§ Order for Second Reading read.
§ MR. NORWOOD,
in moving that the Bill be now read the second time, said, it would be in the recollection of the House that last Session he gave Notice of his intention to endeavour to insert in the Judicature Act Amendment Bill a clause which would give to barristers-at-law and advocates the legal right to sue for their fees, and, as a natural corollary make them liable to their clients for the due and proper discharge of the functions which they undertook to discharge by either receiving a fee or the promise of a fee. The state of business was such that when he was able to bring forward his clause, only a week or ten days remained of the Session; and although the proposal met with considerable approval, yet it was pointed out by several hon. Gentlemen, and by the then Attorney General in particular, that it was impossible to discuss so large and important a question adequately under such circumstances. As his desire was not to prejudice hon. and learned Gentlemen, or the noble Profession to which they belonged, but to obtain full and complete discussion, he complied with the request made to him, and withdrew the clause. In doing so, he expressed a hope that the Bar, and the Judges at the head 308 of the Profession, would, during the Recess, take the matter into their own hands, and by framing regulations of their own, meet the evil of which the public complained. He added, however, that if that were not done, he should raise the discussion again, and in fulfilment of that pledge he had introduced the Bill which he would now proceed to explain. The Profession of a barrister-at-law and advocate was placed on a footing which differed from that of any other Profession in this country. Members of the Bar assumed this anomalous position: that the fee given to them, or the reward which they received for the services they were requested to perform for their client, was not to be considered in any respect an ordinary remuneration, but as a kind of complimentary gratuity, or "honorarium," the payment of which they were not able to enforce by any legal proceeding, but which, on the other hand, did not involve any responsibility or liability whatever for the faithful discharge of the services they undertook to perform. He knew of no Profession in this country which was in a similar position, not even that of the physician, as his hon. Friend the Member for Londonderry (Mr. C. Lewis), clearly showed in the debate of last year. It was easy to conceive the natural result of this absence of all responsibility and liability at law on the part of the Profession. There were certain of its members—even in the highest position—who notorious accepted fees in respect to briefs and business which they knew they could not properly attend to, and the result was that clients who had obtained, as they fancied, the services of a barrister of large experience and eminent ability, frequently found the moment those services were required—when their property, reputation, and it might be their life, was at stake—that the gentleman they had retained was "conspicuous by his absence," and that they were subjected to an amount of injury and mischief, which it was almost impossible to estimate. In making this statement he wished at once to exempt from it one large portion of the Bar of England. He had no fault in this respect to find with the Chancery Bar. It might be said that they were in a more favourable position than the Common Law Bar, and he was ready to admit it; for at the 309 Chancery Bar there was a wholesome practice, that when a man "took silk" he attached himself to one particular Court and did not leave it without a special fee. He, therefore, exempted the Chancery Bar from the strictures which he was about to make, and the great bulk of the Common Law Bar; indeed the practices against which he protested were, in point of fact, confined to a comparatively small number of the profession. Since he first introduced the question, he had received communications from various quarters and persons, and he was surprised at the extent of interest which appeared to be taken in the subject. He had not met with one solicitor who had not admitted that within his own knowledge, and in his own practice, instances had occurred of the objectionable conduct to which he adverted. In addition to solicitors, he had also letters from clients who were smarting under what they considered to be a serious grievance. He had also communications from the Bar. He was delighted, not long ago, to receive a communication, among others, from a Queen's Counsel in a high position; that he fully approved of and sympathized with the object of the Bill, although he objected to certain of its details. The evil of which he (Mr. Norwood) complained was this—Counsel, although they received very large fees, often did not attend in Court when their client's case came on, or if they did, gave only a partial attendance, and performed their duty in a very unsatisfactory manner. But he complained, even more than all, of the custom which prevailed in the Common Law Bar of counsel, without consulting their clients or the solicitors who instructed them, handing over their briefs to a learned brother of very inferior position and status and who was often unacquainted with the special matters involved in the case. A man having a mercantile case, involving some nice point of commercial law, went naturally to counsel acquainted with mercantile matters, and what satisfaction could it be to him when he entered Court to find that his case was handed to a person who might be eminent in cases of libel or the specialities of patents, or an excellent advocate in addressing a jury on a criminal charge, but knew very little of mercantile law. In such case he did not obtain the 310 professional knowledge for which he had bargained, and the counsel who was not able to attend to a case and did not return the brief and fees, or consult the solicitor of the client as to the substitute to be found could not pretend that his conduct was that of an honourable man. In bringing forward the question he was, as a layman, under this difficulty that he could not cite cases that were within his own knowledge and experience. He would, with the indulgence of the House, read a few extracts from letters which he received from solicitors, and he might add that every one of them were bonâ fide communications made to him by persons of position The following was an extract from a letter written by a partner in a firm of City solicitors of great eminence. After adverting to the practice of the Chancery Bar and the rule in Common Law Courts before 1852, the letter proceeded—I came to the Profession in 1855, and I remember well one of the first cases in which I was interested, in which we were deserted by both counsel, and in the end the case had to be settled upon terms which our client considered disastrous. A few years later there were two Queen's Counsel who were notorious for the same thing, and one of them happened to be our leader for several years; we were either obliged to go to the expense of a third counsel or submit to the absence of our leader, which very generally happened, and was very unpleasant.The next was the statement of a solicitor in one of our large commercial towns—I was for defendants in an important mercantile case involving thousands of pounds. It was tried at Guildhall at the same time as a cross action involving same circumstances. I retained an eminent Q.C., specially conversant with the business, and his brief was marked about 100 guineas. I was about the Court waiting for the case to be called, when counsel's clerk intimated that the fee was insufficient. I expressed my great surprise, and said that the fee was evidently considered satisfactory when the brief was delivered days previously. The clerk admitted this, but said he had ascertained that the other side had a larger sum. I told the clerk that I must have the personal services of the counsel, who must be satisfied, and I increased the fee by a considerable sum. The counsel just attended the opening of the case that afternoon, but on the following morning it was intimated to me that he had another and very important professional engagement, and had handed over his brief to his friend Mr.—.The brief and fees were not offered to be returned. Mr.—had little experience in the matters involved, and so mismanaged that the client requested him to withdraw and leave the conduct of his case to the abler junior. My client lost the case.311 The hon. Member for York was a warm supporter of the Bill, but unfortunately was prevented from being present. Mr. Leeman stated that—Some years ago, he was concerned for a contractor in an arbitration on a large claim upon a railway company. The arbitration extended over 100 days. His two counsel frequently did not put in appearance, and often for a few minutes only, and their interference accordingly did more harm than good. Becoming seriously alarmed for his client, Mr. Leeman requested that the counsel would abstain from interference at all, guaranteeing payment of fees notwithstanding. The fees amounted to upwards af £1,500.The next letter was as follows:—I understand you have a Bill before Parliament for making counsel liable on their contracts to perform the work for which they receive the fees. I have twice at the Assizes this week been disappointed (to use no stronger term) by the counsel to whom I had delivered briefs and paid substantial fees. I will not mention names, as I do not want to censure individuals, but to illustrate the vicious practice you are trying to remedy. In one case—a common jury case—I was for the defendant, and the defence was simply a set-off, the plaintiff's claim being undisputed. It was therefore the duty and the right of the defendant's counsel to begin and open the case; but my counsel, who had received the brief and fee several days before in London, had not come down, and the Judge refused to wait, and the plaintiff's counsel (there being no one to gainsay him) opened the case, possessing the minds of the Court and jury with his own view of it, so that when my counsel afterwards arrived, as he did in the middle of the trial, the verdict was practically lost beyond recovery. In another case (on the criminal side) an important prosecution, by direction of the Justices, for a public nuisance, the brief, with a respectable fee, had been given to an experienced counsel, who, just as the case was coming on, handed it over to a very young gentleman, who had not even time to read it, and an acquittal was the natural result. If for any unexpected and unavoidable cause a counsel cannot conduct a case he has undertaken, he should be bound to consult the solicitor concerned as to the choice of a substitute; and, if required, to return the brief, together with the fee, into the solicitor's hands.Here was another case:—Mr.