Fordham Law Review

Volume 71 Issue 4 Article 7

2003

Alice's Adventures in Wonderland: Preliminary Reflections on the

History of the Split English Legal Profession and the Fusion
Debate (1000-1900 A.D.)
Judith L. Maute

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Recommended Citation
Judith L. Maute, Alice's Adventures in Wonderland: Preliminary Reflections on the History of the Split
English Legal Profession and the Fusion Debate (1000-1900 A.D.), 71 Fordham L. Rev. 1357 (2003).
Available at: https://ir.lawnet.fordham.edu/flr/vol71/iss4/7

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 ALICE'S ADVENTURES IN WONDERLAND:
PRELIMINARY REFLECTIONS ON THE
HISTORY OF THE SPLIT ENGLISH LEGAL
PROFESSION AND THE FUSION DEBATE (1000-
1900 A.D.)
Judith L. Maute*
Alice was beginning to get very tired of sitting by her sister on the
bank, and of having nothing to do... So she was considering in her
own mind ... whether the pleasure of making a daisy-chain would
be worth the trouble of getting up and picking the daisies, when
suddenly a White Rabbit with pink eyes ran close by her.... [W]hen
the Rabbit actually took a watch out of its waistcoat-pocket, and
looked at it, and then hurried on, Alice started to her feet, for it
flashed across her mind that she had never before seen a rabbit with
either a waistcoat-pocket, or a watch to take out of it, and, burning
with curiosity, she ran across the field after it, and was just in time to
see it pop down a large rabbit-hole under the hedge.

In another moment down went Alice after it, never once

considering how in the world she was to get out again.

INTRODUCTION
As I prepared to leave the States to teach summer school in Oxford,
England, Russ Pearce asked me to contribute to this symposium.
This, I reasoned, would give focus to my curiosity about the
differences between English and American lawyers, would foster
connections with Bar Council and The Law Society (the professional
organizations that represent the interests of barristers and solicitors),
and would give me an academic purpose to use the extraordinary
resources of the Bodelian Library.' I agreed, with the understanding

* Professor of Law, University of Oklahoma College of Law. I gratefully

acknowledge the research assistance of Kencade Babb and Cleta Puckett (J.D.
expected, University of Oklahoma College of Law 2004), and Brian Childs (J.D.
expected, Suffolk University College of Law, 2004)
1. Lewis Carroll, Alice's Adventures in Wonderland 19-20 (Signet Classic 2000)
(1865).
2. The Bodelian Library of Oxford University is "one of the world's greatest
libraries," with approximately five and one-half million books in its non-lending
collection, including every book published in the United Kingdom since 1610.
Welcome to Oxford 11 (Earls Print & Publications 2002); see also Mary Jessup, A

1357
1358 FORDHAM LAW REVIEW [Vol. 71

that there would be little time for anything more than preliminary
reflections. In canvassing for a topic, Geoff Hazard suggested I
consider the "drift" between barristers and solicitors.3 "Fusion," I
soon learned, was the buzzword for the proposed merger of the two
branches. And so I went down the rabbit hole, scarcely appreciating
the journey that lay ahead.
Viewing the British legal system from afar, we Americans tend to
paint with a broad brush: wigged and robed barristers litigate in court,
while suited solicitors do pretty much everything else. The divided
bar appears to provide some benefits over America's mythical unified
bar.4 Because barristers have no direct access to clients, their
independence of judgment assures professional advocacy free of
personal or financial connections with those whose interests are at
stake. The cab rank rule, which theoretically requires that the
barrister take all comers, even reviled criminal defendants and
political despots. This benefits both litigants and the legal system by
promising availability of counsel suitable for the case. Barristers'
formal regalia symbolically dignify the majesty of the law, and
reinforce the advocates' solemn obligations to the court. Solicitors-
who are directly engaged by clients-are responsible for selecting and
retaining the barrister, avoiding the difficulty American legal
consumers have in identifying counsel competent to handle their
particular types of problems.
On closer examination, it becomes clear that the divided bar was
largely the result of historical accident, driven by class distinctions and
economic turf protection. Complete separation between the branches
was short-lived, occurring in the late eighteenth century; calls for
fusion emerged soon thereafter. The larger and economically
powerful "lower" branch of solicitors had been responsible for much
of the pressure, demanding rights of audience in higher courts. Over
the last thirty years, the English government has entered the fray, with
Parliament's 1973 Fair Trading Act, the Lord Chancellor's 1989
Green Paper and other advisory reports, and the Office of Fair
Trading focusing on competition in the professions. No longer is
there a clear division between the branches: qualified solicitors can
obtain rights of audience in virtually every court and can be named to
the Queen's Council and most judicial offices; barristers may be
employed by government offices and solicitor firms. Although some

History of Oxfordshire 118 (Phillimore & Co. 1975).

