Straight out of law school, I had to seek articles so that I could be trained in the practice of law, write my qualifying examinations, and then be turned loose on the public as a lawyer.
The first firm I approached for articles offered me the princely salary equal to $14 a month. I had to refuse, for one because my train fare from home to the city cost more than that, and I needed money to live on.
Enter, stage left, Charles (Red Light) Friedman
He had a light on his office door which he flipped to red when he was busy, and green when he was available. The windows were always shuttered, with shades drawn, to avoid any snooping on the important commercial deals that were hammered out in his office.
He had five personal assistants, who were all expert at typing out his dictation, whether from the tapes he recorded while travelling, or from notes taken in shorthand in his office. All five of them worked furiously all day, with no respite.
Once, he travelled to New York on business, and took a large suitcase full of files with him. When he landed, a dozen tapes were immediately given to typists for them to perform their miracles while he plunged into meetings.
Being summoned to his office was akin to an audience with the Pope. You made sure that you had several pens or pencils and at least two notebooks, so that you could capture all his commands without fumbling. When he finished with you, a wave of his hand would dismiss you, and he would turn to yet another of the dozen or so files that were spread in line on the huge table in his office, waiting their turn.
He was an expert in the commercial laws of South Africa, the UK, Australia, New Zealand, the USA and, of course, in Roman-Dutch law. He read law books from all these places to keep up to date with changes, and remembered everything he read.
The Dervish Dictates
I sat in his office many times as he dictated a complete, complicated commercial law agreement of several hundred pages, without once referring to any precedent. He would start at the very beginning, and then – numbering each paragraph, sub-paragraph, and sub-sub-paragraph and keeping track of each one in his mind – go on to the very last section. After dictating for half an hour or so, he would call in a fresh assistant, while the first one went off to type the part that he had just finished. By the time he was finished dictating, the long agreement was almost typed, and ready for review.
He seldom had to change a single paragraph.
His method of ensuring that his clients, and the people they were entering into the agreement with, were familiar with the contents of a Friedman draft was simple: the parties and their lawyers would gather around the large table in the big boardroom, and Friedman would start reading from page one until the end. Once, one of the lawyers for the other party objected to some clause, claiming that it did not properly represent some other fact in the agreement. Friedman simply looked up, quoted from memory that other clause, starting with the paragraph number, then the page it was typed on, and then reciting – again without turning to the page – the whole paragraph. He then paused, waiting while the flustered lawyer flipped to the page and scanned the clause, and capitulated. The reading then went on.
A summons to the Red Light
Friedman kept an eye on just about everything that happened in the large law firm. One day my phone rang, and he barked Come! when I picked it up. In his office, he thrust a copy of one of my letters to another law firm across the desk at me. I had written to that law firm, and the body of the letter had one and only one word: No.
What does that mean? Friedman demanded. I answered the question they asked in their letter to me, I said, telling him what the question was.
Good! he said, hand waving, and I scrambled out of there.
Lessons learned from Charles Friedman
Friedman taught me several important things about law. One was to love the concept of law, and of the legal profession. Another was to do my homework so thoroughly that I knew everything there was to know about any topic I was involved with.
As an articled clerk, I was expected to appear in the magistrate’s courts to handle debtor collection matters for our larger commercial clients. It was a simple process, but for a neophyte, filled with mystery and awe at first. I took my cue from the way that Friedman dealt with his work, and dived into the rules and regulations governing civil actions in the magistrates’ courts. We had a well-regarded, published handbook on the procedures for such courts that was over 400 printed pages, with hundreds of footnotes. I took my copy home with me and studied it, memorizing every page, every clause, and every footnote. When I stood up in the Court, I knew the rules.
The Great Chicken Crime, or My one and only criminal case
Friedman also provided me with the opportunity to defend a client against a criminal charge. I handled the case he gave me, and never appeared in a criminal court again!
The case was simple enough: one of Friedman’s employees who worked on his farm was charged with stealing a hen belonging to a neighbour. I travelled out to the small town, took my place in the magistrate’s court, and then did what I thought was a superb job of cross-examining the policeman who had arrested my client. When I sat down, I glanced up at the magistrate – a grizzled veteran of a thousand petty theft cases – who had watched me intently, chin on one hand.
The magistrate glanced at me, then simply turned to my client in the witness box, chin still resting on his hand, and asked him one question which destroyed my magnificent defence and led to my client being found guilty.
“Tell me,” the magistrate asked, “did you boil or barbeque the chicken?”
“I barbequed it,” my client retorted, stung: no self-respecting chicken eater would boil a chicken!
