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PART II
It is appropriate at this stage in describing the
possible future structure of the profession to deal
with the Faculty of Advocates. If specialisation is
an objective in any reorganisation then changes
in the Faculty of Advocates must ensure that
specialisation in pleading which the Faculty has
developed over many generations is not lost to the
profession. The distinction between pleader and
writer
seems natural and must
survive. The
arbitrary distinctions, presently in existence, which
have grown up over so many generations will
not survive. A long, overdue rationalisation of the
educational and entrance qualifications for both
branches of the profession and an easier and
essential inter-change between the two branches
will help to break down these arbitrary distinc
tions. Advocates will probably continue to operate
on their own or will form partnerships amongst
themselves. There may occasionally be a pleader
in the very large firms of solicitors and the larger
corporations and
local authority organisations
may have their own house pleader. There are
other changes which may hasten the breakdown
of the present gulf between the two branches of
the profession. The proposed changes
in
the
divorce law may one day allow the local courts
to hear undefended divorces or may one day
remove divorce from the courts altogether. Altera
tions in the procedures for reparation actions are
being considered which may affect the present
income level of advocates. Such changes will not
happen quickly.
There is a body of opinion within the pro
fession
in Scotland which
is
critical of
the
Faculty of Advocates. Little is gained by heated
criticism and it is worth remembering that the
changes in the faculty can come about only if
the solicitor branch of the profession puts its own
house
in order and achieves
the specialisation
which has been referred to.
When dealing with
the courts
it
is worth
mentioning a problem which is much more im
portant than the problem of fusion. At present
much of the significant commercial and industrial
litigation by-passes the courts for arbitration tri
bunals. It must be also automatic for an arbitra
tion clause to be included in commercial agree
ments. Surely this is wrong. Surely the best remedy
must be sought in
the courts. So many time-
wasting rules of procedure have grown up over the
years that remedies can usually be found in our
courts only after considerable delay. This
the
public deprecates.
How often
is
it that some able and hard
working Q.C. earns large fees as an arbiter solv
ing most complicated commercial disputes. Sub
sequently, because of his abilities, he is promoted
to the Bench, from which point onwards the com
mercial problems by-pass him, and as a Judge he
may spend much of his
time
listening to un
defended divorces. The crying need is to attract
back the commercial litigant. This will demand
an ambitious programme of modernisation. The
litigant must be shown that his quickest and most
economic remedy is best found in the courts. Par
liament in recent years has not shown much con
fidence in the courts as a satisfactory means of
settling disputes as is indicated by the increased
reference to Tribunals. It was estimated in 1960
that there were 2,000 such bodies exercising 35
different functions. Successive Governments have
thus deliberately avoided giving new responsibili
ties to the courts. Where swift decisions are re
quired in accordance with established precedents
the judicial function has been assumed nominally
by ministers and in practice by the civil servants.
But the Governments' dissatisfaction is not with
the Judges, whose abilities are constantly
in
demand as chairmen of
important public en
quiries, rather is it an expression of mistrust of
the expense and delays of court procedures.
What of Legal Aid? Surely the U.K. scheme
is the best in the world? But is there not some
thing to be said for the scheme recently developed
in America under the Poverty Programme where
by neighbourhood law firms have been established
in areas of poverty where normally no middle
class legal firm would choose to practise. Such
firms would be staffed by full-time salaried law
yers anxious to employ their professional skills in
semi-social welfare work. It might be worth sett
ing up on a trial basis one or two such neighbour
hood firms. Surely nothing could be lost by such
an imaginative experiment.
The computers have already been mentioned
and no paper on the Future of the Profession
would be complete without a paragraph on how
fhe computer will radically alter the profession.
Any consideration of the future impact of com
puters on the law must anticipate the dramatic
changes in data processing machinery which will
occur in the years immediately ahead. A great
deal of research
is presently being undertaken.
Indeed existing computers are out of date as soon
as they are marketable. That machines can be
developed which will be able to record all titles
to all land
is a fact, although the cost may
presently be prohibitive. Consideration has already
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