3. E-mail from Geoffrey Hazard (May 21, 2002) (on file with author). John
Leubsdorf suggested rich avenues of inquiry, and reference materials. E-mail from
John Leubsdorf (June 10, 2002) (on file with author).
4. See generally John P. Heinz & Edward 0. Laumann, Chicago Lawyers: The
Social Structure of the Bar (1982) (detailing stratification of the American Legal
Profession).
2003] THE SPLIT ENGLISH LEGAL PROFESSION 1359

distinctions remain, formalized barriers are eroding, with continuing

demands that the organized bar justify its restrictions. Neither
separation nor fusion happened quickly, but resulted from a
combination of diverse legal, economic, and political elements.
"Fusion" in the scientific sense connotes a state of completion, in
which a substance is transformed from solid to a liquid, achieving a
composite whole.5 Complete fusion of the British legal profession is
unlikely, for there will always remain a need for a small cadre of
highly experienced advocates. And yet substantial convergence may
be inevitable. Whether that is a good thing remains the subject of
spirited debate in England. American lawyers, who have never
known a divided bar, may offer some guidance in identifying the
ethical issues that lie ahead.
This essay briefly addresses the history of how the English legal
profession developed two distinct branches: the upper branch of
barristers and the lower branch of solicitors. Discussion of the
twentieth-century pressures toward fusion will have to wait for
another day.

I. HISTORY OF THE DIVIDED ENGLISH BAR

Americans have little appreciation of antiquity. Our nation's legal
history began with colonization and has fewer than four centuries of
development. English law, by contrast, is steeped in antiquity, dating
back twelve hundred years. The advocate's role-to speak on
another's behalf in a formal adversarial context-dates back to
ancient Rome, and was transported to England by the Roman
conquest, along with subtle distinctions in the form and function
served by different types of representatives.6 Serjeants-at-law,
predecessors of the barrister branch, date back to the eleventh
century.7 Sir Frederick Pollock called the Norman Conquest "a

5. Webster's Third New International Dictionary of the English Language,

Unabridged 925 (3d ed. 1986).
Fu.sion\ la : the act or process of liquefying or rendering plastic by heat
transition of a substance from a solid to a liquid : MELTING (welds
accompanied by - are by far the most common-Welding Handbook) b : the
quality or state of flowing induced by this process (that degree of heat must
be employed which will give perfect - to the glaze-G.R. Porter) 2 : a union
by or as if by melting : as a : a merging of diverse elements into a unified
whole : SYNTHESIS (opera is the - of five arts into a composite whole ...
e : a coalescence into a solid unit ....
6. Herman Cohen, A History of the English Bar' and Attornatus to 1450, at 1-5,
24-25, 531-45 (1929) (identifying Latin distinctions between advocatus, consilium,
advocatio and consilium, defensor, professional lawyers, and prolocutor).
7. See Robert R. Pearce, A Guide to the Inns of Court and Chancery 6 (1855)
(quoting thirteenth-century Miroir Aux Justices, alluding to an eleventh-century
proceeding: "And in full parliament let the accuser, by himself or by a serjeant,prefer
his accusation, according as it was done in the time of King Edmond [who reigned
1360 FORDHAM LAW REVIEW [Vol. 71

catastrophe which determines the whole future history of English

Law"' and made French the dominant language of law until the latter
part of the fifteenth century.9 Medieval records show general
recognition of both nominal and functional distinctions between
different types of legal representatives."' As early as 1216 courts
limited rights of audience to regular advocates. 1
Two distinct branches began to emerge in the late thirteenth
century, under the reign of King Edward I.2 A pleading system was
established, crafted by a small group of second- and third-generation
professional pleaders-the serjeants-at-law. 3 Specially trained in the
policy and procedure of courts, countors or serjeants conducted legal
arguments. 4 Around the same time, an Ordinance of the King placed
legal representatives under judicial control, hastening the clergy's
demise as lawyers 5in the King's courts, and perhaps prompting the
first Inns of Court.

A. The Lower Branch: Attorneys and Solicitors

Courts generally required litigants to appear in person, plead their
own cause, and receive the court's judgment. Gradually courts
relaxed the rule of personal attendance, allowing litigants to appoint
agents to appear and speak in their place and to transact routine
matters on their behalf. In their earliest form, these "attorneys" were
not specially qualified officers of the court nor a distinct professional
class.' 6 Parliament formally declared the right to appoint an attorney
to appear in one's stead in the early fifteenth century. 7 Attorneys

