§ House in Committee (according to order).
§ On Clause 24,
The LORD CHANCELLORmoved the omission of words from Clause 24 which enables barristers to appear for clients without the intervention of attorneys, and the substitution of words enabling the wife, clerk, or servant, bonâ fide, of any suitor, to appear on his or her behalf. He wished to offer a few observations upon two points suggested by the terms in which this clause was framed—first, upon the expediency of allowing barristers to practise who were not instructed by attorneys, but who communicated with and were instructed directly by the suitors; and, next, as to the new order in the profession which seemed about to arise from attorneys associating' themselves to practise as barristers, or rather as advocates instructed by other attorneys. Undoubtedly, as far as experience went, nothing had been considered, generally speaking, more detrimental to the administration of justice than the practising of barristers without being instructed by attorneys. Very few persons were found to practise in that way; but there had at all times been a few barristers who had communicated directly with their clients. He believed he might appeal to his noble and learned Friend (Lord Brougham), as he might to all the Judges, with regard to the conduct of such persons. It had never met with approbation, and had never been regarded as advancing the interests of justice. He believed the general rule which had been acted upon had conduced to the creation of that high character which the profession enjoyed. He had lately had some communications with gentlemen who had come from America, and were acquainted with the state of the profession in that country, and he had never heard any other remark from any member of the Bar in that country than this—that they were very much struck with the different manner in which business went on in this country and in America; that they found it went on here with much more order and much more satisfaction; and they ascribed this to the circumstance of the barristers in that country not being instructed by an attorney, and not forming a distinct profession. He appealed to his noble and learned Friend (Lord Brougham), with his former 642 experience, whether he did not know that formerly it was made matter of complaint against those members who departed from the ordinary practice, and they were ungraciously looked upon. He mast repeat his opinion, that under the system proposed by this Bill, the public would not enjoy the same advantages as the present distribution of duties and business produced, and that the administration of justice would be greatly prejudiced by such a course being adopted. He considered that even in the Superior Courts at Westminster the practice of counsel receiving instructions directly from their clients would be found most inconvenient, although there the Judges possessed higher authority than the County Court Judges, and commanded a respect which the gentlemen who presided in the County Courts, respectable as they were, and competent to discharge their duties, could scarcely hope to obtain. If this clause were passed, an impression would certainly be created that this irregular practice was sanctioned by the authority of their Lordships, and it would no doubt he found to increase considerably. He submitted, therefore, that it would not be expedient to make any change in this respect. Another point to which he wished to advert, was that of attorneys themselves practising as advocates; and he feared that if the House of Lords should give their sanction to this practice, it would very much increase. He conceived this to be a course attended with many inconveniences. If an attorney wished to act as an advocate, the road was open to him; and there were instances of those who, having commenced the practice of their profession as attorneys, had afterwards pursued a successful career at the Bar. But there was no reason whatever why an attorney should desert his practice, why he should quit that path which he professed to desire to pursue when admitted on the rolls of the Court. Why the attorney should resort to another attorney to act as advocate, and not to a barrister, he could not discover, and he did not believe there there was any good reason for it. He apprehended it was likely to lead to grave inconveniences. He should therefore propose, in substitution of the existing clause in the Bill, an alteration which would leave the law as it at present stood.
