CHAPTER XI

CLIENT, SOLICITOR AND COUNSEL

A member of the Bar who ventures to touch such sensitive plants as professional usage and etiquette must almost of necessity do so with a sense of diffidence and modesty, that is, if he is not to outrage his _esprit de corps_ and attack his own training in the traditions of a great _métier_. The partial aim of this chapter is, in avoiding revolutionary language, to state as clearly as possible what strikes the travelled barrister as a radical disadvantage in his profession.

Usage has made it necessary, except in certain criminal court cases, for a client to go to a solicitor--who in due course goes to counsel, if the matter comes within the province of counsel. This intermediate process of approach is doubly absurd in practice, when it is remembered that counsel does not always confer with the solicitor himself but with the clerk instead.

It is suggested that the cumbersome necessity for a client to go to a solicitor before he can obtain access to first-class advice is an anachronism at this time. The inaccessibility of all persons has greatly diminished in recent years, with the result that to keep up the system of inaccessibility in respect of counsel is often both hard on the client and on counsel. It is one of the greatest barriers to the Bar as a means of livelihood. It renders a great profession a mere speculation, from the financial point of view. It hampers barristers who would otherwise be able to do as well as the average holder of a medical degree, something which does not apply at present. A doctor of medicine, a bachelor of medicine, or a person qualified by the conjoint diploma of the Colleges of Surgeons and Physicians, has a profession opened up to him which at least may be used to stave off starvation, but in the Bar degree there is no tangible reason why starvation should not be the very first obstacle encountered by the newly-called forensic aspirant. In practice, of course, members of the Bar are generally possessed of funds, great or little, but in theory there is no particular reason why a “gentleman of the long robe” should not be in some difficulty for the price of his dinner a week after his Call to the Bar! If one is attacked by illness, one does not send for a chemist or go to a chemist and instruct him to obtain a physician. One at once establishes direct relations with the medical adviser. Why should not this apply equally to the relations of client and counsel? To defend one’s interests, to secure one’s rights, to punish the wrong-doer, to advise, are among the functions of counsel. Why should he be cut off from a client by the obligations of professional etiquette? Why should professional etiquette exist which places the profession to which it refers at the mercy of another profession, quite separately and independently constituted? It is ridiculous to suggest that a barrister--unless he is extremely well-known, a financial leader of his profession--is selected by the solicitor’s client. The solicitor more often than not has the matter in his own hands. Certainly, there is nothing to prevent a client from going to a solicitor and naming his prospective counsel and insisting on the employment of such counsel, but it is not usual as the relations are worked in practice. It is

## partly due to the fact that the average client is so hopelessly out

of his element in matters of law. He frequently goes to a solicitor in trepidation, to almost involuntarily submit to an uncomfortable process, which the solicitor selects or inflicts at his discretion. The law is not as a rule a recreation for anyone, save a few persons whose minds have been turned by years of litigation. Consequently, the uninitiated client trusts his solicitor implicitly. He is like wet clay in the hands of a potter. He does whatever is recommended. It is true that a solicitor has the knowledge that he may be answerable in a court of law for want of skill in looking after his client’s interests, but a client does not always know this. Indeed, even the most rudimentary knowledge in connection with the law and its practice is absent in the average person who goes to a solicitor for advice. And yet the solicitor’s own knowledge is frequently little above that of a mature office-boy, though he generally manages to apply it to his own personal profit, at any rate! One does not tar all solicitors with the same brush: there are many worthy exceptions; still, there is something in the profession of a solicitor which seems to produce certain generic failings.[34] The bad name of the profession in the eyes of the public is not altogether unfounded; it is something more than a cheap superstition or tradition. It gathers force when one comes into frequent contact with some firms, which are licensed to practice the law. The size of the offices and the number of persons employed are not criteria of honesty: one knows of cases where seemingly prosperous firms in the best and most central districts are no more trustworthy than the solitary tottering scamp who struggles in a meagre garret. On the other hand, it is a gamble to go to any solicitor, unless one has definite evidence in advance that he is reputed to be just and honest in his methods--and has practised his business for some years. There is no scoundrel like an old scoundrel, of course, but a well-established firm is _primâ facie_ better equipped with the requirements of a client than some new firm which has not yet quite felt its feet. Long established firms go wrong like newly-established ones, though they are perhaps, generally speaking, less liable to, as they have more to lose, if the practices they have carried on have been reputable. As a partial standard of guidance it is, therefore, wise to go to an old firm rather than to a new one. But general reputation, and recommendation by former clients, are, after all, the best means of judging such questions off-hand. One recalls an instance where a King’s Counsel, retired from practice, recommended and upheld in obvious ignorance a most shady firm, which, however, had exceedingly well-illuminated, large, and central offices! With such an example in one’s memory, where one knows the firm to be dishonest, one can but fear that the best recommendations are apt to err.

