The Gazette 1984

GAZETTE

SEPTEMBER1984

supply a better and wider service using all the aids now

becoming available to us through modern technology.

But we must be careful not to allow this pressure, and

even a personal desire for change, to allow us in any way

to dilute our professional standards or diminish our

dedication.

Advertising

Take advertising. My whole theme is the need for the

public to know the service which the profession offers.

Advertising must therefore be desirable. Received truth at

the moment is that competition breeds efficiency. In fact

there has always been acute competition within the

profession, both in price and in services, but let that pass.

Outside the profession advertising has always been one of

the sharpest of competitive weapons. It must therefore

follow, so it is said, that advertising within the profession

is doubly desirable, both in order to inform and to

stimulate still further competition.

But is it? Experience from across the Atlantic, where it

has been held that the First Amendment gives lawyers an

unlimited constitutional right to advertise, suggests

caution. Only last August the Chief Justice of the United

States in a speech in Chicago condemned those American

lawyers who marketed their professional services on

television, radio and in the newspapers as if they were

selling motor cars, dog foods, cosmetics or hair tonic.

Advertising is not necessarily incompatible with the

maintenance of professional standards, but it very easily

can be. The public has a need to know who is and who is

not a qualified solicitor and where he carries on his

profession. It has a need to know what expense will be

involved in using his professional services. It has a need to

know in what branches of law he is experienced. Dis-

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seminating this information — informational adver-

tising — is clearly unobjectionable.

But in the field of commerce, advertising is not only or

even mainly informational — it is promotional. It

involves proclaiming the excellence of the advertiser's

wares and, expressly or by implication, making an

adve r se c omp a r i s on with c omp e t i ng p r o d u c t s.

Promotional advertising — touting — is wholly

inconsistent with the standards of any true profession.

And professional standards stand or fall together. Once

allow them to be eroded in one respect and they will

crumble in others.

Inter-Professional Partnerships and Fee-Sharing

This is only one tiny corner of the changes which are

being made at the present time. I would only refer to one

of them — the practicality and propriety of inter-profes-

sional partnership and fee-sharing. If this will provide a

better service to the public, as well it might, and if it can be

achieved without risk to our own professional standards,

I do not see why it should not be permitted and indeed

encouraged. It would only reflect, and might

complement, similar developments in the financial and

banking sectors of the City of London.

But the solicitors involved would have to ensure that

the existing standards concerning the avoidance of

conflict of interest were maintained and, in relation to an

inter-professional partnership, they would have to accept

personal responsibility that the conduct of their non-

solicitor partners conformed with the rules of the

solicitors' profession and not only with those of the

partners' own profession. It would be understandable if

the other profession imposed a similar requirement and

that could only be for the public good, since clients of the

partnership would enjoy the benefit of the strictest of each

profession's standards.

Affording Civil Justice

So let me look at the roots of a few sacred cows. The

first is that every citizen has a right to civil justice and that

therefore the public purse should provide it virtually free

of charge. This is a complete

non sequitur.

Every citizen

has the right to food and shelter, but no-one suggests that

the public purse should provide it, unless the citizen is

unable to do so himself. The criminal courts are, of

course, in a special position. They exist solely for the

benefit of the public at large and no-one uses them

voluntarily.

Prima facie,

therefore, they should be paid

for by the public, although those who render their

existence necessary, and could afford it, might be required

not only to pay for the prosecution costs, but also to

contribute to the overhead expenses of the court. This in

an addition to any fines.

The true view is surely that civil justice should be

available to every citizen at a price which he can

reasonably afford. On that basis, the present system is

generous to a fault. Take a simple High Court action. The

daily cost has been estimated at about £1,400, of which

£800 represents the cost of publicly provided services and

£600 the costs of the parties. Why do we meet the public

costs in full, but make no contribution towards private

costs, other than through legal aid? Why do we not put the

whole of the costs on to the litigants and apply legal aid to

the public as well as to the private costs? The result of the

present system in one particular case was that the public

purse subsidised two major oil companies to the tune of

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