—, Q.C., was asked the evening before the trial if he would promise to attend on plaintiff's behalf. He promised, and the brief was left with him. When the trial came on, he very shortly opened the case, and then left his junior to complete, i.e., examine witnesses, address the jury, &c., while he went to another Court. We lost.A solicitor in the West-end wrote—A client of mine being unfortunate enough to be the defendant in an action on a disputed account with a tradesman, and the case requiring 312 careful attention, I gave one of my clerks the names of three members of the Bar, with instructions to deliver the brief to one of the three who would pledge himself not to adopt the too common practice of handing over his brief, but to attend to the case himself. The first of the three had no difficulty in giving the required promise, and the brief with a fee of—guineas and a conference fee was delivered to him. Within five minutes, literally speaking, of the case being called on for trial, this gentleman handed over his brief to a young barrister whose services could very readily have been secured for a third of the fee, and who, having had no time to read his brief, as he indeed stated in open Court, lost the case, entailing on the defendant a heavy loss. My client in this case is a foreigner, and I have been unable, after the most elaborate explanation, to make him understand upon what principle of honesty a barrister, who did nothing to earn them, should retain the fees paid to him expressly for services to be rendered, or upon what principle of justice a man secures absolute immunity from liability, even from moral censure when he deliberately violates a solemn promise, and neglects a trust casting serious and unmerited loss upon the client who has employed him.In an important indictment for conspiracy (arising out of a strike) against some working men, I had instructed two eminent Q.C.'s for the defence. They were detained on Circuit and accordingly returned their briefs, but it is almost needless to say not their fees, although these amounted to about £60, and came out of the pockets of working men.He would not weary the House by reading more of the letters he possessed of similar purport, but would conclude with an extract from the letter by the City solicitor he first quoted, and in this case he would mention names—The present Mr. Justice Lush acted in a very different manner. He attached himself altogether to the Court of Common Pleas, and would not take briefs in other Courts, because he could not properly attend to the work. Another exception to the somewhat general rule was Sir John Karslake. Sir John would refuse to take a case if he thought he could not attend to it; and, although I believe it was not, strictly speaking, professional, you could always see him or his clerk and arrange with him to give his attendance to the case, and he would tell you if he could not attend to it, and, with this notice, if you gave him a brief, you did so at your own risk.He had much pleasure in saying that he had received similar testimony as to the conduct of other distinguished counsel, both Members of the House of Commons and otherwise. The Bill was an extremely simple one. The 1st clause gave power to a barrister to sue for fees which had been promised and not paid. That was in accordance with his 313 (Mr. Norwood's) notions of equity. The 2nd clause rendered the barrister liable for gross neglect of duty. He believed that the clause was objected to by many on the ground that it was too severe. He had drawn the clause wide enough to embrace the whole matter, but if it was considered by the House to be too stringent in its character, or if it bore too hardly on the Profession, he had no objection to modify it in Committee. He had no doubt that, in the debate which would follow, he should hear a good deal about the "honorarium" and the relations between the Roman patron and client. Blackstone, of course, was a great authority against him, and he was aware that learned Judges in various cases down to "Kennedy and Brown" had decided that it would be dangerous to give up the privileges always enjoyed by an advocate, but he respectfully declined to argue this view of the question. It mattered to him not one iota what was the custom of the ancient Romans. They were now living in the year 1876; the conditions of life and of society were altogether changed; and he maintained that there was nothing in the circumstances of the present day to justify the continuance of such a system. The so-called honorarium in these days was a myth and mere moonshine, for the fee was a matter of ordinary bargain as much as any on 'Change, but with this difference—that, generally speaking, the barrister's clerk was able to insist upon the fee being paid beforehand. He was certain that it would not be maintained that the honorarium really existed; and if it no longer existed the immunity based upon the theory of an honorarium must utterly fail. He had conclusive information which bore upon this point. One gentleman wrote that—The idea of counsel receiving only such honorary payments as suitors were willing to give was a pure fiction. Whatever practice might have prevailed centuries ago, in the days in which we live counsel through their clerks did bargain for fees, and very good bargains they made. Having got the money in their pockets they did exactly as they pleased in regard to the performance of the contract. In other words, they failed to attend, or they might, without consulting anybody but their own convenience, hand over the brief to another person equally unknown and unacceptable to the suitor. What would a learned Judge say of any other set of men who took the same course?314 So much for the honorarium. He was, however, told that if they did away with this system the fees would increase. Well, fees had already increased. They never were so great as they were now, and he did not grudge them. The public were not bound to go to the counsel who charged the highest fee, but they had the choice of the entire Bar. If a man of great reputation thought that he was entitled to charge a large fee, let him do so, and he (Mr. Norwood) would place no limit upon the demands which counsel might make in that respect. He would now advert to the objections made to the 1st clause in the Bill which gave power to a barrister to sue for his fees. He was told by distinguished members of the Bar "this clause is unnecessary, for our bad debts are infinitesimal." He quite admitted it, because after a barrister had attained eminence, a solicitor dare not treat him except with the greatest respect, but that was not the case in regard to the junior Bar. He had evidence over and over again from junior counsel who said they were obliged to accept business in any form in which it came to them, and they suffered cruelly in consequence. There was a certain class of solicitors—the black sheep of the Profession—who employed a young man until the fees amounted to a considerable sum, and when the barrister applied for payment deserted him and took the same course with his successor, which was simple robbery. He had in his hand letters in which the writers drew a piteous picture of the condition of gentlemen who were solely dependent upon their fees for their sustenance in life, and complaining cruelly of the way in which they were treated. They added that the only prospect of relief they had was from the passing of some measure of this kind. The second clause of the Bill was drawn wide for a purpose he had already explained, and he had no objection to modify it in Committee within reasonable bounds. His object was not to open the door for an action against the bonâ fide efforts of counsel simply because counsel had lost a case, or the solicitor or client thought he had not done quite as much as he might. He was told that the passing of this clause would destroy the independence of the Bar. He should be sorry to do any- 315 thing that would attain such a result, but he could not conceive how the independence of the Bar, and their power to advocate efficiently the cause of their clients, should be bound up with immunity from the ordinary obligations of law and morality that affect every other class of the community. He was to be opposed upon this occasion by his hon. and learned Friend below him, the hon. Member for Coventry (Sir Henry Jackson). He believed his hon. Friend was admirably qualified to review the whole position, but he wished to remind his hon. and learned Friend that he had no quarrel with his (Sir Henry Jackson's) part of the Profession—the Chancery Bar. His hon. Friend had chosen to take up the cudgels for his brethren of the Common Law and Parliamentary Bar, and he hoped his hon. Friend would tell them how they could in future avoid the scandals which had existed in the past. A man knew if he went to the Chancery Bar and engaged the services of counsel, that those services were rendered, and therefore he (Mr. Norwood) hoped that his hon. and learned Friend, in advocating the cause of his Common Law brethren, would, in justice, explain how admirably well that system worked, and offer to assist them in placing their branch of the Profession upon the same basis. He admitted that the proposal which he now submitted to the House, was full of difficulty. He was aware that the arrangements in the Common Law Courts made it extremely difficult for counsel to know when his business was to come on, and he believed that the rules under which the Courts were now acting had not been framed so as to facilitate business, but the very reverse; but he did not hesitate to say that a great deal of this difficulty arose from the apathy of the Bar. The Benchers of the Inns of Court were far too apathetic, and they failed to regulate the business of their Profession in such a way as to meet the needs and requirements of clients. He was further of opinion that the learned Judges themselves did not take the trouble to see that the business was facilitated as far as possible, or they would long before this have done something which would have tended to mitigate the evil now complained of. He had no wish to restrict the judicial independence of the Judges; but, at the same time, he could 316 not forget the fact that they were salaried servants of the State, and that they should do all they could to assist the Bar in making such regulations as would enable them to fulfil their duties to the greatest advantage of the public at large. No one in the present day could tell in what Court his case would come on. A man who believed that his case was to be tried the next morning in a particular Court, found when the day arrived that it had been transferred to another. These were difficulties, no doubt, but he believed they could be overcome if there was an anxious desire displayed on the part of the Bar and of the Judges to make some more satisfactory provisions. The Bill was a very important one, as seeking to remove a growing scandal. It affected every individual in the country. There was no manor woman who was not liable to appear in a Court of Law to protect his or her life, property, or reputation. It applied also to a large, a distinguished, and a noble Profession, and there was no section of the community so interested in the amendment he desired to effect as the Bar itself. He believed that it was for their interest to eliminate those objectionable practices, to restrain the rapacity of some of its members, and to elevate generally the tone of the Profession. He was of opinion that the Profession just now was seriously compromised, and that a very strong feeling upon these matters existed among every class of the community. He did not believe that any hon. Member who was about to take part in the debate would be prepared to deny the general correctness of his allegations. He owned that he felt the task he had undertaken a difficult and unpleasant one, and he trusted that he had discharged it without discourtesy or giving just cause of offence. His position was this—he had, on behalf of the public, by introducing the Bill and getting it read a first time, obtained a rule nisi, and he now called on the House, unless good reason could be shown to the contrary, to make that rule absolute by assenting to the second reading.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Norwood.)
