The Emergence of Lawyers in England
The distinction between an agent and an advocate appeared when the lawyer went to court with a client to assist the client in presenting the case. In addition to law, the advocate was trained in the art of oratory and persuasion. In England, the function of the agent was taken over by solicitors and attorneys; the advocate became the barrister (trial lawyer). The function of a lawyer as a jurisconsult was both as a legal advisor and as a writer and teacher. Although contemporary lawyers perform essentially the same functions, the modern legal profession is fundamentally different, as we discuss later.
“The profession of advocate,” wrote Michael E. Tigar (2000:157), “in the sense of a regulated group of (law) practitioners with some formal training, emerged in the late 1200s.” Both the English and the French sovereigns legislated with respect to the profession, limiting the practice of law to those who had been approved by judicial officers. The profession of full-time specialists in the law and in legal procedures appeared initially as officers of the king’s court. The first professional lawyers were judges who trained their successors by apprenticeship. The apprentices took on functions in the courtroom and gradually came to monopolize pleading before the royal judges. In England, training moved out of the courtroom and into the Inns of Court, which were the residences of the judges and practicing attorneys. The attorneys, after several reorganizations of their own ranks, finally became a group known as barristers. Members of the Inns became organized and came to monopolize training in the law as well as control of official access to the government. Signs of the professionalization of lawyers began to appear.
In England, the complexity of court procedures required technical pleading with the aid of an attorney, and oral argument eventually required special skills. By the time of Henry III (1216-1272), judges had become professionals, and the courts started to create a body of substantive legal knowledge as well as technical procedures. The king needed individuals to represent his interests in the courts. In the early fourteenth century, he appointed sergeants of the king to take care of his legal business. When not engaged in the king’s business, these fabled sergeants-at-law of the Common Pleas Court could serve individuals in the capacity of lawyers.
A crucial event in the beginning of the legal profession was an edict issued in 1292 by Edward I. During this period, legal business had increased enormously; yet, there were no schools of common law, and the universities considered law too vulgar a subject for scholarly investigation. The universities were, at that time, agencies of the church, and the civil law taught there was essentially codified Roman law, the instrument of bureaucratic centralization. Edward’s order, which directed Common Pleas to choose certain “attorneys and learners” who alone would be allowed to follow the court and to take part in court business, created a monopoly of the legal profession.
The effect of placing the education of lawyers into the hands of the court cannot be overestimated. It resulted in the relative isolation of English lawyers from Continental, Roman, and ecclesiastical influences. Lawyer taught lawyer, and each learned from the processes of the courts, so that the law had to grow by drawing on its own resources and not by borrowing from others. But the court itself was no place for the training of these attorneys and learners. It did, however, provide aid in the form of an observation post, called the crib, in which students could sit and take notes, and from which occasionally they might ask questions during the course of a trial.
The Inns of Court provided for the training of lawyers. A small self-selecting group of barristers gave informal training and monopolized practice before the government courts of London, as well as judgeships in those courts. Barristers evolved into court lawyers (that is, lawyers who represented their clients in court proceedings). Originally, they were called “story-tellers” (Latin narrators); they told their client’s story in courts, and this is their essential function to this day. The barristers’ monopoly of court activities helped create a second group within the legal profession, named the “solicitors” (or “fixers”), who advised clients, prepared cases for trial, and handled matters outside the courtroom (Simpson, 1988:148-156). This group arose to meet the needs of clients, because barristers were too involved as officers of the court to be very responsible to outsiders. The barristers outranked solicitors, both by virtue of their monopoly of access to the court and through their control of training. Originally, solicitors were drawn from the ranks of those who attended the Inns of Court, and later they came to be trained almost entirely by apprenticeships or through schools of their own. At first, in the Inns of Court, lawyers lived together during the terms of court, and for them, the Inns represented law school, a professional organization, and a tightly knit social club, all in one.