from 1016-17]"); see also The Royal English Monarchy, chronological list of the Kings
(and Queens) of England, available at www.scotlandroyalty.org/kings.html (last
visited Sept. 12, 2002).
8. 1 Frederick Pollock & Frederick William Maitland, The History of English
Law Before the Time of Edward I 79 (Lawyers' Literary Club 1959) (1898).
9. Id. at 80-87.
10. Pearce, supra note 7, at 6-8 (citing 1099 Assizes du Royaume de Jerusalem,
which referenced different names and qualifications of counsel (conseil) and pleader
(pleidoir)).
11. Id. at 18.
12. Edmund B.V. Christian, A Short History of Solicitors 3, 9 (1896) (citing 1
Pollock & Maitland, supra note 8).
13. 2 Frederick Pollock & Frederick William Maitland, The History of English
Law Before the Time of Edward 1 620 (Lawyers' Literary Club 1959) (1898).
14. Christian, supra note 12, at 3.
15. Robert Megarry, Inns Ancient and Modern 10 (Selden Soc'y 1972).
16. Christian, supra note 12, at 3. "Probably every 'free and lawful' person may
appear as the attorney of another; even a woman may be an attorney, and a wife may
be her husband's attorney." Id. at 3-4.
17. Id. at 8-9. But see C.W. Brooks, Pettyfoggers and Vipers of the
Commonwealth: The "Lower Branch" of the Legal Profession in Early Modern
England 18 (Cambridge Univ. Press 1986) (stating that by end of the thirteenth
century all litigants had the right to an appointed attorney); see also Peter Reeves,
2003] THE SPLIT ENGLISH LEGAL PROFESSION 1361

were by then a large and recognized group. 8 By comparison, the

practicing bar of the higher branch of serjeants and pleaders was
miniscule.' 9 Other law-related occupational categories, such as
stewards and town clerks, arose around the same time; clear 2
distinctions between their training and functions did not exist.
Litigation increased significantly between 1560 and 1640, perhaps as a
result of increased industrialization, economic development, and the
relatively low cost of litigation, especially as compared to the costs of
duels and other forms of armed conflict resolution.1 Various social
conditions encouraged vexatious litigation, multiplication of suits,
chicanery, pettifoggery, unreasonable delays, and official corruption
to flourish as easy and worthwhile games to play.22 The number of
attorneys-the lower branch of the profession, which served primarily
to link litigants with the courts-rose dramatically as compared with
growth in the general population. 3 Unsavory, abusive, or
incompetent solicitors in diverse provincial practices highlighted the
need for some regulation.24
In 1605, Parliament acted, by reforming the "Multitudes and
Misdemeanors of Attornies and Solicitors at Law and to avoid
unnecessary Suits and Charges in Law. 2 5 The preamble's pejorative
language about attorneys, as contrasted with "the just and honest
Serjeant and Councellor at Law," suggests that the upper branch was
the impetus for regulation of the lower branch.26 Nevertheless, the
legislative reforms were salutary, requiring accounting for
disbursements made on a client's behalf and written statements for
attorneys' fees." Moreover, "to avoid the infinite number of

Are Two Legal Professions Necessary? 2 (Waterlow Publishers Ltd. 1986) (citing
1285 statute conferring general power of appointment of an attorney).
18. Brooks, supra note 17, at 17-24.
19. Id. at 28 (estimating that in London in 1560, there were only ten or twelve
serjeants, who, combined with pleaders, totaled no more than eighty or ninety men).
20. Id. at 46.
21. Id. at 94-96, 101.
22. Id. at 111. For example, this was the context in which Shylock exploited the
penal bond. Id.; see also William Shakespeare, The Merchant of Venice, act 1, sc. 3,
lines 141-152. Overbury caustically described the "Character of a Pettifogger":
He promotes quarrels and in a long vacation his sport is to go a fishing with
the penal statutes. He is a vestryman in his parish, and easily sets his
neighbours at variance with the vicar, when his wicked counsel on both sides
is like weapons put into men's hands by a fencer, by which they get blows, he
money ....
Christian, supra note 12, at 79-80.
23. Brooks, supra note 17, at 112-13 (stating that by 1640 there were over two
thousand attorneys).
24. Christian, supra note 12, at 34-44.
25. Id. at 44.
26. Id. at 44-45.
27. Id. at 47-48.
1362 FORDHAM LAW REVIEW [Vol. 71