§ SIR HENRY JACKSON
The hon. Member for Hull (Mr. Norwood) has 317 opened his case with great ability, and in a manner to which no Member of the Profession, to whatever side of the Bar he may belong, can reasonably take exception. The hon. Gentleman has passed no censure on that branch of the Profession to which I have myself the honour to belong, and has on that account expressed his surprise at my hostility to his measure; but, perhaps, this very reason makes me better qualified to warn the House against the consequences that would follow from the present Bill being passed into law. I will not enter into the controversy which my hon. Friend has deprecated; I will not consider whether the fee of a counsel being a honorarium is based upon the Roman Law or is part of the law of England—I agree that we have to deal with the existing conditions of English society and the requirements of the English people in 1876; but I am entitled to say this, that as the present relations between advocates and clients have existed in this country from the earliest recorded time—as the principle of the honorarium obtains not only in England, but, I believe, in every Christian country on the European Continent and in everyone of our English Colonies; as until recently no complaint of its operation has been made, at least it has a very strong presumption in its favour; and those who are anxious to maintain it have a clear right to require from those who attack it the establishment of two propositions—first, that the existing condition of things shows evils which can be remedied only by legislation; and, secondly, that the legislation proposed is sure to bring about a better state of things than that which now exists. Now, what does the evil complained of amount to? Assuming all the allegations of the hon. Member to be true and incapable of explanation, it comes to this—that there are a certain number of barristers to whom it may be objected that they are guilty of practices which I am sure no Member of this House will justify; and this is the ground on which it is asked that a measure affecting the whole Profession shall be passed. It is not with the hon. Member, as of old, that the city shall be saved for the sake of 10 righteous men—the hon. Member would destroy the interests of a whole Profession for 10 unrighteous members of it. My hon. Friend must make out that 318 there is no other cure for the evil alleged. What is the complaint? That a certain number of counsel are in the habit of undertaking more business than they are able to discharge. If they do so deliberately—if there are any members of the Bar in high position who, knowing that they cannot discharge the duty they undertake, yet receive and retain the reward for doing that duty—all I can say is, that I have no words sufficiently strong to express my reprobation of such conduct. But we have not yet had this charge proved. I know of no such case of my own knowledge, and in the absence of proof I will not assume that such practices obtain. No doubt serious inconveniences and disappointments sometimes result from the non-attendance of counsel; but how does that generally arise? The matter is beyond the control, not of counsel generally, but of the distinguished counsel of whom complaint is made. The difficulty arises, first, in consequence of there being so many Courts sitting at the same time, and, secondly, from the fashion in the public of confining their attention to particular counsel—a fashion not warranted by common sense or approved by experience. There is a run upon certain men, and no client considers himself ready until one or other of them is retained: their services must be secured at all hazards: and what is the result on the position of the particular advocate so sought after? I am sorry to trouble the House with allusions to professional details, but in considering this subject I must explain how he often finds himself fixed. He accepts a brief in a case to be heard, we will say, the next day, and with the determination, coûte qui coûte, that he would attend to it. He reads his papers, holds his consultation, and is prepared to proceed with the case. He attends in his place on the morrow. He finds, from no fault of any one—perhaps through the preceding case lasting longer than was expected, or because of the absence of a witness or the illness of a Judge—that his case is not ready for hearing. Now, the effect of my hon. Friend's Bill will be that till this particular case has been disposed of, that counsel could not be retained in any other; and, although he might have undertaken to argue another case on the following day in the full belief that he would be ready to do so, 319 he would have to return his brief, and leave his client in the second case—and, perhaps, at very short notice—without assistance. You may get barristers willing to enter into such an arrangement and to carry it out; but you will not get the eminent men who are so much sought after to do so; nor can it be expected. What, then, is really the position of the client in reference to the services of counsel so much sought after? He knows perfectly well that these men have such an accumulation of business on their hands that accidents such as I have described are inevitable; why, then, as there is so much doubt whether their services can be obtained, employ the counsel in question? Why not deliver the brief to any other of the numerous gentlemen at the Bar who would readily accept it on an undertaking to attend whenever and wherever it may be heard and who would be perfectly competent to do it justice? The fact is, that the services of a particular counsel are retained to secure that at all events he shall be kept from the other side, and in the hope that he may be able to attend to his client's case more or less. It is felt not to be safe to allow that gentleman to be employed on the other side, and he is retained to keep him from the enemy. This, I maintain, is in many cases the real bargain and understanding. The client gets what he bargains for, and now, though my hon. Friend complains that he does not get more, I do not say that his bargain is a wise one, or that the possibility of his being driven to it shows a desirable state of things; but it does not seem reasonable that Parliament should be called on to alter the whole status of the Profession of the Bar and to make serious changes in the administration of justice in order to make certain counsel do what every one knows they cannot do—attend to two things at the same time in different places. The difficulty is not without a remedy. That remedy is not far to seek: it is in the hands of those who complain: it is simply to abstain from employing gentlemen who are known to have acted in the manner complained of, and to employ those who have more time to bestow on their cases. My hon. Friend has made some little of the benefit which his Bill will confer on the Bar by giving counsel a right to recover their fees, No doubt, 320 to many members of the junior Bar there may at first sight be a certain advantage in securing a legal right to recover their fees; but, notwithstanding that, I venture to think that, with the exception of the few gentlemen who have written to my hon. Friend, the unanimous opinion of the Bar is that this so-called advantage ought not to be accepted, because it will endanger what they value far more than the mere pecuniary consideration—the maintenance of their professional status and their freedom of action in their professional duties. It is all very well for my hon. Friend to talk of benefiting the Bar, but the essence of his Bill is not to benefit the Bar, but to impose on it a different status from that which it now occupies. On the other hand, I cannot accept the alternative of my hon. Friend the Member for West Sussex (Mr. Gregory). I do not think a Committee the proper tribunal to settle this question. It has lately been the fashion to decry Select Committees, but I do not concur in that opinion. I consider them most valuable means of eliciting information; but when all the facts of a case are known, their Report is only as valuable as the opinions of the individual Members who concur in it. Here there are no facts to elicit, and no useful purpose will be served by referring either the Bill or the subject to a Committee upstairs. The principle of the Bill is plain enough, and is expressed in the Preamble—it is to take away the present professional status of counsel, and to give to them in the discharge of their duty the same rights and render them liable to the same liabilities as the other subjects of Her Majesty. My hon. Friend states that the arrangements made by members of the Chancery Bar give him, and those whom he represents, complete satisfaction. I am glad to hear it. But does he not see that this Bill, if it becomes law, will affect that branch of the Bar of which he has spoken in terms of entire approval just as much as those whom he condemns. Practically, says my hon. Friend, counsel in Chancery attend to their cases; and no doubt they do. But Chancery barristers are bound, as all other counsel are, to attend to the Courts of Appeal in preference to the Courts of First Instance, and, as my hon. Friend says, with approval, they are entitled to consideration when they 321 absent themselves under the pressure of a special fee. But under this Bill their accidental absence, or their justifiable absence from whatever cause, would, so far as the client was concerned, give just the same cause of complaint as the deliberate absence of which he has spoken; and the Bill will deal a blow not only to the leaders of the Bar, but to the juniors also, of whose interests my hon. Friend claims to be so anxious an advocate. The fact is, that if any barrister is to be liable to an action at law and to damages for not being present at the hearing of a cause, unless he can satisfy a jury that he is absent through unavoidable accident or from some other justifiable cause, the position of the Chancery barrister would be just as intolerable as that of other members of the Profession. If my hon. Friend admits that a satisfactory result has been arrived at by the voluntary arrangement made among themselves by the Chancery Bar, what is the need for legislation? The question of making arrangements by which the attendance of counsel can be secured to the same extent at any rate as is the case in the Courts of Chancery can surely be dealt with without legislation. It is a matter which, as it seems to me, may easily be arranged; but, so far as I have heard, no attempt has been made to approach the Bar on the subject either by clients or solicitors. Nor have I any doubt that if solicitors would take the matter into their own hands, and instruct only those whose attendance they are sure of, they are quite strong enough to protect themselves and to force the Bar into satisfactory arrangements, and the complaint of which we have heard so much will soon come to an end. But, after all, this question of the non-attendance of counsel, though principally present to the mind of my hon. Friend, is but a small part of the change which his Bill, if carried, would effect. Could he confine his Bill to the objects he has in view, though unnecessary and prejudicial, it might be less dangerous. If this Bill were to become law, every barrister would become liable to his client for his conduct of the case, and for the opinion he may give upon it. Sir, if this were to be law it would put an end at once to all that was worthy and noble in the status of the Bar. My hon. Friend, no doubt, says, he has no intention of pro- 322 ducing such a result; but such a result must inevitably follow. The position of a barrister in relation to his client is well understood, though it is difficult to define. It is one of exceeding delicacy, of the greatest devotion on the one side, and of the utmost trust on the other. It is the position of advocate as distinct from that of agent or servant, and this distinction depends upon the absence of that very right to recover the promised honorarium which it is the object of this Bill to confer. Once establish the right to recover the fee, the relation of advocate ceases, and that of principal and agent takes its place. That advocacy should be permitted all civilized countries are agreed, and all confer upon advocates special immunities and peculiar duties. At present the advocate makes the success of his client's cause his first and paramount object; but he does this with due subordination of the case to his conviction of the rights of the matter and the law bearing upon it, to considerations as to public time, and to the feelings of others, and he considers himself at liberty entirely to disregard, if necessary, the instructions with which clients too often hamper him as to the manner in which he shall conduct the case. But if, instead of being an advocate, he were to become a paid agent, his agency would make him the mere mouth-piece of his client, and it would necessarily follow that he must say exactly what his client tells him to say, call the witnesses whom his client desires him to call, and, it may be, make attacks which he knows to be unwarrantable and argue points of law which he knows to be untenable. In fact, that freedom of speech which has been a power to the Bar and a great glory to the country would no longer avail for his protection—while, on the other hand, being so directed, the client would properly be answerable for all his counsel may in the heat of the moment have said against his opponent. Sir, so great an alteration in the status of the most liberal Profession in the world will not only lower the character and position of its members, but be a great disadvantage to the public at large. The interests of the Profession and of the public are in this matter identical. If there is one thing more than another in our political and social system of which we are all proud, it is the cha- 323 racter of our judicial bench. We are all assured that even when disappointment suggests or fancies prejudice or infirmity in the conduct of a cause, no one person has even ever hinted at partiality or corruption in our Judges. Our Judges, we know, have been and are amongst the foremost minds of the country. Upon their character for integrity and impartiality depends the satisfactory administration of the law. The Judges have been, and I hope will continue to be, selected from the Bar. To the Bar has ever been drawn as to an irresistible attraction, all that is most hopeful and promising in each rising generation, and in the training and practice of advocacy our Judges and statesmen have been made. Nothing, then, could be more disastrous than that a law should be passed which should turn from a Profession which has now such a charm those young men of ability and promise, who would otherwise become in the future our Judges and lawgivers. What could be more deterrent than that they should be liable for opinions they honestly give, or for arguments they use, or discretion they exercise, to be harassed by disappointed clients? The nature of the subject with which an advocate is concerned, differs from that of an ordinary Profession. From the nature of the case, in almost every law-suit, both parties start with a conviction that they are in the right, while it is inevitable that one or other must end by being shown to be in the wrong. Seeing how much of mere chance and what differences of opinion there are in every litigation, how can any man of independence face the responsibility of giving an opinion for which, if it ultimately proves incorrect, he is subject to be made liable in an action? It may be said that a bonâ fide opinion even if wrong would not involve such liability, but this, I say, that the very liability to be impleaded would take away that independence from a barrister which is now his greatest pride, and his client's greatest safety. No one makes any complaint as to the manner in which the Bar conduct their cases, and the public would be the first and greatest sufferers by putting any fetter on their discretion. My hon. Friend has no doubt produced a formidable amount of testimony as to the existence of serious inconveniences, but he must 324 remember that upon this subject all eyes have been turned upon him, and he has been made the recipient of every grievance, and no wonder that he sees only the black side of the picture. But the House will remember that no one person whose conduct has been observed upon by any of my hon. Friend's correspondents, has had an opportunity of explaining the matters charged against him. By no means complaining of my hon. Friend for bringing the subject forward, and still less of the manner in which he has done so, I still think that the best interests of the public will be served if the House will adopt my Amendment and reject this Bill.
