HL Deb 13 February 1843 vol 66 cc409-17
Lord Langdale

said, I have the honour to move the Second Reading of the Bill for Consolidating and Amending several of the Laws relating to Attornies and Solicitors. Your Lordships are aware that the Legislature has, from a very early period, thought it right to secure to all persons the right of employing attornies and solicitors to appear and act for them in the courts of justice, and to transact all legal business on their behalf; and also to adopt such regulations as were thought calculated to provide the public with attornies and solicitors duly qualified for the performance of the duties they undertook. The business in which attornies and solicitors are employed is of the utmost importance; it relates to transactions affecting the characters, the properties, and the lives of their clients. The agents and confidential advisers in such transactions have necessarily become a very influential body of men. Speaking in general terms, they may be truly said to be distinguished for their acquirements and integrity, but they are placed in circumstances and engaged in business often so little understood by those for whom they act, that it has been thought expedient and necessary to subject them to special regulations.

The laws which had previously been made for the admission and regulation of attornies and solicitors were superseded by the Statute 2 Geo. 2nd, c. 23. That act was experimental, and was to be continued for nine years only. It was explained, amended, re-amended, and prolonged by several subsequent acts, and ultimately made perpetual by the 30 Geo. 2nd, c. 19. The regulations were intended to secure the due qualification of the persons admitted to practice and to afford protection to clients against improper charges. To secure the qualification it was provided that the candidates should, before admission to practice, be examined as to their fitness and capacity, and should have had the means of instruction by employment and study in the service of qualified persons under articles of clerkship. And for the protection of the client against improper charges, attornies and solicitors were prevented from bringing actions for the recovery of their bills for business done in the courts, until they had first delivered the bills to their clients, who had an opportunity afforded them of procuring the bills to be taxed and moderated by the officers of the courts.

Subsequent to the time when the act of the 2 George 2nd, was made perpetual, it was thought fit to impose stamp duties on attornies and solicitors; and for the purpose of collecting the duties, it was by the 25 George 3rd, c. 80 enacted, that every attorney and solicitor admitted to practice should annually take out a certificate of such his admission, and of his enrolment or register; and that every such certificate should be charged with a stamp duty. And various regulations were made for imposing on attornies and solicitors, the obligation of taking out the certificate. And at a subsequent period, by the Act 34 George 3rd, c. 14, a stamp duty was imposed on articles of clerkship and on admittances. It is not proposed by this bill to interfere with the stamp duties; but I have thought it right to state them for the purpose of shewing the origin of the certificate which was merely fiscal.

After a considerable interval some further amendments were made in the laws relating to attornies and solicitors; and encouragement was given for their more liberal education in the Universities of Oxford, Cambridge, Dublin, Durham, and London.

The consequence of there being so many Acts of Parliament relating to the same subjects has been a considerable perplexity and obscurity in the law. Regulations which seem capable of being made clear, have become the subject of litigation and conflicting decisions; and to those who have considered the subject, it has long been thought desirable to consolidate the law, making, at the same time, such amendments as experience has suggested.

The subjects comprised in the present bill are principally these. First, the service of the clerks. Secondly, The examination and admission of attornies and solicitors. Thirdly, the certificates of their being duly enrolled; and, Fourthly, the taxation and payment of their bills of costs; and there are some matters of smaller importance which I shall have to notice as I proceed. The service of clerks is to be secured by articles of clerkship; and, according to the general rules, it is to continue for five years, but one of the five years may be served with a London agent, and another with a special pleader or barrister, and the service of five years may be reduced to a service of three years, if the clerk be a graduate of any of the English universities, or of the University of Dublin. It is further provided, that the master with whom the service is to take place is to be in actual practice for himself, and is to have been so for five years. But care is so taken that the clerk is not to be prejudiced by want of due gratification of the master; and any complaint of defective service is to be made within twelve months after the admission. In this part of the bill the only new provision is that which requires that the attorney or solicitor who takes an articled clerk shall have himself been in practice for five years. It has been represented to me that some clerks have suffered from want of experience in their masters, and I have therefore been induced to make this proposal which I submit, to the consideration of your Lordships, having myself some doubt of its expediency.

