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upon by writers in the newspapers to attack and depreciate the bar. Of course the vulgar prejudices against “ Lawyers” might be expected to be represented now and then in the columns of inferior «
organs of the public," addressed as these must be to an ignorant class of readers; but it is somewhat strange that a like illiberality should be found so much among the better writers for the better papers. We must remember that a large portion of the staff of newspaper writers is recruited from the bar. Men not inferior in ability, education, and standing to those who ultimately reach the highest prizes to which the bar leads, are drawn off by the various causes by which the career of men is changed, and their destiny fixed, to supply the newspaper press. In England, this department of literary labour rarely conducts to public eminence, or ultimately obtains the same substantial rewards which the most successful counsel gain. The consciousness of this fact may, perhaps, to some extent provoke a portion of the unfair and harsh reflections to which we are alluding. Be the cause, however, what it may, the fact is patent; and as the newspapers may bring the views of their writers before the public as prominently and frequently as they please, and the practising bar cannot reply, the repeated attacks are not without their effect.
No public men, belonging to a responsible profession like that of the law, ought to object to fair criticism and honest discussion. What we protest against is the misrepresentation of their conduct, and the cavilling imputations of low motives and loose principles. The journalist and the advocate both occupy responsible positions, and have onerous duties to perform. The course which each is compelled to take is not unfrequently rudely questioned, though it might oftentimes be justified if it were permitted to either to discover to his neighbours the grounds of the conduct he is pursuing. As this is generally repugnant to the principles of both professions, we may fairly insist upon the propriety of neither having to bear, at the hands of the other, the penalty of the worst construction being put on its actions, and the worst imputation on its motives.
The requirements of society have created the profession of the barrister; and so long as the public finds it essential or useful to maintain, as a distinct profession, a body of men learned in the law, so long will it exist, and no longer. Its position, rules, constitution, and etiquette will vary with the relations of society; and it is necessary occasionally, for the profession itself, to take into timely consideration such internal arrangements as may, peradventure, be the better for revision and discussion.
It is urged, for example, that there is an absurd running after a few overworked men, who, being in fashion, have so much business thrust upon them that they necessarily neglect a portion of it; and then the common charge is immediately urged, of the client's money being taken for doing nothing. Now, it is undeniable that there have been, and, for aught we know to the contrary, may still be, men for whose advocacy there is an unnatural demand, and there are different explanations of the phenomenon offered to the public. It is said by some that it is the fault of the attorneys, who are incapable either of judging when a particular counsel is unable to do justice to his client because he has too much committed to him, or of exercising any discrimination in discovering men with plenty of time and skill ready for disposal. On the other hand, the attorneys allege that their clients demand that they should retain the most notorious counsel; and it is the only protection an attorney has, in case of a client's failure, to be able to tell him-"We employed the eloquent Mr. John Smith, Q.C., M.P., the well-known Sir H. Brown, or the celebrated Serjeant Boanerges Robinson; nothing more could be done for you.” We apprehend there is truth in both statements, but it is not the whole truth.
That solicitors and clients follow famous men from the motives above mentioned is true. Ignorance of the material composing the bar is a fertile cause of the evil complained of; but it is also a fact, that at one particular time there may be one or two men who have proved themselves to be more successful than others have proved themselves to be. Up to a certain point, the larger the practice of a man, the greater is the ease and certainty with which he accomplishes it, whether small or great. The contingent
advantages to litigants, derived from being represented by a particular leading man of the bar, is naturally coveted by all clients. This natural anxiety then becomes exaggerated, till the chance of being so represented is sought for long after its real value has ceased to be worth paying for.
