The Gazette 1987

GAZETTE

SEPTEMBER 1987

The state, i.e. the government of a country, can step in with a system of legal aid or the funding of advice centres but this has three disadvantages: (a) Governments will not pay adequately for good lawyers in private practice, and the system becomes stuck in the treacle of bureaucracy. (b) He who pays the piper calls the tune and the employment by the state of an advocate will ultimately colour the nature of the advice given to an individual. Pressure will be brought upon the lawyer in all kinds of subtle ways. However altruistic may have been the original intention the resultant oppression is almost certainly in- evitable. (c) Good lawyers, by nature, possess independent minds and the best of them may well not wish to be engaged in what they will regard as a servile role. There can be no doubting the high costs of litigation which puts it out of reach of the majority of private clients. This is partly due to the over bureaucratic structures of the legal machine itself. It is also true to say that people as a whole, in the free world, take their free- dom for granted and do not expect to pay for it. They undervalue how precious freedom is. They will pay enormous sums of money for a shiny new motor car full of gadgetry or elaborate commodity products, but are prepared to pay little or nothing for the quality of life that enables them to enjoy these things, namely — freedom of ex- pression and from oppression. To this extent, the consumer is his own worst enemy. Conclusion From the above sketchy synopsis of the modern environment the following conclusions can be drawn: (1) Lawyers are divided into two categories which need different regulation: (a) The Contentious Lawyer who will give general advice and act as an advocate. He will have right of audience before every court, although he may need a special licence to appear in the final court of appeal. He will possess a high degree of academic knowledge. He will

employ paralegals who the lawyer, himself, will largely have trained to assist him by means of drafting documents, plead- ings, letters etc. The education of paralegals will be general. Their training in an office will be specific and narrowed to a par- ticular function. Hence their knowledge of law, as such, need only be limited provided they have good understanding of the use of language and the Third Literacy. Their task is to relieve the lawyer from the drudgery of routine drafting and inter- viewing. The Contentious Lawyer will remain an Officer of the Court. (b) The Business Lawyer. He will be a specialist in his chosen field and will be employed by a business house: this may be a merchant bank, insurance com- pany, or financial institution. To compete with such business houses, large firms of business lawyers — the city practice — will form themselves into such institutions. They will be incor- porated with limited liability and capable of support by outside equity participation. They will be multidisciplinary. The Business Lawyer will not be an Officer of the Court. (2) The rules of conduct of law and bar associations will need to be altered to meet these changing re- quirements. (3) The conflict will have to be reconciled, one way or the other, between the costs of Regulation and the much lesser costs of Com- petition. The conflict is between protection of the consumer by Regulation on the one hand and the freedom of the practitioner upon the other. (4) There will be differences bet- ween developed countries and those still developing. Possibly the greater percentage of literacy in in- dustrial countries reduces the necessity for greater regulation. The professions grew up because their members were the only literate and articulate people. George Bernard Shaw said that the professions were a conspiracy against the public; the professions would reply that their members put the interests of others first. (5) The lawyer as such should revert to his traditional role of ad- vocate and general practitioner as

distinct from the business lawyer. The function of the contentious lawyer and business lawyer needs to be divided. It would be wrong for there to be equity participation in the outcome of a dispute in court. The ancient rules of maintenance and champerty must surely be still applicable. (6) Only licensed practitioners should appear in court. Their fees should be freely negotiable and not subjected to control by a taxing master (save where costs are in the cause). Price control does not work. Lawyers are being required to run their offices on business lines. No business can operate suc- cessfully by the rigid system of price control that the taxing master imposes. Control should be more by competition than by regulation. (7) Contingency fees militate against the quality of the product and encourage high pressure tac- tics in a market not made for them. The product of the lawyer is his ad- vice and ability to present his client's case or represent his in- terests. Remuneration or com- pensation for that product should be in a free market. The main criterion for charging will be time. Practice licences will require all lawyers to state their terms of busi- ness in advance. (8) The licensed advocate may practise on his own or in partner- ship. He or his firm may enter into a contract or series of contracts with firms of business lawyers or business houses. The old- fashioned 'retainer' may return. (9) In general terms, and in order to meet the requirements of the modern consumer, the rules of conduct of the profession, i.e. the terms of a licence to practise, need greater liberalisation. Lawyers are required to run their practices on commercial lines and accordingly, and (hard though it is for the ma- jority of lawyers to accept the idea that the professions are not a race apart) the law will become one of the other service industries. To sur- vive and thrive commercially the profession will have to retain a highly competent standard of work. (10) The degree of regulation by the professional licence will vary according to the degree of develop- ment reached by the particular country. The more advanced the country, the greater will be the liberalisation.

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