Split the Legal Profession
January 12, 2002
There is a fundamental problem with having a single legal profession when the subject matter of law tends to divide into advocacy law and compliance law. Law schools train advocates to win cases for their clients, but most legal practice is concerned with enforcing or complying with existing law, and the background of knowledge and skills needed for each kind of law are quite different.
In England and most of its former colonies, the legal profession is split into barristers and solicitors. Traditionally, a barrister gives specialist advice on detailed legal issues and represents clients in court on both civil and criminal cases, whereas a solicitor gives initial legal advice, instructs a barrister, if necessary, and liaises between the client and the barrister. In the United States a similar distinction has emerged between lawyers and paralegals, although paralegals have not been accorded the status or right to practice that English solicitors have. However, there seems to be a general drift in that direction.
This is to propose a split of the legal profession into two branches, and two or more levels in each branch. The branches would be called advocates and pretors, and the levels barristers and solicitors, making four divisions, each with its own educational track and certification standards. There would also be additional certification standards for legal specialities.
Advocates, both barrister advocates and solicitor advocates, would be trained much the way lawyers are today, but the solicitors would only be required to pass a test to get certified, regardless of whether they attend a law school, whereas the barristers would be required to do a certain amount of legal writing and practice under a barrister's supervision to be certified.
Pretors, both barrister pretors and solicitor pretors, would be trained with a greater focus on history, both constitutional and legislative, rather than on precedents or winning cases for their clients. It would be directed more toward practice as judges, law enforcement agents, teachers, researchers, and corporate practitioners. Barrister pretors would focus on things like drafting and complying with constitutions and statutes, whereas solicitor pretors would focus on things like drafting and complying with contracts. For certification, the solicitor pretors would only be required to pass a test, whereas the barrister pretors would be required to do a certain amount of original scholarly writing.
Academically, there might also be a split within the subject of nomology, the science of law, between applied nomology and theoretical nomology, and courses would be designated as such in the syllabus. The education of pretors would be much more theoretical and historical.
As a certificate, the J.D. might be the certificate of advocates, and the Ph.D. of pretors. Those who appoint or recommend persons for judicial positions would be encouraged to prefer persons with a pretorial education.
Ultimately, law schools themselves might specialize among these branches and levels, or even specialize in particular fields, and separate bar associations would be formed for each branch, level, and specialty, so that there would no longer be a single, monolithic bar association exercising undue influence on the profession.
Each branch might also have its own paralegals, as a level below that of solicitor, also requiring only passing a test for certification. Advocate paralegals would be trained to assist barrister and solicitor advocates, and pretor paralegals to assist barrister and solicitor pretors. Thus, the former would tend to work as law clerks for advocates, and the latter as law clerks for judges. Paralegals might be further divided into levels and specialties, much as nurses are in the medical profession.
This is to further propose that none of these certifications would be treated as a license to practice, or as part of such a license. There is a fundamental constitutional problem with licensing any occupation, because it turns a right into a privilege, and that must never be done. A system of disclosed certifications, and requirements for disclosure of complaints and of judicial disablements for cause, should be all that is needed to prevent fraud, without supporting a regime by which dissident practitioners can be discriminated against for their reformist views or their actions, such as suits for malpractice.
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Maintained: Jon Roland of the Constitution Society
Original date: 2002/1/12 —