BARRISTERS AND CLIENTS.
THE reconstruction of the Judicature was a subject large enough to deserve to be treated entirely by itself, but it is not surprising that the discussion of it did not close without some criticism of the practices of the Bar. Mr, Norwood, who gives his attention by snatches to legal matters, and calls himself a law reformer, introduced this topic by a very friendly-looking motion, proposing that Barristers should be enabled to sue for their fees, but he immediately made it appear that his object was not so much to give Barristers any rights as to put upon them obligations. Mr. Charles Lewis, who, being a solicitor, has probably suffered many things at the hands of many leading counsel, made Mr. Norwood 's object clearer still, and justified it by an assault of quite tremendous vigour on the ways of such eminent practitioners. It is necessary to give them "hush-money," he said—to close their mouths by feeing them, to pay them, that is, when you do not need their services yourself, when probably they cannot give you their services, and yet there is a risk that if you do not fee them they may appear on the side of your opponent. Worse than that, their clerks bargain about fees as keenly as if they were not to render you a purely honorary service, and the result is that the rate of their fees is now fully double of what it was thirty years ago. Then when you have paid an enormous fee, you may get nothing for it. You have to fee two leading counsel to be sure of the attendance of one ; your counsel may have been committed to being in half-a-dozen places at a time, and if he has not had time, or has not taken the trouble to get up his case, or even if he neglect you altogether, you have no recourse whatever against him,—do not even, in the case last mentioned, get your money back. Mr. Lewis's statements are grounded on fact, but it is not so clear that they can be fairly made matter of reproach and denunciation against the Bar. Who proposes the "hush-money ?" for whose interest is it paid ? and does not the client feel that he gets something for it, though perhaps not so much as he could wish ? Is it unreasonable that an eminent barrister should wish to be paid his market-value, and is not occa- sional higgling between his clerk and the solicitors a con- venient means of ascertaining it ? The alternative is that he should neglect his unremunerative for his well-paid cases—he could not be much blamed for doing this—and this would only add to the inconveniences suffered by clients. That a barris- ter ought not upon system to take work he cannot possibly do is above question ; doing so puts him into a false position ; he knows he must neglect some of his clients, and therefore that he cannot give value for all the money he has received; and to a high-minded man nothing can justify this,—he must feel that what he is doing should be stigmatised as of bad example. Not- withstanding this, the neglected client's right to complain of him is by no means apparent ; he knew he ran the risk of be- ing neglected, and he might, by arrangement, including the tender of a sufficient fee, have protected himself against it. The most eminent counsel can generally be induced by a large re- tainer to promise their undivided attention to a single case, and even Mr. Lewis does not assert that it is their custom to break such promises.
Assuming, however, that the state of things so strongly de- nounced by Mr. Lewis is to be deplored, would Mr. Norwood's proposal put an end to it ? The proposal is that the rights and obligations of Barristers should be based upon contract.— that they should be entitled to recover the fees promised them (and presumably, to bargain for their fees), and be liable in damages if they broke their engagements. It sounds well, and there is no doubt that the theory of gratuitous service has long been worn out, if ever it had any substance in it. But would contract ensure that every barrister would give his un- divided attention to every case he undertook ? The truth is that no barrister, who is even a few degrees above brieflessness, would voluntarily bind himself to this, excepting in special cases; and if such an obligation were put in all cases on bar- risters, the Bar must cease to exist. Men in other professions do the greater part of their work through partners or assistants, —they can, therefore, undertake an amount of work indefinitely greater than they can personally do without incurring the penalties of negligence. The barrister is expected himself to do all his own work ; the time when it is to be done is not dependent on him, and cannot exactly be foreseen ; it is only by being more than half idle that he could hope to avoid an occasional conflict of engagements, and he could not be sure of doing it then. The Bar would be starved if barristers could not protect themselves against the consequences of involuntary neglect, and if free to contract themselves out of those con- sequences, those who could would not fail to do so. Would contract, then, put the over-employed Counsel, of whom complaint is made, under any restraints from which they are free at present ? It would be as reasonable to expect that it should attach to the tenancy of land the sort of conditions which farmers long for and landowners dis- like. The eminent barrister is a rara avis, or so regarded by the host of litigants ; he does not tout for clients— clients compete for him, running a race against