DISCIPLINE OF THE BAR AND OF SOLICITORS
THE GENERAL COUNCIL OF THE BAR--THE STATUTORY
COMMITTEE OF THE INCORPORATED LAW SOCIETY
--RULINGS ON VARIOUS MATTERS--LAPSES FROM CORRECT
STANDARDS.
The discipline of the Bar--the maintenance of correct standards of
professional conduct--is everywhere a difficult problem. In England,
with the experience of centuries, good results are obtained, upon
the whole, considering that human nature is alike the world over.
The General Council of the Bar governs the Bar; the Statutory
Committee of the Incorporated Law Society governs the solicitors.
These two bodies occasionally confer together--or rather exchange
views--in matters concerning the relations of the two branches of
the profession.
The General Council of the Bar, having heard a complaint against a
barrister, reports its findings with recommendations--perhaps of
disbarment in exceptionally serious cases--to the Benchers of the
barrister's Inn. They alone have the power to act and nearly always
follow the recommendation. Probably little difference exists in
their deliberations, methods and actions in serious cases and that
of corresponding disciplinary agencies in the United States, whether
called a Bar Committee or a Committee of Censors. Disbarment is an
extreme penalty in both countries, inflicted only for moral
turpitude amounting usually to crime.
But the General Council of the English Bar renders an even greater
service to the profession in establishing standards of professional
conduct, not only in respect of morality, but in questions of
propriety and good taste. This is accomplished by resolutions upon
submitted questions which seem to fall into two classes: those which
are found contrary to a "Rule of the Profession" and those which are
pronounced to be "Undesirable Practices". These rulings (without
names or other particulars which might lead to identification) are
all reported in the "White Book", an annual book of practice in
general use, and constitute a code of ethics and etiquette.
An examination of these rulings shows very few findings upon
rudimentary morals; it apparently is taken for granted that lawyers
are familiar with such commandments as "Thou shalt not steal." They
deal chiefly with the more refined questions of professional conduct
which often present difficulties even to men of honest instincts but
who lack natural delicacy or experience.
An example of a course contrary to a rule of the profession is the
following:
"_County Court Judge's Sons_: It should be recognized as a
'Rule of the Profession' (the quotation marks are the
Council's) that no barrister should habitually practice in
any county court of which his father, or any near relative,
is the judge." An. St. 1895-1896, p. 6.
It is not necessary to discuss whether this would be applicable in
America. Here the principle is probably recognized in the larger
cities by the best element, whereas in the country, with only one
county judge, it would prevent a son's following his father's
profession. The ruling merely illustrates that in England there is
an authoritative body which could be asked to declare how the
profession regards such a difficult question as, whether suitors
should be obliged to see their cases won or lost by the arguments of
a son addressed to his father, or whether the son should be
excluded from the only court of his vicinity.
That a kind of sporting magnanimity is desirable but not required by
any 'rule of the profession', is shown in the following, which
refers to revenue laws requiring receipts and other papers to be
stamped in order to constitute evidence:
"_Stamps_: It is undesirable that counsel should object to
the admissibility of any document upon the ground that it
is not, or is insufficiently, stamped, unless such defect
goes to the validity of such document. It is also
undesirable that counsel should take part in any discussion
that may arise in support of any objection taken on the
ground aforesaid unless invited to do so by the court." An.
St. 1901-1902, p. 5.
The next point has been the subject of judicial rulings in America
to the same effect:
"_Damages_: _Mentioning in Court Amount claimed_: There is
a general understanding that it is irregular for
plaintiff's counsel to mention during the trial the amount
claimed by way of damages." An. St. 1898-1899, p. 11.
A series of rulings hold that a barrister occupying the office of
town clerk, or clerk of any similar public body, "ought not" to
practice at the Bar and that it is "undesirable" for such an
official to be called to the Bar. (An. St. 1896-1897, p. 9,
1898-1899, p. 10, 1899-1900, p. 5.) Again it has been held that
there is a generally understood "Rule of the Profession" that a
barrister should not practice at Quarter or Petty Sessions in the
county of which he is a magistrate, but he may practice at the
Assizes for his county. (An. St. 1901-1902, p. 6.)
The following illustrates the aversion to anything approaching
advertising:
"_Photographs in Legal Newspapers_: It is undesirable for
members of the Bar to furnish signed photographs of
themselves for publication in legal newspapers." An. St.
1900-1901, p. 8.
