BUSINESS AND FEES
INFLUENTIAL FRIENDS OF BARRISTER--JUNIOR'S AND
LEADER'S BRIEF FEES--FEES OF COMMON LAW AND
CHANCERY BARRISTERS--BARRISTER PARTNERSHIPS NOT
ALLOWED--ENGLISH LITIGATION LESS IMPORTANT THAN
AMERICAN--CLERKS OF BARRISTERS AND SOLICITORS
HAGGLE OVER FEES--SOLICITORS' FEES.
An American lawyer will be curious concerning two things, about
which he will get little reliable information, viz., how legal
business comes and what are its rewards.
The barrister supplements his reading, sometimes by practical
service for a short time in a solicitor's office and nearly always
by the deviling before described, and thus, in theory--and according
to the traditions of the Bar--may pass years awaiting recognition.
Finally, briefs begin to arrive which are received by his clerk with
the accompanying fee, in gold, as to which the barrister is presumed
to be quite oblivious. This, however, is not always the experience
of the modern barrister, who may have some relative occupying the
position of chairman of a railway, or of a large City company, the
solicitors of which will be apt to think of this particular man when
retaining counsel. In such fashion and other ways, while he can not
receive business directly from an influential friend or relative,
but only through the medium of a solicitor, yet such connections are
often definitely felt in giving the young barrister a start. His
eventual success, however, as in every other career, depends upon
how well he avails himself of his opportunities.
When briefed as a junior, without a leader, in a small action, his
fee may be "3 & 1," meaning three guineas for the trial and one
guinea for the "conference" with the solicitor. When briefed with a
leader, however, his fee, which is always endorsed on the brief, may
read:
"Mr. J. Jones 35 guineas
1 guinea
36 guineas
"With you
SIR J. BLACK, K. C."
The leader's brief will be endorsed:
"Sir J. Black, K. C. 50 guineas
2 guineas
52 guineas
"With you
MR. J. JONES."
The fee is not always sent by the solicitor with the brief, but a
running account, with settlements at intervals, is not uncommon.
Contingent fees are absolutely prohibited, the barrister gets his
compensation, or is credited with it, irrespective of the result.
All speculation as to professional earnings of a barrister must be
vague, for there can be little accurate knowledge on such a subject.
Chancery men seem to earn much less than common law barristers and
their business is of a quieter and less conspicuous character. At
the fireside in chambers in Lincoln's Inn, if the conversation
drifts to fees, one may hear a discussion as to how many earn
£2,000, and a doubt is expressed whether more than three men average
£5,000, but the gossips will add that they do not really know the
facts.
The fees of common law men, while larger, are equally a matter of
guess-work. One hears of the large earnings of Judah P. Benjamin a
generation ago, and R. Barry O'Brien, in his life of Sir Charles
Russell, quotes from his fee book yearly showing that the year he
was called to the Bar he took only £117, while thirty-five years
later--in 1894--just before he was elevated to the bench, his fees
for the year were £22,517. For the ten years preceding he had
averaged £16,842, and, for the ten years before that, £10,903. The
biographer of Sir Frank Lockwood, a successful barrister, relates
that he earned £120 his first year and that this increased to £2,000
in his eighth year, but he was glad to accept during his
twenty-second year the Solicitor Generalship, paying about £10,000.
The Attorney General, who, although his office is a political one,
is generally a leading barrister, receives a salary of £7,000 and
his fees are about £6,000 more.
The clerk of a one time high judicial officer now dead, is authority
for the statement that the year before he went upon the bench his
fees aggregated 30,000 guineas. It seems to be the general opinion
of those well informed that the most distinguished leader may, at
the height of his career, take 20,000 to 25,000 guineas. All such
estimates must, however, be received with the greatest reserve, and
no one could undertake to vouch for them.
Barristers' fees are, of course, for purely professional services
and do not come within the same category as the immense sums one
occasionally hears of being received by American lawyers--not,
however, as a rule, for real professional services in litigation,
but for success in promoting, merging or reorganizing business
enterprises. The fees of English barristers are practically all
gain, as there are no office expenses worth mentioning. No suit can
be brought by a barrister to compel the payment of a fee although
the services have been performed, nor is he liable for negligence or
incompetence in his professional work.