Solicitors and Attornies," the act restricted the right to practice to

those "brought up in the courts or otherwise well practised in the
soliciting of causes and proved by their dealings to be skilful and
honest," and also allowed for penalties against "unqualified
person[s]. '8 Mention of solicitors in the act signaled development of
a distinct, and inferior, rank of practitioners who functioned in equity
courts in much the same way that attorneys acted in the common-law
courts.29 Apparently the reforms were effective in assuaging
Parliament, for it enacted no new legislation regarding attorneys for
120 years, until the reign of King George 1.L ° In the meantime, courts
stepped in to regulate and control entry to the profession.3 1
In 1729 an Act of Parliament further regulated attorneys and
solicitors by limiting practice to those who took an oath of office and
met specified admissions standards, including five years of
apprenticeship as an Articled Clerk.32 Henceforth, those who became
attorneys entered the field as young men in pursuit of a profession
after an extended educational process.3 3 These young apprentices-as
young as thirteen -performed menial tasks like copying papers in the
attorney's office and fetching the mistresses' groceries from market.34
Some were "housed, fed and taught like the apprentices of petty
tradesmen."35
Following the Act of 1729, attorneys and solicitors achieved greater
esteem and coalesced as a distinct trade group, organized in
furtherance of their collective professional interests.3 6 Early self-
regulation began around 1739 with "The Society of Gentlemen
Practisers in the Courts of Law and Equity," which denounced
trickery and unfair practice, considered alleged irregularities of
professional conduct and sought to protect their practice turf from
outside competition.3 7 The Society of Gentlemen Practisers,
predecessor of the contemporary Law Society, successfully defeated

28. Id. at 49.

29. Id. at 70-71.
30. Id. at 47.
31. Id. at 80-81.
32. Id. at 111-12 (discussing 2 Geo. 2, c. 23 (Eng.)). The Act was a major step in
transferring regulation of the junior branch from individual judges to a codified
system of regulation. Brian Abel-Smith & Robert Stevens, Lawyers and the Courts:
A Sociological Study of the English Legal System 1750-1965, at 19 (Harvard Univ.
Press 1967).
33. Christian, supra note 12, at 111-13.
34. Id.
35. Id. at 113.
36. Id. at 111,120.
37. Id. at 120-21; see also 44 (t) Halsbury's Laws of England 7 (4th ed. 1995)
(discussing organizational history, formed "for the promotion of fair and honourable
practice and the detection and discountenance of all unfair practices").
2003] THE SPLIT ENGLISH LEGAL PROFESSION 1363

scriveners' efforts to establish a monopoly over conveyancing.? It

merged into the Law Society shortly after its 1831 incorporation. 9
From the outset, the Law Society took an active role in legal
education, entrance examinations, the codification of professional
etiquette, discipline, and, of course, lobbying to protect the
membership's collective economic interests.4"
As the legal profession's two branches evolved over time in a
parallel fashion, they developed common understandings and
practices that reinforced their different roles in the legal system and
created opportunities for each branch to flourish economically. A
kind of symbiotic relationship formed, in which attorneys regularly
referred matters to barristers under their patronage. To discourage
shady referral arrangements, a rule of professional etiquette
prohibited social interaction between the two branches.4 1 Over time
the two branches established a firm understanding that prohibited
barristers from accepting briefs directly from lay clients without the
intervention of an attorney or solicitor.42 Originally, it appears, this
arrangement developed because the bar tended to neglect the more
tedious tasks of litigation, while attorneys picked up the slack on
details handled outside of court.43 One seldom encounters lucid
explanations of why two professionals are needed in every case.
Edmund B.V. Christian suggests that initially the rule was seen as
enhancing the "dignity of counsel":
[I]n more recent times it has been defended on the ground that the
advocate to whom the parties are no more than algebraic symbols,
coming fresh to the consideration of a completed case, is more likely
to form a comprehensive and well-balanced judgment than the
solicitor, who has followed it through various developments and is
anxious for the welfare of a client who may be a friend and is
certainly a paymaster."
And thus the barrister, as a professional advocate with technical

38. 44 (I) Halsbury's Laws of England, supra note 37, at 7.

39. See Hugh H.L. Bellot, The Exclusion of Attorneys From the Inns of Court, 26
L.Q. Rev. 137, 145 (Sir Frederick Pollock ed., 1910). Upon incorporation of the Law
Society in 1831, it was no longer necessary for attorneys or solicitors to be in an Inn of
Court, hastening the total demise of Inns of Chancery. Id. at 145.
40. See Abel-Smith & Stevens, supra note 32, at 53-54; see also The Law Society,
A History of the Law Society (copy on file with author).
41. Christian, supra note 12, at 136. "By the time of the Stuarts [1603-1714] their
patronage was enough to give a young barrister opportunity to rise." Id.; see also
Abel-Smith & Stevens, supra note 32, at 21-22 (discussing considerable influence that
practitioners in lower branch could have on barristers who had not yet established
thriving practice, and corresponding incentive for barristers to curry favor with
attorneys).
42. Christian, supra note 12, at 137.
43. Id. at 136.
44. Id.
1364 FORDHAM LAW REVIEW [Vol. 71.

