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Free 2.1 Law Essay

Lawyers are professional persons who are specially trained in knowledge of the law and the skills to appropriately apply it, and who as members of a group offer that knowledge and those skills in the spirit of public service to the community." Beverley G Smith, Professional conduct for lawyers and judges, (New Brunswick: Maritime Law Books, 2001). Discuss.

It is submitted that the quote under discussion presents an idealistic, if not utopian view of the legal profession. In an ideal world the opinion expressed by Smith might prove well founded, but this is not an ideal world.

The Preamble to the Model Rules of Professional Conduct of the American Bar Association states in clause 1 that:

"A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

The clause speaks of a 'special responsibility'. It is easy to make the observation that there is nothing special or magical about lawyers or the legal profession. Lawyers reflect the society from which they are drawn and it can be argued that we get the lawyers that we deserve as a consequence. Legal systems in the Western world and further afield have been carefully refined for centuries and yet they are still far from perfect. Lawyers are merely the transient human components of those systems and being human, they are of variable quality with all the frailties that serve to define the human condition. There are good lawyers and there are bad lawyers, as there is good and bad in all professions.

The Preamble to ABA code alone defines the special responsibility that lawyers owe in regards to the quality of justice in 21 lengthy clauses. This, one might observe, is typical of the legal tradition, but it also indicates the importance, breadth and depth of the issue of professional ethics at law. As the Preamble adds, with just a hint of self-aggrandisement, in clause 13:

"Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship."

In recent decades the performance of United Kingdom lawyers has been subject to a great deal of criticism. It is arguable that the last truly positive report was delivered by the Royal Commission on Legal Services in 1979, which indicated a client satisfaction rate of around 85 per cent. Since the halcyon days of the 1970s the expectations and demands of the public have grown enormously and the deferential attitude demonstrated to authority figures such as lawyers had been sharply eroded. A series of books were published in the 1980s, such as Lawyers Can Seriously Damage Your Health , which heavily criticised the profession for gross incompetence and dubious practices, and the public image of the lawyer deteriorated until it got to the stage that the profession had become the butt of many derogatory jokes.

Furthermore a succession of studies, including the 1996 Report of the Council of Mortgage Lenders , have consistently indicated the conveyancing system is little more than a "racket" in which solicitors charge exorbitant fees for work the house buyer could do just as well himself, and other research has concluded that negligent solicitors are responsible for the growing number of conveyancing compensation claims, not because of esoteric legal difficult but because of simple carelessness. Such mistakes and practices bring the profession into disrepute. Conveyancing in particular may be a day to day chore for a solicitor, but a house purchase is the biggest transaction a client is ever likely to make and negligence is sorely felt.

Lawyers engaged in criminal litigation have also been roundly criticised in recent times. The 1993 Royal Commission on Criminal Justice reported that defence cases were often under prepared - typically because the work had been delegated to improperly supervised clerks. Standards of advocacy were also found to be relatively low on the part of both spheres of the profession. It is submitted that one reason for this is inadequate training. The practice of allowing pupil barristers to take on cases after only six months of relatively passive pupillage and the lack of any systematic or detailed assessment of performance during that period may have a long term consequential effect on professional standards.

Statistics paint a startling but informative picture. The Office of the Legal Services Ombudsman Annual Report for 2004/5 details 17.074 complaints against solicitors and 455 against the much smaller Bar. It is illuminating that around 80 per cent of all complaints concern the same10 per cent of firms, and this would tend to suggest that most of the bad apples lie in the same barrels. However, the profession does itself no favours in the way it approaches the ethically-critical role of self-regulation. The Solicitors' Disciplinary Tribunal deals with such serious offences as the improper utilisation and misappropriation of clients' money, breach of duty to court, tendering of false documents and overcharging, and yet only a fraction of lawyers actually get struck off as a consequence of misbehaviour which often amounts to a crime. Only 54 solicitors were struck off in the year 2004/5 in the context of hundreds of complaints. Other penalties include periodic or indefinite suspension, fines and reprimands.

Closing Comment

In 1629 Thomas Adams claimed in his work Sermons that "the devil makes his Christmas-pie of lawyers' tongues and clerks' fingers." It is now the year 2005 and it can be argued that the profession's public image has shifted not one jot.

In summary it is submitted that the quote under review constitutes an aspirational statement rather than a description of the status quo. One thing is certain - if more lawyers took more note of the sentiment embraced by Smith's optimistic words, the world of law and the society that it serves would benefit enormously.

Next bring some lawyers to thy bar, By inuendo they might all stand there; There let them expiate their guilt, And pay for all that blood their tongues ha' spilt, These are the mountebanks of state. Who by the slight of tongue can crimes create, And dress up trifles in the robes of fate.
Daniel Defoe, A Hymn to the Pillory, 1703

THE END
WORD COUNT: 1170 (excluding footnotes)

BIBLIOGRAPHY

Model Rules of Professional Conduct, American Bar Association
http://www.abanet.org/cpr/mrpc/preamble.html

Zitrin & Langford, Legal Ethics in the Practice of Law (2nd ed. 2002)

Elliot C. and Quinn F., The English Legal System, (2000) Longman

Michael Joseph, Lawyers Can Seriously Damage Your Health (1984).

Royal Commission on Criminal Justice, Cm 2263 (HMSO, 1993).

Summary of the Annual Report for the Legal Services Ombudsman for England and Wales 2004/2005: http://www.olso.org/AR2005/default.asp.

Lerman and Schrag, Ethical Problems in the Practice of Law (2005) Aspen

Solicitors Disciplinary Tribunal Annual Report 2005, http://www.solicitorstribunal.org.uk/annual_report_2005.pdf.

 

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