§ MR. WHEELHOUSE,
in seconding the Amendment, after congratulating the hon. Member for Hull (Mr. Norwood) for the temperate language in which he had opened the debate generally, thought it was only due also to the hon. and learned Member for Coventry (Sir Henry Jackson) that he should offer to him his warm thanks on behalf of the Common Law side of the Profession, for the very lucid and clear way in which he had put the whole case before the House. In the Courts of Westminster Hall, members of the Bar had not, and indeed could not have, the like opportunity as Chancery Barristers possessed of attending, to the same extent personally, to the cases in which they were instructed, because in a much larger ratio the Chancery Courts had their own practitioners attached to them continuously, while at Common Law there were often three or four Courts sitting simultaneously, sometimes in Banco, sometimes at Nisi Prius, and the advocate himself, even before the late Judicature Act, scarcely knew in which Court his cause was likely to come on; while still more was it the case at present, when causes, though headed as belonging to one Court might be, and indeed often practically would be, transferred to some other. He ventured to assert that there was no class of men more anxious to perform their duty than were barristers, and for the best of all possible reasons—namely, that to no one was it of more consequence (with the exception of his client) than to the barrister himself not only that he should perform the duty cast upon him, if he could possibly do so, but for his own credit's sake that he should put forth the most strenuous manifestation alike 325 of ability and will. No one knew better than he that his forensic reputation was more or less involved in every case with which he had to do. Barristers never, as he apprehended, undertook functions which they could not expect to perform; and they carried out, in all cases, what they undertook, which was to do the best they could under the circumstances in which they were placed. Nay more, in ninety-nine cases out of a hundred, they thoroughly performed the duties entrusted to them, and if by some accident over which neither the advocate, the solicitor, the Judge,—nay even the jury itself had any control, the barrister was unable to perform the duty, surely that was no reason why he should be exposed to legal proceedings by some disappointed client. It must be borne in mind, moreover, that while every other man, engaged either in professional or commercial life, could do a large part of his work vicariously, the barrister, so far as Court work, and indeed a large portion of Chamber business was concerned, must do his own work entirely himself. He would remind the House, moreover, that that part of the work which he might denominate "public" was often as nothing in comparison with the thought and elaboration devoted antecedently to every case, and was it to be said that if on some one occasion, possibly, any unforeseen occurrence caused the involuntary absence of counsel from his place, therefore, all the fruits of his previous labour should be lost to him; nay, far worse, that he should be exposed to the annoyance and the risk of legal proceedings for having most conscientiously tried to do his best. It might be said, no doubt, that such proceedings if attempted, must come to nothing; but there never was a more fallacious view; the very entry of such a matter must have a most damaging effect on the reputation of the practitioner attacked by it. Surely it was no justification for putting the advocate to the annoyance of a prospective action, because a client might think that he had held a mistaken view, had omitted something which the solicitor had instructed him to say; some question which the client might (perhaps most unwisely) have insisted upon, or had failed to take up some point which he himself knew to be untenable. He was glad to hear the hon. Member for Hull make the state- 326 ment that he had no intention of prejudicing the legal Profession, but it was scarcely possible for any gentleman in commercial life, however eminent, to appreciate correctly what would or would not injure that Profession; or even (if he might say so), form a proper judgment of the rights, the duties, or the responsibilities attaching to it. The hon. Member had told them that he had hoped the Judges during the last Long Vacation would have regulated, as he was pleased to term it, the proceedings of the Bar; but it was a most difficult matter to say what means the Judges had of doing anything in that direction, while members of the Bar were themselves nearly altogether, if not absolutely, powerless in the matter. But while he made this statement, he himself by no means thought the difficulty insuperable, or the position of which complaint was now made completely without remedy. The hon. Member for Hull had, inadvertently no doubt, used the word "blame" or "blameworthy," and while he was sorry to have heard it, he, on behalf of his own branch, and if he might take upon himself to say so, in this instance, for the solicitor's branch of practice as well, thought, that if by the expression it was sought to convey some notion of possible avertible negligence, he thought the hon. Gentleman was in error; but if it only meant the idea that no one saw or would undertake to provide a remedy, then—to a certain, though limited, extent perhaps—the hon. Member for Hull was right. The simple truth was this. If the gentlemen in the other branch of the Profession, or even their clients were determined to retain and to secure, if possible, exclusively, the services of Mr. A or Mr. B they must bear in mind that there were others equally determined to obtain the services of the same gentlemen; and it was by solicitors giving out the work much more widely than it was at present distributed, that the alleged evil against which this Bill was directed could be under any circumstances remedied. It must be borne in mind, too, what a retainer implied. It was not merely the condition of securing the active services of the counsel to whom it was offered, but it precluded all possibility of his appearing on the other side, an advantage which could scarcely be over-estimated, and which was never undervalued. He 327 was sorry to have been told by the hon. Member for Hull that he had known cases where life was at stake and counsel neglected their duty. In a practice extending over more than 30 years, in one of the largest circuits in England, he could confidently say that he had never known a case where a man's life was at stake, in which the counsel engaged to defend him, whether retained in the ordinary way, or assigned the duty by the Judge, had not most thoroughly and conscientiously performed the awfully responsible duty devolving upon him. Had the hon. Member known as he (Mr. Wheelhouse) did, with how much of cost, how much fear, how much anxiety, and how much foreboding cases of that kind were approached he would not be under much apprehension that in such circumstances, the slightest miscarriage of justice was likely to arise. This he must say, though he was extremely anxious on this matter to avoid everything like a supposed endeavour of obtaining misplaced sympathy for his Profession from any portion of the House. Indeed, if he might express the opinion, he could not help thinking when he heard such statements made, affecting a branch of the Profession to which he more especially belonged; indeed, he must state he felt that the hon. Member for Hull, however desirous he might be to carry his measure, knew but very little indeed on that particular topic. There was another view of this matter which had been presented to them. It had been said that, the idea of an honorarium was long ago exploded; in fact, was, nowadays, out of the question, and that the relations between counsel and client were as much a matter of bargain as any other arrangement, and that there were scarcely two opinions in the Profession, or indeed out of it, upon the subject. He had yet to learn that these relations were, or could be, considered in the light of a bargain; indeed, the idea involved what seemed to him something like the very impossible fallacy on which this Bill rested. The only bargain there could be, was that counsel should do his best; if for a moment any idea beyond that were introduced it would at once detract from the dignity and independence of the Profession, and absolutely derogate from its honour. He thought that the speech of the hon. Gentleman had shown 328 that he was neither so accurate in his knowledge, or so thoroughly acquainted with the requirements or the feelings of the Profession, as a professional man himself would be. Nor was this to be expected. He (Mr. Wheelhouse) knew that solicitors had at all times the most earnest desire for the welfare of the clients whose business was entrusted to their charge. At the same time every hon. Gentleman in the House knew that each single solicitor had the power of making choice not only of one or two counsel, or, indeed, of half-a-score known ones of tried ability, but of hundreds, all equally able—often known to the solicitors themselves, though unknown to the outside world—only waiting for encouragement and opportunity. Because an individual counsel could not attend at one time, in two Courts; it might be of the Common Law, or in the Chancery and Appeal Court at the same moment, to throw the whole onus upon the advocate, appeared to be placing him in a somewhat unfair and invidious, not to say harassing and unfortunate position. They had no right to expect more from counsel than, humanly speaking, they were able to perform, and he sincerely hoped and trusted that they would hear no more of those allegations, of which (while but little had been said to-day in the course of the debate) he had been told abundantly elsewhere. He had looked through the clauses of this Bill, and he ventured to think that with the exception of the imaginary boon sought to be conferred on counsel by the 1st section, it was a Bill of Pains and Penalties from beginning to end. However they might modify the 2nd clause, that must remain its clear and definite proposal and aim; while the 3rd was to his mind more completely penal even than the other. Nothing could make either of them less so, however the language in which they were couched might be changed. The speech of the hon. Member by no means went so far as his Bill. The proposed measure was unlimited and without restriction. He was bound to say that during the course of his professional life he had performed his duties hitherto (he trusted not altogether unsatisfactorily) without the restraint now sought to be imposed, and he still wished to be left to the exercise of his unfettered discretion. If this Bill became law, any member of his branch of the Profession 329 would at once be liable to be served with a writ for any breach, or supposed breach, of duty, no matter what might be the attendant circumstances. The position in which they would find themselves would be the most unfortunate one it was possible to conceive. Any disappointed client, any dissatisfied solicitor, and there were such (though happily few and far between) thinking his counsel had not done what he, the client, was pleased to consider his best, could fire off a "claim," and in a Court of Justice expose his late advocate to the pain of making public all sorts of private matters which had been discussed between them, and, moreover, subject him, it might be, to an enormous amount of costs. Even if that were justified or justifiable, as between themselves, there would still remain the question, how far was it right and reasonable (in such a case) to introduce the matters and affairs of third parties, who, possibly, were totally innocent of all connection, except a merely accidental one, with the inquiry. But beyond this, it could not fail to have the effect of curbing most seriously that free expression of view and of opinion which had been for centuries the pride and glory of the English law and of our English Courts.