As to the examination and admission of attornies and solicitors,' the bill provides for the continuance of a real and efficient examination of all who are candidates to be admitted. The Act of Geo. 2d. provided, that the judges and the master of the rolls, or two masters in Chancery, should inquire by such ways and means as they thought proper touching the fitness and capacity of the candidates to be admitted. I am not aware whether any adequate examination was instituted upon or after the passing of the act, but if it ever was so, it had ceased to be efficient, and long before the year 1836, it had dwindled into a mere form. Instead of any examination at all taking place, attornies and solicitors were admitted on the proof of service, and on the certificate of barristers that they were fit. But in the year 1836 the Courts of Common Law, taking advantage of the establishment, and availing themselves of the assistance of the Incorporated Law Society, instituted a very efficient examination for ascertaining the attainments of attornies. This example was soon followed by the Court of Chancery, and, for about seven years past, there has been in every term a strict and most useful examination of the candidates for admission as attornies and solicitors. This examination has been productive of very useful results. I have been informed on authority, upon which I can rely, that a marked improvement has taken place in the conduct and character of students for that branch of the legal profession, and that the candidates from time to time present themselves for admission with proofs of increased acquirements, and better founded claims to respect and confidence. This bill provides for the continuance of this system of examination, reserving to the Judges and the Master of the Rolls the power of appointing separate examiners for attornies and solicitors respectively, and also empowering them, if they should so think fit, to appoint jointly one set of examiners for both attornies and solicitors. The examination is so conducted as to test the knowledge of the students in the practice in the Courts both of Law and of Equity. Whoever passes the examination is deemed to be qualified by his attainments to be both attorney and solicitor. One who is admitted as an attorney is considered to be entitled to be admitted a solicitor; and one who is admitted a solicitor is considered to be entitled to be admitted an attorney. The consequence is, that nearly every attorney is a solicitor, and nearly every solicitor is an attorney; and the two characters being thus consolidated, I had at one time hoped that one roll of attornies and solicitors might be established. But objections to that course having arisen, this bill preserves the separate rolls of attornies and solicitors nearly as they are now, and provides for the convenience and advantage of one general roll in a manner which I shall afterwards mention.

With respect to the certificate, it is to be observed, that the enrolment is the evidence that the attorney or solicitor has been found to possess the requisite qualifications to entitle him to practice. But the courts have great authority over him, and there are various acts of misconduct for which he may be struck off the roll. It is therefore important to ascertain from time to time that he remains on the roll, and this may be evidenced by the issue of an annual certificate to that effect. The certificate, however, was first required, and is now only required for the purposes of revenue, and to enforce payment of the stamp duty imposed upon it. In form it was at first a certificate of admission and enrolment duly stamped, and in that form might have afforded some evidence of the name of the attorney or solicitor being on the roll; but by subsequent regulations it has become a mere certificate that the stamp duty has been paid, and affords no evidence whatever of admission or enrolment. It is true that in by far the greater number of cases the name of the attorney or solicitor who pays the duty is enrolled; but there is annually published in a book called the "Law List," a list of the attornies and solicitors who have paid the duty; and there is no list published or made of the attornies and solicitors who are actually enrolled—and under these circumstances it sometimes occurs that persons pay the duty—obtain the certificate, by that means procure their names to be inserted in the "Law List," and thereby appear to be attornies and solicitors, although, in fact, they are not qualified as such, and are not enrolled. To practise as an attorney or solicitor without being on the roll, is an offence which subjects the offenders to great risks — but the risk is occasionally hazarded; and it is proposed by this bill to remedy the inconveniences which have arisen by those means, and to afford to the public better protection against the practice of unqualified persons by impressing the stamp upon a certificate which shall at all times afford evidence of the admission and enrolment of the attorney or solicitor who receives and holds it. The mode of obtaining this important object is to appoint a registrar of certificates, whose duty it may be to form one general roll of the attornies and solicitors from the rolls of the several different courts of law and equity, and who may under proper regulations issue certificates, showing the attornies and solicitors to be on the roll, making at the same time proper provision for the certificates being duly stamped. The incorporated Law Society being in asituation which eminently qualifies them for the performance of the duties of this office, and having the strongest interests to see the duties of it fairly performed, it is proposed that they should be appointed the first registrars—giving power, however, to the judges, to appoint any other if they should think proper. This simple regulation will make it unnecessary to continue some inconvenient and severe enactments which have led to much litigation and many conflicting decisions. But it is still proposed that attornies and solicitors shall not be able to recover any costs for business done at times to which their certificates do not extend.

