History of the Solicitors’ Training Contract

Section 1: Contextual Overview of the Development of the English Legal Profession

Before a full sketch of the history of the Training Contract can be drawn, it is necessary to provide a brief introduction to the development of the English legal profession as a whole.

From the mid-12^th Century, there existed a Bench of learned men at Westminster who were an extension, and administrators, of the King’s justice and heard legal pleas. After a few decades, they decided to travel the realm and administer justice locally, and naturally their number grew.

The development of anything that could be called a ‘profession’ was exceedingly slow at this time because ancient principles such as a pleader having to appear and speak on his own behalf hindered anyone being able to speak for the pleader and therefore represent him. However, some representatives were permitted and a few select names began to appear regularly on the records of the King’s Bench.

At a very general level, in circa. 1250, there were two types of professional appearing, (1) a class of Serjeants at Law who presented the pleader’s case and responded to any argument that arose out of it, and (2) Attorneys who appeared on behalf of a claimant and spoke for him. The Serjeants’ workload became focused on appearing in court, whereas professional Attorneys handled the managerial, preparatory side of affairs.  These broad distinctions developed over the centuries into what we now know as Barristers and Solicitors.

The profession was taking shape and the 1275 Statute of Westminster imposed penalties on lawyers who were found to be deceitful, an early sign of regulation. It took time for the above distinctions to be clarified through practice and throughout the 1300s there were a group of students that learnt the ways of the court, although they were not attached to any man in particular but to the Court itself.

In the 1400s, we see the word Solicitor specifically used and there was much work in the most used Court (the Common Pleas) due to the proliferation of litigation and increase in types of action; therefore the profession grew. The role of Attorney still existed but the two roles overlapped significantly, although the role of Attorney was not officially abolished until 1873.

Attempts were made in the 1500s to regulate this new branch of professionals but few regulatory inroads were built. From 1590 to 1630 in particular, certain judges attempted to eliminate the profession as it was seen as less honourable and gentlemanly than the role of Barrister. Their attempts failed and, in the early 1600s, Solicitors were most certainly a distinct profession in their own right.

Around this time, men began to operate as Solicitors in partnership with each other and as their businesses grew it became customary for new entrants to the profession to work and learn under these Solicitors, as ‘Articled Clerks’. These were effectively contracts that bound the Clerk to their master for a certain length of time. Certainly, by the 1630-50s, it was a strong convention that these Articled Clerkships had to be undertaken, but, as of yet, there was no regulation or law on the issue. It is at this moment that we can pinpoint the early beginnings of what are now known as Training Contracts.

Section 2: Specific Development of the Solicitors’ Training Contract

Things slowly and ponderously developed, as they always seem to along the winding path of English Legal History. Until the Attorneys and Solicitors Act 1728, it was not required by law that there be a central record of practicing Solicitors, however some Courts did keep Books of Attorneys for their own purposes before this time.

A record of the Attorneys practicing in the Court of Common Pleas. (National Archives)

The Act specified that after the 1^st December 1730, no man could practice as a Solicitor unless his name was on the Roll, and significantly, no man could practice as a Solicitor unless he had undertaken an Articled Clerkship for at least a term of 5 years.

Further regulation came into place over the coming years, such as the Continuance of Laws Act 1748, which specified that Articled Clerks, on completion of their Articles, had to file a statement to this effect at the Court within 3 months. This time limit was later increased to 6 months.

By 1843, pressure led to the reduction of the Articled Clerkship to a term of 3 years if you graduated from a degree at the Universities of Oxford, Cambridge, Dublin, Durham or London – as you were of a higher calibre. The 1785 to 1867 Register of Articled Clerkships shows the vast majority of terms being 5 years, but they are occasionally higher at 6 or 7 years and some at 3 years. One example recorded was for a mere 10 months.

A record of the mandatory registration of Articles of Clerkship. (National Archives)

In 1785, 129 Articled Clerkships (in the busiest court, the Common Pleas) were registered which we can contrast against the 4,869 Training Contracts registered with the Solicitors’ Regulation Authority in 2011. Please see some specific examples of Articled Clerkships in Appendix 1 to this post.

The Articled Clerkship continued to develop and began to generate additional complexities, exceptions and methods to ensure the quality of training involved was up to the high standards of a noble profession. In the Solicitors Act of 1860, it was established that if you worked as a de facto Articled Clerk for 10 years, you could enter the profession fully if you completed 3 years of a formal Clerkship. I believe this is the origin of the term known within the profession as ‘ten-year man’.