legal knowledge and dispassionate judgment, presents the case in

court, professionally and personally distanced from the client. The
attorney or solicitor, as next friend of the client, was the one who got
his hands dirty with the gritty details of the case, emotional concerns,
and financial concerns. The historical split of functions fostered a
quasi-contractual agreement between the branches to divide
territories, giving each a monopoly over their respective field of
trade. Courts long held solicitors to be officers of the court,4 and
attempted to subject them to the direct, albeit "somewhat ineffective,"
control of judges,47 seeking to limit the excesses of overzealous agents.
As discussed in section B, the upper branch eventually succeeded in
excluding the lower branch from having rights of audience to appear
as advocates in court, with complete separation of the two branches
coming in the nineteenth century.4 Even while the split was still
evolving, pressures for fusion emerged.
The Law Society now has almost exclusive control over entry to the
profession.4 9 Discipline is administered by a separate entity, the
Office for the Supervision of Solicitors.' Much like the organized bar
in America, today's Law Society is multifaceted, serving educational
and research needs for the profession and speaking for its collective
interests before legislative, judicial, and parliamentary bodies. 5
Within the last fifteen years, the Law Society has been the dominant
proponent of fusing the two branches.52 In his 1999 presidential

45. Henry Kirk, A History of the Fusion Debate I (Feb. 14, 1979) (unpublished
manuscript, on file with author) (citing 1851 edition of the Law Times (London):
"Because the attorney is prohibited from acting as an attorney [sic; counsel?] we the
counsel engage not to act without the intervention of an attorney. Because counsel
are prohibited from invading our province and acting as attorneys we the attorneys
engage to call in the aid of counsel when we want advice on questions of law or
require to be represented in Courts of Justice.").
46. Reeves, supra note 17, at 6. But see id. at 3 ("[A barrister was] never regarded
as an officer of the court, ... [nor was he] concerned with the administrative work
involved in an action and had no contact with court officials. His concern was with
the understanding and application of the law and the pleading of cases in the
courts.").
47. Brian Abel-Smith & Robert Stevens, In Search of Justice: Society and the
Legal System 40 (Allen Lane Penguin Press, London 1968).
48. Reeves, supra note 17, at 5 (identifying 1845 as the date of complete split,
without explanation); see also Bellot, supra note 39, at 144-45 (stating that until 1793
attorneys, solicitors and clerks could be members of the same Inns as barristers and
could practice in both capacities, and implying that at the time of the article there
were still some attorneys and solicitors who were members of Inns of Court); Kirk,
supra note 44, at 4 (discussing politics of split, referring to statements of prominent
barristers claiming that the split was bar etiquette of "fairly recent origin").
49. 44 (1) Halsbury's Laws of England, supra note 37, at 8-9.
50. The Law Society, supra note 40.
51. Id.
52. See, e.g., Marre'dArguments, 131 Solic. J. 923 (July 10, 1987) (objecting to the
Law Society's arguments to the Marre Commission in favor of fusion of the two
2003] THE SPLIT ENGLISH LEGAL PROFESSION 1365

address, Robert Sayer threw down the gauntlet, paving the way for a
new millennium:
Let us think the unthinkable. [He then proposed a universal code of
conduct applicable to everyone who supplies a legal service.] And if
we have a universal code of conduct, we may as well have one body
to police that code. The Law Society is the obvious choice....
How about one legal profession, embracing lawyers of all types,
not just solicitors but legal executives, licensed conveyancers and
barristers.
One unified legal profession. No more solicitors or barristers-
just lawyers. With one code of conduct, one set of rules, one
regulator. One legal profession offering the public whatever legal
help they need.
Advocacy at every level, mediation, financial services, business
consultancy, investment advice. From legal aid to corporate take
overs. Every legal service. All provided by one unified profession
regulated and represented by The Law Society. Wouldn't that be
interesting?53
The Law Society's strategic campaign for fusion and to eliminate
anticompetitive trade barriers and ethical restrictions has made
significant headway, prompted at times by the Lord Chancellor, and
most recently with the powerful support of the Office of Fair
Trading.5 4 Detailed consideration of the complex move toward fusion
in the twentieth century is beyond the scope of this essay, and will be
addressed in a sequel.

B. The Upper Branch: Counsel or Barristers

Until the late sixteenth century, serjeants-the Order of the Coif-
were unrivaled in their stature among legal practitioners. Serjeants
were special servants of the Crown, appointed by writ under the Great
Seal with ceremonial flourish. They had exclusive rights of audience
to appear before the Common Pleas Court sitting en banc, and
generally had rights of audience to appear in other courts. The
judiciary was drawn from their ranks.56 Only serjeants could become

branches).
53. Robert Sayer (President of the Law Society of England and Wales), Speech at
Solicitors' Law Festival 15-16 (Oct. 30, 1999) (transcript on file with author).
54. The Office of Fair Trading was established by the Fair Trading Act of 1973.
See Fair Trading Act 1973, reprinted in 47 Halsbury's Statutes of England and Wales
229 (4th ed. 2002).
55. Megarry, supra note 15, at 16.
56. Id. at 14-16.
1366 FORDHAM LAW REVIEW [Vol. 71