The next subject to which I have to ask attention, is the delivery of bills and the taxation of costs; and in this respect the present bill proposes what seems to me a considerable improvement. The law as it now stands, prevents an attorney or solicitor from bringing an action to recover the amount of his bill for business done until the lapse of a month after the bill has been delivered to the client, who may therefore have the bill taxed. But the business referred to, must have been transacted in some court—-so that as to business, of which no part has been transacted in any court (and there is a great deal of such business) the client has not this protection. The Court of Chancery has, indeed, exercised a jurisdiction which belonged to it before the statute of Geo. 2, to order the taxation of costs in cases where the solicitor claims a lien on documents in his possession, and has also exercised a jurisdiction to order the taxation of the bills of costs and costs of agents. But the Courts of Law have not exercised a like jurisdiction; and there are very many cases in which, according to the existing law there can be no taxation. This bill proposes to make many bills of costs not formerly subject to taxation, taxable, providing only that those bills which do not relate to business transacted in any court shall be referred for taxation to the Taxing Master of the Court of Chancery. This bill also provides that the attorney or solicitor may himself be at liberty to refer his own bill for taxation, if the client does not think fit to do so within a limited time after the delivery of the bill.

This bill contains the clauses which are contained in former acts for prohibiting attornies and solicitors from practising whilst in prison, from acting as agents for persons who are not qualified, and from acting as justices of the peace, except in places having justices by charter; and also for preventing unqualified persons from suing out writs, and acting in County Courts; substituting for penalties a provision that any infringement of the rule so made, is to be treated as a contempt of the court in which this offence is committed.

The only remaining clauses of the bill to which I think it necessary to ask the attention of your Lordships on this occasion, are the 43d, the 47th, and the 48th.

The great power and influence which an attorney must necessarily possess over his client during the pendency of a cause, has made the court regard security for costs given by a client to his attorney under such circumstances, with great jealousy. Securities for future costs are deemed to be illegal; and many suits have been instituted either for the purpose of setting aside securities for costs actually incurred, or for the purpose of reducing the sum secured to the sum really due from the client to the solicitor, on a full and fair investigation of the charges and accounts. It has been suggested, that many persons able to give security, but unable to advance money for the prosecution of their causes, have been prevented from instituting the proceedings necessary for the establishment of their rights, and for the purpose of preventing this hardship and diminishing litigation respecting such securities. This bill proposes to permit securities for costs to be taken, but to provide that they shall in no case extend to sums which shall not be found to be actually due upon taxation.

The 47th section contains words which make an alteration in the statute of George 2nd, by inserting instead of the words "to be," the words "holding at the time of the passing of this act the offices of." The effect is, not to prejudice any person who now holds the office of solicitor to one of the Government Boards, but to make the being an attorney or solicitor who has been examined and enrolled, a necessary qualification for the persons who may be hereafter chosen to fill such office. There can, I apprehend, be no doubt but that a sufficient number of persons, amply qualified by their character and attainments to fill these offices may be found among the attornies and solicitors really such. The duties of the offices may be most satisfactorily performed by persons chosen from that class, and considering the offices as conferring honour and distinction on the holders, it may be thought expedient to bestow them in a manner to encourage amongst a numerous and influential body of men, the cultivation of those qualities by which such honour and distinction may probably be attained.

The 48th section proposes to authorize attornies and solicitors to administer oaths, and if such authority could be given, it would undoubtedly afford great convenience to the suitors of the several courts. Having however, been informed that this power cannot be given without materially interfering with the emoluments of various persons— thinking it injury to take away those emoluments without giving compensation to those who may suffer, and not knowing at present of any means by which such compensation can be secured to them, I am afraid that I shall be under the necessity of asking your Lordships' permission to withdraw this clause in the committee.

Your Lordships will observe, that this Bill does not propose to disturb any enactments or statutes which enable all persons to employ attornies, and solicitors in the transaction of their legal business in the courts of law or equity, or which impose penalties for deceit, embezzlement, or perjury, or which charge at tornies, solicitors, and their articled clerks with stamp duties, and which forbid at tornies and solicitors and all other persons from committing champarty. The object is simply to contradict and amend several acts of Parliament which relate to the qualification of attornies and solicitors, and the protection of their clients from unjust charges. And I hope that your Lordships will have no objection to give this bill a second reading.