Around the same time as the 1728 Act, a group of Solicitors set up the ‘Society of Gentlemen Practisers in the Courts of Law and Equity’. This was the predecessor body of the Law Society, which was incorporated in 1826, and now deals with many aspects of regulating Solicitors. The Solicitors’ Regulation Authority, a subsidiary arm of the Law Society, now specifically deals with the regulation of Training Contracts. It was the early forms of these bodies that imposed high standards on Solicitors and led the profession to be seen on the same level as Barristers.

In 1877, further legislation made it a requirement that you had to pass exams set by the Law Society before being allowed admittance to the Profession, however exams had been carried out by the Law Society since 1836. By 1936; you were required to submit evidence of good character to the Law Society at least 6 weeks before starting your Articled Clerkship. As an interesting aside, the Solicitors (Articled Clerks) Act 1918 made provision for time spent serving in the war as counting towards the term of years of your Articles.

By the time we reach 1922, the starting point is that a 5 year Articled Clerkship is still required although terms of 3 or 4 years became more prevalent. At this stage, the Law Society required a mandatory academic year to be undertaken by Clerks, although many still solely qualified through Articles. The quality of training of an Articled Clerk was again emphasised in the Solicitors Act 1936 where it is specified that a Solicitor cannot take on a Clerk until they have practiced for at least 5 years themselves.

An Act of 1956 codifies for the first time a structure of what one must do to enter the profession of Solicitor. You must have (1) completed an Articled Clerkship (by this time commonly referred to as just ‘Articles’ or ‘Articles of Training’, (2) passed a course of Legal Education, and (3) passed the Law Society’s exams. Towards these ends, the 1965 Act grants the Law Society powers to create provisions regarding the education and training of those wanting to be Solicitors. The Training Regulations of 1970 specified that the longest time that could be served under Articles was 4 years, although if you were a law graduate, this was most commonly 2 years.

The currently in force 1974 Act allows for further Training Regulations to be created, in conjunction with the Secretary of State. The transition between the 1989 and 1990 edition of the Training Regulations changed the term ‘Articles of Training’ to that of ‘Training Contract’ in an attempt to use simpler and clearer language. The term of years in those regulations is set at 2 years. It has been called a Training Contract since 1990 and the very detailed Solicitors’ Regulation Authority Training Regulations 2011 are the provisions that currently govern it.

There is currently a consultation being conducted by the Solicitors’ Regulation Authority named ‘Training for Tomorrow’ which may significantly change the rules and procedures relating to Training Contracts. This consultation finishes on the 28^th of February 2014 and we can only wait and see where the Legal History of the Training Contract will develop next.

NB – Information in the below Appendices can be used but only if credit is given to this Blog. Recommended citation: Ben Darlow, ‘History of the Solicitors’ Training Contract’ <link to this blog post> accessed [day] [month] [year]

Appendix 1: Examples of Articled Clerkships in the Court of Common Pleas between 1785 and 1867

• Fiennes Wykham – Clerk to Richard Bignall of Banbury – Articles dated 12^th July 1785
• Thomas Berryman – Clerk to Samuel Plaisted of Bernards Inn, London – Articles dated 16^th October 1788
• William York Jr – Clerk to William York Snr of Thrapston, Northampton – Articles dated 27^th November 1800
• Michael Kennedy – Clerk to Edward Codd of Kingston-upon-Hull – Articles dated 10^th November 1817
• Thomas Powell Watkins – Clerk to Charles Bedford of Worcester – Articles dated 4^th November 1843
• Fred John Wise Jr – Clerk to Fred Wise Snr – Articles dated 8^th July 1865

An example page from the Register detailing the names of Clerks, their masters and the term of years. (National Archives)

A page of the Register showing various terms of years of the Clerkships. (National Archives)

Transition page when the Solicitors Act 1843 was introduced. (National Archives)

*Observation – from the register of approximately 9,500 Clerks in this 82-year period, approximately 1 in 5 are Articled to their father.

*Observation – unfortunately, the earliest Register of Articled Clerkships, between 1713 and 1837 is mould damaged at the National Archives.

