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Featured Bencher Article: Inns Old and New: A Historic Yet Thoroughly Modern Connection

The Bencher--March/April 2014

By H.H. Judge Peter Murphy

Murphy _Peter _WEBBencher _Mar Apr 2014_Cover _WEBBy long tradition, the Chief Justice of the United States is elected an honorary bencher of my Inn of Court, The Honourable Society of the Middle Temple. This is only one facet of a historic and enduring relationship between the Inn and America, which began when Sir Walter Raleigh and others planned their voyages of discovery to the New World in Middle Temple Hall. In later times, five members of Middle Temple signed the Declaration of Independence and several signed or had a hand in drafting the U.S. Constitution. In early America, both before and after independence, lawyers thought of themselves as practitioners of the Common Law of England. They were trained in and had close connections with the Inns of Court, and they used Blackstone's Commentaries as their main work of authority. In more recent times, the American Bar Association contributed generously to the painstaking rebuilding of Hall after the extensive damage caused by enemy bombing during the Second World War. Plaques commemorating these and other important milestones in the relationship hang proudly on the panelled wall at the entrance to Hall, where they can be read by all members of Middle Temple who enter.

Chief Justice William H. Taft is reputed to have said, standing in Hall, "I am in the home of Blackstone; the cradle of the Common Law." Years later, his successor Chief Justice Warren E. Burger saw something he considered to be of direct relevance to the contemporary United States. He saw in the independent Bar of England and Wales, a separate profession of advocates, a tradition of excellence-a tradition based, not only on professional competence but also on an insistence on the highest ethical and professional standards; and on personal mentoring of entrants to the profession by established practitioners. He concluded that these qualities of the Bar owed much to the collegiate atmosphere of the Inns of Court, within which a small profession could effectively guard and preserve them. He wondered whether that tradition of excellence could be instilled in the American legal profession.

The difficulties were obvious. The American profession is a unified profession; far larger; spread over a huge geographical area; subject to widely differing laws and codes of conduct; and it has no common collegiate tradition. There could be no question of a common institution to which all lawyers would belong. If the tradition of the Inns of Court were to take root, it could not be the result of copying or emulation. Rather, a separate institution would be required, one that corresponded to the practice and the structures of the American legal profession. This would mean capturing the essence of the Inns of Court rather than trying to reproduce the detail of their activities. Over time, the American Inns of Court evolved as an expression of Chief Justice Burger's vision. Many times more numerous than the four Inns of England and Wales, differently constituted, and achieving their goals in quite distinct ways, the American Inns nonetheless share the aspirations of the Inns of Court.

In 1983, I was a young lawyer who had recently moved to the United States from England when I received a letter from Chief Justice Burger inviting me, a fellow member of Middle Temple, to serve on the Ad Hoc Committee of the Judicial Conference established to bring the American Inns of Court into being. During the two years of the committee's work, and later as a member of the American Inns of Court Board of Trustees, I was often asked about Middle Temple as a guide to what we were doing and why were we doing it. I did my best to draw on the traditions I had learned as a student and a young barrister to answer the challenging questions involved in setting up the American Inns of Court. But once the American Inns of Court Foundation was established and the number of American Inns began to grow, a new question emerged: How would the Inns of Court in London regard this fledgling body? Would the American Inns be able to enjoy a positive relationship with the Inns of Court? Would they be regarded as equals, or would the Inns of Court look down on this upstart movement?

The answer to these questions came swiftly and was one for which I, for one, had scarcely dared to hope. During remarkable, ground-breaking visits to American Inns of Court annual meetings by Lord Bridge of Harwich and Lord Goff of Chieveley, both members of England's then highest court, the House of Lords, the Inns embraced the American Inns enthusiastically. In 1988, Lord Bridge and Chief Justice Burger signed a Declaration of Friendship between the Inns of Court and the American Inns of Court. Although rather abstract and aspirational in tone, the declaration had some far-reaching practical consequences. Among the first was an agreement to open the doors of the four Inns of Court for lunch, dinner, and the use of the libraries to all members of an accredited American Inn of Court. This, by the way, remains in effect. This has led in turn to regular organised visits between the groups by high-level delegations. of the American Inns to the Inns of Court, and by high-level delegations of the Inns of Court to the American Inns. These visits permit serious discussion of important topics of mutual interest, such as ethical and professional questions, as well as collegiate dining and social events, not only in the Inns but in other venues, including the magnificent residence of the American Ambassador in London.

Lord Goff's visit heralded a breakthrough in cooperation between the Inns of Court and the American Inns in promoting exchanges for young lawyers. The Pegasus Scholarships started as an initiative of Lord Goff's Inn, Inner Temple. The scheme was already operating in a number of countries. Lord Goff proposed to extend the program to the United States. He invited the American Inns to represent the American side of the scholarships, to undertake placements of young barristers in the United States in return for the placement of young lawyers with barristers' chambers in England. The program started slowly but swiftly gathered speed. Since 1987, some 50 American scholars have visited England on an exchange basis. The American Inns of Court work in partnership with the English commercial bar to place Temple Bar scholars both in chambers and in the Supreme Court in London, also on a reciprocal basis. Some 80 American scholars have benefited from this program since 1985.

It would be a huge mistake to think that all the inspiration has flowed from the Inns of Court to the American Inns. This is a two-way relationship. From the American Inns, the Inns of Court have begun to learn, belatedly and in some respects too late, that professionalism does not exclude a properly organized, businesslike approach to practice; indeed, in some ways demands it. As a profession of sole practitioners, insulated by the system of chambers clerks from the realities of economic life, barristers ignored these realities for as long as they could. The result has been that the profession is ill-equipped to deal with the pressures of economic austerity and a government and public increasingly skeptical about the merits of independent, self-policing professions. The cutbacks imposed on the courts and the legal system in the wake of the 2008 financial crisis have exposed the systemic weaknesses in the Bar to the extent that the future of the independent Bar is now in question in publicly funded work.

Moreover, the vibrant life of the American Inns of Court is a salutary reminder to Inns of Court that, today, retain little of the historic educational and mentoring structure that once marked them out as centers of legal learning. Pupillage operates within the Bar with little reference to the Inns; and in the provinces, away from London, the circuit Bars conduct their affairs with little day-to-day contact with the Inns. The Inns are aware of these trends and have recently begun to address them. They have established highly successful advocacy training programs, which owe much to American law school, American Inns of Court, and NITA models. Regular continuing education courses emphasise ethical issues. The Inns have begun to reach out to practising barristers throughout the country, inviting them to renew their contact with their Inns and to take a greater role in mentoring students. For much of this, the American Inns can claim some credit. The infectious enthusiasm of members of American Inns of Court is not lost on those in London who would like to see the Inns of Court continue as the focal point of the Bar, but all too often detect in barristers an apathetic complacency towards them.

We live in a global age, in which the world becomes smaller every day. Close relationships between the bars and judiciaries of Common Law countries are no longer a luxury, but are a practical necessity if the Common Law is to survive and thrive on the international stage. I have no doubt that the relationship between the Inns of Court and the American Inns will expand as time goes by, enriching the experience of lawyers, judges, and students on both sides of the Atlantic.

Peter Murphy is a judge of the Crown Court in London and a Bencher of Middle Temple. He lived in the United States for many years, during which time he served as a member of the Ad Hoc Committee of the Judicial Conference that established the American Inns of Court Foundation, and thereafter as a member of its board of trustees. He remains an emeritus trustee and member of the Leadership Council. He was a founding Master of the Bench of the Garland R. Walker AIC in Houston, Texas.

© 2014 Judge Peter Murphy. This article was originally published in the March/April 2014 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.