§ Amendment proposed, to leave out the word "now" and at the end of the Question to add the words "upon this day six months."—(Sir Henry Jackson.)
§ MR. GREGORY
said, it was a delicate and invidious matter to raise any question connected with an honourable Profession, but as he thought it deserved the attention of Parliament, and he happened for the present year to be President of the Incorporated Law Society, he thought it right to express what he understood to be the views of that body, as well as himself upon it. He desired, in the first place, to refer to the existing distinction between his branch of the Profession and that which was the object of this Bill with reference to liability to their clients—because he thought it bore in some degree on some of the points raised by the hon. and learned Member for Coventry (Sir Henry Jackson) and the hon. and learned Member for Leeds (Mr. Wheelhouse). Solicitors were personally liable to their clients for the conduct of their business and for the advice they offered. 330 That liability had been somewhat freely enforced, and many men of his branch of the Profession had suffered materially, though they were innocent of any design against the interests or the wishes of their clients. That responsibility met the solicitor at every moment and was impending over him every hour; but notwithstanding that position solicitors did give honest and disinterested advice to their clients—he was speaking of the better class of solicitors—and put moral pressure upon them to induce them to avoid or abandon litigation when necessary for their interests. He could assure the House that it was much easier to induce a client to enter into litigation than to keep him out of it; and when a man went with his temper excited and his feelings aroused by a sense of wrong to consult his solicitor, and the latter had to point out to him that there was another side to the case, it was very difficult to get him to see it; but when persuasion was duly exercised and accepted the result was generally much to the benefit of the client. Well, counsel would not be more hampered than the other members of the law in giving honest and sound advice, should a similar Bill to this be passed. Another point raised against the Bill was this, it had been said that a solicitor ought not to send a brief to a barrister whose practice was so large as to render it doubtful whether when the case to which that brief related was called on in Court he would not be engaged in another Court, and that the brief should be sent to other counsel who could attend to the case when called on. But it was not every solicitor that could act freely with regard to the giving of briefs to barristers. It was not every solicitor who could rule his client in the selection of counsel; and many solicitors were struggling young men, and if cases in which they were concerned had been lost they might be told by their clients that that was in consequence of their not having employed some well known counsel. A solicitor who had acquired a status in his Profession did not fear to act in opposition to the wishes of his client with regard to the selection of counsel, but that course could not be expected in the case of a struggling young solicitor. With regard to the practice—to which there were many honourable exceptions—of barristers accepting briefs in more cases than they 331 could attend to, as well as another which was equally if not more objectionable—namely, that of counsel through their clerks demanding fees beyond those marked upon their briefs, he believed it was to a great extent attributable to what occurred during the railway mania. Frequently during that period, in the case of railway schemes that were undergoing consideration by Committees of the House, briefs were given to counsel, not with the view of securing their services, but simply to prevent their appearing on the other side. This had for a consequence the effect of modifying and derogating from the old feeling which actuated the Bar with respect to personal interest, and set aside the ancient practice in favour of the more modern doctrines that a counsel might accept briefs without limitation. Then the modern system of bargaining for fees did not exist to the same extent as now when he (Mr. Gregory) first entered on the practice of the law. Then the counsel when he accepted a brief entered into an implied and honourable engagement to attend to the case to the best of his ability, irrespective of bargain. He remembered that the late Lord Kingsdown, when he knew that he should be engaged in the Court of Appeal on certain days, put up a notice in his chambers that during that period he could not take any briefs. Under the present system solicitors were frequently placed in a most painful position, not only from the loss of the services of their counsel but by the payments which they had to make to secure them. On the one hand, the solicitor had to consider the means and resources of his client; on the other, it was intimated to him that the fee was inadequate for the services expected. His client might be an individual of limited means, opposed to a public company with large resources at their disposal, and he might be told that the fees given by them ought to be the measure of his. No doubt that evil existed as well as that of counsel not performing the duty they had undertaken to discharge, and the question was how best to remedy them. He (Mr. Gregory) was not prepared to go as far as the hon. Member for Hull (Mr. Norwood) in this matter. He agreed with him that the old principle of honorarium was practically abolished, and complaint was frequently made to the Law 332 Society of non-payment of counsel's fees, and, as there was no legal means of recovery, the Society dealt with cases as they best could; but the Council had no jurisdiction over solicitors who were not members of that Society. Though he admitted that barristers should be enabled to enforce payment of their fees, he did not agree to the proposition of the hon. Member for Hull that their status in relation to their duties to their clients should be altered. Great latitude must be allowed to counsel in the conduct of their business. He believed that generally counsel exercised a very sound discretion, and he did not wish to do anything which would hinder the exercise of their discretion. But with reference to barristers taking more cases than they could attend to, and the regulation of their fees, he thought some remedy should be adopted. He wished some proposal on that subject would emanate from the Bar. For that purpose he ventured to throw out a suggestion last year, and he regretted that during the interval a proposal had not been made. He held in his hand an extract from Rules of the Common Bench made in the reign of King James I., which was to this effect—That if any Serjeant or counsel-at-law shall take any fee to be accountable for any case and shall not attend the same case accordingly, on complaint or information given to the Judges, the Judges shall in their discretion order a repayment of the fee; and if any Serjeant or counsel-at-law shall take excessive fees, such Serjeant or counsel-at-law shall, in the discretion of the Judges, make a restoration of the excess upon pain of not practising in Court for such a length of time as to the Judges shall seem fit.Some tribunal or authority was required, to be constituted either by the Bar or by those connected with it, to which solicitors should have the power of making representations on those matters. At the proper time, therefore, he would offer to the consideration of the House a Motion for a Committee to inquire into the subject of the relations of counsel with solicitors and their clients.
