After many years of attempting to explain the need for two kinds of lawyer in the United Kingdom to exasperated and confused European colleagues – and even US ones – I have lighted on the following language. Solicitors are a primary market of legal services. They are profit-sharing organisations in which senior lawyers manage teams of junior lawyers to do almost everything their clients want. They operate just like any law firm around the world, save to the extent that their life is made easier by the existence of a secondary legal services market, which must be accessed either through them or lawyers overseas, which is known as barristers, or the Bar.
Barristers operating in the secondary market have their lives run by their clerks, non-lawyers who administer the cooperative, cost-sharing organisations called ‘chambers’, which support them in their practices. Barristers are therefore spared the distraction of running a legal business which is a necessary part of practising from a profit-sharing firm. They are also spared the exhausting business of keeping both their clients and their partners happy. That arduous work and the profit sharing entities it requires is left to solicitors in the primary market, who stand between lay client and barrister, as a ‘professional client’ of the barrister, filtering out the essentials that the barrister needs to know to be effective in court or on paper.
The result of this arrangement is that, from the beginning to the end of his career at the Bar, the barrister focuses exclusively on legal advice and advocacy in the courts. Unlike solicitors, he is not pulled away from this legal work as his career progresses, into management of other fee-earners or into developing the firm’s strategy or business development. In that sense, the independent English Bar – as barristers are collectively known – is a unique means of attracting and retaining large volumes of legal and advocacy talent to the dispute resolution market during their entire career as an advocate.
If that is a little abstract, then try this analogy. Think of a piece of litigation as a project to build a building. Solicitors (or lawyers overseas) are the building contractors who arrange for people to dig holes in the ground and to build steel frames and to clad them. Some buildings can be built just with a building firm. Other, more specialist or complex buildings benefit from the input of an architect. That is the barrister. An architect just has the ideas in his head, the books on his shelf and his means of communication: his pencil, his computer, and his voice. But the architect can’t build anything without a building contractor to work with. So we have two industries, with different roles, different cultures and, of course, different people working in them. For the solicitors, it’s probably a great relief that they can access the talents of barristers without actually having the trouble and expense of employing these unusual people.
If barristers’ non-profit chambers attract and retain talent for the entire career of an advocate, then the four Inns attract and retain legal and advocacy talent beyond the natural life-span of a barrister’s career as an advocate, both into the world of judging from the Bench and further, into semi and full retirement. The good wine, good food, good conversation, and accompanying entertainment offered by the Middle Temple and the other three Inns of Court in London gives people a reason to hang around when they move on from seeing the law as a way of earning a living.
What is the significance for the legal services industry and its users of concentrating this legal and advocacy talent from across generations in any one of four convivial places in London? Each one of the four Inns is a uniquely valuable interface between the Bar and the Bench (judiciary). This can perhaps best be explained with the following anecdote. A while ago I argued a troublesome case against an opponent to whom that adjective is also apt. Not long after that, while carrying a sorry little sandwich along Middle Temple Lane to my desk in chambers to burn yet more midnight oil, I bumped into the judge before whom he had argued rolling up from Middle Temple Hall after a dinner of countless courses.
We greeted each other, grateful for the opportunity to display a degree more intimacy to each other than appropriate in Court. We then trod a little delicately around the subject of the case. The judge’s eyes lit up and exclaimed with pleasure that his judgment had been reported and included in the footnotes several key textbooks. The judge thanked me warmly for his assistance in helping get the facts straight and the law right in a difficult case – and by doing so help the judge avoid an appeal. We waved each other a cheery goodnight. Next time I appear before the judge, I will be sure to try to be as helpful as I was last time – or more – so that I can have an even jollier and more respectful exchange when we next meet; the judge will be as pleasant to me in return in order to get the best assistance he can from the barrister before him. This human dimension provides a powerful motivation for achieving high professional standards, independent of pursuing a client’s best interests or making a living.
So the non-profit Inns help bind Bar and Bench together in the common enterprise of making and administering law. They promote civility, good sense, and mutual understanding. Where opportunities for such encounters are absent, mutual suspicion and resentment naturally flourish. When levels of aggression rise, cooperation is impeded and the quality of the legal product tends to drop. The Inns of Court are truly the institutions that caused Shakespeare to have two of his characters aspire to common law dispute resolution: ‘[a]nd do as adversaries in law,/Strive mightily, but eat and drink as friends.’ (Taming of the Shrew, Act 1 Scene 2 line 251f ).
Featured image credit: “Bookshelf old library books”, by Free-Photos. CC0 public domain via Pixabay.