Biography, politics & current affairs

The Death of the Common Attorney

Jerry Pearlman

The Death of the Common Attorney

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INTRODUCTION

It was intended to be an autobiography. I was recording how I remembered what life was like when I first entered the legal profession, over 50 years ago. But then I started to draw comparisons with how they are now. I was simply comparing the changes in practice, in a wonderful profession. As I went on, I realised that it was not only the practices that had changed, but the whole profession. Like others of my generation, I kept on saying ‘we had the best days’ and I firmly believe that. But as I read about the many changes which were occurring on an almost daily basis, I became convinced that the legal profession as I knew it, was dying, or at best that its very existence as a profession was at risk. I wondered whether the changes were in the public or any other interest and I thought about the famous man on the Clapham omnibus, perhaps now known to most, as Joe Public. Those thoughts are included at the end of most chapters. I realise, that even as I write, there are more and more changes being put into effect or being announced, so what I have written today may be very different within the next day or so.
I hope that I stimulate some debate and also that any reader has a good laugh about those ‘old days’.
As it started out as an autobiography, I have included some of the stories that I like to tell, just so that they are not forgotten, even though, they are really just the ruminations of an old lawyer. On the other hand, I hope they demonstrate, that even a common attorney can have an incredibly varied and interesting career.

CHAPTER 1 - THE COMMON ATTORNEY

What is ‘an attorney’? Wikipedia says, that in England and Wales, it is a person, who may be, but is not necessarily, a lawyer, who is authorised to act on someone else’s behalf, in either a business or a personal matter. Thus, we have a document called a Power of Attorney whereby, a person gives such an authority to another person, either generally or for some specific purpose. We also have the Attorney General, who is the person who is the principal legal advisor to the government and who sometimes represents the government in court, in particularly important cases.
Different types of legal practitioners were in existence as early as the thirteenth century, but their differences were eventually distinguished. It is said that the attorney performed whatever was not the exclusive functions of the barrister. Attorneys were one of the so-called lower branches of the legal profession and they were the lawyers who had to cope with the intricacies of getting a case ‘on its feet’ and the barristers were the lawyers who argued the case in court. Actually, the attorneys were those who dealt with cases in the Common Law courts and the equivalent in the Chancery Courts were the solicitors. There was a third group of the lower branch, known as scriveners, who had a monopoly of conveyancing in the City of London. The titles were amalgamated by the Judicature Act 1872. There had been attempts to control the emerging profession and at one time, there was a Society of Gentleman Practitioners. They were all linked to the Inns of Court but ‘County Attorneys were … exempt from the expenses of the Inn, save a small fee as ‘out-members’.
By about 1450, the term ‘solicitor’ as used earlier, was recognised as meaning simply, one who ‘urges, instigates, or conducts business on behalf of another person’ and had come to mean one who concerned himself with legal business, but who was neither an attorney nor a barrister.
An Act known by its reference 3 Jac I c7, was entitled ‘to reform multitudes and misdemeanours of attorneys and solicitors at law’.
The term ‘attorney’ was in use in 1882 when W. S. Gilbert in Iolanthe had his Lord Chancellor sing:

I’ll never assume that a rogue or a thief
Is a gentleman worthy implicit belief
Because his attorney has sent me a brief
(said I to myself – said I)

Towards the end of the nineteenth century, it was significant of this attitude that the respectable members of the profession were beginning to be known as solicitors, a term which, although less well established historically, had not habitually been coupled with the adjective ‘pettifogging’ as had the term attorney. 'Pettifogging’ as applied to a solicitor, has been defined as:
‘… one who was not overscrupulous, and given to stirring up trouble in order that he would be employed to settle it’.

One novelist claimed that by 1814 it could be said that there were no longer such things as attorneys in England.

