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GAZETTE
SEPTEMBER1984
Change and Reform
by
Sir John Donaldson, MR.*
S
URPRISINGLY, since by the nature of our training
we should be both rational and articulate, we seem to
be failing as communicators. We all accept the old adage
that a lawyer who acts for himself has a fool for a client.
But the profession as a whole should be able to act for
itself, without anyone concluding that it has a fool for an
advocate. We really must do better and the starting point
must be a realisation of the strengths and weaknesses of
our position.
Weaknesses . . .
Let me start with the weaknesses. There still seem to be
lawyers who expect automatically to be loved. Forget it.
The phrase 'beloved physician' would not look out of
place on a tombstone. The phrase 'beloved lawyer' would
attract more than passing interest.
The reason is simple. When a patient is afflicted with
illness, he regards himself as having suffered a misfortune,
for which no one is to blame. The doctor who cures him or
alleviates his pain or suffering is a natural object of
gratitude. By way of exception the minority of doctors
who are concerned with preventive medicine, do not do so
well, because the more successful they are, the less they
have to show for their efforts.
When it comes to lawyers, the position is quite
different. A very large part of their work is preventive in
nature. Most non-contentious business certainly is. So the
lawyers have little to show for their efforts and fees. And
when they are concerned to pursue or defend claims,
which does produce results which are apparent, neither
the claimant nor the defendant regards himself as a victim
of misfortune. He blames his opponent for not conceding
the claim or, as the case may be, making it and deeply
resents any time or money spent on legal assistance. As a
profession we lose out both ways.
. . . and Strengths
I mention this not as a matter of complaint, but as a fact
of life of which account must be taken in informing the
public. So what are our strengths? What is the social
purpose that we serve?
We are living in times when it is all too clear that, in a
complex society, life without rules which are accepted and
enforced by that society would be wholly intolerable. It is
the duty of parliament and not of the legal profession to
make the appropriate rules. As I have often pointed out,
'The law is the nation's rule-book'. The duty of the legal
professions is to take it from there, if asked to do so by
their clients.
The vast majority of the public wish to abide by the
rules, but in some cases they have very real difficulty in
knowing what the rules are. The first social purpose of
lawyers is to assist the public in doing what they want to
do, namely to comply with the law. The second social
purpose consists of assisting the public to make sensible
choices within the wide area of free choice left by the law.
'Sensible' in this context means a choice which will reduce
or eliminate the chances of disputes arising thereafter.
Furthermore, since lawyers, and in particular members of
your branch of the profession, are not only learned in the
law, but are, by training and the practice of the
profession, experienced men of affairs, it means a choice
which will better achieve the object of the particular
member of the public concerned.
The third social purpose, and it is the one with which I
have been primarily concerned throughout my profes-
sional life, is to assist in the settlement of disputes. Some
disputes are wholly inevitable. The lawyer's purpose is to
see that they are resolved as quickly and as economically
as possible and with the minimum of abrasion. This is not
only a service to the disputants, it is a service to the
community as a whole.
If I had to sum up the social purpose of the legal
professions in a single sentence, I should say that they
stand in the same relation to society — the body politic —
as do doctors to their patients — the body individual.
Now let us be clear and let the public be clear as to the
manner in which we approach this task. It is not as mere
technicians. It is as members of a learned profession. And
what difference, the public will ask, does that make? We
all know the answer, but for far too long we have failed to
give it. One of the essential differences between the
technician and the professional can be summed up in one
old-fashioned word — 'dedication'. The doctor has it and
the public knows it. So too has the lawyer. The public
should know that too.
Independence
Our calling requires us to accept standards of integrity,
impartiality and skill, which the public needs and which it
will obtain from no-one else operating in the same field. It
also requires us to maintain the highest possible degree of
independence of thought and action. This independence
can only be maintained if we, at whatever price to
ourselves, steadfastly refuse to allow ourselves to be put in
a position where there is a conflict of interest between
different clients. It can only be maintained if we, as a
profession, again at whatever price to ourselves, maintain
our independence of all authorities, whether national or
local. The only conflict which can be accepted, and that
solely because it must be, is a conflict between the lawyer's
personal inclinations and even his interests and his
professional duty. That is inescapable and it is the
hallmark of the professional that he always places his
professional duty first.
The public has a free choice, in the case of the lawyer as
with the doctor, to go to the professionals or to seek
assistance from others. For my part I have no doubt that
if the public once appreciates the realities of the choice, it
will consult the professionals. But even if it does not, or
does not do so to the extent that we all would wish,
dedication and self-respect require that we stick to our
standards.
Today, more than for many years past, we are being
pressed to make changes in the profession. And make no
mistake about it, we should do so and we want to do so.
We should remove the mystique which is one of the
reasons why the public hesitates to consult us. We should
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