Hence their
knowledge of law, as such, need
only be limited provided they
have good understanding of the
use of language and the Third
Literacy. Their task is to relieve
the lawyer from the drudgery of
routine drafting and inter-
viewing. The Contentious
Lawyer will remain an Officer of
the Court.
(b)
The Business Lawyer.
He
will be a specialist in his chosen
field and will be employed by a
business house: this may be a
merchant bank, insurance com-
pany, or financial institution. To
compete with such business
houses, large firms of business
lawyers — the city practice —
will form themselves into such
institutions. They will be incor-
porated with limited liability and
capable of support by outside
equity participation. They will be
multidisciplinary. The Business
Lawyer will not be an Officer of
the Court.
(2) The rules of conduct of law
and bar associations will need to be
altered to meet these changing re-
quirements.
(3) The conflict will have to be
reconciled, one way or the other,
between the costs of Regulation
and the much lesser costs of Com-
petition. The conflict is between
protection of the consumer by
Regulation on the one hand and the
freedom of the practitioner upon
the other.
(4) There will be differences bet-
ween developed countries and
those still developing. Possibly the
greater percentage of literacy in in-
dustrial countries reduces the
necessity for greater regulation.
The professions grew up because
their members were the only
literate and articulate people.
George Bernard Shaw said that the
professions were a conspiracy
against the public; the professions
would reply that their members put
the interests of others first.
(5) The lawyer as such should
revert to his traditional role of ad-
vocate and general practitioner as
distinct from the business lawyer.
The function of the contentious
lawyer and business lawyer needs
to be divided. It would be wrong for
there to be equity participation in
the outcome of a dispute in court.
The ancient rules of maintenance
and champerty must surely be still
applicable.
(6) Only licensed practitioners
should appear in court. Their fees
should be freely negotiable and not
subjected to control by a taxing
master (save where costs are in the
cause). Price control does not
work. Lawyers are being required
to run their offices on business
lines. No business can operate suc-
cessfully by the rigid system of
price control that the taxing master
imposes. Control should be more
by competition than by regulation.
(7) Contingency fees militate
against the quality of the product
and encourage high pressure tac-
tics in a market not made for them.
The product of the lawyer is his ad-
vice and ability to present his
client's case or represent his in-
terests. Remuneration or com-
pensation for that product should
be in a free market. The main
criterion for charging will be time.
Practice licences will require all
lawyers to state their terms of busi-
ness in advance.
(8) The licensed advocate may
practise on his own or in partner-
ship. He or his firm may enter into
a contract or series of contracts
with firms of business lawyers or
business houses. The old-
fashioned 'retainer' may return.
(9) In general terms, and in order
to meet the requirements of the
modern consumer, the rules of
conduct of the profession, i.e. the
terms of a licence to practise, need
greater liberalisation. Lawyers are
required to run their practices on
commercial lines and accordingly,
and (hard though it is for the ma-
jority of lawyers to accept the idea
that the professions are not a race
apart) the law will become one of
the other service industries. To sur-
vive and thrive commercially the
profession will have to retain a
highly competent standard of work.
(10) The degree of regulation by
the professional licence will vary
according to the degree of develop-
ment reached by the particular
country. The more advanced the
country, the greater will be the
liberalisation.
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