common-law judges.57 Ranking beneath serjeants were the

predecessors of barristers, known at various times as "apprentices-at-
law," and "utter barristers."58 The barrister's role as advocate
solidified in the sixteenth century. In 1532 Parliament officially
recognized them as men "learned in the law"; a judicial decision in
1590 established a call to the bar of an Inn of Court as the minimum
qualification for rights of audience as an advocate before the higher
common-law courts.5 9 In 1596, Francis Bacon persuaded Queen
Elizabeth I to appoint him to a new, superior office; thereafter a select
group of barristers who "took silk" by their appointment to King's
Counsel (K.C.) or Queen's Counsel (Q.C.), took precedence over
serjeants. The superior rank of this new category conferred both
status and practical, economic benefits.6 ' By the mid-nineteenth
century and the 1873 Judicature Act, the demise of serjeants was
complete. They no longer had a monopoly of appearance in and
appointment to common law courts; no new serjeants were
appointed.62
Although the English legal profession was stratified from the
outset, the clear split between barristers and solicitors can be traced to
the peculiar history of the inns-facilities created for housing,
education, and professional activities. Inns began around 1292,
possibly as an outgrowth of the order of Edward I that placed
barristers and solicitors under judicial control. 63 They were voluntary,
unincorporated societies of legal professionals, with common facilities
providing a convenient place to live, learn, work, and socialize.
Serjeants maintained their own Inn, at various locations, from around
1500 until 1877, when it was sold.' From early on, the Inns of
Chancery served as preparatory schools for the Inn of Court with
which it was affiliated. Benchers elected by the Inn of Court provided
in-house education, focusing on common law writs, at the Inn of
Chancery.65 The greater inns tended to give preferential treatment to

57. Id. at 16.

58. Id. at 15.
59. Wilfrid R. Prest, The Rise of the Barristers: A Social History of the English
Bar 1590-1640, at 5 (1986).
60. Megarry, supra note 15, at 18-20. For more than three hundred years, only a
few barristers took silk in any given year; in the late nineteenth century, there were
only 245 silks total. Id. at 19.
61. See id. at 20 (explaining that in cases involving two members of the upper
branch, silks served as lead counsel over the junior barrister or serjeant and on
motion dockets, silks advanced to the head of the queue, ahead of juniors, and
presented their motions without waiting in the longer line).
62. Id. at 14-15, 20, 22, 25 (describing demise of serjeants, culminating in the 1873
Judicature Act).
63. Id. at 10.
64. Id. at 23-26.
65. Id. at 29-31, 33-34. Until the sixteenth century, the title of "barrister" was
2003] THE SPLIT ENGLISH LEGAL PROFESSION 1367

applicants from their affiliate chancery inn.66 The lesser Inns of

Chancery typically consisted of a dining hall and living chambers,
whereas the Inns of Court also had a library and chapel for the use of
members.6 7
Until the late eighteenth century, barristers, attorneys, and
solicitors were members of the same inns, often progressively moving
from an Inn of Chancery to the Inn of Court with which it was
linked. 61 Starting in the mid-sixteenth century, the Privy Council, the
judiciary, and the Inns of Court announced (and intermittently
enforced) policies that excluded attorneys and solicitors from
membership in the greater houses. 69 Their gradual exclusion from the
Inns of Court reflected developing perceptions on their different
educational programs, 70 social standing, 71 and incompatibility of
professional roles.72 By the late seventeenth century, the Inns of
Chancery were exclusively occupied by attorneys and solicitors; soon
thereafter they deteriorated into little more than dining clubs, and
their demise became certain.73 In 1762, a committee of the four major
Inns of Court adopted a rule that prohibited a solicitor or attorney
from being called to the bar unless he had quit his practice for at least
two years. 74 Hugh Bellot, in his detailed study of the matter,
concluded that "up to 1793 attorneys, solicitors, and clerks might be
members of the greater Houses and continue to follow their
professions and at the same time qualify for the Bar."75 Because
rights of audience to appear as advocates in court were limited to
those who had been called to the bar of an Inn of Court, the exclusion
of attorneys and solicitors from bar membership solidified barristers'
dominant role as advocates in court.76

used internally by inns regarding one's participation at moots, not to the bar of a
court. See J.H. Baker, The Legal Profession and the Common Law: Historical Essays
109 (1986).
66. Megarry, supra note 15, at 30-34.
67. Id. at 10-11, 27-28.
68. Id. at 33-34 (stating second stage of preparatory school lasted 150 years, on the
wane by 1600); Bellot, supra note 39, at 137.
69. Bellot, supra note 39, at 137-38, 144 (detailing orders for exclusion starting in
1555, which culminated in a 1793 resolution by the bar of Lincoln's Inn not to admit
as a member any attorney or solicitor until his name had been removed from the roll
of the lower branch).
70. Id. at 138-39; see also Megarry, supra note 15, at 30-31.
71. Bellot, supra note 39, at 141; Baker, supra note 65, at 117-18.
72. Bellot, supra note 39, at 138, 140, 143-45.
73. Id. at 137.
74. There are four Inns: Middle Temple, Lincoln's Inn, Inner Temple, Gray's Inn.
Id. at 144.
75. Compare id. at 144-45, with Kirk, supra note 45, at 5 (stating that after 1762,
attorney desiring to become barrister could do so only by ceasing practice as attorney
for two years; by 1844, the Inns fixed this into a rule of membership).
76. Megarry, supra note 15, at 12; cf.Bellot, supra note 39, at 141.
1368 FORDHAM LAW REVIEW [Vol. 71