Likewise the following:
"_Names of Counsel giving Opinions: Publication of_: The
practice of certain newspapers publishing the names of
counsel in connection with opinions printed in their
columns has been altered to meet the wishes of the
Council." An. St. 1896-1897, p. 9.
This is a little obscure and furnishes no information as to what
alteration was effected. The daily papers invariably print the names
of all counsel and solicitors engaged in any reported litigation and
the object of this ruling is probably to prevent indirect
advertising by writing opinions upon current topics.
In this connection it may be remarked that the law reports of the
leading papers are far superior to similar reports in most American
journals. The chief difference is that, instead of disjointed
fragments throwing the sensational into disproportionate relief and
thus conveying little idea of the whole, the reports are really
accurate and symmetrical, the drama, however, losing none of its
interest. The perusal of these reports, instead of leaving a desire
to know what really occurred, gives a feeling of being fully
informed. Brevity is served by admirable condensation of the
evidence, arguments and rulings, and by the use of the third person
in narration. By occasional recourse, too, to the first personal
pronoun, and a verbatim report of graphic passages, the important
and interesting phases of the case are emphasized. These reports
indicate that the authors are men trained both in the law and in
writing. So well done are those of the London _Times_ that they are
generally used in court for the citation of recent decisions, and,
when collected and issued periodically, are universally employed for
reference.
The English Courts scrupulously guard against the trial of cases in
the newspapers rather than in court. In the recent trial of Dr.
Crippen for murder, the proprietor of a provincial newspaper which,
in printing the news of the arrest, had speculated upon the
probability of Crippen's guilt, was summoned before the court after
the trial had been concluded and was fined £100 on the ground that
the article was calculated to interfere with the cause of justice. A
prominent London daily newspaper was likewise fined £200 for
relating that Crippen had confessed his guilt, while a London
evening paper was fined a like sum because, during the course of the
trial, it published a statement not contained in the evidence.
Many of the resolutions of the General Council of the Bar deal with
the rights and privileges of the profession. One is thus reminded
that the Inns of Court, which came into existence with the ancient
London Trades Guilds, were founded originally for a like
purpose--the protection of a particular occupation. During the
established vacations many junior barristers take only a few days'
holiday and particularly on the Chancery side, quite a number of
them and also a few K. C.'s are at work in their chambers or attend
the weekly sittings of the Vacation Court during the greater part of
the Long Vacation. It appears, however, that some young devil once
attempted to obtain a ruling that another devil should not devil in
vacation, but the Council declined to sustain his contention as
follows: "_Devilling in Vacation_: There is no 'Rule of the
Profession' against it." An. St. 1900-1909, p. 8.
A few years ago, there was a newspaper agitation against the Long
Vacation which had always extended from August 12th to the first
Monday of November. The result of the discussion was to shorten it,
by making it begin--as it now does--on August 1st and end on the
12th of October. There are also liberal vacations at Christmas,
Easter and Whitsuntide.
One resolution of the Council illustrates the fact, already referred
to, that barristers are not nearly so intimately identified with
litigation conducted by them as are American lawyers and that their
cases are more or less like abstract propositions placed in their
hands to be advocated. The resolution is as follows:
"_Briefs, Obligation to Accept_: The general rule is that a
barrister is bound to accept any brief, in the courts in
which he professes to practice, at a proper professional
fee. Special circumstances may justify his refusal to
accept a particular brief. Any complaint as to the
propriety of such refusal, if brought to the attention of
the Council and by them considered reasonable, would be
transmitted by them to the Benchers of the Inn of which the
barrister is a member." An. St. 1903-1904, p. 15.
Conversely; a barrister can not offer inducements for briefs, as was
held in the following:
"_Commissions or Presents from Barristers_: Any barrister
who gave any commission or present to any one introducing
business to him would be guilty of most unprofessional
conduct which would, if detected, imperil his position as a
barrister." An. St. 1899-1900, p. 6.
Again:
"_Fees to Barrister's Clerk_: The clerk of Mr. A. informed
the clerk of Mr. B. that the latter (Mr. B.) had received a
brief on circuit because he had recommended the solicitor
to Mr. B. (as was the fact) and suggested that Mr. B.
should give him the clerk's fees which he would have
received on it, had Mr. A. been on circuit and so able to
accept the brief. Mr. B., considering that such a practice
might lead to serious abuses, if it were countenanced,
requested a pronouncement of the Council on the matter.
The Council expressed the opinion that the practice
referred to is absolutely improper." An. St. 1904-1905 VII,
p. 11.
