The English Roots of American Legal Regulation: An Examination of Early Legal Regulation in Virginia, Massachusetts, and New York

• Author: Mark Lipnickey
• Position: J.D., Georgetown University Law Center (expected May 2022); B.S., Vanderbilt University (2016)
• Pages: 1131-1150

The English Roots of American Legal Regulation:

An Examination of Early Legal Regulation in

Virginia, Massachusetts, and New York

MARK LIPNICKEY*

INTRODUCTION

It becomes clear to many first-year law students in contracts and torts classes

across the United States that English law left a distinct and indelible imprint on

the law of the United States.

1

To be sure, precedents set by the English legal sys-

tem influenced the foundation of the American system. However, the influence of

the “mother jurisdiction” goes beyond common law doctrines and statutes, reach-

ing the legal profession itself and exerting an influence over the structure and

regulation of the profession. This Note will explore how the legal profession in

pre-revolutionary England influenced the development and regulation of the legal

profession in three North American colonies from each colony’s founding to the

eve of the American Revolution. A close comparison of the regulation of the

English legal system and a set of representative colonies on the verge of statehood

reveals that popular perception of lawyers as well as the market-based needs of

the profession led to the development of distinct cultures surrounding the regula-

tion of the legal profession on both sides of the Atlantic.

This Note will first examine the state of the legal profession in England during

the pre-revolutionary period: examining the structure of the profession, the train-

ing and licensure process, popular opinion of the profession, issues within the

profession, and attempts at professional regulation.

2

The following sections will

examine the state of the legal profession in the North American colonies, with a

special emphasis on the regulation of the legal profession.

3

Instead of attempting

to cover all thirteen colonies, this Note will focus on three colonies, each with a

distinct relationship with England: Virginia,

4

Massachusetts,

5

and New York.

6

To

conclude, this Note will compare practices in England with those in the colonies

* J.D., Georgetown University Law Center (expected May 2022); B.S., Vanderbilt University (2016).

© 2021, Mark Lipnickey.

1. See, e.g., Robert W. Gordon, The Geologic Strata of the Law School Curriculum, 60 VAND. L. REV. 339,

341 (2007) (describing the early adoption and continued use of English cases in American casebooks).

2. See infra Part II.

3. See infra Part III.

4. See infra Section III.A.

5. See infra Section III.B.

6. See infra Section III.C.

1131

and attempt to draw connections between the regulatory regimes in the different

jurisdictions.

7

I. THE LEGAL PROFESSION IN PRE-REVOLUTIONARY ENGLAND

The legal profession in pre-revolutionary England developed organically over

centuries to meet the changing needs of a developing legal system. Central to

understanding the regulatory landscape of the English legal system is the division

between different classes of legal professionals in early modern English history.

Indeed, distinct classes of legal professionals, with different titles and traditions,

provided specific services to their clients. Over time, class functions continued to

evolve, sometimes declining or disappearing entirely.

8

The most salient division

in terms of regulation in pre-revolutionary England was between barristers and

the “lower branches,” or attorneys and solicitors.

The numerous professional differences between barristers and the lower

branches stemmed from the different work each class performed.

9

Attorneys

were responsible for all client contact and conducting litigation.

10

This involved

tasks such as conducting investigations, drafting the required pleadings, and

briefing the retained barristers before trial or arguments on motions.

11

While the

lower branches were primarily occupied with litigation,

12

they also played a

growing role in business affairs, with solicitors eventually gaining a statutory

monopoly over handling land conveyances.

13

While attorneys and solicitors offered a wide range of legal services, barristers

had a relatively limited purview.

14

Barristers were primarily responsible for oral

advocacy in court and providing advice to attorneys on points of law.

15

By the

eighteenth century, barristers were hired by attorneys rather than directly by

clients.

16

In fact, it had become custom for barristers to have no contact with

clients.

17

Instead, when a barrister was needed, an attorney would retain one and

either ask for guidance on a legal question or brief them to prepare for trial.

18

7. See infra Part VI.

8. See ANDY BOON, THE ETHICS AND CONDUCT OF LAWYERS IN ENGLAND AND WALES 48 (Hart Publishing,

4th ed. 2014).

9. ROSCOE POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES: WITH PARTICULAR REFERENCE TO

THE DEVELOPMENT OF BAR ASSOCIATIONS IN THE UNITED STATES 97 (West Publishing Co., 1953).

10. BOON, supra note 8, at 41.

11. Id. at 40–41, 50.

12. See C.W. BROOKS, PETTYFOGGERS AND VIPERS OF THE COMMONWEALTH: THE ‘LOWER BRANCH’ OF

THE LEGAL PROFESSION IN EARLY MODERN ENGLAND 48 (Cambridge University Press 1986) (noting that the

“primary function” of the lower branches “within the legal world had to do with the conduct of litigation”).

13. BOON, supra note 8, at 50.

14. Id. at 40, 50–51.

15. See Id. at 40–41.

16. See Id.

17. Id.

18. Id. at 50; see also POUND, supra note 9, at 104.

1132 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1131