Clerks in the English legal system – no equivalent in the American system

Simon Akam, The Exquisitely English (and Amazingly Lucrative) World of London Clerks, Bloomberg Business Week.

Clerks have co-existed with chimney sweeps and gene splicers. It’s a trade that one can enter as a teenager, with no formal qualifications, and that’s astonishingly well-paid. A senior clerk can earn a half-million pounds per year, or more than $650,000, and some who are especially entrenched make far more.

Clerks—pronounced “clarks”—have no equivalent in the U.S. legal system, and have nothing in common with the Ivy League–trained Supreme Court aides of the same spelling. They exist because in England and Wales, to simplify a bit, the role of lawyer is divided in two: There are solicitors, who provide legal advice from their offices, and there are barristers, who argue in court. Barristers get the majority of their business via solicitors, and clerks act as the crucial middlemen between the tribes—they work for and sell the services of their barristers, steering inquiring solicitors to the right man or woman.

Clerks are by their own cheerful admission “wheeler-dealers,” what Americans might call hustlers. They take a certain pride in managing the careers of their bosses, the barristers—a breed that often combines academic brilliance with emotional fragility. Many barristers regard clerks as their pimps. Some, particularly at the junior end of the profession, live in terror of clerks. The power dynamic is baroque and deeply English, with a naked class divide seen in few other places on the planet. Barristers employ clerks, but a bad relationship can strangle their supply of cases. In his 1861 novel Orley Farm, Anthony Trollope described a barrister’s clerk as a man who “looked down from a considerable altitude on some men who from their professional rank might have been considered as his superiors.”

In the Fountain Court clerks room, Taylor sat at the head of a long table, flanked by subordinates wearing telephone headsets. Clerking has historically been a dynastic profession monopolized by white working-class families from the East End of London; Taylor’s son is a clerk. Predominantly, clerks hail from Hertfordshire, Kent, and above all Essex, a county that’s ubiquitously compared to New Jersey in the U.S. Many clerks rooms in London remain male-dominated, but several women work for Taylor, including two team leaders.

Each morning, a platoon of Taylor’s junior clerks sets forth into London pushing special German-manufactured two-wheeled trolleys, equipped with chunky tires for navigating the city’s streets and stairs. They’re laden with hundreds of pounds of legal documents that must be delivered to Fountain Court barristers at various courtrooms, from the nearby Royal Courts of Justice to the Supreme Court, more than a mile away. Hard physical labor doesn’t really correspond to the more senior work of clerking, which is phone- and email-based, and trolley-pushing is often pointed to as a reason for the relative dearth of female clerks higher up the career ladder. [...]

London’s barrister population is getting more diverse, but it’s still disproportionately made up of men who attended the best private secondary schools, and then Oxford and Cambridge, before joining one of four legal associations, known as Inns of Court—a cosseted progression known as moving “quad to quad to quad.” In short, barristers tend to be posh. Being a successful clerk, therefore, allows working-class men and, increasingly, women to exert power over their social superiors. It’s an enduring example of a classic British phenomenon: professional interaction across a chasmic class divide.

Furthermore, it is the clerks who negotiate legal fees. One consequence of the clerk-barrister arrangement, then,  is that barristers, if they are so inclined, can indulge their eccentric proclivities while their clerks negotiate their business arrangements with the world. The barrister is, in effect, treated somewhat like a movie star. Hence:

At a chambers called 4 Stone Buildings, a clerk called Chris O’Brien, 28, told me he was once asked to dress a boil on a barrister’s back. Among clerks, tales of buying gifts for their barristers’ mistresses are legion. But they maintain a level of sympathy for their employers, whose work is competitive and often profoundly isolating.

A view from anthropology.

John Flood, a legal sociologist who in 1983 published the only book-length study of barristers’ clerks, subtitled The Law’s Middlemen, uses an anthropological lens to explain the relationship. He suggests that barristers, as the de facto priests of English law—with special clothes and beautiful workplaces—require a separate tribe to keep the temple flames alight and press money from their congregation. Clerks keep barristers’ hands clean; in so doing they accrue power, and they’re paid accordingly.

Makes sense. And, as you would expect, the ambiance in criminal chambers and commercial chambers are quite different. Commercial chambers are more posh, but also a bit dull. Criminal chambers buzz with excitement.

Many in the criminal field are motivated by a belief that they’re a crucial part of the British judicial machinery, and their work closely corresponds with the public’s imagination of what it is to work in the law. Silk, the preeminent British legal TV show of the past few years, focuses on a criminal chambers. It features a lupine senior clerk, Billy Lamb, who bullies, cajoles, bribes, and often appears to have the most fun.

And so forth.

This article brings up a more general question: Conformity is the rule in society, every society, everywhere, because that's what societies are, that's how they work. At the same time, every society has institutionalized roles for non-conformity, if you will. The simplest hunter-gatherer society allows shamans to be a bit different. In this case we have an advanced civilization where barristers are allowed to be eccentric. Why? More generally, where is eccentricity permitted and what social arrangements make it possible? In this case it would seen that use of clerks permits, even fosters? eccentricities among barristers. And, to what extent do TV shows and movies about lawyers showcase their theatrical abilities in the courtroom? What is the correlation between depicted thespian ability and behind the scenes eccentricity? In Boston Legal, for example, the correlation wss high.

At the end the article talks briefly about how some recent chambers – Doughty Street Chambers, Matrix Chambers – have broken away from this system. What effect, if any, has this had on the eccentricity "budget", if you will, of the barristers there?

H/t Tyler Cowen.