A number of rulings serve to define the limitations or partial
exceptions to the rule that a barrister's clients are exclusively
solicitors and that he must never be in direct contact with
litigants themselves.
For example:
"_Non-contentious Business_: There is no rule against a
barrister advising in non-contentious business without the
intervention of a solicitor, but it is an undesirable
practice. If fees should be taken for such opinion, such
fees must be marked and paid in the usual way, and on the
ordinary scale, not by way of annual payment or salary."
An. St. 1896-1897, p. 11.
Also:
"_Counsel advising on Case submitted by Colonial
Advocates_: A counsel does not commit any breach of
etiquette in advising, without the intervention of an
English solicitor, on a case submitted to him by a colonial
advocate in a colony where the professions of barrister and
solicitor are combined." An. St. 1902-1903, p. 11.
On the other hand, it was held that a barrister "should not" appear
as spokesman for a deputation of contractors waiting upon a public
body, nor on behalf of an application for a license, without the
intervention of a solicitor.
The preservation of the barrister's dignity in his relations with
the solicitor seems to have induced this:
"_Conferences at a Solicitor's Office_: The Council have
expressed an opinion that as a general rule it is contrary
to etiquette and improper for a barrister to attend
conferences at a solicitor's office, but that under
exceptional circumstances the rule may be departed from."
An. St. 1904-1905, p. 10.
The complicated subject of one barrister assisting another, usually
in the capacity of a devil, while avoiding quasi-partnerships, has
been the occasion for frequent resolutions by the General Council of
the Bar, of which the following are a few:
"It is not permissible, or in accordance with professional
etiquette, for a counsel to hand over his brief to another
counsel to represent him in court as if the latter counsel
had himself been briefed; unless the client consents to
this course being taken.... In the Chancery Division it is
not the practice for one junior to hold a brief (other
than a mere formal one) for another and the same is true of
King's Counsel."
"In the King's Bench Division, in the case of juniors, it
is not uncommon for one counsel to devil a brief for
another: but in the case of King's Counsel it is very
seldom done."
"There is no rule or settled practice governing the
remuneration for devilling, or assistance given by one
counsel to another, in the cases above referred to."
"With regard to juniors, it is a common practice in the
Chancery Division for the one counsel to remunerate the
other by paying him an agreed proportion, generally one
half, of the fees the former receives in respect of
opinions or drafting. In the King's Bench Division,
remuneration for devilling of briefs or assistance in
drafting opinions is not common. In both Divisions
occasionally such work is remunerated either by casual or
periodical payments."
"An arrangement of this kind is also not unfrequently made
in the case of a King's Counsel who desires regular
assistance from a junior in the perusal and noting of his
briefs."
"So far as the Council are aware, there is no practice to
pay any remuneration in the rare cases where one King's
Counsel holds a brief for another."
"In conclusion the Council desires to say that no practice
in the least resembling a partnership is permissible or (so
far as they know) practiced between Counsel: and they are
of opinion that the etiquette of the profession forbids the
handing over of work by one counsel to another, outside of
the conditions above stated." An. St. 1902-1903, p. 4.
A large number of resolutions deal with the subject of fees and
refreshers. Thus, it is held that while the Council is not a
debt-collecting body, yet, where it is "in the interest of the whole
profession" that solicitors who default in payment should be
"exposed and punished" assistance may be given by the Council to a
barrister in taking proceedings before the Statutory Committee of
the Law Society--the solicitor's governing body. (An. St. 1901-1902,
p. 13.) Again it was resolved that a junior Chancery man was not
precluded by the etiquette of the Bar from accepting a refresher
less in amount than two-thirds or three-fifths of the refresher
accepted by the leader. (An. St. 1903-1904, p. 14.)
Somewhat in the same line is the following: "A King's Counsel should
refuse all drafting work and written opinions on evidence as being
appropriate to juniors only; but a King's Counsel is at liberty to
settle any such drafting and advice on evidence in consultation with
a junior. A King's Counsel in accordance with a long-standing 'Rule
of the Profession' cannot hold a brief for the plaintiff on the
hearing of a civil cause in the High Court, Court of Appeals or the
House of Lords, without a junior. It is the usual practice for a
King's Counsel to insist on having a junior when appearing for the
defendant in like cases and when appearing for the prosecution or
the defence on trials of criminal indictments". An. St. 1901-1902,
p. 4.