Appendix 2: Examples from the Roll of Solicitors admitted 1729 to 1788

• John Applegarth – admitted to the Roll on 8^th July 1729 – Examined by Mr E. Probyn
• John Forrest of Middlesex – admitted to the Roll 3^rd July 1729 – Examined by Mr R. Raymond
• Benjamin Holt of Hereford – admitted to the Roll 28^th June 1729 – Examined by Mr E. Probyn
• Samuel Plummer of London – admitted to the Roll 27^th June 1729 – Examined by Mr R. Raymond
• John Darrell of Cheshire – admitted to the Roll 14^th June 1788 – examined by Mr Ashurst

*Observation – the register contains approximately 7,600 solicitors admitted to the Roll over this 60 year period.

The cover page from the Roll of Attorneys 1728 to 1788. (National Archives)

Examples from within the Roll of Solicitors. (National Archives)

Appendix 3: Oath required by the Attorneys and Solicitors Act 1728 to be admitted onto the Roll of Solicitors

 “I [Forename][Surname] swear that I will truly and honestly demean myself in the practice of an Solicitor, according to the best of my knowledge and ability. So help me God.”

History of Treason

A traitor being hung, drawn and quartered.

Treason is perhaps the most infamous crime in English Legal History, due in part to the horrendous punishment that came with it but also due to its often strong political importance. The punishment that was often inflicted was the drawing of the traitor across rough ground by horse, he would then be hanged to within an inch of death, followed by being disembowelled, burnt, and beheaded. Your remaining carcass was cut into four pieces. The punishment of being hung, drawn and quartered has morbidly captured the public’s imagination for many centuries.

The core aspect of Treason was, and still is, betrayal. If you follow history back to the earliest Germanic tribes, a man who betrayed his kin to the enemy tribe was killed, often in a highly sacrificial manner. There are also significant Roman influences through Christianity, Judas was the ultimate betrayer, he betrayed his Lord Jesus Christ. The betrayal of your Lord, be that your King or your immediate Landlord was thus characterised as the worst of crimes.

Pre-13th Century Treason encompassed a wide range of activities. For example, these included fleeing from battle, plotting the death of your King or Lord, forging your Lord’s seal and committing adultery with the Lord’s wife. A particularly severe case is Peter of Wakefield being hanged for predicting John would no longer be King by next year.

Treason garnered significant political and economic importance due to the fact that a traitor’s land would be forfeited to the King, rather than to his Lord. If the criminal had just committed a normal felony, his lands would be forfeited to his immediate Landlord. The King and his justices thus wanted to expand the coverage of Treason, whereas the normal Lords wanted to keep it limited.

In the 13th Century and onward, a distinction began to emerge between High Treason and Petty Treason. Broadly, High Treason was an act of betrayal against your King, whereas Petty Treason was an act of betrayal against your immediate Lord. The latter crime came to encompass the murder by a wife of her husband or the murder of a Bishop. Indeed, the crime of Petty Treason disappeared in 1828 as it was downgraded to murder. It is interesting note that the benefit of clergy, which originally protected religious officials from prosecution outside of the non-religious courts, was held not to apply to High Treason.

The development of Treason was going off in several directions and was becoming unclear. Parliament thus enacted the Treason Act 1351 which laid out a definition of High Treason, which until then had been contained in case law. This statute’s main definition is still in force today, although thankfully the Crime and Disorder Act 1998 instituted a maximum punishment of life imprisonment, rather than death. For the history of capital punishment in the UK, please see my blog post here.

The Treason Act included such activities as planning the death of the King or Queen, or their eldest son. Moreover, it included committing adultery with the Queen or her eldest daughter. Among other things, it also included the killing of the Chancellor, Treasurer or Judges in the exercise of their duties.

William Joyce, in 1946, was the last person to be tried for and convicted of High Treason in the UK. He was said to have committed Treason due to his Nazi activities in the war and owed allegiance to the UK by having a UK passport, although he was not actually entitled to such a passport. His punishment was execution through hanging.

History of Capital Punishment

Hanging. The most popular method for the death penalty throughout English Legal History.

The legal history of capital punishment in the United Kingdom is an interesting one and ranges across many centuries from the extreme of having no crimes strictly punishable by death to a multitude and back to none. In early Norman times, the principles of the common law in relation to the punishment of crimes were very simple. If the crime was a misdemeanor (minor or petty offences) then the punishment was at the discretion of the justices of the court.

For felonies (serious offences) the criminal was put on the king’s mercy which usually involved the ordering of mutilation in the form of castration or blinding. This was seen as a mercy rather than imposing the ultimate punishment of death.

By the early 13th Century, a fixed penalty of death was imposed for almost all felonies. For treason, this was death by being hung, drawn and quartered and for other felonies, simply death by hanging. This fixed penalty was grossly inflexible and various methods were used to mitigate the sentence of death, until later reforms abolished it. These methods included Sanctuary (my post on which can be found here), Benefit of Clergy, Pardons and Jury Mitigation. Later blog posts will deal with the latter three topics.

