THE AUSTRALIAN BAR GAZETTE
17
The Nature of a Profession
This article is a reprint of part of the Presidential
Address delivered by Mr. D. Hilton, to the English Law
Society at its Folkstone Conference in 1964. It was
originally published in the English Law Society Journal.
It is printed in this Gazette because it expresses very
neatly the ideals which should govern those who practise
a profession.
Custom ordains that at this point in the programme
of our Annual Conferences the President is expected
either to deliver some sort of review of the Council’s
current activities, or else to unburden himself of such
general observations as may have occurred to him about
his profession, with reflections, perhaps, about its place
in the community and what the future may hold for it.
I propose, in the main, to follow the latter course,
although in doing so I shall necessarily touch on some
of the things with which the Council is actively con­
cerning itself at the present time.
The first thing that I want to remind you about is
that solicitors are members of a profession. I claim
no originality for this thought, but I mention it because
it is fundamental to all that I have to say. What exactly
do we mean when we talk about a profession? What is
the exact distinction between a profession properly so
called, and a trade, or calling, or occupation, that is not
a profession?
Well, the best definition of a profession of which I
am aware is the well-known one given by that great
and good man, who died only this summer at the age
of ninety-three, Professor Roscoe Pound, late Dean of
the Harvard Law School—a great lawyer, a great
teacher, a great botanist, and a scholar who late in life
took up the study of Chinese as a kind of mental relaxa­
tion. And Professor Pound’s definition of a profession
is this:
The term refers to a group of men pursuing a
learned art as a common calling in the spirit of a
public service—no less a public service because it
may incidentally be a means of livelihood.
That is the definition, and you will see that it involves
three ideas—the first organisation, the second the pur­
suit of a learned art and the third a spirit of public
service. So I want to examine these three ideas
separately.
Clearly a profession must have some organisation and
in the term “organisation” I myself should include, more
specifically than Professor Pound has done, arrangements
for imposing standards of skill and behaviour and for
disciplining those of the individuals included in the
organisation who fail to live up to those standards.
I feel sure that the Professor had these matters in mind,
but he did not give them as clear a place in his defini­
tion as I think perhaps he should have done. Perhaps,
therefore, his definition could be expanded to read:
The term refers to a group of men who have sub­
jected themselves to a common discipline in the pur­
suit of a learned art as a common calling in a
spirit of public service—no less a public service
because it may incidentally be a means of livelihood.
It follows from the absence of organisation and disci­
pline in their callings, that artists are not professional
men—nor are playwrights or composers. Shelley may
have been right when he called poets the unacknow­
ledged legislators of the world. But as far as I know,
he never regarded them as members of a profession.
Three callings in particular have always been re­
garded as professions par excellence—the Church,
Medicine and the Law. And all of these have for cen­
turies past had well developed organisations. In par­
ticular all three have imposed fairly rigorous tests on
those seeking to join their ranks; they have controlled
the activities of their members by insisting on the ob­
servance of rules of conduct; and they have main­
tained the right to expel from their number anyone
whose behaviour was considered dishonourable or un­
becoming.
It must be admitted that in the more or less distant
past barristers have had an advantage over our branch
of the legal profession by being brought more closely
into contact with each other and also with their governing
bodies. But, consciously or unconsciously, we have
gradually evolved our own community spirit and we
are still evolving it.
In some ways there is more friendliness and what the
Americans would call “togetherness” in local law socie­
ties than in The Law Society itself, but everywhere there
has been a definite advance in the last twenty years.
One of the fortunate by-products of the Legal Aid
and Advice Act has been that it has brought together,
in furtherance of a common purpose and with no object
in view but the pursuit of justice, scores of solicitors
who would otherwise have met each other only as op­
ponents and rivals. Annual Conferences like the one in
which we are now engaged help us to meet one another,
as well as to give us an opportunity of reflecting on
where we are going and on what we are trying to do.
