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.