each other to retain him ; it is not they who, under contract, could dictate terms to him,—he would serve them on the terms he found most suitable to him. There would be as large fees, as many neglected cases, and as much " hush-money " as at present. The employment of eminent counsel is, in fact, already prac- tically a matter of bargain—this, indeed, is part of Mr. Lewis's complaint—and their engagements are kept about as well as they would be if the non-performance of them involved, apart from stipulation, the consequences of breach of contract. Such counsel, as a rule, attend, in whole or in part, to as many of their cases as they can ; they would scarcely engage to do more if they were under contract, except for fees the magnitude of which would, with most litigants, outweigh the risk of neglect ; and under contract, litigants would accept their terms as readily as they do now, when there is no contract. Just as litigants go to them now, knowing they are legally bound to nothing, they would go to them if they knew that they declined to bind themselves to anything. This must occur, unless the introduction of contract into the relation of barrister and client were mysteriously to destroy the desire for the services of great barristers, and dispose the public to be content with the services of men less distinguished and not too busy to do their work carefully. Such men are, of course, the great majority, even among leading counsel ; and they are the men who, as second counsel, do the work which the great leaders are obliged to neglect. Great reputations, however, may be reckoned -upon to retain the charm which they exer- cise, not only in the law, but in all professions ; though if the public were to care less about them, it might, on the whole, gain somewhat—it paying for them, as for other luxuries, far more than they are worth—and would certainly be able to free itself without any legislation from what it endures at the hands of eminent counsel. The system of requiring Queen's Counsel to attach themselves to particular Courts, which pre- vails in the Chancery Courts, has been suggested as a means of putting an end to the practices of which Mr. Norwood and Mr. Lewis complained. Its great merit is that, ensuring the pre- sence of counsel, it is, or ought to be, favourable to the de- spatch of business. It is a system for which there is much to be said, but it is scarcely applicable to the Common-law Courts as at present constituted. The Common-law Courts, sitting in bane, are Courts of Review, and even in Chancery counsel are allowed to follow their cases to the Court of Review; and to restrict a counsel to a single Court at nisi prius would be to condemn him to a great deal of idleness. As regards the counsel of whom complaint is made, the proposed restriction might, however, have some effect. In the Chancery Courts there are several counsel who never accept less than the fee of fifty guineas that entitles them to appear in any Court of first instance. A distinguished jury-counsel impresses the public so forcibly that no special retainer would interfere with the demand for his services, but he would feel bound by the special retainer, and the result would probably be that he would take fewer briefs and receive much larger fees. If, however, a litigant is willing to pay enough, as has already been said, he can have the best services of the most distin- guished advocates at present. Mr. Lewis's statement that the fees of Counsel have doubled within thirty years is, with certain limitations, probably true of the higher ranks of the profession ; but when this is made matter of complaint, it is only fair to bear in mind that the price of a good many other things has more than doubled within the same period. If there are more incomes of £8,000 a year and up- wards than there were thirty years ago, £8,000 a year is far from being what it was thirty years ago. And it is a small number of persons who are fortunate enough to receive the higher fees. On the other hand, the proportion of cases in which the lowest possible fees are paid has, in Common-law practice —and it is of the Common-law Bar that complaint is made--
undoubtedly increased, as also the proportion of cases in Which the trifling fees Marked on briefs are never paid. If the incomes of successful men are greater than they used to be, the incomes of the greater number of men struggling towards a success, compared with the work they do, were never so small ; and if even a fair success is now so fine a thing, the number Of complete or almost complete failures — failures of men in every way competent—has been greatly enlarged. There are men now in the full swing of lucrative prac- tice who, a few years ago, with their powers at their best, were working like galley-slaves for fifteen hundred or two thousand a year, and at somewhat dirty work. If their pre- sent position is enviable, it is not to be forgotten that it has been reached by a slow and painful process, and that they have won in a struggle in which, apart from accidents of connection, the odds are heavy against every man. That they should be disposed to make the best of their sunshiny days, to profit to the utmost by the present eagerness of the public to employ them, is the most natural thing in the world ; and it hardly lies with those who employ them to complain of this, since they have perfect liberty to go elsewhere.
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