The present writer holds no brief to attack the profession of the solicitor: quite the contrary. But he is compelled to admit that he has found many solicitors guilty of “dirty tricks” (for which there are no punishments) towards their clients. “Dirty tricks,” a vulgar but exactly expressive term, may be said to represent those acts in which a man of honour or ordinary decency, even, could not indulge. To cite some actual examples:--Deceitfully obtaining a signature charging certain property with an exaggerated bill of costs on the tacit understanding that a loan is to be the result; getting possession of papers under a false pretext, where the circumstances are such that no remedy exists in law for their recovery; disclaiming a telephone message because its dispatch cannot be established in a subsequent

## action; denying the receipt of a client’s funds until threatened with

the police. These and dozens of other somewhat similar occurrences come to mind with clearness. That they are repeated daily all over the country is almost indisputable. Petty deceit and meanness are qualities which are to be found in a flourishing state in many solicitors’ offices. A straightforward and reputable solicitor would be the first to admit as much. There is some satisfaction in knowing that there are still many of the latter type left, though mischance often brings a client into contact with the opposite variety, to his cost.

In suggesting that counsel should be enabled to advise a client without the intervention of a solicitor, the writer is influenced by the greater practical benefit of such a change. That branch of legal business which is now in the keeping of the solicitors might remain so; the system of carrying out the office work side of a case would therefore be on the present basis. But, while the two professions could continue to perform their accustomed functions, the alternative for a client to approach counsel direct should be approved and sanctioned. A freer atmosphere and greater scope would be bestowed upon junior counsel if he were able to receive his clients as a medical practitioner receives his patients.

In France, there is the distinction between the _avocat_ (or barrister) and the _avoué_ (or solicitor), and yet there appears to be no hindrance upon the freedom of the _avocat_ in respect of an intermediary. In America, the counsellor-at-law, or “attorney-at-law,” as he is called in Pennsylvania, unites in his legal qualification the right to practise as a solicitor or as a barrister or as both. As a matter of fact, an American law office generally contains several counsellors-at-law, who divide the court and office work up between them. In point of right, however, the counsellor-at-law is perfectly justified in carrying on the joint profession of a barrister and a solicitor. This system is not recommended here, though it seems to work well in America. All--and it may appear a great deal to some people--which one ventures to recommend is the freeing of counsel from the disability of compelling a solicitor’s intervention. That is to say, no change in the existing system is recommended beyond sanctioning the more direct form of access. A solicitor could intervene in the ordinary way between a client and counsel, but counsel should be at liberty to advise, or to advocate the cause, of any client who chose to present himself without the usual intermediary. Advance of the times must almost certainly produce some such system. There can be little doubt that the profession of an advocate would be much facilitated by the change. Indeed, the only possible sufferers would be the solicitors, whose profession offers sufficient variety of work to enable them to sacrifice the costs arising from the invariable custom of intervention. In a great number, perhaps, truly, in the majority, of cases, the present custom might continue to apply; in some, in many, confessedly, clients and barristers would alike avail themselves of the less circumscribed relations. If a member of the Bar is allowed to take “a docker,” or defence direct from a prisoner in the dock, he should certainly, it seems only just to infer, be allowed to admit a client to his chambers, unaccompanied by a solicitor. The fee could be collected by the clerk on the same cash principle which applies to the transactions of the greatest medical experts, or specialists. Certainly, the suggestion has something to recommend it, particularly in these days of practical thought.

If a barrister of the Court of Appeal of Paris, or a member of the New York Bar, can be approached direct, there is reason to suppose that the system suggested is neither gross nor one calculated to destroy prestige.