This state of affairs continued for some time. The expertise of the legal profession was directed towards thinking of incredible ways to avoid the death penalty, rather than reform it. Still by 1688 there were 50 offences within statute law that carried a death sentence, this rose to 220 by the the late 18th Century. These offences were wide-ranging and even included ‘being in the company of gypsies for one month’. It is a testament to the above mentioned methods of avoidance that, between 1770 and 1830, 35,000 death sentences were given but only 7,000 people were executed.

The legal reformer Sir Samuel Romilly KC, also responsible for calling for the abolition of slavery, succeeded in having the death penalty abolished from a mere two offences, namely pick-pocketing and stealing from bleaching grounds.

A year after Sir Romilly’s death in 1818, a Parliamentary select committee looking at the issue of the death penalty led to several statutes that slowly, and in a piecemeal fashion, abolished the death penalty from many offences.

By the 1860s, there were only several offences that still attracted the death penalty. These were murder, treason, piracy, and arson in naval dockyards. This remained the same until 1957 when difficult cases arose as regards capital punishment for murder. It led to the introduction of the Homicide Act 1957 which suspended the practice and the Murder (Abolition of Death Penalty) Act 1965 which abolished it entirely. Death as a punishment for Arson in naval dockyards was repealed by the Criminal Damage Act 1971.

Although beheading was removed as a potential punishment for treason in 1973, hanging remained until 1998 when the Crime and Disorder Act 1998 abolished some of the last remnants of capital punishment in the UK, with the abolition of the punishment for treason and piracy.

The last remnant of the death penalty in the UK (the punishment existed within military jurisdiction during wartime) was abolished by the coming into force of the Human Rights Act 1998. Since 2004, the UK has been signed up to the 13th Protocol of the European Convention on Human Rights which prohibits the death penalty in any circumstances. It would be impossible for the UK to bring in laws to reinstate the death penalty unless they were to formally withdraw from the Convention.

History of Burglary

An array of historical Burglar’s tools.

Burglary is a crime which has changed significantly over the years but in all its forms has always reflected the seriousness of breaking into a building, or part thereof, and the damage that can cause to both people and property.

 

In Anglo-Saxon times, the then equivalent of Burglary was known as husbryce which literally meant ‘house-breach’. However, its definition was geared more towards a person having caused injury to another in the process of an armed raid on a town.

Up until the mid-15th Century, breaking into a building does not appear as a separate offence in itself, it only appears in the courts as an aggravating factor. It could turn a petty theft into a felony for which you could be sentenced to death.

By the 1450s, Burglary appeared as its own offence and could be committed even if nothing had been stolen from the building, all there needed to be was an intent to steal something. It was at this time that the offence first started to be known as Burglary, rather than house-breaching/breaking or criminal invasion of a building. For an early example of a Burglary in 1674, please see this case.

Burglary of the 15th Century had two elements that seem unusual to us now. Firstly, it was an essential requirement that someone was in the building at the time the burglary took place and secondly, the burglary had to take place at night. If a de facto burglary was carried out in the daytime, it would only be trespass at common law and not a felony offence.

The second element led to some interesting judge discussion on what constituted night. Originally, a 1505 case set the definition as after sunset and before sunrise but this led to people being able to commit Burglary in twilight conditions. This lasted until a case in 1606 where judges set the test of whether a man’s face was discernible.

In 1837 a definition of night was made so arbitrary that it could be proved in any case but it was not officially repealed until the Theft Act 1968, where the nocturnal element was finally abolished from Burglary. The requirement of someone being in the building at the time of the Burglary had been abolished earlier with several statutes beginning in 1547.

The current law on Burglary is to be found in ss. 9 and 10 of the Theft Act 1968. Section 9 lays out two species of burglary that can be committed, s.9(1)(a) is where a person enters the building, or part thereof, as a trespasser with intent to commit theft, GBH or criminal damage to the building and s.9(1)(b) is where a person enters the building, or part thereof, as a trespasser and actually commits theft or GBH. A person can be sentenced to a maximum of 14 years in prison for a s.9 burglary.

Section 10 lays out a new offence of Aggravated Burglary where a person commits burglary whilst carrying a firearm, imitation firearm or certain weapons of offence defined in the section. This offence carries a maximum penalty of life imprisonment.