HL Deb 21 June 1852 vol 122 cc1013-8

rose to move that the Commons' Amendments in the County Courts Further Extension Bill be considered and agreed to. In consideration of the increasing duties of the County Courts Judges, the House of Commons had fixed the present salaries of those Judges at a minimum of 1,200l. per annum, with the power of increasing them to 1,500l., and in consequence of that a clause had been inserted that "after the passing of this Act" no County Court Judge should practise either as barrister, counsel, special pleader, conveyancer, or attorney; in short, confining them to their judicial duties. He should propose as an Amendment on this provision, that the prohibition should come into operation not immediately, but after three months, as some of these gentlemen might have undertaken business not yet completed. The only Amendment to which he anticipated any objection, related to the subject on which he had just presented a petition. The Commons had repealed the prohibition in the Act of 1846, of barristers taking County Court briefs from the parties. In the County Courts alone, of all Courts in this country, great or small, metropolitan or provincial, was there any statutory prohibition of a barrister receiving instructions directly from his client without the intervention of an attorney. The rule and etiquette of the profession was undoubtedly against the barrister going into Court as an advocate uuinstructed by an attorney; but there was no prohibition, even by usage and etiquette, against his seeing his client in chambers, for instance, and conferring with him upon matters of a private and delicate nature. Generally speaking, undoubtedly, the usage of the profession required the interposition of an attorney or solicitor between the counsel and the client, and the heads of the profession discountenanced a breach of the usage; but in all Courts except the County Courts it rested entirely upon that usage and that discountenance, and there was no prohibition either by common law or by statute. Why should it be otherwise in the County Courts? If such a practice was contrary to etiquette, prohibiting counsel by law from doing an unprofessional thing was disrespectful to the body. Why not leave those Courts, like all the others in this respect, to the usage and etiquette of the profession? There were occasions when the prohibition might act most injuriously to barristers; when, in self-defence, a counsel ought to be allowed to break through the ordinary rule. He remembered a case in which the breach of the rule was found not only a benefit, but absolutely necessary to the professional existence of a barrister. The instance he referred to was that of a barrister who happened, in his place in Parliament, to give offence to the attorneys and solicitors. The offence consisted of two parts—substantive and formal. The substantive offence was the introduction, in the year 1830, into Parliament of a Local Courts Bill, which the other branch considered would be injurious to them. The formal offence was certain words which the barrister had used, or was said to have used, and were deemed by the attorneys to be offensive to them; and it was of this formal part they took advantage to assail him for the injury which the other part was supposed to have inflicted on them; whereupon they issued a printed circular to the members of their branch of the profession who belonged to the barristers' circuit, ad- vising them to show their opinion of the conduct of Mr. So-and-So who had used such expressions of and concerning them. That meant, of course, to withdraw their briefs from him. There being no statutory prohibition as now in the case of the County Courts; nothing but etiquette and usage to prevent him from' adopting the course he thought advisable under the circumstances; he at once gave notice that he should open his doors to clients and see them without the intervention of an attorney. He was joined in that course by others at the head of the profession, who pledged themselves to stand by him, and, if need were, join in taking the same course; and he thus at once put at end to the combination, which he could not have done if such a statutory prohibition existed with reference to the Superior Courts as now did with reference to the County Courts. It was said that usage and etiquette and discountenance by the heads of the profession might suffice in the Superior Courts, but would not have the same operation in the inferior. But we trusted to these things in all the inferior Courts, except the County Courts—in cases as far removed, and further, from the guard and check afforded by the superintendence of the heads of the profession—in bankruptcy, insolvency, police courts, criminal courts, cases before justices at quarter-sessions, or before two justices or a single justice—in all these the prohibition existed not; and yet if anything irregular or unprofessional were done by a practitioner, it would be much more likely to escape attention in the crowd of Westminster Hall than in a country place, where the bar was small in number, and where all eyes were upon each of its members. He could hardly describe to their Lordships how greatly the bar had suffered from the want of some such protection as would be afforded them by the reinsertion in this Bill of the repealing clauses which their Lordships had struck out, and the power thus given of recovering briefs from parties directly—a power, however, which he advised should not be used otherwise than defensively, for he approved of the etiquette which required the intervention of an attorney. With regard to cases in the Nisi Prius and other Superior Courts, he was of opinion that it was expedient to discountenance the practice of barristers taking briefs without the intervention of attorneys; and he did not see how, in ninety-nine cases out of a hundred, it would be possible for them to do so. Indeed, if counsel were to see witnesses, and take down their evidence, they would require the assistance of persons who were half barristers clerks, and half attorneys, to discharge some of the duties of attorneys. In some parts of the country, however, the members of the bar were told by attorneys, "It is as much as your professional existence is worth if you ever cross the threshold of a County Court. If you take a brief in a County Court, we will give you no briefs on circuit, at sessions, or in bankruptcy." Now, the bar might protect themselves against such interference by going into Court without the instructions of an attorney, and it was most fit that they should have that protection. He ventured, therefore, to hope that their Lordships would adopt the Amendments of the House of Commons, which had received the sanction of the present Attorney and Solicitor General, and also of the late Attorney and Solicitor General. He might add, that he thought it important that the practice of attorneys acting as advocates should be discountenanced, though he saw the difficulty of preventing it, and he now placed much reliance on the provisions which some of his noble and learned Friends had introduced with this view, and which the Commons had rejected. He begged to move that their Lordships do agree to the Amendments introduced by the House of Commons.