My favorite example of the use of the title is on a gravestone, in the churchyard at Askrigg in Wensleydale in Yorkshire, which describes the deceased gentleman, Mr. Myles Alderson, when he died in 1746, as ‘An Honest Attorney’ – but why this quality of honesty had to be singled out worries me. Was it so unusual?
I have taken a liberty and I have given the title of ‘Common Attorney’ to that type of lawyer who some call a ‘high street lawyer’. And by this I mean a solicitor, more pompously formerly called ‘a Solicitor of the Supreme Court’. So although I may refer to the members of that other branch of the legal profession, namely ‘the bar’, whose members, known as barristers, are not publicans but lawyers, my focus is on the high street solicitor who was and sometimes still, is a self-confessed general practitioner – a jack of all trades. I will not continue by using the other part of that phrase namely ‘a master of none’ because many were, and I suppose that a few still are, genuinely men of all or most trades within the legal profession and are of great ability.
We may not have been the smartest kids on the block but we met with all sorts of people in all sorts of situations. We dealt with human misery, human success, human cupidity, human strengths and weaknesses – you say it and we have experienced it, all in a vicarious way. We were often able to synthesize several legal principles and apply them to the problem presented to us. The medical general practitioner was and perhaps still is, rather like that. I do not demean the medical profession but I do notice that now, some just feed the symptoms into the computer to work out what pill to prescribe and others are only too keen to refer you on to a consultant to have an x-ray or something else in the hospital. Yes, the legal profession has become something like that, but probably less so at high street level. I bow to no one in my admiration of those remaining country and market town solicitors who struggle in view of the changes that I will describe. But they are the exception and no longer the rule, and they are a dying breed.
It was the belief of the client, that the common attorney knew all the law (after all, ignorance of the law is no excuse!) and could give instant advice on any subject or problem raised with him. To the contrary, I learned whilst a student, that according to a marvelous handbook ‘Learning the Law’ by Glanville Williams, a good lawyer is not necessarily one who knows the law but is one who knows where to find the law.
Williams could not have been referring to the (I hope) fictional solicitor, who would say to a client “I must look that up in one of my text books” and would take from his shelves a large book with a leather binding embossed with something such as ‘Burke’s Law of England. Volume XIX’ but inside the binding were pages headed ‘Smiths A–Z guide to the Law.
‘We were gentlemen!’ So claimed Sir Thomas Lunn, the Secretary of the Law Society of England and Wales in the 1950s. (If he was around today, he would have been known as the CEO, the Chief Executive Officer.) He claimed that by some long forgotten statute, we were entitled to use the word ‘Esquire’ after our names. When I read in the Law Society’s Gazette in 2012, that the haulage company, Eddie Stobbart, was planning to open 1300 law offices, my first thought was, how the mighty have fallen. It was not in an edition of the Gazette published on the 1st of April, so it was not an April Fool’s Day joke. It was well known that the Co-op and Tesco were planning to enter the fray. It was as though they looked upon the law as an industry, but when it was part of a haulage empire, it just seemed to me, to be a leap too far, but it was not. The next step down into the abyss is that a firm of what used to be called ‘bookies’ (Betfair) has announced that it is offering a fixed-fee legal service to small and medium sized businesses and start ups.
Lawyers have never been the favorite of advisers, even in ancient times. Plato apparently, maliciously said:
‘The lawyer has learned how to f latter his master in word and indulge him in deed; but his soul is small and unrighteous … from the first he has practiced deception and retaliation, and has become stunted and warped. And so he has passed out of youth into manhood, having no soundness in him.’

Even the bard could not resist a dig at us ‘The first thing we do, let’s kill all the lawyers’. Another view was that of John Gay the poet:
I know you lawyers can, with ease,
Twist words and meanings as you please
That language, by your skill made pliant,
Will bend to favour ev’ry client.

And Boswell reports that Samuel Johnson said ‘he did not speak ill of any man behind his back but he believed that the gentleman was an attorney’!
On the other hand we were one of the three great professions, in the eyes of the thinking classes – the church, the law and the army. I rather like the description by one writer:
‘There is something by which a lawyer can be instantly recognised … and by which lawyers, however dissimilar otherwise, are more clearly linked than they are separated by their differences … A man who had a legal training is never quite the same again … And … is never able to look at institutions or administrative practices or even social and political policies free from his legal habits or belief.’