§ MR. SERJEANT SIMON
said, that the case as put by the hon. Member for Hull (Mr. Norwood)—namely, that when a man was engaged to do a given work for a given remuneration he ought to perform that work—was one which would find a ready assent. But the question really at issue was not that 333 proposition. It was, in truth, a far higher and more important question. It was a question affecting the rights and liberties of Her Majesty's subjects. The position of the barrister was of a public character. He was public property, at the command of the public, who had a right to claim his services. His privileges as an advocate were not personal to himself; they were the privileges of the public, whose servant he was. To attempt to cripple him in the discharge of his duties, or to lower his position by placing him upon the footing of a mere paid agent, was to strike a blow at the rights and liberties of the public. There was no analogy whatever between the position of an advocate upon, whose personal abilities skill and prowess, the dearest interests of society, were at times dependent, and that of a solicitor, with his staff of clerks and others to carry out the details and business department, so to speak, of the Profession. The duties of a counsel were frequently of the most difficult and delicate nature; they made a large demand on his learning, ability, and discretion; he was often called upon in a critical moment in the conduct of a case to take a particular line; and how was it possible for him to exercise a proper discretion with the fear of an action before his eyes? Counsel might not call a witness whom the solicitor or his client thought should be called, or he might not put a question which they thought should be put, and then he was to be liable to an action for negligence, or for not keeping his contract with his client. How was the independence of the Bar, which was its life and soul, to be maintained under those circumstances? If they suppressed the freedom of the Bar they would suppress the freedom of a Profession by whose independence many a public right now enjoyed had been won, and many of our most cherished liberties had been fought for and maintained. [The hon. and learned Gentleman then proceeded to show how the provision of the Bill rendered counsel liable not to return his fees, but to an action for damages for not attending personally to a case entrusted to him.] The effect of that would be that if counsel took a particular brief he could take no other brief till the first case was disposed of. If the Bill were passed it would be impos- 334 sible to work it. Under the Judicature Act, supposing he confined himself to a particular Division of the new Court—say to the Queen's Bench Division—he might appear there and be ready to go on with his case; but the case might not come on and might be put down next day for the Common Pleas Division. If he was to confine himself to his own Division, and the case was transferred to another Division, and he could not go there, would it be fair to render him liable to an action? There were many instances on Circuit in which the business of the Courts was arranged and distributed in a way over which counsel had not the least possible control, and in which it would be most unjust to make him liable because he could not appear in two places at once. Even at the Chancery Bar, where counsel practised before one particular Vice Chancellor, a difficulty was sometimes felt in that respect, because it was often desirable that counsel who had been engaged in a case in the Court of First Instance should appear in it in the Court of Appeal. Formerly the Court of Appeal sat on particular days and in a particular place; but now no one knew when it was going to sit, and, moreover, there were two Courts of Appeal, one sitting at Lincoln's Inn and the other at Westminster. With regard to the power which the hon. Gentleman proposed to give to the Bar for the recovery of their fees, the Bar did not want such a privilege.Timeo danaos et dona ferentos"—They were quite content in that respect with things as they were. That privilege would be no protection at all to the younger members of the Profession, for the moment a young barrister brought an action to recover his fees he would certainly be sent to Coventry by the solicitors—and as to the senior members it would be useless, for they did not require protection. Solicitors were now sufficiently protected, and there was no real analogy between the position of a barrister and that of a solicitor. Members of the Bar had been represented as if they were great cormorants for fees, but if they looked at an attorney's bill they would find that, as a general rule, not one-fiftieth part of it consisted of counsel's fees. In conclusion, he hoped 335 the House would pause long before it accepted such a measure as that, because, by degrading the character of the Bar, they would strike a blow at a power which in periods of political danger had been, as they might be again, the best friends, and sometimes the only stanch supporters of the liberties of the subject.
MR. GATHORNE HARDY
said, that as the discussion had been somewhat confined to those who proposed the Bill and those who at present practised at the Bar, it might not be unreasonable for one who had only a recollection of the Bar and a great regard for it to say a few words. The Bill was a large measure to meet a small evil. It was also somewhat inartistically drawn, and was, besides, founded on a specious pretext altogether alien from its real purport. It professed to be an enabling Bill—a Bill to enable counsel to recover their fees; and it went on to render them liable at law to the persons employing them. So that while on its face its object was an enabling one, it was really a Bill to fix a liability. The authors of the measure seemed to think those two things were equally pressing, because the terms of the Bill were that the Bar should "enjoy the same rights and liabilities." His impression was barristers neither wished to possess the rights nor "enjoy" the liabilities. It would be a strong measure on the part of the Legislature to attempt by Act of Parliament to alter the whole character and condition of a great Profession, and to prevent them from continuing, as they now were in all civilized countries, free from all liabilities, and rewarded by honourable remuneration. Were they to attempt by legislation to alter the whole character of a great Profession on account of a few of its members? Suppose they did the same with the great body of physicians. Men had been prepared for and had entered a great Profession which was free from those liabilities and did not possess the privilege of enforcing its fees; and was Parliament all of a sudden to interfere with them and make them traders and bargainers in every case they undertook? It would be of no benefit to the country to make such a change. That Bill went practically to a fusion of the two Professions, for it was one of its provisions that a barrister should act for a client without the intervention of an attorney. That had 336 never, he believed, been enacted before in any country, though in some it might have been practised under certain conditions and to a certain extent. They were now asked for the first time to enable the advocate to contract with the client himself, and thus to extrude and thrust out from their position that Profession which the hon. Member for Sussex (Mr. Gregory) so much adorned. He listened to that hon. Gentleman with great interest and pleasure, because he spoke temperately and carefully, evidently seeing all the difficulties which he was about to encounter. There would be enormous difficulty in carrying out the proposals of the hon. Member for Hull. No barrister, however honest, could ensure himself against the difficulty of having cases for which he was engaged coming on in two places at the same time. Many changes had occurred since he himself practised at the Bar. He recollected that when he went the Northern Circuit a leading counsel—a man like Baron Martin—was practically retained in every civil case there. In a great many cases points were reserved for the opinion of the Court above—which was not one Court, but several in the old time—namely, the Queen's Bench, the Common Pleas, and the Exchequer. The cases in which Mr. Martin had been engaged at York or Liverpool came up to be heard in Banco on points of law that were reserved, and they came on without regard to Mr. Martin's convenience in holding the briefs, but according to the convenience and the arrangement of the Court; and what benefit would it have been to any suitor that he should renounce the assistance of the great lawyer he had employed for the sake of having the services of a man who was always sitting in one particular Court? It might be in the power of a great advocate to appear in many of those cases, but he defied him to appear in them all. The hon. Member for Sussex (Mr. Gregory) said that if a solicitor did not employ a fashionable barrister his client would complain of him. He employed a fashionable barrister on two grounds—first, to get the best assistance he could for his own client, and next to prevent his opponent from getting it. The attorney in such a case was content to neutralize his opposition if he could not secure the services of the man he wanted. Clients, too, had 337 their strong preferences. There was a ludicrous story that once at the Liverpool Assizes a prisoner who stood waiting to be tried, turned round and said to his attorney, "Where is my counsel?" The attorney said, "I have a very eminent counsel here," pointing to him. "But," said the prisoner, "that is not my man—that's not the man I had before." "Well," remarked the attorney, "although he is another man he will undertake your defence." "He certainly shan't," rejoined the prisoner, "for I will rather plead guilty." Since then there had been a change. Under the Judicature Act they had cases coming on not only in the first Court to which they were sent, but transferred from one to another; and, therefore, it was impossible for anybody to be absolutely sure of the counsel he had engaged. He was astonished at the number of days that cases now lasted. Formerly very few lasted more than one or two days, but now they extended to 10 or 12 days and not very unfrequently even to a month. Conceive the position of a barrister who had seen the case he was going to conduct on the list and had waited many days. In consequence of the delay in some cases, or the rapidity of others, he found he had different cases coming on in different Courts at the same time; and what was he to do? The attorneys would not wish him to give up his brief, but would prefer that he should give all the help and advice he could, give his best assistance to instruct new counsel, and exercise as much supervision as possible over the matter of which he had made himself master. Again, if they turned the advocate into an agent and a bargainer, they must enable him to withdraw from the position in which he was now—bound to accept the first retainer—and must give him a choice, thus changing his whole character. When times of pressure came, eminent counsel and the attorneys would probably "contract themselves out" of the Bill altogether. Moreover, if they reduced the advocate to a position to which they ought not to reduce him without the strongest ground or without the clear proof that the Profession was rotten at the core, what were they to do in those cases where the Judges assigned counsel? Now, it was an honourable distinction to be assigned as counsel; but if barristers were to be 338 assigned as counsel with this millstone of liability hanging round their necks, they would have some hesitation in accepting the duty. Again, the Bill would have a crippling effect on the barrister. The case he had to conduct often turned out when in Court to be entirely different from what appeared on his brief, and counsel must use an almost unlimited discretion as to the course to be pursued. But how could he do that if he had sitting behind him an attorney who insisted on his calling this witness or that one, and who, if he refused, might hold him legally liable? And how, again, could a jury satisfactorily decide on a question as to how an advocate ought to have conducted a case in court? If counsel were under such pressure to attend to instructions, and were either to call or abstain from calling a particular witness in deference to them, they would often, and most unjustly, consign their clients to ruin. Being himself emeritus, the Bill did not affect him personally, but he thought it would alter the whole status and character of the English Bar, and make the English barrister different from the advocate of every other country. The French Bar and the Scotch were both free from this proposed liability. By imposing it on the English Bar they would not benefit the public, but would deprive the country of the inestimable advantage of having in its Courts men who could fearlessly, openly, and without dread assist the Judges in the administration of justice by speaking in the name and putting forth the strength of their great and honourable Profession. For these reasons he trusted that the House would negative a measure which would be destructive to the interests alike of the Bar and of the public.