In the course of bifurcating functions between the two branches, the

bar embarked on a "conscious and deliberate policy in shaping the
new profession," which asserted "their intellectual and social
superiority over the 'mechanics' of the law. '7 7 During the reign of
Queen Elizabeth I (1558-1603), the Inns of Court flourished as
finishing schools for the sons of the upper classes. 8 Thus, in shaping
its professional image as a liberal profession, the bar claimed an
intellectual and social superiority as a distinguished, genteel
vocation. 79 Under this neo-classical conception of a gentlemen's
profession "detached from pursuit of lucre," ' rules of etiquette
developed that prohibited social contact with solicitors,8 presumed
that barristers' services were honorary,8 2 and conferred immunity
from suit for malpractice. 3
While consciously elevating its own status over that of solicitors, the
bar adeptly avoided antagonizing the lower branch by conferring an
assured supply of remunerative work to those who "had the humility
to become a 'ministerial person of an inferior nature."'84 Thus, by the
mid-seventeenth century there was defined bifurcation of tasks:
attorneys and solicitors prepared pleadings and met with clients, while
barristers handled the formal advocacy in court." By the mid-
nineteenth century, a class-based, mutually advantageous, division of
territory had evolved between the two branches:
[t]he Bar by obliging the lay client to place himself in the first
instance in the hands of the attorney had vested in him the
patronage of the profession; it was only through his goodwill that a
barrister could hope to succeed. For the general public the result

77. Baker, supra note 65, at 117.

78. Megarry, supra note 15, at 32. Prest's sociological study of the medieval bar
noted that sons of upper gentry and nobility are underrepresented among barristers
and benchers (highest members of Inns, often judges), as compared with sons of other
professionals, merchants and plebeians. Prest, supra note 59, at 88-89. Status in
Elizabethan society was not determined solely with regard to occupational standing
and varied by extent of property ownership, fortuitous marriage, inter alia. Id. at 89-
95; see also Kirk, supra note 45, at 3 (citing an article from The Times (London), Nov.
t, 1851: "The Bar had ceased to be a profession; it had become an inheritance. The
attorneys sent their sons and other male relations to the Bar and these were the men
who succeeded there regardless of their ability.").
79. See Baker, supra note 65, at 116-17, 123.
80. Id. at 1t8.
8t. Id. (quoting Lord Keeper Finch's instructions to serjeants in 1637, not to
"hugg an attorney, nor make an attorneys' feast and soe drawe them by those base
meanes to bringe them clyents").
82. See id. at 118-23 (discussing honorarium doctrine, which eventually led to
presumption that barristers' services were honorary).
83. See id. at 122 (discussing immunity).
84. Id. at 117.
85. See id. at 114-16 n.12 (stating that by 1662, it was customary for solicitors "to
breviate causes").
2003] THE SPLIT ENGLISH LEGAL PROFESSION 1369

was that it had to pay to the attorneys a toll before it could reach the
seat of justice. 6
This is not to suggest that harmony reigned in the legal community.
Solicitors resented the favoritism shown to barristers by Parliament.87
Meanwhile, a surplus of barristers and the development of County
Courts in which solicitors had rights of audience "virtually
annihilated" the practice of the common law bar.8" The junior
members of the bar- those who had not taken silk or been elevated to
the bench-had no representative body to look out for their collective
professional and economic interests. 9 As early as 1846, some junior
barristers advocated fusion in the hopes that their practices could be
revived if they were permitted to take instructions directly from
clients. 90 Solicitors' views were diffuse: while many resented their
degraded status as a result of their exclusion from Inns of Court, 9' the
country solicitors were "busy adapting" to their rights of audience in
County Courts, and London solicitors were relatively content with the
economic benefits of the arrangement.92 Among solicitors, calls for
amalgamation or fusion were openly voiced in 1867. 93 At around the
same time, ongoing debates on legal education raised the possibility of
a common course of instruction. 94 In 1872, the Attorney-General
proposed that Parliament fuse the profession to remedy the Inns'
inadequate educational programs. The Inns responded defensively,
95
adopting compulsory examinations for bar admissions.
Already high litigation costs rose higher because of working rules
that increased fees payable to barristers.9 6 The 1875 Judicature Act
eliminated the rank of serjeant and sought to unify the diverse court
system.97 In its implementation phase, a committee of judges (all
senior barristers) drafted rules that streamlined procedure and vastly
limited opportunities for junior barristers to pair with silks, thus
depriving the junior bar of much work it had used as "stepping-
stone[s] to further [their] practice."98
'
Realizing that the benchers
would not protect their turf from encroachment, in 1883 the junior bar