It took a long time before solicitors in particular and their trade union or representative organization, the Law Society, felt that they should do something about their image. I was one of the first public relations officers who was appointed to speak on behalf of the profession, locally. We had a local television station and I was a regular attender at their studios, to give my thoughts on any number of issues. I saw myself as someone who was there to defend the profession as well as assist the public, by giving them information about the law. I do not know if I succeeded. I well recollect one spin off from the new approach. The National Law Society held a conference to inform us of how we should go about our work. I remember little about that part of the weekend. What I do remember, is the keynote speaker. It was Enoch Powell and both my wife and I assumed that we would listen to him with great hostility. In fact, he was one of the best speakers that I have ever had the pleasure to hear. What a pity he blotted his copy book.
Many years later, I realised that we still had not made much progress in making us more media friendly. I learned that dentists had suddenly started adopting the title ‘Doctor’. So I eventually came up with the idea that solicitors should also adopt the title ‘Dr’. In Germany a lawyer is Herr Doktor, in France a lawyer attracts the title ‘Maitre’. I learnt that in Canada, lawyers had decided to call themselves Doctor. All my efforts were unsuccessful. I wrote to the Law Society’s Gazette but several solicitors who had a doctorate awarded by a university, felt that their status was being diminished. Perhaps I will return to this campaign at some time in the future.
So to reflect upon the changes. No, I am not a Luddite but the changes have gone too far. On the other hand, I could say that I am fast becoming a Luddite myself, because I am having so much trouble keeping up with modern developments. Of course it will be said, that anyone who resists the type of change that is taking place, is doing so for personal and financial reasons. But in the field of law, in the end, it is the client or the public who will gain or suffer. It is not only the commerciality of change. It is also the changes within the law, the procedures, the people and the standards. It is about the diminishing protection for people. There are some who manage to receive more than their fair share of legal help, usually the very rich. Others, those with limited means, are deprived of what was looked upon by the old timers as being the reason for the legal profession existing, are now denied help.
When I was in my very early days as a practitioner, I met a man in a bar. He was a solicitor – not a barrister – and he did not tell me a shaggy dog story. In fact, he passed on to me, one of the more sage pieces of advice that I ever received. After hearing of my aspirations, which were to build up a practice, he said “don’t forget the widow’s mite.” He went on to explain that you might be having a meeting with a wealthy client, claiming thousands or hundreds of thousands of pounds and the next client may be a widow worried about a problem which involved ten pounds. Her problem was as serious and worrying to her, as the wealthy man with his thousands. That was the widow’s mite. You had to give as much of your professional expertise to the widow, as you did to the wealthy businessman. That was professionalism. You were not motivated simply by profit or time, but there must be an element of humanitarianism. Years later, I was at a farewell party for a commercial lawyer who was moving firms. I asked him about the satisfaction that he expected to get from his work and I mentioned that my greatest satisfaction, was when I had helped an individual who was in trouble and I was able to do something which made that person’s life bearable. The departing lawyer responded “I want to do deals. I want to do deals.” Clearly, people and their problems were of no concern to him. I doubt if he ever had as much satisfaction from his work as I had from mine.
Later, when I start to examine some parts of legal practice, I will tell you about some of my experiences and I hope that you will find some to be salacious, some surprising, some amusing and some, which illustrate the best and worst of legal practice and the great wide world of the high street solicitor or common attorney.


CHAPTER 2 - CHANGES AT THE COAL FACE – AN OVERVIEW

In serving writs I made such a name
That an articled clerk I soon became:
I wore clean collars and a brand new suit
For the pass examination at the Institute
And that pass examination did so well for me,
That I am now the Ruler of the Queen’s Navee!

