Kathryn Mizelle

2019 Temple Bar Scholar Report

The American legal system owes much to its English legal roots, having developed from the same foundational principles, such as adherence to the rule of law, respect for an independent judiciary, and the preservation of certain individual rights designed to protect citizens from abuses by their government. These similarities were unsurprisingly magnified for me during a month of study in London. After a year of serving as a law clerk and studying the framework the American Founders borrowed from their English brethren, I thought I understood the rich heritage from which the American legal system grew. And yet, as a Temple Bar Scholar, I more fully appreciated the deep and permeating bond between our two legal systems and between our two countries.

But that is not about the topic of this piece. Instead, my reflections focus on two aspects of the British legal system that seem unique to the barrister model and that distinguish that profession from both the conception of and function of a lawyer in the United States. These two aspects are the clear sense of vocation of a barrister and a barrister’s allegiance to the court, sometimes seemingly over the client.

From the grandeur of the opening ceremony of the legal year at Westminster Abbey to our final week watching arguments at the U.K. Supreme Court, a sense of vocation permeated every aspect of the barrister profession. These ceremonies made clear that being a barrister is not just a specialized job, but a vocational calling. Even the terminology (“being called to the bar”) evinces that barristers are not intended to be mere legal technicians or “hired guns,” but rather public servants who are trained in advocacy to serve the larger community in the pursuit of justice. This sense of calling is reflected in both the practical and formal dimensions of the bar. Take first the more practical. Acceptance into the ranks of the bar is highly selective and finding a first-year tenancy can be quite challenging. As I learned, many who successfully complete the bar course nonetheless fail to find a pupillage, and thus, never establish a permanent home in a set of chambers. This selectivity reinforces the idea that a barrister is focused on providing excellent advocacy oriented towards advancing the public good, not simply credentialing barristers who may (or may not) be up to that high calling. This emphasis on excellency continues throughout the career of a barrister, most notably through the rigorous process of taking “silk” (i.e., becoming Queen’s Counsel or “QC”). The caliber of advocate that these procedures produce in turn make U.K. barristers highly sought after worldwide, and, in part, routinely induce parties to include choice of law clauses that permit them to litigate matters in English courts, even when there is no nexus to the country.

The vocational calling is likewise demonstrated by the role of the Inns of Court and the intentional mentorship of young barristers by seasoned advocates. Unlike in the United States, where legal training can border on the transactional and, after passing the bar, adventurous lawyers may set up their own practices, the barrister system is designed around professional development through institutional and personal pressures. The Inns of Court serve as the initial gateway, welcoming young law students into a tight-knight community and providing them direct access to senior members of the profession who instruct and model the vocation’s calling, culture, and technical expertise. This in turn helps build camaraderie and, more importantly, consistency within the Inns of Court, which is further reinforced throughout the barrister’s career as this professional community remains together. Once in a set of chambers, a young lawyer is initially tutored through at least a year in a “pupillage” and often shares an office with an older barrister who monitors that pupil’s development. And once a tenancy is secured in a set of chambers, a barrister rarely transfers to a different set, thus engendering a personal sense of identity in one’s chambers and incentivizing older QCs to focus on the maturation of younger barristers, as these QCs know that they will eventually represent the chambers in the future, instead of yet-to-be identified lateral hires. As a result, a barrister’s career is marked by mentorship—first as the one receiving and later as the one leading—all with the goal to better serve the public through their vocation.

As for the formal dimension of the vocation, the English commitment to tradition impresses upon the public that barristers serve a unique role in the court system and, as a result, command a degree of respect. For example, the liturgy at the opening ceremony of the legal year at Westminster Abbey expressly called upon members of the judiciary and bar to strive to uphold justice for all and those gathered collectively prayed for wisdom to do just that. This ceremony demonstrated the unique place barristers play in English law and society. Although perhaps it is more cultural than indicative of values, even the formal wigs and gowns donned for important events and court appearances signify that a barrister takes on a particular identity—almost like a soldier’s uniform—when serving the courts. They are members of a distinct class of professionals designed to serve a particular good. While some might not prefer this formality, I found it useful for signaling that the vocation should be exercised with decorum and a clear sense of purpose. The historical traditions are not simply relics of the past, but rather a formal recognition of the underlying purpose of the vocation, which helps remind those within it of their duties and those outside of it that barristers are no mere professionals, but rather public servants here to serve their fellow British citizens. Unsurprisingly, that message appears to be received, as we were told that barristers are held in high esteem by the public.