The question of counsel’s fees is not without some interest to laymen, as well as to those more intimately concerned. The great incomes derived from practices at the Bar are largely imaginative. The forty thousand a year of a certain very well-known practitioner was probably never more than approximated by half that sum in reality. The sixty thousand odd attributed to a leader of the Parliamentary Bar in his ordinary years was also, in all probability, half fictitious. Large fees, of course, have been known in every age. Under the Roman Republic, M. Licinius Crassus made a fortune from advocacy, which fortune, it is said, exceeded three millions sterling. He carried the reputation, however, of exacting exorbitant fees from his clients. A similar charge was made against P. Clodius and C. Curio. Cicero, too, though he boasted of his respect for the Cincian law, which prohibited the remuneration of advocates, was not without suspicion of mercenary conduct. Lord Mackenzie, who touches upon the subject, believes that he extracted a million sesterces (about £8,000) from Publius Sylla, who was under impeachment. The money was cloaked, according to the custom, as a loan, but there is no doubt it was paid in exchange for Cicero’s services as an advocate. Another Roman method of rewarding members of the Bar was by legacies left them by their clients in their wills. These bequests were looked upon with some favour. Cicero boasted that he had received in this form sums amounting to upwards of twenty millions of sesterces, which was the equivalent of about £166,666.

It is interesting to note that there was a division of lawyers into a first order, of _advocati_, and into a second order, of _formularii_, under the Roman Empire.

Members of the English Bar, it may be pointed out, cannot sue for fees, “although there be an express contract to pay them.”

“In France, ancient laws and decisions, as well as the opinions of the doctors, allowed an action to advocates to recover their fees; but according to the later jurisprudence of the Parliament of Paris, and the actual discipline of the Bar now in force, no advocate was or is permitted to institute such an action.” (Lord Mackenzie.)

So far as large fees are concerned, the £8,000 paid to Sir Thomas Wilde (afterwards Lord Truro) in the case of Small _v._ Attwood is something of a record, though it is eclipsed by the 300,000 francs received by Gerbier, the eighteenth-century French advocate, from a French colonial governor.