“Guilty,” said the magistrate, turning to me, a faint smile on weathered face. “Ten dollars or ten days.”
I fled back to the big city, tail between my legs, after paying the fine. As I left the court, the policeman I had cross-examined sidled up to me.
“Your first case, hey?”
A Lesson in Legal History from Charles Friedman
I have just stumbled across an article that Charles Friedman wrote, and in honour of the man who taught me and so many other lawyers how to be a principled lawyer, I reproduce the article from the February 1990 De Rebus below (I have taken the liberty to add headings and pictures to the article):
The history of the division of the South African legal profession
C Friedman, Johannesburg
Charles Friedman was born in 1912 on a farm near Krugersdorp. After matriculating at the age of 16, he served three years' articles in Johannesburg during which time he passed his law certificate examinations through private tutoring.
He joined the Johannesburg firm of Hayman Godfrey and Sanderson as a junior, qualified yet unadmitted professional assistant, since he had passed his examinations at 19, but could be admitted only at the age of 21. In 1939 he enlisted in the South African Corps of Signals as a private and served in the Middle East during the Second World War. He progressed to the rank of Major and by the end of the war was Chief Staff Officer of the corps.
Upon his discharge from the army he rejoined his firm's litigation section and made a name for himself in numerous supreme court trials which resulted in landmark decisions. He then moved to the commercial and tax section of the firm and became an eminent business lawyer not only in the Republic, but as far afield as England, the USA, the Far East and the USSR. He pioneered and was responsible for the use and development of schemes of arrangement in the Republic and the use of off-shore companies and tax havens outside the Republic.
In 1966 he became senior partner of Hayman Godfrey and Sanderson (now Bowman Gilfillan Hayman Godfrey Inc), the firm with which he practised until his retirement in 1972.
The following is an extract from his epic address at the annual conference of the Association of Law Societies in May 1968, titled "The present and future of the profession". We hope that this history will help to inform the increasing debate around the future of the legal profession in South Africa.
“It is astonishing, on the one hand, to find out how little has been written on the history of the legal profession in South Africa and yet to find, on the other hand, that the Appellate Division in Incorporated Law Society v Wookey 1912 AD 623, had to consider that history.
The birth of lawyers under Justinian
Under the ancient law of Rome, a person had to conduct his affairs in person and could not be represented by someone else. This was found to be inconvenient and before Justinian codified Roman law two classes of persons, the "cognitor" and the "procurator" came into existence. At first each could represent someone else only in business affairs, but over a period this was extended to include representation in legal matters.
The position of a "cognitor" fell into disuse because the appointment had to be made in the presence of the other party concerned; as a result only the position of a “procurator" (the only one used by Justinian) remained. That word did not necessarily mean "functioning as a lawyer" but signified "acting as an agent" and in particular one appointed to carry on legal proceedings for another.
The Dutch Keeper of Words
As under Roman law, so in early Roman-Dutch law, a person had to act in person; but this was found difficult or impossible and as a result the courts appointed a “Tallmannen" (a teacher or an interpreter of languages) or "Woordhouer" (a keeper of words) to represent a suitor in pleadings and to speak for him.
The Sweet Sixteen lawyers of Holland
This continued until 30 June 1450 when the Court of Holland ordered that no-one could appear personally or could be represented other than by a "prokureur" of whom initially only four and ultimately only sixteen were admitted. That position of "prokureur" was bought from one who gave it up or from his heirs. As a result that professional right acquired a high value but could be so only to a person approved by the court.
The position of a "prokureur" was considered to be one of a public character and Voet
commented on it as follows:
"Nor is the office of a 'prokureur' a private one as it was amongst the Romans but rather a public one. So much so that in every tribunal a certain number of attorneys are found skilled in court practice, after the example of the Romans in regard to advocates, beyond whom other persons were not to assist the litigants. "
It was in early Roman-Dutch law that we first find the division of the profession between the pleader and the attorney. Van Leeuwen in his Het Roomsch-Hollandsche-Recht says:
"The advocates have at their service an interpreter, otherwise called a 'procurator', so named because he keeps a record of the pleadings, acts in the prosecution of the cause in all its stages, sees that no delays take place therein, and in everything assists the advocate, who, when the case is completed by his advice, and the assistance of the attorney, further pleads and defends the cause at law, either orally or in writing."