It is hard, no doubt, for all parties to find out just when the swiftest horse is being overweighted, or entered for too many stakes. Whilst a counsel's doors are besieged by rival clerks with golden offerings, willingly poured out at his feet, and whilst things as a rule “pull through” somehow, it is not wonderful that he, the counsel himself, does not perceive that he has undertaken too much. If, by mischance on some occasion, he fail to appear in court for one client because he is elsewhere representing another, the former knew that this was the risk he ran. He paid his fee, and the heavier part of the work—that of reading the papers, mastering the detail, and spending hours in preparing for the trial—he left to be undergone by his counsel. But upon this point there should be a clear understanding between counsel and client. No honesty of purpose, and no careful arrangement, even with men of moderate practice, will prevent occasionally an untoward conflict between various calls on their attention. Now, if it be understood that, unless the counsel be personally present at the final step of a suit, he is not to be considered as having earned any fee, whatever may have been the time and thought he may have spent upon his papers, then let this rule be esta
, blished, and invariably carried out. The proposition, that “learned friends” should hand over the fees to the substitutes they themselves appoint to hold their briefs, is not in harmony with the feeling of the bar, and, indeed, is not practicable. The idea of "going halves” is ludicrous. We see no alternative to the rule (having defined what "earning fee” means), that he who does not earn his fee, shall not keep or claim it. It may be argued by analogy, that if a physician hears all the patient's symptoms, and investigates all the details of his health, but stops short of writing his prescription, the fee would hardly be expected. So, if
every thing up to the amputation of your leg, and
then left that portion to a "learned friend” to accomplish, because he was wanted to
a neighbour's limb, you, whose case was treated by the substitute, would by no means yearn to send your cheque to the medical man who had abandoned you. We have not only in the medical profession, but in most other callings, analogous inconveniences to those complained of in the bar. Many a fashionable physician, whether a genius, quack, or lucky man, has had too much to attend to; while others, learned, skilful, conscientious, and capable, toil for ever, and in vain. Trades' unions, nine hours' movements, or any other combination, are impossible remedies for evils such as these, which seem inevitably to accompany the various businesses of life. Yet they may be mitigated or exaggerated by the adoption of rules formed on sound principle. The advantage of rules such as we refer to, is not to control the high-minded members of a profession, but to govern those who, looking upon their occupation as a mere money-making trade, adopt a low and selfish tone throughout their practice.
In equity the election by the senior practitioners of particular courts, has prevented some of the inconveniences which are experienced in courts of law. In the latter, the coincident sittings at nisi prius, and the relations between the respective courts in banco, and the nature of the business there transacted, has hitherto not been favourable to a like separation of the common law bar. The present Mr. Justice Byles was the last of those who adhered to one court only; and it would seem that, by a common consent between the public and the present Queen's counsel, the adoption of the plan in question is not approved of. After all, the covetousness and unconscientious conduct of individual counsel may prove injurious to clients in particular cases; and although we doubt whether complaint as to the conduct of the bar is not of rare occurrence, yet the profession is bound to adopt rules for the common protection of themselves and their clients. If there is a notion
among any portion of the public, that both branches of the legal profession combine for the plunder of society, or make regulations, and persist in them for purposes inimical to the interests of all except themselves, the sooner this is rendered impossible, and it is explained that it neither is nor can be the case, the better for all parties. Corruption of the kind supposed would indeed soon prove suicidal, and apologists for such professional malpractices would be the worst friends of the bar.
It has been suggested, that it would be advantageous if the fiction of honorary fees were abolished, and the commercial system of debtor and creditor introduced. It is supposed that, making counsel amenable to actions for breach of contract or negligence, would be the means of settling the question of when fees are or are not earned, and by allowing counsel to sue on the common count "for work and labour done,” they would be able to protect themselves from occasional loss, from defaulting or "irregular attorneys. Of course, this alteration would involve the necessity of coming to the distinct understanding as to what really is the contract entered into between client and counsel. We have already expressed an opinion that this is in itself desirable ; but we crave leave to doubt if any beneficial result would be obtained for the client, so far as giving him the proposed remedy against his counsel. How rarely do actions against attorneys succeed ! Although their conduct is more tangible, yet, except where gross roguery or palpable neglect, entirely distinguishable from blunders or errors of judgment, is proved, no damages are ever recovered.
So, again, although not a few patients are strongly impressed with the idea that they have been “cruelly mistreated by their medical attendant,” in which belief they are, we believe, occasionally corroborated by those professional men who may be subsequently called in at a later date, yet the actions brought against the followers of chirurgical art are comparatively rare, and when brought, the plaintiff's success is still rarer. Now, inasmuch as every litigant who loses his cause believes that either the court or his counsel is wrong, and probably iniquitous, the door would be open to a few foolish actions, and a multitude of threats; but for all practical purposes the alteration would not be an improvement.
With respect, then, to that part of professional rule which regards the fees of those who practise in court, it may be