“In the sixteenth century, and for some generations previous, it was customary for clients to provide food and drink for their counsel. Here is an extract from a bill of costs made in the reign of Edward IV.--‘For a breakfast at Westminster spent on our counsel, 1_s._ 6_d._; for boat hire in and out and a breakfast for two days, 1_s._ 6_d._’ Another item, from the parish books of St. Margaret’s, Westminster, runs thus--Also paid to Roger Fylpott, learned in the law, for his counsel given 3_s._ 8_d._, with 4_d._ for his dinner.... When Sir Thomas Moore lived in Bucklersbury, he ‘gained, without grief, not so little as 400_l._ by the year. Considering the relative profits of the Bar, and the value of money,’ says Lord Campbell, ‘this income probably indicated as high a station as 10,000_l._ a year at the present day.’ In the reign of James I., the nominal salaries paid to the judges and Crown lawyers were extremely low; their real incomes were derived from certain fees which had to be paid into Court before any suitor could obtain a hearing. ‘Francis Bacon,’ says Mr. Hepworth Dixon, ‘valued his place as Attorney-General at 6,000_l._ a year, of which the King paid him only 81_l._ 6_s._ 8_d._.’ Mr. Dixon goes on to mention several similar instances, adding, ‘Yet each of these great lawyers had given up a lucrative practice at the Bar. After their promotion to the Bench they lived in good houses, kept princely state, gave dinners and masques, made presents to the King, accumulated goods and lands.’ Sir Edward Coke had made a still larger income as Attorney-General, the fees from his private and official practice amounting to 7,000_l._ in a single year.... We confess ourselves unable to reconcile such figures as these with Lord Campbell’s statement about Sir Thomas Moore. Either within a hundred years the value of money had enormously declined, or Coke was making an income far exceeding anything attainable at the present day. In his survey of the state of England in 1685, Lord Macaulay says:--‘A thousand a year was thought a large income for a barrister; 2,000_l._ a year was hardly to be made in the Court of King’s Bench, except by Crown lawyers.’ Mr. Jeaffreson (in his _Book about Lawyers_) impugns the accuracy of this statement, holding that the former part of it is based on a passage in _Pepys’s Diary_. As long ago as 1668, the Admiralty was a favourite target for Parliamentary orators to shoot at, and Mr. Pepys, after priming himself with good liquor, made such a spirited speech in behalf of his department that his friends complimented him hugely, assuring him that if he would but put on a gown and plead at the Chancery Bar, he could not get less than 1,000_l._ a year. We see nothing to complain of in this portion of Lord Macaulay’s statement, especially as Mr. Jeaffreson himself adds in a note, ‘Among advocates in Charles II’s reign, a professional income of a thousand a year signified a practice and popularity that placed a barrister in the second rank of the unquestionably successful followers of the law. Somers was thought a fortunate and rising counsellor when he enjoyed Lord Chancellor Nottingham’s favour, and made 700_l._ a year.’ But the credit of the second part of Lord Macaulay’s statement is certainly shaken by an examination of the fee-book of Sir Francis Winnington, who was Solicitor-General to Charles II. In 1673 he received 3,371_l._; in 1674, 3,560_l._; and in 1675--the first year of his tenure of the Solicitor-General’s office--4,066_l._, of which only 429_l._ were office fees. Lord Keeper North made 7,000_l._ a year as Attorney-General, and his brother, Roger, gives an amusing description of his mode of bestowing the fees in three skull-caps--one for the gold, one for crowns and half-crowns, and one for small money. In those golden days the barrister did not open his mouth until his fingers had closed on his client’s money, and credit was unknown in transactions between counsel and attorney. A good deal of base money used, however, to be taken on these occasions, and Bishop Burnet gravely praises Sir Matthew Hale for his justice and goodness in not putting this flash coin again into circulation. The worthy Judge’s virtue was emphatically its own reward. He had gathered together a vast heap of this spurious coin, when some thieves broke into his house, and contentedly carried it off, believing that they were helping themselves to his hoarded treasure. The practice of the Bar does not appear to have become more lucrative in the reign of George II. than it was many years earlier. During the last year of his tenure of the Solicitor-Generalship, Charles Yorke earned 7,322_l._ Lord Eldon’s fee-book shows a great advance. In 1794, he received 11,592_l._; in 1795, 11,149_l._; in 1796, 12,140_l._ Previous to Erskine’s elevation to the Bench, he received on an average twelve special retainers in the year, from which he gained at least 3,600_l._ Elsewhere (_Times Review_) we read of Erskine--‘It is four and a half years since he was called and in that time he has cleared 8,000_l._ or 9,000_l._, besides paying his debts, obtaining a silk gown, and a business of at least 3,000_l._ a year.’”[35]

In bringing this chapter to a close, it seems only fitting again to lay stress on the desirability of entitling a barrister to receive a client without the obligatory intervention of a third person, namely, a solicitor. An absurd anomaly, _the legal assumption that every man knows, or is expected to know, the law_, would perhaps be somewhat nearer fulfilment, if counsel were less unapproachable than they are to-day.

[Mr. Chester wishes it to be clearly understood that his suggestion of a direct approach to counsel is only put forward because he has witnessed the success of the system in other countries--otherwise, he would not venture to mention such an innovation. In this chapter, at any rate, he desires to assume the _rôle_ of commentator rather than that of an advocate.]

FOOTNOTES

[34] In the current press for March 20, 1911, there is the following report, under the heading, “_Solicitors Struck off the Rolls_: King’s Bench Divisional Court.--Justices Ridley, Darling and Channell.... Upon the application of Mr. T. Payne, appearing for the Law Society, the following solicitors were ordered to be struck off the Rolls:--Patrick Burke, formerly of Bridge Street, Manchester; Francis Ernest Swann, formerly of Fleet Street; and John Milton Kerr, formerly of Halifax.... It appeared that the statutory committee found Patrick Burke guilty of misappropriation of clients’ money, including £1,000 out of £2,250, handed to him by the Mother Superior of the Order of St. Joseph, for the purpose of purchasing a house at Stafford for the sisters upon their expulsion from France. The papers were sent to the Public Prosecutor and a warrant was issued, but the solicitor could not be found.... Francis Ernest Swann, on October 11, 1910, was sentenced to five years’ penal servitude at the Central Criminal Court for the fraudulent conversion of £1,700.... John Milton Kerr was convicted at Leeds in November last of the fraudulent conversion of £1,976, and sentenced to three years’ penal servitude.”

[35] _Legal Anecdotes_, edited by John Timbs.

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