LORD BROUGHAMquite agreed with his noble and learned Friend that it would be a serious injury to the profession if the two functions of advocate and attorney 643 were confounded; but it did not by any means follow that he should also agree with those who, in 1846, for the first time, introduced a statutory prohibition (9 & 10 Vict., c. 95, s. 91), confined exclusively to the County Courts, preventing barristers from practising in those Courts unless they were instructed by a solicitor or attorney. Up to 1846, every barrister had the power of appearing in any Court in the kingdom, instructed by a client, without any intervention whatever of an attorney or solicitor; and the exception then introduced applied only to the County Courts. What, then, had prevented the practice from being general? The usage of the profession, professional etiquette, supported by the heads of the profession both at the Bar and on the Bench, who so discountenanced, on all occasions, the class of individuals who practised both as attorneys and barristers, that no respectable member of the profession had been known to violate the rule, by generally practising without instructions from attorneys. The County Courts Act, however, introduced a positive prohibition, and the only question was whether they should continue that prohibition or repeal it, and place the County Courts upon the same footing as all other Courts, from the highest to the lowest. He was in favour of placing the County Courts, in this respect, on the same footing as all other Courts, leaving the practice in them to be regulated by the decent and salutary professional observance which was effective everywhere else. If this prohibition had never been enacted, he believed it would not now be proposed; but it was said, that having once been enacted, its repeal would be held by the profession to give a countenance to the breach of the existing usage and general understanding. He, for one, could not think the repeal would have any such effect, accompanied as it would be by the universal desire on the part of its supporters that the matter should be left to the etiquette of the profession, but the opinion that as a general general rule there should be instructions. But some even went so far as to say that if we had to begin to legislate de novo, an exception ought to be made in regard to the County Courts, because they were more obscure, and the Judges of them would not have the same authority as the Judges of the Superior Courts. But it should be recollected that the professional etiquette, restraining barristers from appearing without the intervention of at- 644 torneys, was found by experience to be as little infringed in Bankruptcy Courts, Police Courts, and all other inferior Courts, as it was in the Court of Chancery, the Queen's Bench, or on the circuits; and at Manchester, where the County Courts was attended by a Bar of fifteen or sixteen members, the practice was as rigidly adhered to as it was on the Northern Circuit. His noble and learned Friend was very justly anxious to prevent the rise of a class of attorneys-advocates, receiving their instructions not directly from the client himself, but through the medium of another attorney; but any restriction that could be adopted with the view of checking such an evil must be practically nugatory, because it would be impossible to restrain an attorney who had not the qualification, or the time, perhaps, for appearing personally in Court from instructing another attorney to appear, on the understanding that they were to divide the fee between them. He had in his possession a declaration signed by 150 highly respectable members of the Bar, praying earnestly for the abolition of this prohibition with regard to their practising in the County Courts. Their object was not to be enabled to practise without the intervention of attorneys, because in not one case out of a thousand might that ever take place; but they simply wished to be protected against the malpractices of the other branch of the profession, and against the monopoly which they wished to set up for themselves. He could tell their Lordships that there was a combination on foot among the attorneys to exclude barristers from the County Courts altogether. Barristers had been warned at various places that it would be at their peril they took a brief in a County Court; and that if they did so, they should never have another brief, neither in the County Courts nor at sessions or assizes. Thus the attorneys were attempting, by combination, to dictate their own terms to the Bar, and to exclude from all these courts; and their malpractices were likely to be effectual, unless the Bar was afforded the means of protecting itself against such a combination. At a recent meeting of attorneys and solicitors, held at the Freemasons' Tavern, one of the speakers, an attorney was reported in the Jurist (a work cited as of authority in the Courts) to have said, "that the attorneys had the power of excluding the Bar, and that the barristers should get nothing unless they choose to divide the guinea fee 645 with the attorney." Now the 150 gentlemen whose cause he represented had no desire at present to infringe the rule of the profession, but only wished to be protected against such processes as these. Among these 150 petitioners were a serjeant-at-law, two recorders, double first-class men at Oxford, several wranglers at Cambridge, five fellows of colleges, an ex-colonial chief judge, and twenty authors of esteemed works on legal subjects. He mentioned this to show the respectability of the class of individuals who had signed the declaration he had referred to. There were from 90 to 100 others, amongst whom were seven Queen's Counsel, twenty gentlemen behind the bar, but in full practice, several gentlemen connected with law reports, and others of a similar standing, all of whom had declined to sign their names to a document which it was intended to make public with the signatures attached; and he believed their reason for declining it was an exceedingly justifiable one, for he knew well what the effect might have been on not a few, respectable as they were in standing—respectable in character he ventured to say they were all—but respectable in their standing in the profession, and in the amount of business which they now obtained. They had not chosen to sign their names, but he had been furnished with a copy of them. But all these persons in these different classes were strongly of opinion that the rule should be left to the etiquette of the profession, which was flexible, and liable to exception; not from a wish that it should be bent if it was not absolutely necessary, but that, if it should become absolutely necessary for purposes of self-defence, then they should be able to bend it. And the mere knowledge on the part of the wrong-doers that barristers were furnished with such a means of defence, and could practise in the County Courts without an attorney, their Lordships might trust him, would be most effectual to preclude the necessity of their almost ever having recourse to such a remedy. Not only were the gentlemen—between 200 and 300 in number—that he had mentioned in favour of this proposition; but it was supported by the Gentleman at the head of the Bar at this moment, his hon. and learned Friend the Attorney General, who had distinctly stated in the other House of Parliament that his opinion went to the full length of their prayer to their Lordships for protection. And not only the Attorney General, but 646 he might mention also that a noble and learned Friend of his, whom ill health rendered unable to attend in his place in that House, and one who commanded the highest respect of all, both in the profession and out of it, the late Lord Chief Justice (Lord Penman)—in a letter to him that morning, not written in answer to one from himself on the same subject, strongly urged him (Lord Brougham) to persevere in his intention; and expressed his hope that the prohibition would be left to the professional etiquette, uninterfered with by statutory enactment. When he (Lord Brougham) reminded their Lordships that of the 80,000 suits brought in the year 1849, hardly as many as 2,000 came to trial, to a, verdict, and a judgment; and that in the County Courts 6,000 cases a year were tried from 20l. to 50l. in amount; he thought they would agree with him that it was cruel, in this state of the law business of the country, that this branch of the profession should be excluded, as they now were, from the County Courts. He would leave the subject in their Lordships' hands, confident that they would do justice to the parties whom he represented, and simply reminding them that although this clause had been struck out of the Bill before it was passed by their Lordships, yet it was restored in the other House of Parliament almost by acclamation.
