Anisa Rahman Choudhury
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This blog will give a brief historical overview of the barrister/solicitor distinction in the UK, analysing their characteristics and identifying whether there’s a merger between the two branches of the legal profession today. While appreciating the similarities between the two, it’ll be maintained that they are distinct and are both integral to the legal system for their unique skill sets. As such, the routes to these legal professions should become more accessible than their historical practices.
The consensus is that there was no distinct legal profession before the 12th Century – although the causicidi defended the Abbey's rights during the Norman conquest, they could hardly be classed as lawyers as they’re now known. Rather than using professional legal skills for a client and remuneration, they were simply experts in pre-conquest law. Similarly, it’s believed Aethelbert’s code of existing law was written by knowledgeable men, not lawyers. Therefore, recognition of a legal profession came when representatives spoke for litigants as their importance is highlighted in ‘Leges Henrici Primi’. Due to increasingly high procedural standards, a case could fail entirely from a simple error in pleading.
It was during the time of Edward I that the first instances of regulating the legal profession occurred, such as the 1275 statute against pleaders who deceive. Seen through the list of pleaders in the yearbooks, a small group of advocates had emerged as well as attorneys. The latter committed to managerial tasks, like taking out writs, written work and instructing counsel.
However, the separation of the profession was arguably deepened in the 14th Century when counters of the Common Bench became known as serjeants-at-law, who had exclusive rights of audience in the Common Pleas, while attorneys again were concerned with litigation. Seemingly influencing a barrister’s right to a higher audience, the dominance of serjeants was expected as they were skilled advocates, legally well-informed and could speak French, the language of the courts, unlike attorneys. However, the language divide has now been removed. It’s also questionable if this warrants the extreme social superiority they had.
Over time, benchers of the Inns of Court also had audiences in superior courts. Nevertheless, there was leniency due to the shortage of advocates in the Tudor period and immense litigation, leading to the 16th Century judges and privy council tightening procedural rules as they deemed attorneys as unqualified, even though they were useful in alleviating workload. Judicial disliking of solicitors was also seen in their campaigning from 1590-1630 against their role. Towards the end of the 18th Century, the Inns of Court would subsequently exclude practising attorneys by assigning them to the Inns of Chancery, resulting in the exclusion to the Bar. While there was a stigma that attorneys are ‘ministerial persons of inferior nature’, they became pivotal for local affairs, formed the Law Society and ultimately became as respectable as barristers towards the 19th Century.
History could be said to have repeated itself from the reaction to the Courts and Legal Services Act 1990, which enables clients to directly assess barristers and solicitors to have higher rights of audience, merging their responsibilities. Lord Rawlinson expressed concern about the executive overstepping and giving away the monopoly on the rights of the audience in the crown court, High Court, Court of Appeal and Supreme Court.
Proponents of a fusion within the profession would counter that the division has become blurred from recent enactments and exists only because of tradition. The Law Society of Ireland 2020 has discussed this, highlighting how a merger would have a minimal advantageous impact. Instead, it’d reverse the years of work that’s led to an independent Bar, flexibility and reduce a client’s choice. The same can be said for the English Bar as it’s similar.
The lack of accessibility to the Bar, however, is deeply rooted in its historic origins. Barrister training was self-funded, attracting the wealthy and had a sense of status around it. The issue of expenses and lack of diversity persists, particularly affecting law students from disadvantaged socioeconomic backgrounds. Having established the equal need for solicitors and barristers, the pathways to securing a role as either should also be similar. To achieve this, there should be barrister apprenticeships alongside the existing solicitor apprenticeships to improve access to the profession. While this may seem like a step back as there used to be apprentices-in-law, the stigmatisation of apprenticeships ought to be removed, as should the perception that advocacy is an exclusive skill.