The profession of Advocacy was firmly in existence in the Greek and Roman legal systems. Emperor Justinian (circa 482-565) had put lawyers in a high pedestal comparing them with regular soldiers engaged in the defence of the empire, inasmuch as with the gift of advocacy, lawyers protect the hopes, the lives and the children of those who are in serious distress.
Towards the end of the Medieval 9 Period (500 A.D. to 1500 A.D.), the Roman Law had made inroads in the rest of Europe influencing it immensely. The reason attributed to this is the discovery of the Corpus Juris Civilis (Civil Law) in the 11th century. While in other countries Civil Law prevailed, in England, Common Law emerged. The Magna Carta came into being in year 1215. It has been said that,
“of the rise of advocacy in England, not a great deal can be said of the ancient origin of the profession in that country, for much of it is hazed in uncertainty. Very early in the history of England, justice was crudely and arbitrarily administered. The village moots, the shire courts, and in feudal times, the barons’ courts, administered justice without formality. A lawyer was not a necessity.”[1]
During these times, the practice of advocacy was within the realm of priests, monks (it be reminded, that these are the times when the Church Law/Canon Law prevailed). While the priests/the clergy would be insistent upon the study and application of the Civil Law and Common Law and of the hybrid of both, the nobility/laity (privileged class/aristocracy, but not privileged to undertake priestly responsibilities) would adhere to the Common Law. This led to dissatisfaction amongst both these classes (clergy and nobility).
“The early English lawyers, in the main, seem to have been ecclesiastics, but about the year 1207, priest, and persons in holy orders generally were forbidden to act as advocates in the secular courts, and from thenceforward we find the profession composed entirely of a specially trained class of laymen.”[2]
It was in the 13th century that, the professional lawyers emerged in England, after a centralised system for courts had been established to exercise the royal prerogative of dispensing justice. While earlier, a litigant could resort to the help of a knowledgeable friend, the litigation soon became complex and opened room for expert assistance.
Difference Between Pleaders and Attorneys
In this backdrop, came into being two classes of lawyers – ‘Pleaders’ and ‘Attorneys’. The Attorneys would perform the representative functions for the litigant. Attorney’s act would be the act of the litigant. Their functions would comprise administrative activities like serving process, following lis progress etc.
The Pleaders, on the other hand, would be the voice of the aggrieved. Their functions would include a relatively more complex league of activities – formulating pleadings, arguing questions of law before the courts.
The Class of Senior Pleaders
By the time 13th century concluded, a distinguished class of senior pleaders with considerable status and experience emerged, and they came to be known as Serjeants-at-Law. These eminent pleaders had some special privileges. These were retained specially by the King, and had exclusive rights of audience before the Court of Common Pleas and other Common Law Courts like King’s Bench. It was mandatory for the serjeants to have taken the coif, and as a consequence of this headdress, their corporate society was called as the Order of the Coif. The serjeants were at the pinnacle of the legal profession for a long time and it is from this pool of men that the selection of judges would be made. They were so exclusive and rare, that at a given point of time, there would be only about ten serjeants in the practice of the law.
It would be the serjeants’ arguments that would get reported in the year books, and since they had the exclusive audience rights in the Common Law Courts, the evolution of Common Law jurisprudence has been attributed to them. Soon, they acquired great eminence and close affinity with the judges as well. It is said, that they had more judicial element than the practicing element. Exclusive audience rights made them most affluent legal practitioners of that era and they remained to be distinguished and most prominent jurists during the 13th to 16th century i.e. during the period when the most of the civil litigation would be carried out at the Court of Common Pleas.
After this point of time, these awe-inspiring class of legal practitioners witnessed a decline. The descent in their Order has been referenced to the rise of Crown Law Officers like the Attorney-General, Solicitor General. These Crown Law Officers were retained by the monarch as ‘Counsels-in-Ordinary’; however, the eminent order of serjeants sustained a more perilous dent in the 16th century when the Office of Queen’s Counsel came to fore. This was an unprecedented office.
In the year 1597, Francis Bacon was appointed by Queen Elizabeth I as “Learned Counsel Extraordinary”, without patent (i.e. it was not a formal order). In 1603, the King designated Francis Bacon as the King’s Counsel, and bestowed upon him the right of pre-audience and precedence, and a few years later, in 1670, it was declared that the serjeants shall not take precedence over this new league of officers, thus relegating the otherwise eminent serjeants to a somewhat subordinate position, and eventually their decline.
The Queen’s Counsels
The final straw; however, was in the year 1846 when the Court of Common Pleas was made open to the entire Bar and in the year 1875 when the Judicature Act was enacted that removed the requirement for the judges to have taken the coif. It is not clear as to why the Office of Queen’s Counsel was really needed, however, they were appointed to assist the other Crown Law Officers. Further, bestowing of such designations, as a favour, was a common feature of this era. The Queen’s Counsels in return for a small remuneration held permanent retainers and they were prohibited from appearing against the Crown. And, in return, they would be entitled to enjoy the valuable right of pre-audience before the courts. These counsels were required to wear silk gowns (till date, Queen’s Counsels are either referred to as ‘silks’, or when elevated to this office, they are said to have ‘taken silk’).