So too do the Regional Conferences and the other
Weekend Conferences which are becoming more and
more popular amongst our members, such as the Spring
Conferences for Further Education, the Young Mem­
bers Conferences, and the Conferences of Solicitors in
Commerce and Industry.
18
THE AUSTRALIAN BAR GAZETTE
Next, I turn to the second ingredient of a profession
—that is the pursuit of a learned art. Here let me refer
again to the three greatest and most typical of the pro­
fessions—the Church, which concerns itself with the
problems of man’s spiritual life—Medicine, which con­
cerns itself with problems of disease; and the Law
which concerns itself with the problems that arise be­
tween man and man. These are the great problems which
have troubled the minds of men since the beginning
of history; and of the three sets of problems I suppose
that even those of Medicine (important though they
are) must give place to those of the other two. “The
two things most loved and sought by men”, wrote the
great historian Lord Acton, “are religion and liberty—
not pleasure or prosperity, not knowledge or power”.
Religion and liberty—those are the things for which
mankind has always cared beyond everything else. And
you will remember that liberty is not merely absence
of physical restraint. It includes liberty of speech and
of worship, and liberty for men to order their lives and
manage their affairs and enjoy their property in any
way that they choose, without encroaching—and this is
the core of the problem—on the freedoms of others.
These are the questions with which law is concerned
and this is why the study of law is indeed the study of a
learned art.
But it is the third of the ideas that are implicit in
the definition of a profession that I most want to speak
about. Before a calling can be called a profession it
must be followed in the spirit of public service. This
does not, of course, rule out the professional man’s need
for a fair reward; but the point is that his first care is
to apply all his knowledge and all his energy and all
his abilities to the doing of his job—and the earning
of the reward is only incidental to that. This may
sound high-falutin and even priggish, but I am con­
vinced that it is a reality in the life of everyone who
takes his (or her) profession seriously. Every solicitor
or doctor who is worth his salt gives as much care and
attention to the affairs of the humblest and poorest of
his clients as he gives to those of the most wealthy.
Once a job has been undertaken it must be carried
on to a finish. Moreover the work must be done prop­
erly. For the true professional man cannot bear to
skimp his work. The job itself is what counts—whether
it is the arguing of a case, or the drawing of a document,
or, for that matter, the extraction of an appendix or
the prescribing of a cough-mixture.
There is a corollary to this. Although professional
men are, in a sense, competing against one another,
their competition is always carried on within a certain
framework. In particular, professional men have always
set their minds resolutely against advertising. They are
there to offer their services to those who want them;
but never wholly absent from their minds is the thought
that what counts is not the making of money for its
own sake, but the doing of a worthwhile job for a re­
muneration that is fair and just. Dr. Johnson was no
great admirer of lawyers, but he was sensible enough
and fair-minded enough to understand that as profes­
sional men they could adopt no other attitude. He was
asked once whether lawyers should take the initiative in
approaching clients, and to this he replied:
I should not solicit employment as a lawyer—not
because I should think it wrong, but because I
should disdain it.
So too professional men have tried to standardise
their remuneration—to adopt the principle that for a
given job (particularly where its limits can be circum­
scribed and defined) the pay shall be the same for all.
Naturally this principle cannot be invariable. The top
barrister or the top surgeon may reasonably adjust his
fees to take account of his exceptional skill or to pro­
tect himself from being swamped with work. But where
the work can be regarded as substantially standardised,
as in the case of conveyancing, or some of the proce­
dural steps in litigation—or for that matter in the
making of a valuation or the designing of a house, the
aim is for the fees to be standardised too. This stan­
dardisation is of benefit to the public, not only because
the fee will be clearly ascertainable before the work is
done, but because it helps to emphasise the fact that
the professional man does not seek to grow rich by
undercutting his fellow professionals—a course which
would inevitably lead, in the end, to the skimping of
the work. What he sets out to do is to provide a par­
ticular service to the public; this is the first and most
important thing and, when the job is done, he will
ask only for fair payment at a standard rate.