The second unique aspect of the role of barristers is that their duty to the courts and the profession appears to, at times, take priority over allegiance to clients. This ordering of ethical duties was seen in a variety of ways. For example, if a criminal defendant confessed to his barrister that he or she committed the offense, we learned that the barrister must tell the court he is professionally embarrassed and withdraw from representation, or at a minimum, the barrister cannot put forth a defense based on the innocence of his client. This practice struck me as quite different from the orientation of the legal system in the United States, where zealous advocacy on behalf of the client mandates a vigorous defense, even when the client has admitted his guilt to a lawyer (with the obvious exception that suborning perjury is prohibited in the United States).  Another profound example of this ordering of priorities is the common practice of representing both the Crown and criminal defendants at the same time, albeit in different matters, or two barristers in the same chambers representing counterparties in the same matter. The conflict of interests analysis is calibrated differently when the foremost allegiance of the barrister is to the court and its truthseeking mission, as opposed to her client. To be sure, the English vision of the profession inherently bestows a great deal of trust in each individual barrister, and it is arguable that the United States’ stricter conflicts rules better protect a lawyer’s clients. On the other hand, the barrister profession—consisting of approximately 16,000 barristers in essentially one concentrated community—places a primacy on reputation, and as a result, can monitor unethical behavior more effectively. This model based on self-regulating via reputation has the added benefit of encouraging civility among the bar. Two examples come to mind. First, while observing a murder trial, both the Crown prosecutor and defense barrister treated each other with courtesy and deference, despite repeated outbursts by the defendant who was testifying. Second, in a very high-dollar commercial court dispute, the dozens of opposing barristers worked seamlessly beside one another, frequently exchanging pleasantries during breaks.

Another manner in which this ordering of priorities is manifested is through the ability to appeal. Although we all were previously aware that the United States differed in terms of fee-shifting practices, we were surprised to discover that there is no statutory right of appeal in civil cases and only about 18% of them are granted permission to do so. Perhaps more shocking, we learned that a criminal defendant’s frivolous appellate filing could cause him or her to forfeit the time served while the court addressed the filing, thus strongly dissuading a flood of non-meritorious arguments (something that American federal courts routinely experience). These practices, although not directly reflective of the barrister profession, likewise demonstrate that the U.K. legal system puts a premium on finality and meritorious arguments over litigants’ ability to perpetually seek review with no associated costs. And the barristers’ role is seen as assisting the courts in arriving at those final judgments, not as always preserving and pressing any client’s argument, colorable or otherwise. As a result, the barrister’s role is much more akin to a professional who delivers a particular service to the court in pursuit of justice instead of an advocate who is doggedly committed to a particular outcome.

These observations are admittedly limited to barristers, and they can fairly be said too circumscribed a view, given that the majority of the U.K. legal profession consists of solicitors. The American lawyer, of course, wears both hats, and it is doubtful that that United States will ever adopt a dual system. Lawyers in the United States, however, could benefit from being more reminded that the origins of their profession lie in public service and that the American legal framework, from its inception to present times, is designed to achieve justice for society and its citizens. I know the Temple Bar Scholarship has impressed that upon me.

Kathryn Kimball Mizelle has served as a law clerk at every level of the federal court system. She clerked for Associate Justice Clarence Thomas of the Supreme Court of the United States; Judge Gregory G. Katsas of the U.S. Court of Appeals for the D.C. Circuit; Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit in Birmingham, Alabama; and Judge James S. Moody Jr. of the U.S. District Court for the Middle District of Florida in Tampa, Florida. She also served as a federal prosecutor at the U.S. Department of Justice for several years as well as counsel to Associate Attorney General Rachel Brand. She graduated summa cum laude from Covenant College with a degree in economics and received her law degree summa cum laude from the University of Florida Levin College of Law. Next year, Mizelle will return to Levin as an adjunct professor, co-teaching a course on the First Amendment’s religion clauses with Clarence Thomas.