The following is more general than most of the resolutions as it
states a fundamental rule rather than its refinements:
"_Junior and Leader._ _Proportion of Fees._
_Refreshers_:--By long-established and well-settled custom
a junior is entitled to a fee of from three-fifths to
two-thirds of the leader's fee, and, although there is no
rigid rule of professional etiquette which prevents him
from accepting a brief marked with a fee bearing a less
proportion to his leader's fee, it is in accordance with
the practice of the profession that he should refuse to do
so in the absence of special circumstances affecting the
particular case and that he should be supported by his
leader in such action. An. St. 1900-1901, p. 8. (The
Council of Incorporated Law Society dissent from the view
expressed in this resolution). The same rule applies to
refresher". An. St. 1896-1897, p. 11.
The necessity for a barrister upon accepting a brief in a circuit of
which he is not a member, to see that the solicitor retain a junior
belonging to the circuit, which will later be explained, is
recognized in the following resolution:
"_Special Fees at Assizes_:--The universal practice of the
circuits since June 1876 (when the matter was considered by
a Joint Committee of all the Circuits) is that a counsel
going special on to one circuit from another circuit
should, if a King's Counsel, have a special fee of 50
guineas in addition to the brief fee, and that one member
of the circuit should be employed on the side on which the
counsel comes special." An. St. 1899-1900, p. 8.
A resolution provides for the settlement of disputes between
barristers and solicitors by their entering into an agreement to
leave the questions to arbitration, the board to be composed of the
chairman of the General Council of the Bar (or some member of that
Council to be named by him) and the President of the Incorporated
Law Society (or some member thereof to be selected by him). An. St.
1897-1898, p. 9.
The following is a curious resolution:
"_Barrister Recommending another Barrister as his Leader or
Junior_: A barrister ought not to recommend another as his
leader or junior. And such questions as, who is the best
man for a witness action in such a court? Which leader is
_persona grata_ in such a court? Do you get on all right
with X--as your leader? are improper questions and should
not be answered." An. St. 1902-1903, p. 3.
Illustrative of this ruling was a recent investigation of the charge
that a barrister, about to leave town, had recommended another
barrister to a solicitor--the objections being that such an act
would not only violate the etiquette which forbids any barrister to
laud or decry another barrister to a solicitor, but also that it
might savor of co-operation in the nature of a partnership which
would never be tolerated. The defence was successful, however, in
showing that they were old Eton schoolmates and the solicitor knew
them equally well.
The above extracts show how broad in scope and minute in detail are
these authoritative rulings on every phase of professional life and
daily practice in England. Many of them would be totally
inapplicable to American conditions, and, beyond affording a glimpse
of peculiar customs and an elaborate etiquette, possess little value
here. They do, however, show that the experience of the best Bar in
the world justifies the existence of such a body ready to declare
the standards of professional propriety.
It should not be inferred that in England there is no lapse from
such standards. It requires some diligence to discover individual
shortcomings, but inquiry will develop that even "ambulance
chasing" is not unknown--although greatly reprehended and despised.
If the American observer, on watching the trial of an action,
perhaps against an omnibus company for personal injuries, will
cautiously comment upon the array of solicitors and counsel
representing a plaintiff apparently not possessed of a sixpence,
and express wonder that he is able to afford it, the information
will be forthcoming that some solicitor's clerk was probably in a
neighboring "pooblic" and, hearing of an accident, had followed the
injured man, perhaps to the hospital, and got the case for his
master, whose remuneration would depend upon the result. Pressing
the inquiry further as to whether the solicitor advances the
barrister's fees, it will reluctantly be admitted that some
barristers have relations with solicitors that should not be looked
into too closely--in other words that their fees are contingent. But
it will also be added that they are taking great risks of exposure.
Any one who has sat on a Bar Committee, or on a Committee of
Censors, in America must have been struck by the frequent instances
where practitioners have fallen into error from sheer ignorance, due
to inexperience or to the fact that they had not been born and bred
to the best traditions. This is especially true in these days when
law schools are grinding out members of the Bar who have had no real
professional preceptors. As disbarment or suspension is too severe a
penalty, such lapses pass unreproved and the standards sink, a
result much more deplorable than the failure of individual
discipline. Many a young lawyer would be induced to mend his ways if
privately and fraternally informed of professional disapproval and
some would be glad to seek the judgment of such a body if it could
be had without exposing names or particulars.
In this way, too, a body of rulings on the professional proprieties
applicable to American conditions would be steadily forced upon the
attention of the whole profession, instead of being locked in the
breasts of the more reputable members to govern merely their own
conduct.