observed, that the subject to which the noble and learned Lord had referred was one of very great importance. He had taken no part in the discussion on a former occasion; but for his own part, he would never have agreed to the enactment which prohibited, in words, barristers from acting without the intervention of attorneys, although no one disapproved of such a practice more than he did, and no one would be more anxious to prevent members of the bar from resorting to such a practice. He would not, however, have consented to stigmatise the bar by providing that they should not do that which it was discreditable to do according to the general feeling of the profession. The members of the bar, if they were not amenable to the Judges, were amenable to their own Societies; and if a barrister were to misconduct himself by acting as an attorney, it was quite clear that such conduct would be animadverted upon by the Society to which he belonged; and if he persisted in it he would doubtless be disbarred. A man belonging to the profes- sion necessarily became obedient to its rules, for he would at once become an outcast from professional society if he pursued a course at variance with professional etiquette. He (the Lord Chancellor) would therefore have left the matter to the high and honourable feelings of the members of the bar themselves. He would never have agreed to a law which stigmatised the practising of a barrister in the County Courts without the intervention of an attorney, when in every other court the bar were left to their own feelings of honour. The provision of which he disapproved having been rejected by the House of Commons, as the Bill now came before their Lordships with the authority of the Law Officers of the Crown, and of the other House of Parliament, he was unwilling to offer it any opposition. The consequence of the alterations made in the measure would be that the bar would be left in the County Courts upon the same footing on which they stood in all other courts; and, if it were found that the result of such alterations was the misconduct of individual members of the bar, he would be as ready as any one to strike at that misconduct, and to restore the bar to that position which it ought to hold in public estimation. He thought that each grade of the profession should maintain its own proper station; and if they would receive a word of advice from one who had long experience, he could assure them that by maintaining their own position they would far better guard their own interests than by taking any other course. He would neither elevate an attorney to the position of a barrister, nor would he allow a barrister to enact the part of an attorney.


was understood to express his approval of the Amendments introduced into the Bill, on the ground that they would tend to protect barristers against the combinations of attorneys, who were endeavouring to drive them from the County Courts.


stated, that it was not his intention to offer any opposition to the Bill. He thought the two grades of barristers and attorneys should not encroach upon one another's functions, and that the due administration of justice in this country depended very materially upon the line of distinction between those classes of the profession being maintained. He had been apprehensive that the withdrawal of the prohibition which had been imposed by Parliament would seem like giving a sort of Parliamentary sanction to the encroachment of the barrister upon the province of the attorney; but, after the authoritative declaration of his noble and learned Friend, he thought the honour of the bar and the interests of the public would be as safe in the County Courts as in the Superior Courts at Westminster Hall or upon circuit.


having intimated that he would not offer any objection to the Amendment,

Amendments considered and agreed to; and Bill sent to the Commons,