The Gazette 1984

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 !277