H.M.S Pinafore. Act 1


In my first few weeks as an articled clerk (now called a trainee solicitor) my principal, somewhat generously, enabled me to go up to the North East of England where my parents then lived. We had a client buying a house and as the vendor’s solicitors were in Newcastle, I could go to complete the transaction (more about ‘completions’ later). I went up by bus and after visiting my parents, went to the office in Newcastle-upon-Tyne. It was, and still is, a very old established and prestigious firm. As I waited to move from reception to a room where we were to carry out the transaction, I noticed that they still made the copies of letters using a letter press. To this day, I have never really known how they work but it involves purple dye and pressing the actual letter against a piece of copy paper and the words are copied. Before moving on, I should mention that many years later, I took my children to the Industrial Museum at Beamish and found a room which was a pastiche of an old time solicitor’s office and there, I found that same letter press, accompanied by an acknowledgement to the firm that I had visited.
Typewriters and carbon paper were par for the course. So was shorthand and one dictated letters and documents to a shorthand typist who duly transcribed them. When I had enough work to justify employing a secretary, I found that at first, I could type faster than her. She was one of the very, very best secretaries that I ever had and soon she was quicker, much quicker, than me. Eventually, she became one of the fastest typists in the city. I say that, because eventually, she moved to work for one of the top officers of the City Council and I learned about her prestigious status from someone in the Civic Hall.
It was a waste of time, when taking a statement from a witness, to have your secretary sitting there waiting for you to ask the question, as sometimes, especially so with a client in a criminal case, they might have been making it up as they went along. So at first, I used to write out the statement by hand and then have it typed up. I found this so boring and often lost concentration. I had heard about methods of voice recording and I bought a huge Uher reel to reel tape recorder. This revolutionized my whole life. I could deal with several matters at a time and whilst I was dictating, my secretary was already typing.
If you wanted to include a plan in a document, it had to be copied by hand. If you wanted to send someone a copy of a letter or a document, it had to be typed out in full (other than Abstracts of Title about which more later). It was painfully slow. Then came the f irst copying machines. They were large and cumbersome. You poured different chemicals into various parts of the machine and copied and first photographed and then developed the image. It took time and also you had to empty the machine after you had finished using it for the day. Then there was invented, the electrostatic copying machine, or what we still tend to refer to, as the Xerox. It was and still is, just wonderful and saves so much time. How did we ever manage without it?
Of course we had telephones and eventually, as we had some international commercial clients, we acquired a telex machine. I was at a lunch once and was sitting next to a partner in a big commercial firm and he ‘put me down’ by telling me that they had a fax machine and that the new machines had limitations as well as benefits. He had finished a long and complex document that morning and sent it by fax to the solicitor ‘on the other side’. Within two hours, it came back with all the amendments suggested by that other solicitor. I realised that we would be out of the race if we did not get one, so we did.
Our first word processor was a huge machine that cost £10,000. We had spent six months mulling over whether we needed it or could afford it. Actually, I doubt whether we saved enough in terms of time because it took quite a long time before we really understood the ways in which we could use it to its best advantage. Now you can buy a perfectly satisfactory PC or personal computer for under £500.
They were the days of the managing clerk, who was usually a man without any formal qualifications, who may have started as the office boy and learned his trade as he worked his way through the office. He may have been the conveyancing clerk or even the litigation clerk. They were the salt of the earth and many of them were marvelous characters. I remember one in a firm in which I worked, who was a snuff user and his waistcoat – he appeared to have only one – which was never changed or washed – was littered with the droppings of his snorting. They are now formalised as Legal Executives.
I have always presumed, that amongst the reasons which cause the dislike or fear of lawyers, is the fact that we are alleged to twist people’s words, but mainly the reason is, that we charge for our services. If you listen closely to the manner in which a good advocate applies logic to the statement of a witness, or the presentation of an argument, as to the manner in which the law should be applied to a given set of facts, you must surely acknowledge that it is an art and not a mystery. I sat in the House of Lords (that part of the House which was the most senior court of appeal in the Nation, which has been replaced by the Supreme Court) with two non-lawyers and as they, and I, listened to the skilled arguments, all of us recognised the pure brilliance of a good advocate doing his job.

Format: 13.5 x 21.5 cm
Number of Pages: 176
ISBN: 978-3-99048-614-6
Release Date: 13.02.2017
GBP 13,30
GBP 7,99