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petent commentators as an improper infringement
on the rights of the citizen, and an innovation cal–
culated to lessen respect for the courts of justice
and the law. The ordinary citizen in a democratic
State may regard the invocation of law and Courts
of Justice as
something to be avoided whenever
possible, but he recognises at least that as long as
the rule of law is sacrosanct his personal liberty
and family rights will be protected from arbitrary
interference by the State or from violation by
wrongdoers.
I consider that the rule of law in a
democratic State is second in importance only to
the maintenance of religion and freedom of con–
science in its influence on the lives and conduct
of the citizens.
It is a matter of regret, therefore,
to see an incipient tendency in legislative matters
to enact measures which can only have the effect
of lessening respect for the law and weaken public
confidence in those who administer it.
It would
be to the public advantage that tribunals invested
with
the functions of considering complicated
questions of fact and sifting evidence should have
the assistance of lawyers qualified in practice in such
work, and accustomed by professional habit to
exercise that impartiality which the public mind
associates with courts of law.
In the long run it
will be
found
that proceedings conducted on
judicial methods
are more
expeditious, more
certain, and cheaper than inquiries in which it is
open to any party to say what, how, and when he
pleases.
Counsel and solicitors are bound by their
professional code of ethics which regulates
the
conduct of the advocate and imposes a duty on him
towards the tribunal as well as towards the party
whom he represents.
I fear that the tendency of
the type of legislation to which I am referring will
be to create a new type of non-professional advocate
who will be bound neither by the rules of evidence
nor by any professional tradition or code and who
cannot be relied upon to present the facts with that
scrupulous fairness which is necessary for the realisa–
tion of justice where conflicting interests are con–
cerned.
It is a further advantage of the system of
professional advocacy that the parties themselves
do not appear in the role of advocates, and that the
case can therefore be conducted in a calmer and more
impartial atmosphere.
In the new type of tribunal
from which lawyers are excluded the advocates
are themselves the parties to the dispute and it may
be difficult
to separate statements of fact from
opinion and prejudiced pleading and to avoid the
heat which is apt to be engendered when hostile
parties come in conflict.
I now turn to a matter of great importance from
the viewpoint of securing
fair
treatment
for
solicitors acting for public and local authorities.
These appointments are of two kinds and different
conditions apply to each case. Some appointments
are made on a whole-time basis, the solicitor is
provided with an office and the necessary staff
at the expense of the local authority and is himself
remunerated by a salary. To this nobody can take
exception provided that the salary is fixed on an
adequate scale.
In the second type of appointment
the solicitor is retained on a part-time basis, he
carries on private practice, and provides an office
and staff at his own expense for his general practice
including the work of the local authority.
In
regard to appointments of this kind it is the con–
sidered view of the Council that the only fair method
of remuneration is on the basis of taxed costs. In a
number of appointments in recent years, however,
solicitors have been appointed to such positions on
the basis of salary, out of which they are obliged to
defray all office expenses. The salaries offered have
generally been inadequate because the amount of
work devolving upon the solicitor has almost
invariably increased and he has become almost a
whole-time officer without the remuneration appro–
priate to such services. The Council regard these
appointments as amounting to exploitation of the
present over-crowded
state of the profession.
Solicitors' charges are controlled by statute and
subject to taxation. No injustice is done to the local
authorities by asking them to pay the solicitors the
proper charges for work actually done, and the
necessity for so doing makes for efficiency and
economy
in
public
administration
rather than
otherwise.
The salary system for such part-time
appointments must be unjust either to the rate–
payer or the solicitor, as it is impossible to foresee
the amount of legal work and, consequently, the
office staff required from year to year.
In two
appointments recently advertised the Council made
representations to the Department of Local Govern–
ment and Public Health on the lines mentioned
above.
It is hoped to persuade the Department to
accept the justice of our viewpoint in regard to
part-time appointments, and in this I know that the
Council have the support of the profession.
It will be remembered that in November, 1943,
the Society in General Meeting passed a resolution
urging upon the Government the necessity for the
establishment of a Law Reform Advisory Committee
with the object of inquiring into our present legal
system and making recommendations for the reform
and consolidation of the law in general. The matter
has been frequently referred to and calls for the
establishment of a permanent committee of lawyers
together with representatives of the public provided
with the necessary means and secretariat to deal
efficiently with the problem.
If such a Committee
is constituted
the Council will afford
it every
assistance in their power.
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