MR. OSBORNE MORGAN
said, he must tender his hearty thanks on behalf of the Bar to the right hon. Gentleman who had just sat down for his admirable speech, which showed that, although he had long ceased to practice in that Profession, he had not lost that honourable spirit of independence which was its pride and glory. For himself he was not there to justify such conduct as the hon. Member for Hull had described, and which, though it might assume the name of professional etiquette, he should call by an uglier name; but he would venture to assert that it was conduct of 339 but a very few persons. As to bargaining and haggling for fees—which, the Bill would certainly not prevent, and as certainly encourage—all he could say was, that he knew absolutely nothing about it. He believed that 99 men out of 100 would argue a case quite as honestly for a fee of five guineas as for one of 500—the last thing a counsel looked at was the fee endorsed on the brief. He declined to accept compliments which had been offered to the Chancery Bar at the expense of the Common Law Bar, for the latter was quite as honourable and as right-minded as the former claimed to be. If the Bill passed, he believed the practice of advocacy would fall into the hands of men very different from those who now pursued it, for no barrister of ability would consent to conduct a case, without following the example said to be set by so many landlords in the case of the Agricultural Holdings (England) Act in contracting himself out of the operation of the Bill. The Profession of the Bar differed essentially from other professions. If a banker lost the securities or a carrier the luggage entrusted to him the person aggrieved could have his remedy, but when a barrister lost a case there were not the same means of judging whether the result was due to his negligence or not. The peculiar difficulties a barrister had to deal with were somewhat strikingly illustrated by a story told of an eminent counsel well known in his day as "Johnny Williams," afterwards Mr. Justice Williams. While he was engaged in a murder case, his solicitor desired him to put a certain question to one of the witnesses who was under cross-examination. The question, Mr. Williams foresaw, might hang his client if answered in a particular way, and he accordingly refused to put it. Thereon the solicitor said that if counsel declined to put the question, the blood of his client would lie upon his head. Under this pressure, the counsel did what he was required to do, and the result was fatal. Then shutting up his brief, and turning to the solicitor, Mr. Williams said—"You have hanged my client. The best thing you can do now is to go home and hang yourself, and when you meet him 'in another place,' as you are sure to do, go down on your knees and beg his pardon." That evils existed in connection with the Profes- 340 sion he did not deny, and he hoped the discussion which had taken place would tend to remedy them, but he did not think any good would be effected by the Bill.
§ MR. CHARLES LEWIS
said, he trusted that, at all events, the result of this discussion would be that the Bar would not allow the present state of things to remain without a remedy. He begged the House to remember that the leading question before them was this—whether a professional man of high class ought to be allowed to retain, say, a fee of 100 guineas received by him for a given service, which he failed to perform. It was certainly most anomalous that any man should receive a large sum undertaking to perform a certain service in consideration, do nothing for it, and yet keep the money. Not one speaker on either side of the House who had opposed the Bill had ventured to take up the controversy on that particular issue or to point out what remedy an unfortunate client could have who had lost his money under such circumstances. The next question was this, What was there in the origin, the history, or the nature of the service rendered by a person called a barrister-at-law which exempted him from the operation of the ordinary principles of morality and fair dealing? If these questions were satisfactorily answered the members of the Bar, he admitted, would gain a great moral victory and exculpate their Profession from the stigma which attached to it on account of the conduct, not of all, but of a great many of their number. In introducing the Bill the hon. Member for Hull (Mr. Norwood) spoke with what he could not but call great moderation; for, unfortunately, it was the case that every solicitor of any experience in town or country had information in his office and had conducted cases illustrative of the dire and grave evils arising from the state of things which the Bill proposed to remedy. He might be thought to be speaking harshly, but it was the common experience of solicitors to resist and to quiet in the best way they could the complaints of clients who, through their instrumentality, had been made to pay heavy fees to barristers without receiving any service in return. It seemed to him the right hon. Gentleman who spoke from the Treasury bench (Mr. Hardy) did not meet the pinch 341 of the case. What the supporters of the Bill complained of was the so-called etiquette of the Profession, which led men to think it consistent with honourable principles to retain money received by them for services which, from some cause or other, they failed to perform. He asked the House to recollect before rejecting the Bill that every line of it was open to such amendment as would prevent any substantial injustice being done, and that the state of things which it was designed to remedy conflicted with the first principles of morality and common honesty. The engagement between a barrister and his client was now substantially a bargain. Last year, in the course of the discussion on the Judicature Bill, he read a most remarkable correspondence, which was only typical of what occurred every day. ["No!"] Hon. Members who said "No" did not have to bear the brunt of the system. After a brief marked 20 or 30 guineas was delivered to a barrister, either on circuit, in the Court of Chancery, or in the Common Law Courts, it was a common thing for his clerk to come to the solicitor and say—"Counsel on the other side have had 20 guineas more than we have, and we expect an increase." ["No!"] Well, if hon. Members did not believe that statement they could let the Bill go before a Select Committee, where the truth of the matter would be ascertained. If he and those who agreed with him had an opportunity of proving the extent of the evils he had referred to, they would do it. In the correspondence he read last year, the clerk of a distinguished counsel, on the very evening before a particular case was to be heard, wrote to the solicitor concerned, stating that the fees on the other side were so much more than his, and insisting on getting an increase before the case was opened. No doubt they had to deal with an honourable Profession; but evils did exist in connection with it, and it was for the purpose of remedying those evils that the Bill was introduced. It was all very well to say that the public and the solicitors were to blame; that the tendency of people was to run after the most successful men in every Profession, and that solicitors were in the habit of sending their business to two or three particular sets of chambers. However true that observation might be, it furnished no argument against 342 legislative interference with a bad system, under which a poor man, fighting perhaps against a rich Company, was compelled to part with a large sum of money without receiving anything for it. If the House declined to consider that grievance on the mere and fallacious ground that it was within the power of the solicitors or the barristers themselves to remedy it, what might be expected to happen? Why, there was a preliminary discussion of the present question near the close of last Session in connection with the Judicature Bill, and during the nine months that had elapsed since then not the smallest attempt had been made to remedy the evils which admittedly existed. A meeting of Barristers was called to consider the provisions of the present Bill; but on the day appointed a notice appeared stating that the meeting was adjourned; and from that time not a single thing had been done or a suggestion made for remedying the evils complained of. He had hoped to hear of some steps being taken by the members of the Bar to exculpate their Profession, but he had been disappointed. And yet the House was told the remedy was so simple! If the practices complained of were confined to a few persons, why, he would ask, did not the Bar, as a body, stamp those practices out? Let hon. Members refer to their own experience on Private Bill Committees, and they would see the evil of the present system in full bloom and vigour. Things had got to such a pass that every Railway Company who came to that House retained two or three unnecessary counsel, and paid their fees day after day without getting any service in return, simply because of the pernicious practice which the Bill proposed to abolish. It was said the Bill would destroy the Bar; but the House had heard language of that kind before. Every interest which they attempted to reform used it. The Bill would destroy the Bar. By what? By making counsel return money which they had not earned? By rendering them responsible for so deserting cases as to involve their clients in disgrace and disaster? What! that destroy or bring dishonour on the Bar? Why, a man of honour felt bound to perform his contract if he could, or make amends if he could not, and to compensate his neighbour for any injury which through positive neglect he might 343 have done him; yet they were told that the honourable Profession of the Bar would be disgraced by the liability to do what was right—for that was all which the Bill sought to impose on them. There was another aspect of the case, one which had been overlooked. A great evil in connection with the Bar was monopoly. Juniors, for the most part, had little or no chance of getting on, and nothing fostered that state of things more than the system which enabled solicitors—imprudently it might be—to shovel briefs into the hands of a few men, and which enabled those men to neglect them without feeling guilty of injustice. Now, if anything would tend to open up a career to young barristers, it would be a measure like the present, which would enforce the application of the ordinary rules of morality, and at the same time assist in the distribution of work at the Bar. As for the uncertain way in which cases came on for hearing in the Courts, the Judges, as soon as they knew that barristers were to be liable for neglect of duty, would take care to improve the arrangement, so that a man might not unexpectedly find himself called upon to be in two Courts at once. The Bar could remedy the evils he had complained of, and they had failed to do so. On behalf of unfortunate suitors who had over and over again suffered from dereliction of duty on the part of barristers, he asked the House seriously whether they would not at least open the door for a consideration of the question by allowing the Bill to be read a second time and to go before a Committee.