Charles V’s Code of Ethics for Lawyers
Incidentally, a placaat of Charles V dated 20 August 1551 sets out a code of ethics which could well apply today:
"No-one shall in future be admitted as an advocate or an attorney to practise daily in court unless he has the necessary qualification and has obtained permission from the court to practise there and has also taken the oaths that he will show due honour, reverence and dignity, at all places, to the president and the court; and he will not act in any case which he knows to be unjust, when it appears to him so at the beginning or later on; that he will honestly and faithfully serve his clients; that he will be satisfied with the taxation of his costs by the court; that he will not cause unnecessary and improper delay; that he will make no agreement to share in the result of the actions – and generally that he will conduct himself as a good and faithful advocate or attorney."
Norman England’s Hue and Cry & Ordeal by Water or Fire
There were two methods of trial in England at the time of the Norman Conquest.
One was a "hue and cry" in which an entire district went after the man who was believed to be guilty. If he was caught he was put to death and, therefore, no legal assistance was necessary.
The other was the ordeal by water or fire.
The ordeal by fire consisted of compelling a man accused of a crime or a breach of civil law to take a red-hot iron in his hand and carry it for three paces in a church. His hand was then bound. If, after three days, his hand was uninjured, he was declared innocent. If it was burnt, he was found guilty and was executed.
This form of trial incurred royal disfavour because a gang of thieves in the district of Winchester was placed under arrest with great difficulty. They claimed the right to trial
by ordeal by fire. At the end of the third day their hands were inspected and to the disgust of the ruling king, none was found to be burnt. As a result it was abandoned.
The ordeal by water consisted of tying an accused hand and foot and throwing him into water. If he sank he was innocent. If he floated he was guilty.
Then came Willy’s Ordeal by Battle
Then William the Conqueror introduced the ordeal by battle, which was simple. Two people fought until the stars rose. If one was beaten he was guilty and the winner was declared to be innocent.
In that form of trial you had for the first time something approaching the nature of an advocate as the parties were permitted to appear by a champion.
Many will remember reading the story of Invanhoe riding to the defence of Rebecca of York. That was an accurate description of this method of trial and is historically correct.
The Pope did not like this method and forbade it, but the English people paid little attention to what the Pope said and continued with it to resolve their disputes. It remained open to litigants in England until 1811 when a man charged with murder claimed the right to battle against the prosecutor; the judges, finding that the right existed, took steps to have it repealed and as a result it was abolished in 1819.
Advice from the Priest: Get your money while the patient is ill
Although by 1150 the law was hardly a profession, there were persons who conducted cases. When a person could not appear he would find a friend, a "placitator" (a pleader) to help in the litigation and who expected to receive a reward in the form of an honorarium. The "placitator" was the forerunner of the modern barrister. In 1239 a priest who practiced in the Circular and Ecclesiastical Court wrote a study on the "trade of advocates", the aim of which was to teach readers to win their cases. He was particularly explicit in his admonition to collect fees - "Get your money while the patient is ill".
After the Second Henry came the Judges
By the end of the reign of Henry II in 1273, the practice started of appointing judges from among those who obtained a great reputation in appearing and arguing cases before the judges. This was the start of the system in England (and in South Africa)
of appointing judges exclusively from among those who appeared before the courts.
In the reigns of Edward II and James I the power of appointing attorneys was vested in the judges under a statute entitled De Attornatis which required judges to select as attorneys persons who "were good and virtuous and learned and of good fame".
The more Advocates the Better
It was then that we come to the first stage in English history of the division of the profession.
What was said on behalf of a man by his attorney bound him, but what was said on his behalf by his advocate did not bind him because the advocate was at liberty to say what he pleased.
Consequently, a man would appear with a number of advocates each saying something different and none of them saying anything which bound the client.
By the time of Edward I (1272 to 1303) a legal profession had been formed consisting of two branches, one the pleader (the "placitator") who finally became the "serjeant-at-law" and the other the attorney. The pleader did not represent the client but was a counsellor supporting his cause.
The attorney represented the client. That word "attorney" was derived from the French word "tourner" which in turn was derived from the Latin "ad tournare" meaning to commit business to someone else, that is an agent to carry on someone else's affairs.
After the Third Henry came the right to an Attorney
The right to act had to be proved in court resulting in the expression "a power of attorney".
In 1235, in the reign of Henry III, a statute was passed giving anyone the right to appoint an attorney in legal proceedings.
The position of the pleader was in full swing in 1300 when the rank of serjeant-at-law was officially established. At that time serjeants-at-law did not examine or cross-examine witnesses, their chief work being to argue in court. Subsequently they drew their own pleadings and in terms of an ordinance in 1280 of the City of London they were required to "plead" or make "proffers" at the bar.
