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Evan Whitton
4 April, 2005  
The missing question in the matter of immunity

Some great thinkers say the law is now a business. So why are advocates still given such invaluable goodies as immunity from suit?

O, the moon shines tonight on Mrs Porter, And on her DOrta...

Bench and bar carousing shong (hic)

Judges and lawyers with some shred of decency genuflect at the altars of the Exchequer barons who invented their immunity from suit 145 years ago.

Courtesy of the eminent jurist B.S. Dawson we can name the guilty men: chief baron Sir Jonathan Pollock (1783-1870) and barons Sir William Watson (1796-1860) and Sir George Bramwell (1808-92).

In Swinfen v Lord Chelmsford (1860), they were put to the exigency of protecting the boodle of a once – and probably future – head of the judiciary who had clearly dudded his client, a Ms Patricia Swinfen.

imageBorn Fred Thesiger, Chelmsford (1794-1878) had a glittering career. At 13, he was a plucky little midshipmite at the Battle of Copenhagen but, perhaps tiring of rum, sodomy and the lash, he got out at 17 and took to the bar and Tory politics. He rose to Solicitor General, Attorney General and, in 1858, to Lord Chancellor (seen here).

Sadly, Fred went out with the 14th Earl of Derbys government in 1859. Down on his luck and with mouths to feed – his son, Alf, a future lord justice of appeal, was still at Oxford – he had to resort to the bar. Finding himself double-booked, he took the time-honoured course of settling the action with the smaller fee, although Ms Swinfen had instructed him by telegram not to settle.

A FLAC (For Legally Abused Citizens) editorial of June 2004 noted how the barons saved the noble lords bacon:

“The ‘reasoning’ of the court was: we can’t find any case where a barrister has been successfully sued for negligence, so the law must be that one cannot sue barristers for negligence.”

Such impeccable reasoning cannot possibly be controverted, and the notion that lawyers cannot be sued for court work still obtains, at least in this colonial backwater. Its most recent assertion is DOrta-Ekenaike v Victoria Legal Aid (High Court, March 10, 2005). The score was 6-1, with the Kirbmesiter on the short end.

The real, if uncanvassed, question is: is the law a profession or a business? If the latter law professor David Luban of Georgetown University has noted dire consequences:

”[If a] lawyer is really just another businessman, [they] lose whatever claim they have to the perquisites and immunities of the legal profession [including] such invaluable goodies as the attorney-client privilege.”

Robert Popeo is a plaintiffs lawyer who sought a lousy extra $1.3 billion in US money for tobacco lawyers. In Greed on Trial (The Atlantic Monthly, June 2004), Alex Beam quoted him as saying:

”... the law is an industry now, not a learned profession …”

Now? Or always? The public sector was totally corrupt when professional, i.e. paid, lawyers first appeared in London (pop. c. 25,000) in 1178 and professional judges soon after, and they hopped in for their chop. Judges who extorted from litigants used lawyers as cutouts, and they were still at it in Chicago 15 years ago. See Justinian, October 4, 2004

imageA rather less crass approach was reported by Judge Richard Posner, a Chicago economist and appellate judge (pictured), in Overcoming Law (Harvard University Press, 1995). He said:

“The legal profession in its traditional form is a cartel of providers of services related to societys laws.”

That sounds like a business; a cartel exists to maximise members profits.

Lawyers naturally want it both ways. They like the law to be a business which allows them to bill 36 hours in 24, or to pervert justice at $10,000 a day.

But they also want to have their sordid way with Mrs Porters comely DOrta.