§ MR. HERSCHELL
said, he thought this discussion would do good, if only by calling attention to existing evils and stirring up those who had the remedy in their hands—and they were not exclusively members of the Bar—to apply it. But he did not think the Bill so entirely in the interests of the public as had been represented. He believed the evils of which complaint was made might be remedied without the aid of the Bill, and without introducing the mischief which undoubtedly the Bill, if passed, would produce. No one could deny the justice of the broad principle that a man ought not to retain money received by him in respect of a certain service which he did not perform—and if a barrister took money and did nothing for it, yet kept it, he was doing that which was con- 344 trary to the first principles of morality. But if there were instances of that principle being violated at the Bar, he believed they were extremely rare. What was the contract between a barrister and his client? Was it that he should, in no matter what Court and under no matter what circumstances, be always present and conduct the case from beginning to end? He ventured to say that an attorney who delivered a brief to counsel knew perfectly well that counsel would not and could not enter into any such contract as that. When aspersions were thrown broadcast on the Profession to which he belonged, he might be excused for entering into details to show the real condition of the case. Let him put it in this way:—A brief was delivered with a small fee—as was not unfrequently the case—to a counsel, who attended in Court to watch it—attended, it might be, day after day—in order to be present when it came on. Yet it might happen that, perhaps after a dozen attendances, the counsel who had got up the case, at the moment it was called on was in another Court attending to another case. Was it to be supposed in such an instance the counsel had done nothing for his fee? He denied it. Of course, if the understanding were that when a counsel had taken a brief he absolutely pledged himself that he would be present and conduct it, the case would be different. But all he could say was that with the present scale of fees such an undertaking would be impossible. Under such a system it would become a matter of bargain, and the best assistance would go to the man who paid the highest fee. The utmost that could be done when a brief was taken was to give every possible care and attention to it, and if counsel found at the last moment that the cases would clash, he should make the best arrangement he could in the interest of his client. He deprecated taking a brief with no reasonable prospect of being able to conduct the case. A man who took a brief without a reasonable expectation of being able to do this did a dishonourable thing, and should be reprobated; and he hoped that it was exceptional in the Profession. If, however, he confined himself to taking the work which he had a reasonable prospect of doing, there could be no blame in that. The best thing for the client was that the responsibility 345 should be on the shoulders of counsel to make the best arrangements. He denied that the effect of the Bill would be to scatter the business, and give opportunities to young men fresh from the Universities. How were young men fresh from the Universities to get known to those who were to instruct them? The work would go in all probability to a man who had a brother, a father, or some other relative in the other branch of the Profession; and he ventured to say the only way almost in which a young man of ability and talent for the law, who had no influence, ever got into work, was by his merits becoming known to counsel, who in an emergency called for assistance, knowing what was in the young man on whom he called. As a general rule, if proper precaution was taken, the interest of the client was better served in this way than if the brief was given back and somebody else instructed at the last moment. The evil which did exist ought to be met; but he believed a great deal of the evil was due to the branch of the Profession to which the hon. and learned Member for Londonderry (Mr. C. Lewis) belonged. Why did not the attorney tell his client who wished to secure a fashionable counsel that he would obtain the chance of his services only. After that, of course, if the client was content to run that risk no one could be blamed. He believed, however, a great deal might be done to prevent the evil by a better arrangement of the business of the Courts; but he denied that the remedy was to be found in this Bill. It was a striking fact that in France, where there had been no sparing of law reforms, the same system practically existed as here, and the counsel was not responsible and could not sue for his fee. He did not want to say a word in favour of haggling for fees, but that evil would not be prevented by this Bill. If the Bill were passed a sentiment would grow up that, after all, the advocate was the agent of his client, to do his client's work, be it clean or dirty work. The House little knew the pressure that was now put on counsel to ask questions to gratify the malice of his client. Such questions might be asked without liability to an action of libel. It was essential, therefore, that the advocate should be kept to some extent independent of his client. And this would 346 be impossible if it were a mere matter of contract between them. Did they think they would have the Bar better fitted to perform its duties if they taught the Bar to think the first thing was to fulfil the contract with their client—to give five guineas' worth for five guineas? He did not think so; and he trusted the House would not assent to the second reading of the Bill. He believed it would sow the seeds of decay and degeneracy in the Bar, and the decay and degeneracy of the Profession would be a misfortune not so much to the Profession itself as to the country, which had relied, and would still have to rely, upon the fearless independence of the Profession, and upon its considering that there were duties higher and more important than the bare performance of a duty to a client.
THE ATTORNEY GENERAL
said, the House would not consider it unreasonable that he should desire to say a few words on this Bill before the discussion came to a close. The hon. Member for Hull (Mr. Norwood) had opened the debate in a most courteous manner, and had shown himself thoroughly master of the subject; but he must say he admired the temper and tone and the ability of the speech of the hon. Gentleman much more than he admired his Bill. It had an air of suspicion about it. It offered a gift with one hand—the gift of being able to recover fees by legal process—but with the other hand it struck a fatal blow at what he believed was the independence of the Bar. The Bill would altogether destroy the relationship which now existed between barristers and their clients by making that relationship a mere contract. He did not deny that some of the complaints that had been made were founded on reason—various evils no doubt existed—some of them exceptional—which required a remedy. There had been in recent times, no doubt, a good many instances in which members of the Bar had taken more work than they could attend to; and he could not disguise from himself that there were cases in which eminent men had taken briefs—at the time thinking they would be able to attend to them, but who found afterwards that they could not do so—which they had not been able to attend to. What they ought to have done was to have returned the briefs and the fees. Haggling for fees was also an- 347 other evil which was unquestionable, and which ought to be deprecated. He must say, however, that in cases where briefs were accepted without a fair prospect of their being attended to by the counsel by whom they were accepted, the barrister was not solely and wholly to blame. But then the question came—how were these evils to be dealt with so as to remove the existing reproach? He had listened with some surprise to the somewhat bitter speech which the hon. and learned Member for Londonderry had thought fit to make. He (Mr. C. Lewis) represented the other branch of the Profession, equally honourable with that to which he (the Attorney General) belonged. It was all very well for his hon. and learned Friend to decry the practice of retaining celebrated barristers for causes when there was very little chance of their appearing. The fault, however, as had been abundantly pointed out, by no means rested exclusively with the barrister—the solicitor had to share the blame of the matter. The moment a case was ripe for trial the solicitor rushed off to a counsel of eminence and engaged his services, knowing perfectly well, he would venture to say, in nine cases out of ten that all he could expect was a mere chance of the advocate being able to attend to the brief. Sometimes eminent barristers found themselves forced to accept briefs in spite of their own self-consciousness that they would not be able to appear to plead the case. Often a brief was given simply in order to insure that the counsel would not be engaged on the other side. Why was this done? It was done for the protection of the solicitors who, if anything went wrong, could go to his client and say—"You must not blame me; I employed Mr. So-and-So. He was the most eminent counsel I could get. I did the very utmost for you." Do not let them, then, be indiscriminate in attaching blame to the Bar alone. And while he did not wish to justify all that was done, he hardly thought the accusation came with a good grace from the members of the other branch of the Profession. What was the remedy for the evils which were admitted? The present Bill seemed to him to offer a very inadequate remedy—in fact, to be no remedy at all. The chief complaint was that members of the Bar accepted work which they could not attend to. Certainly the remedy lay 348 with those by whom they were instructed. It was not absolutely necessary that a solicitor should hand all his briefs to one advocate. There were scores of advocates of equal eminence to whom the briefs might be given. With regard to the other, and he ventured to say, greater evil—the practice, which was alleged to prevail, but which he did not believe prevailed to any great extent, of requiring higher fees because the other side had higher fees—that was a matter which was contrary to professional etiquette, and if it were brought before those who had to a certain extent control of the Bar, it would be inquired into, and would be put a stop to. He believed the Bill would inevitably destroy the fearless independence and the usefulness of the Bar. A barrister was a man who ought not only to have a considerable knowledge of law, as well as a knowledge of the business of life, but he must be cautious and prudent, and, if occasion required it, bold and adventurous. It was, above all, necessary that he should be cool and self-possessed. The qualities, indeed, with which an advocate ought to be endowed were not very different from those which ought to be found in a General; and he should be capable of throwing over at a moment's notice a pre-arranged mode of conducting his case, and, if requisite, of disregarding his instructions. In scores of instances advocates had won causes by the adoption of such a course. But while that was so, an advocate could not afford to lose sight of his own interest and the interest of those who were dependent on him. He could not always avoid seeing his children in his brief. Well, now-a-days he might adopt the course which he deemed to be most conducive to the interests of his client, and with that view might disregard the instructions of his solicitor—the consequence being that he often succeeded. But if the present Bill were to pass into law, and he took that course, he might find himself involved in a responsibility which would lead to his ruin. If, disregarding his instructions, he were unsuccessful in his case, the result might be that an action would be brought against him which might succeed; and which, even if it did not, might still damage his reputation. Was it fair that he should be placed in such a position? Would it be any advantage to the public that he should be? Well, 349 again, if the Bill passed, and a barrister was obliged to attend to a case from the beginning to the end, a man of large practice might say he could not afford to do that, and that, although he had been offered a handsome fee, he would be precluded from earning a larger sum in the conduct of other business. The consequence would be likely to be a ruinous bargain for the client; for he might have, in order to secure the services of that barrister, to pay that larger amount. He was of opinion, therefore, that the Bill, in the interests of the public, was not a wise measure, and the House might rest assured that, even without regarding anything but his own interests, an advocate once engaged in a case would bring to bear upon it his whole powers; while he thought he might claim for the Bar that it had always been an honourable Profession, whose members, in the discharge of their duties, were actuated by higher motives. He hoped, therefore, the Bill would be rejected, feeling satisfied, as he did, that its passing would be the death-knell of the independence by which the Profession had hitherto been distinguished.
§ MR. NORWOOD,
in reply, said, he did not blame hon. and learned Gentlemen for the course they had taken in the defence of their professional interests; but he could not, notwithstanding what the hon. and learned Attorney General had said, withdraw the Bill. He had received no assurance that the matter would be promptly taken up by the Bar itself, and he was therefore compelled to obtain the sense of the House, and if the House consented to the second reading of the Bill, he had no objection to its going upstairs to a Select Committee; but he would take his stand on his Motion for the second reading, and while he did not pledge himself to details, he yet thought the question a most important one, and he would divide the House upon it.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided:—Ayes 130; Noes 237: Majority 107.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Second Reading put off for six months.