Barristers, Solicitors and Social Workers

Have any states experimented with professional tracks running parallel to the British tradition of barristers and solicitors?  Such a division of labor makes good sense. There is no point in pretending that all lawyers can be all things to all men.

I spent my first dozen years as a lawyer is a small criminal defense and civil rights shop. We tried cases. I was able to try a dozen or more cases a year my first decade at the bar. Friends wondered how I withstood the stress. What stress? I was happy learning the law of evidence and figuring out how to present a case to a jury.

I left that firm a couple of years ago to start a firm of my own, and last year I tried only four cases; I was far more stressed out. And I was not happy about it. Too much time spent in the office shuffling papers is not good for barristers. I like a courtroom. That is where I want to be.

The cases I like most are ones that have been prepared by other lawyers. On the civil side, bring me a case that has survived summary judgment and awaits trial. On the criminal side, life is easy when there is no plea bargain the client will accept.

There must be folks who love the inside drudgery of the law. I suspect these are the same folks who spend hours noodling the Rules of Professional Conduct, drafting requirements that lawyers not just counsel clients on the law, but increasingly serve as social workers. These are probably the same folks who are afraid to go to trial.

Divide the profession, I say. Let solicitors work with clients to perfect a claim. Let them endure the stormy meetings, the angry phone calls, the fear, the anxiety, the stuff that makes some clients so difficult. Let solicitors serve as social workers, if that is their heart's desire. But let barristers try cases.

I suspect that no state has adopted the division in roles. Alongside the myth of professional indpendence walks another ghost, the image of lawyer as Renaissance man, capable of doing all that the profession requires.

Medicine gave up that ghost long ago. A hospital is filled with specialists. And while I doubt the increasing specialization in medicine accounts for the transformation in medical ethics from paternalism to a regime governed by informed consent, I can't help but wonder whether an increasing emphasis on informed consent in the law will not have unintented consequences in the law.

Little in my legal training prepared me for the roles I am now expected to fill as a lawyer. I trained to try cases. If I had may way, I'd be a barrister.

Comments

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I admit my knowledge of barristers and soliciters has been formed primarily by my multi-DVD set of Rumpole. But from what I know of it, I agree with these thoughts. Those of us who run our own practices are at a disadvantage. With litigation, for example, I find the work schizophrenic: I prepare for trial as I continue to communicate with clients and opposing counsel on settlements. If I try to say, enough, I need to prepare for trial, and the possibility of settlement still lingers, have I let something positive go? But there is a point of no return, and too much time spent on this stuff cuts into effective trial preparation. I also observed 2 other features that I think make good practice. First, the soliciter always attends conferences between the client and barrister. Second, the barrister receives written instructions. If a client directs a course of action that the barrister believes unwise, the barrister will ask that that instruction be given in writing. Saves on a lot of headaches later.