The Magnificent Seven Serjeants
By the end 0 the thirteenth century, litigation was conducted by a small group of serjeants-at-law. Only seven names are mentioned in the year books and one of them would appear in almost every case. They always sat in court even when not engaged in a case.
The Six Serjeants and their Columns in St. Paul’s
By the end of the thirteenth century a clear pattern of the legal profession as an organized body had emerged.
At its head, and exercising a general control over it, were the judges, a professional body of men appointed exclusively from the ranks of those who appeared before the court.
| Serjeant-at-law Ballantine with Coif |
Then there were the serjeants who wore a white "coif" on their heads and who, for the next five hundred years, played the leading and most decisive part in the development of the common law of England (and indirectly the common law of South Africa) for, as I have said, from their ranks alone were the judges appointed.
Incidentally, they carried on their practices in cathedrals and it is said that before St Paul's was burnt there were six columns in one of its courts where each of these serjeants stood and received his clients.
Beneath them were the four great Inns of Court - Lincoln's Inn, Gray's Inn, the Inner Temple and the Middle Temple, each with its grades of students, inner barristers, pleaders and benchers. The benchers were the ruling body of the Inns of Court; the readers were responsible for teaching students; the barristers were drawn mainly from
the sons of men of independent means or more prosperous or successful businessmen.
Lawyers called to The Bar
The origin of the expression "the bar" is interesting.
In historical times it was referred to as "the barr" which was derived from the fact that a
pleader stood at the bar (or "oust of the barr") of the court and became known as "the apprenticius ad barros" or "outter barrister" and subsequently "barrister-at-Iaw".
The "outter barrister" was called within the bar and became known as an "inner barrister" and later a King's Counsel, the first of whom was appointed in 1604 to represent the town in cases in which it was interested and which appointment carried a salary of £40 per annum.
The Taking of Silk & A Coin in the Gown
The term "silk" was taken from the material of a King's Counsel's gown (which incidentally is now nylon) compared with the stuff or wool gown of other barristers.
As a result a junior barrister became known as an "outter barrister" (or more colloquially a "stuff gownsman").
In fact, barristers regarded themselves as persons who were not concerned with money matters. The pucker between the shoulders of a barrister's gown is all that is now left of the purse into which a successful litigant dropped his payment for services rendered, for it was assumed then that a barrister, as a gentleman, appeared only as a friend and would not take money, but that the litigant would drop the appropriate amount in this purse at the back of the gown, in theory unknown to the barrister.
This fiction, which went back to Roman days, is still observed in England in that barristers have clerks and under no circumstances take part in financial arrangements relating to their fees, which are made only between the solicitor's clerk and the barrister's clerk. This also gave rise to the further fiction, which is now fact, in England that a barrister cannot sue to recover his fees as he is not paid for his service and appears gratuitously.
No Room at the Inns for Attorneys
An attorney was trained in the Inns of Court and, although continuing to practise as such, could be a member of his inn; but the Inns of Court then discouraged attorneys from joining and finally excluded them altogether in 1793. As a result attorneys lost the right to appear in court and the Inns of Court then became the sole means of educating
and preparing only barristers.
It was only in George II's reign that steps were taken to ensure that attorneys should be properly qualified and that they served a term of apprenticeship.
Who rules the lawyers
The power of the court over a lawyer was derived from Roman law, for Ulpian states that the governors of the provinces exercised disciplinary control over lawyers and that any of them could be debarred from appearing in a court or practising.
That power was assumed and exercised by the courts of Holland before there was any legislation on the subject and is referred to in several placaats.
In England, the supreme court has always held that it has the disciplinary control of lawyers under its powers of general jurisdiction and can do so of its own initiative. It was because of this and as an attorney had to be admitted by the court and have his name entered on the roll of attorneys that he was said to be an "officer of the court".
To Solicit, or not to Solicit
The term "solicitor" was first applied to a professional class in about 1450 but did not secure a recognized status until about 1500. It was then applied to a person who carried on legal business on behalf of another. A solicitor was neither an attorney nor a barrister and, in fact, the difference was that an attorney practised in the common-law court while a solicitor practised in the chancery and equity courts. Attorneys in England preferred to be called "solicitors" but in 1873 an Act was passed that "all persons admitted as solicitors, attorneys or proctors in any court, the jurisdiction of which is transferred to the High Court of Justice or the Court of Appeal, shall be called 'solicitors of the Supreme Court'''.
In 1877 a further Act was passed that "all enactments referring to attorneys shall be construed as if the words 'solicitors of the Supreme Court' have been substituted for 'attorney'" and as a result the word "attorney" fell into disuse in England.
The Cape of Good Advocates