Gradually; however, the cleavage between the Queen’s Counsel/King’s Counsel and Law Officers disappeared. The appointments as Queen’s Counsel were made to recognize professional eminence, or political influence; but soon thereafter, the public nature of the office declined. They were no longer required to assist the Crown Law Officers. During the 18th century, selection as Queen’s Counsel became a matter of honour and dignity and a recognition of professional eminence. And, in the year 1920, the injunction on a Queen’s Counsel to appear against the Crown, was vacated too[3].
The process of appointment of Queen’s Counsel in United Kingdom came in for sharp criticism for reasons like anti-competitive practices, propagation of coterie etc.. It was felt that the selection process was secretive and admission and appointment of a Queen’s counsel was virtually like an admission to an exclusive club. Recommendations were made by Sir Leonard Peach (appointed by the then Lord Chancellor) in a report titled as “An Independent Scrutiny of the Appointments Process of Judges and Queen’s Counsel in England and Wales”.
In another report, titled as “Report on Competition in Professions” published by Director General of Fair Trading, United Kingdom in the year 2001, the monopolistic nature of the practice that develops after appointment as a Queen’s counsel was highlighted. Some of the observations recorded in the said report would be worthy of notice.
“276. The appointments system (despite recent reform following the Peach report) does not appear to operate as a genuine quality mark. The system is secretive and, so far as we can tell, lacks objective standards. It also lacks some of the key features of a recognised accreditation system, such as examinations, peer review, fixed term appointments and quality appraisal to ensure that the quality mark remains justified. We were told that many solicitors and some barristers criticise the lack of objectivity of the system.
277.xxx
278. In our view, therefore, the existing Queen’s Counsel system does not operate as a genuine quality accreditation scheme. It thus distorts competition among junior and senior barristers. Our evidence indicates that clients do not generally need the assistance of a quality mark, but if there is to be such a scheme, it should be administered by the profession itself on transparent and objective grounds. Furthermore, there is some evidence that an informal quota is in operation within the current Queen’s Counsel appointment system, and that it appears to have the effect of raising fees charged to litigation clients.
279. We do not think that a mark of quality or experience is necessarily anticompetitive, so long as the award is governed by transparent and objective criteria, and restrictionsare based on qualitative, rather than quantitative, factors. On the evidence available to us, however, the current system does not pass these tests.”
On account of such and similar highly adverse views in the matter, details of some of which have been noticed above, in the year 2004-2005 the appointment of Queen’s Counsel was suspended temporarily. It was felt that the designation/appointment may be abolished in the light of growing concerns of many. However, a new framework was brought into existence in the year 2005, the salient features whereof are set out below:
“The recommendations are made by an independent body called as Queen’s Counsel Selection Panel annually. The final appointments are made by the Queen on the advice of the Lord Chancellor, following consideration by this Panel; the Panel comprises retired judges, senior barristers, solicitors, distinguished lay member (who also chairs the Panel). After an application is made by the aspirant to the Panel, professional conduct checks are performed; thereafter, the list of candidates is sent to members of the Judiciary/Bench including the Lord Chief Justice, the Master of the Rolls, President of the Queen’s Bench Division etc.
These distinguished Bench members can raise objections regarding the candidate’s integrity and the Panel will then allow the candidate to show cause. Additionally, the candidates are required to submit written references from judges, fellow practitioners, professional clients to enable the understanding of the candidate’s demonstration of competencies. Interviews are then conducted by Panel members with a view to adducing further evidence as to the candidate’s demonstration of competencies.
After the interview, candidates are graded by two Panel members; then the full Selection Panel conducts a review of these initial grades. After collective moderation, scrutiny of borderline cases, the final list is prepared. While inviting applications every year, emphasis is laid on obtaining representation from all quarters — like, women, LGBTQ community, other ethnicities, persons with disabilities.”
Reference
Ms. Indira Jaisingh v. Supreme Court of India through Secretary General and Ors (2017)
[1] Robbins, American Advocacy, page 4; ‘Origin
and Development of Advocacy as a Profession’, Virginia
Law Review Volume 9, No. 1 (November, 1922), page 28.
[2] Warvelle, Essays in Legal Ethics, page 27;
‘Origin and Development of Advocacy as a Profession’,
Virginia Law Review Volume 9, No. 1 (November, 1922),
page 30
[3] ‘Lawyers’ by Julian Disney, Paul Redmond,
John Basten, Stan Ross; 2nd Edition; The Law Book Company
Limited, 1986.