86. Kirk, supra note 45, at 3 (citing The Times, Nov. 1, 1851).
87. Abel-Smith & Stevens, supra note 32, at 54.
88. Id. at 55.
89. Id. at 55-56.
90. Id. at 56-57.
91. Id. at 56; see also Kirk, supra note 45, at 5.
92. Kirk, supra note 45, at 4.
93. Id. at 6 (discussing 1867 dinner speech by a respected judge, Mr. Justice
Hannen, at the Solicitors Benevolent Association and 1868 speech by a Mr. Jeavons
to a Liverpool meeting of Northern law societies).
94. See Abel-Smith & Stevens, supra note 32, at 65-74.
95. Id. at 74-76.
96. Id. at 213.
97. Id. at 211-12.
98. Id. at 214 (internal quotations omitted).
1370 FORDHAM LA W REVIEW [Vol. 71

formed an organization to represent the bar's collective interests.99

And thus was born the Bar Committee-predecessor to the modern
Bar Council. While it was too late to block the proposed rules,
representatives of the Bar and the Law Society have had an active
role in considering any future changes to court rules since 1894.""' The
Bar Council grew in strength and respectability, issuing rulings on 11
etiquette that "cemented" financially beneficial restrictive practices. 0
The Council's most delicate work was handling the etiquette of
relations between the two branches, and within its own ranks,
between junior barristers and silks." 2 Because of its role as arbiter of
"restrictive practices," the Bar Council was considered by some as
' 3
"the strongest trade union in the world." 1
Meanwhile, solicitors grew in stature and political power." 4 From
around 1880 on, there was increased talk of fusing the professions
from segments of both branches and from government." 5 The debate
continued for the next 120 years, with increased official pressure
making amalgamation of the two branches a substantial likelihood.
Detailed consideration of those events, and of the interesting ethical
questions raised by fusion must be deferred to another day. Please
stay tuned.

CONCLUSION
It is often quipped that England and America are "[t]wo nations
separated by a common language.""' 6 Although America's legal
system is derived from the English common law, its formation was not
complicated by centuries of history, in which modern forms of practice
evolved from historical accident and struggles over social status and
turf protection by the predecessors of the two branches of legal
practitioners. Viewed from an ethnocentric American perspective,

99. Id. at 215.

100. Id. at 216, 218. The Bar Committee officially became the Bar Council in 1894-
95. Id. at 218.
101. Id. at 219-21 (noting that these rulings especially protected the interests of the
junior bar).
102. Id. at 221-24 (discussing gradual evolution of the rule prohibiting barristers
from appearing as advocates without the intervention of a solicitor, formalized by
1905; requirement that a silk, or Q.C., be accompanied at trial by a junior and
resulting division of fees between them; and prohibition of partnerships of barristers).
103. Id. at 225-26 (quoting Daily Telegraph (London), May 9, 1896).
104. Id. at 227-29.
105. Id. at 227-30.
106. See Nigel Rees, Quote .... Unquote, at http://wwwlc.btwebworld.com/quote-
unquote/p0000149.htm (discussing as variously attributed to George Bernard Shaw,
Oscar Wilde, and Winston Churchill and hypothesizing that original quote may date
back to Wilde's statement in The Canterville Ghost, "We have really everything in
common with America nowadays except, of course, language.") (last visited Jan. 18,
2003).
2003] THE SPLIT ENGLISH LEGAL PROFESSION 1371
the divisions have a theoretical attraction based on the distinct roles
served, but they also present dizzying complications that may unduly
hamper the efficient and economic delivery of legal services. As a
new country settled by refugees, melting-pot America enabled the
development of a legal profession that was considerably more
democratic and less hidebound than its predecessor. Over the last 170
years, American legal ethics improvised solutions to situations as they
became problematic. By contrast, the English legal system and
practice of law evolved over more than a thousand years, in a long
course of specific, piecemeal adjustments. Given the exceedingly
complex history, amalgamation of the two branches into one
composite whole is a slow, uncertain, and very political process.
Whether complete fusion will result is uncertain. Just as the
American legal profession is stratified into subcategories of
practitioners with distinct skills and practice areas, those functional
separations are likely to remain in the British profession. It was
beyond the scope of this brief essay to delve into the ethical issues
presented by possible fusion. Hopefully it will spur further inquiry by
American legal ethicists, who may share the wisdom of hindsight
examination with our British counterparts responsible for writing the
next page of history.
Notes & Observations