Partnerships, which are common between solicitors, are unknown to
barristers and anything approaching them would be the subject of
severe discipline. This is a fundamental law of the profession,
never questioned, as to which the rulings of the governing body of
the Bar (some of which will be quoted in a later chapter) relate
only to the application of the principle to different circumstances.
In order to appreciate the abhorrence of partnerships, it is
necessary to bear in mind the fact that the great science of the law
is to the barrister strictly a profession, having no affinity to a
business or a trade. No barrister can have the slightest personal
concern in the interests which he advocates, his fee being never
contingent, nor is he ever permanently retained by salary or
otherwise. He is a purely intellectual ally of the court in the
consideration of questions, more or less abstract, as to which he
merely supports the view he has undertaken to urge.
Upon the whole, professional rewards do not strike an American as
particularly large, remembering that the recipients are at the top
of the profession in London, which means the Kingdom.
One can not escape the impression that litigation in England deals
with minor matters as compared with that of America. There are no
American data for comparison with the admirable judicial statistics
of England, but, in listening to the daily routine of the London
courts, in the tight little Island with its dense population and
well-settled rights, there seems to be a complete absence of those
far-reaching litigations which arise in America, involving enormous
sums, or conflicting questions concerning a whole continent, with
its railroads and rivers extending as avenues of commerce for
thousands of miles and with ramifications of trade running into many
States, each with its separate sovereignty.
One circumstance rather indicates that the popular estimate of fees
is above the truth, and this is the acceptance of judgeships by the
most eminent barristers; still, judicial salaries in England are
high--£5,000 at the least--not to speak of the compensation of the
Chief Justice and Lord Chancellor, which are more.
Solicitors' clerks occasionally haggle and bargain with barristers'
clerks in an undignified manner--but of this their masters are
supposed to be in ignorance. And it seems that the matter of fees is
sometimes abused. In the case of a celebrated barrister, now dead,
it is whispered that his clerk would receive a retainer of 500
guineas on behalf of the K. C. who would be missing upon the cause
being reached. The clerk would then tell the solicitor's clerk that
the K. C. was overcrowded, and he did not believe he could get him
into court unless 250 guineas were added to the fee. After
grumbling and protesting, the addition would be forthcoming,
whereupon the clerk would readily find the K. C. strolling in the
Temple Gardens, and fetch him to court. This, however, was not
regarded as honest and the story itself is doubted.
In the case of solicitors, the acquirement of a practice is
apparently much like establishing a mercantile business. The
majority doubtless begin as clerks in existing firms, and, if men of
ability, either rise in the firm or form their own associations.
They are not hampered by the same considerations of delicacy and
etiquette as the barrister, but may seek employment, although, of
course, the one guarantee of real success is the honest and
efficient handling of affairs with which they may be entrusted.
The profits of a large firm of solicitors are very great. Much of
the money, however, is made in the transaction of business which is
not of the profession at all, such as the promotion of enterprises,
the flotation of companies, just as there is a class of American
lawyers pursuing the same lines.
A solicitor's compensation, called "solicitor's costs," is not a
matter of discretion, but is regulated by a recognized scale,
although he may make a special agreement with his client in
advance, but it must be in writing and is subject to review by a
Master as to its reasonableness. For an appearance in court the
charge runs from 6s. 8d. to £1. 1s. 0d., according to the nature of
the business and the time consumed. A charge reading, "To crossing
the street to speak to you and finding it was another man, 1s. 3d.,"
has been ruled out.
A solicitor's compensation for services other than litigation is
obtained by rendering to the client a regular bill, minutely
itemized. The writing of a post card will justify a charge of three
shillings and sixpence, but, for a letter the demand may be five
shillings and sixpence with a half-penny for the stamp. Each
interview at the office, and every visit to the client's town or
country house, is charged for; while incidental outlays and expenses
are carefully detailed, including the fees paid the barrister for
his opinions, for the drafting of pleadings and for appearance in
court. If the matter has involved proceedings in court in which the
solicitor's client has been successful, then various costs are
allowed as part of the judgment to be recovered from the opposite
side, although they do not necessarily equal the charges to be paid
by the client, as will be explained when dealing with the subject
of costs. Solicitors, unlike barristers, may sue for their
compensation and are liable for negligence, although not for
mistaken opinions upon questions of law.