The leading common-law work of the High Court is practically divided among a dozen or so eminent Queen's counsel. It is a matter of common complaint that the leaders accept briefs, knowing well at the time they receive them that they will not be able to attend to them. There is a good deal of truth in this, although the supposed delinquents are able to put forward a very plausible plea of justification. It is certain that they cannot always know what briefs they will be able to give full attention to, seeing that there are a number of Courts engaged in trying cases some of which may last days, and some only minutes. Indeed, a counsel with a very small practice may find that, owing to the unexpected manner in which the cases on the list are sometimes disposed of, the two or three briefs that have been entrusted to him may all require his attention in different Courts on the same day, although when he accepted them he might reasonably have anticipated that the cases would be called on different days. It must, however, be admitted that there are some eminent counsel who accept briefs, although it is morally certain that they will be unable to give them any personal attention.
No other professional man expects to be paid for work that he does not perform, and there can be no doubt that the proper course for counsel overwhelmed with briefs to pursue is to return those that he cannot attend to, thereby enabling his client to obtain legal assistance elsewhere, and at the same time distributing a little work among his less fortunate brethren of the Bar. The public are, however, at fault in insisting on retaining an eminent advocate at a fancy price, when their cases could be just as well conducted at much smaller cost by men whose names figure less frequently in the reports of important trials. In any sensational cause célèbre it is almost certain that the names of Sir Charles Russell, Sir Edward Clarke, and Mr. Lockwood, will appear on one side or the other. These eminent men have, in fact, the pick of the work, and the same may be said, in regard to great commercial cases, of Sir R. Webster and Mr. Finlay, and, before his recent elevation to the Bench, of Mr. Henn-Collins.
The work of a somewhat less distinguished character is in the hands of half a dozen Queen's counsel, among whom may be mentioned Mr. Kemp, Mr. Willis, Mr. Jelf, and Mr. Winch, while there is a "tail" of "silks" who, not being fortunate enough to rank as popular favourites, have to content themselves with a very much smaller practice as well as smaller fees. Under the present conditions there is nothing like a fair distribution of work among the leaders of the Bar. This is perhaps in a great measure due to the action of solicitors, who, if they have a rich client in a big action, are sure to run after one of the half-dozen most popular advocates, and with a less wealthy client they will retain one of the next half-dozen. It is indeed curious to observe how slavishly solicitors run after the most eminent counsel on the chance of securing their services, rather than entrust their briefs to less noted men, who, even if their ability be less, would at least make up for it by greater assiduity and closer attention. The result is that these favoured gentlemen may be seen popping in and out of the ten or twelve Queen's Bench Courts that are sitting at the same time, examining a witness in one place, and addressing the jury in another; while their imperfect knowledge of their cases must inevitably tell to the disadvantage of their clients, who perhaps have paid them fees of one or even two hundred guineas, with corresponding refreshers.
SIR HENRY JAMES. SIR RICHARD WEBSTER. SIR CHARLES RUSSELL.
From what we have said it will be obvious that it is only the very few who can hope to become wealthy at the Bar, and such a lottery is "taking silk" that many "juniors" refuse to have the distinction conferred upon them, preferring the modest income that they are able to earn to the uncertainty and disappointment that falls to the lot of most of those who become leaders. Even a prosperous junior who gives up his practice to become a Q.C. runs the risk of being left out in the cold altogether.
A state of things that practically places the monopoly of the legal work in a few hands tends neither to the advantage of the public nor to the prosperity of the Bar as a body. The evil is undoubtedly caused by the centralisation of litigation in London, and the compression within a few months of the year of the whole of the High Court business. There is no valid reason why the Courts should not sit the whole year through, and barristers and judges take their holidays as they personally like to arrange. The amalgamation of the two branches of the legal profession has been much discussed in recent years, and it has many warm advocates both among barristers and solicitors, one of the strongest being the Solicitor-General. But no doubt the majority are opposed to the suggested change. Its supporters, in fact, are for the most part to be found among ambitious young solicitors who have acquired a taste for advocacy in the Police and County Courts. They urge that it would cheapen litigation, inasmuch as there would be only one person to pay instead of two, and they point to the United States and to the Colonies as indicating that amalgamation would work well. In great cities, however, the division of labour between the advocate and the solicitor, although theoretically non-existent, is in reality very similar to what it is in this country. The advocate must always be the advocate, and nothing more, and the drudgery of preparing the material for him to work upon must be reserved for other persons, whether they occupy the position of solicitors, partners, or clerks.
Under the present system, a solicitor can exercise his judgment in retaining the counsel most suited to his client's case, an advantage which would disappear if solicitors had barristers for partners. The solicitor, it should be remembered, has multifarious duties in connection with litigation, whilst the barrister is only the adviser on points of law and the advocate. It is further to be observed that the barrister, not being associated with the pecuniary interests of his client, but arguing his case solely on legal grounds, and on the weight of evidence, possesses a degree of independence and a reputation for trustworthiness which, if he were a solicitor as well, he would be unable to enjoy. It is not from an amalgamation, such as that suggested, that an amelioration of the present system is to be looked for. Notwithstanding its high reputation, the Bar, by tamely submitting to a system that works out to its own detriment, is itself responsible not only for its own unsatisfactory condition, whereby the bulk of the profits of the profession go into a few hands, but also in a considerable degree for the gross defects of our judicial system. Recently the members of the Bar have formed among themselves a Bar Committee to protect their interests, but it appears to have done little practical work, and to be little more than a mutual admiration society.
IN THE TEMPLE CHURCH.