Why Are There Two Kinds of Lawyer? A Division Almost Nowhere Else Has

One branch deals with clients, takes instructions, gathers evidence, conducts correspondence, drafts documents, handles transactions and manages a case. The other specialises in advocacy in court and in giving specialist opinions on difficult points, and is engaged by the first branch rather than by the client. The advocate is self-employed rather than a partner in a firm, works from a set of shared chambers with other independent practitioners, and is obliged to accept any case within their field if available and properly paid, which is a rule intended to ensure that unpopular clients can be represented. Training, qualification, regulation and professional bodies differ entirely between the two.

The division grew historically rather than being designed:

• •Medieval courts distinguished those who pleaded from those who prepared
• •The pleaders organised themselves into the Inns of Court from the fourteenth century
• •Those Inns controlled training, admission and discipline independently
• •The preparing branch developed separately and was regulated separately
• •Specialisation suited a system relying heavily on oral argument
• •Each branch defended its monopoly vigorously for centuries

Supporters make several arguments that are taken seriously. A specialist advocate who spends every working day in court develops skills that somebody doing it occasionally cannot, which matters in a system where cases turn on oral argument. Independence from the client and from the firm preparing the case supplies a second opinion at a distance from the people who have become committed to a theory, and an advocate obliged to tell a client their case is weak is more likely to do so when they did not build it. The obligation to accept any case ensures that defendants nobody wants to represent are represented. And a self-employed bar allows small practitioners to compete against large firms.

Court dress attracts more attention than any other aspect of the profession and the explanation is less dignified than the appearance suggests. Wigs became general in English courts in the later seventeenth century because they were ordinary fashionable dress, worn by everybody who could afford one, and the courts simply retained them after fashion moved on, which is how most ceremonial dress arises. The defence now offered is that uniform dress makes practitioners anonymous and interchangeable, removes distinctions of age, sex and appearance, and marks the proceedings as formal, and surveys of court users have found some support for that. Wigs were abolished in civil and family courts in 2008 and retained in criminal ones, which satisfies nobody entirely.

The distinction has narrowed substantially over four decades and continues to. Solicitors gained rights to appear in higher courts from 1990, so the advocacy monopoly is gone. Clients in many fields can now approach an advocate directly without going through the other branch, which was introduced in 2004 and has grown steadily. Employed advocates work inside firms, companies and prosecution services. Training and qualification routes have converged. Against that, the two branches remain separately regulated, the culture and working arrangements remain distinct, and most other common law countries that inherited the division have abolished it formally while retaining an informal specialisation in advocacy.

One branch advises clients and prepares cases while the other specialises in court advocacy and is engaged by the first rather than by the client, working self-employed from shared chambers. The division grew from medieval courts and the Inns of Court rather than being designed. Specialist skill, independence from the prepared case and an obligation to accept unpopular clients are the defences. Rights of audience and direct access have narrowed it considerably.