LORD CAMPBELLsaid, this was a subject in which the public had such a deep interest that he must trouble their Lordships with a few observations. The due administration of justice, he believed, greatly depended on keeping distinct the profession of an attorney and the profession of a barrister or an advocate; and there would be great danger of that distinction being obliterated if they allowed attorneys to practise in the County Courts who had been instructed by other attorneys. That would be a great encroachment on the privileges of the Bar, and he was sure it would be extremely detrimental to the administration of justice. At the same time he thought it highly necessary and expedient to restrain barristers from practising in the County Courts unless they had been instructed by attorneys; and it was his firm conviction, after much reflection, that if this prohibition were not continued, there would be constituted all over the country a class of persons calling themselves barristers who would practise merely as attorneys, and who would get up the suit from the very beginning, and would con- 647 duct it all through, and who would not in any degre be subject to the control of the Courts at Westminster or of the County Court Judges. It was very important that those who conducted suits should he under the superintendence of the Judges, because it was most essential, if there was any malpractice with regard to costs, or the-mode of executing judgment, or any other point, that the person who acted as attorney should he liable, on a summary application, to punishment for his misconduct; and this could not be the case if the party performed the functions of a barrister, because he could only be reached by application to the Inn of Court to which he belonged. That was the reason why the 91st section was introduced into the County Courts Act in 1846 for the first time; and if it had not been introduced before, he thought it would have been most politic to introduce it now. It had worked most beneficially; and if it were now to be withdrawn, he was sure the most mischievous consequences would ensue, because it would go forth that this and the other House of Parliament were of opinion that there should be no distinction between a barrister and an attorney, and not only that barristers and attorneys, but that all who chose to come forward, should be allowed to conduct cases. It was true that the prohibition was not necessary for the gentlemen who had signed the declaration that had been entrusted to his noble and learned Friend opposite (Lord Brougham); but the noble Lord must be aware that in their profession, as well as in every other, there were always certain unscrupulous and unprincipled members, and it was to control the conduct of such persons that the restriction was demanded. His noble and learned Friend had referred, he thought rather indiscreetly, to the opinion of a very eminent member of the profession, the Attorney General; for that hon. and learned Gentleman had taken a most sanguine and zealous view of what ought to be done for the benefit of his own order. Now, he (Lord Campbell) looked to the benefit of the public; but the Attorney General had proposed that in all causes over 20l. barristers should have pre-audience in the County Courts, the consequence of which would he that the client would require to employ two agents, a barrister and an attorney. He (Lord Campbell) considered that there ought to be no necessity for employing a barrister, or more than one agent, and that the wife, or a clerk, or 648 any one selected by the suitor, might appear; so that it should not even be necessary to employ an attorney—so anxious was he that there should be full freedom and facility for the public in seeking for justice through the instrumentality of the County Courts.
