The Gazette 1967/71

How often 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 Indeed existing computers are out of date as soon as they are marketable.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 106 is

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.