The LORD CHANCELLORsaid, it appeared that his noble and learned Friend (Lord Brougham) had a paper signed by 150 persons, having a bearing on this subject; and that he had the names of some 100 other persons who had refused to sign it. Now he should have thought that the signatures of the first 150 would have been a sufficient guarantee to the other 100, if they were really in favour of the declaration; and he, therefore, could not understand why they had refused to sign it, if they so highly approved of it. His own communication with the profession led him to a conclusion exactly the reverse of that come to by the noble and learned Lord (Lord Brougham); for he believed the Bar were by no means desirous of the protection which it was sought to afford them. What was the noble Lord's argument? That the attorneys had entered into a combination not to employ barristers at sessions, assizes, or elsewhere, who thought fit to appear in a County Court. It was wished to protect the Bar against that combination. How? Why, by allowing them to appear in the County Courts without being instructed by an attorney; that was, to place themselves in a position to be the direct objects of that combination. When their Lordships heard the number of causes tried in the County Courts, and if they had the means of abstracting from that number the portion of them in which counsel would be employed, not through an attorney, but directly by the client, he should wonder what sort of a Bar would be found attending the County Courts, and what kind of fortunes they would make. They could not go on circuit, because their Lordships were aware how the County Court Judges travelled through the counties. If the etiquette of the profession had hitherto been sufficient to prevent barristers practising without the intervention of attorneys, and to a great extent it had been sufficient, the barristers would still be influenced by that etiquette, notwithstanding any enactment that might be made on the subject. But if, indeed, his noble and learned Friend supposed that after the passing of that Bill, barristers would attend the County 649 Courts, and act on their own account, without regard to the etiquette of their profession, then he (the Lord Chancellor) believed the result would be greatly to deteriorate the administration of justice, and to lower the dignity and respectability of the Bar. He apprehended that up to the present moment nobody had doubted the great importance of preventing the barrister from having direct communications with his client. No rule had been more inflexibly observed, and exceptions to it were only permitted in rare and important cases; for instance, where witnesses had to be examined on scientific matters. But the general rule, which it was of the last importance to preserve, was, that a barrister should never communicate with his client or with witnesses; and one of the most essential duties of an attorney consisted in the examination of witnesses to find out what they knew, and to ascertain how far the evidence would go to establish the main points of the case. But if you admitted barristers to communicate with clients, you could not prevent them from communicating with witnesses; and if a system of that kind were once established, infinite mischief would be done to the Bar, and he believed to the administration of justice also. He hoped it would not go forth as the opinion of Lord Brougham that it was not fit to prevent a barrister from communicating with parties without the intervention of an attorney.
The LORD CHANCELLORThen, if that principle, dignified by the approbation of those noble and learned persons, should once be recognised by law, a class of men would spring up in connection with the County Courts, who would attend public-houses, picking up causes, finding out defences in cases where no one would ever dream of a defence, and devising means of establishing claims which could never enter into an honest man's head. Such a class of men would not be subject to that restraint and discipline which prevailed where the Judge had more authority. He (the Lord Chancellor) feared that if that Bill should pass in its present shape, it would, notwithstanding the etiquette, prevail to a considerable extent, and that barristers would be found to act without the intervention of attorneys.
LORD BROUGHAMsaid, that his noble and learned Friend seemed to think that he (Lord Brougham) was an advocate for barristers going into court without an attorney. Now he did not maintain anything of the kind, and he did not wish it to go forth that he or either of his noble and learned Friends whom he had mentioned were of that opinion. What they said was this—not that barristers ought to go into court without an attorney—not that they would do so—on the contrary, he thought that they ought not, and he believed, moreover, that they would not do so, but what he maintained was, that barristers ought to have protection afforded to them against a gross and crying abuse, and that they should not be prevented by positive law from acting without an attorney in order that they might have the means of defending themselves in case of a combination being formed against them. His noble Friend called this a provision for doing away with attorneys. But surely it was a different thing for a person to have arms in his house for the purpose of defending himself in case of attack, and using those arms to commit murder and robbery upon the whole parish. What he wished to point their Lordships' attention to, however, was this—Was it to be supposed that the hundreds of respectable men who were subjected to those combinations to which he had alluded, would quietly lie down and die; or was it not more likely that they would reconsider the etiquette of the profession a little? Etiquette was more or less a matter of feeling, nay, of fancy; and if they were driven to it, with the simple authority of their own judgment on their own case, they would be exceedingly likely when they found themselves shut out by the state of the law from all participation in these great and increasing branches of professional business, to reconsider that etiquette which alone prevented them in other courts, and to attempt to drive the Legislature (which he ventured to predict the Legislature would not do) to apply to all other courts that which, in an evil hour, they had inconsiderately applied to the County Courts, and to them alone. The consequence would be the universal practice of barristers acting without attorneys, except in these County Courts.
§ Amendment made; other Amendments made.
§ House adjourned to Thursday next.