A Philadelphia Lawyer in the London Courts Part 3

CHAPTER V

SOLICITORS

LINE WHICH SEPARATES THEM FROM THE BAR--SOLICITOR A BUSINESS MAN--FAMILY SOLICITORS--GREAT CITY FIRMS OF SOLICITORS--THE NUMBER OF SOLICITORS IN ENGLAND AND WALES--TENDENCY TOWARD ABOLIs.h.i.+NG THE DISTINCTION BETWEEN BARRISTER AND SOLICITOR-- SOLICITORS WEAR NO DISTINCTIVE DRESS EXCEPT IN COUNTY COURTS--SOLICITORS' BAGS.

The line which separates solicitors from the Bar--the barristers--is difficult for an American to fully appreciate, for in our country it does not exist. The solicitor, or attorney, is a man of law business--not an advocate. A person contemplating litigation must first go to a solicitor, who guides his conduct by advice in the preliminary stages, or occasionally retains a barrister to give a written opinion upon a concrete question of law. The solicitor conducts all the negotiations or threats which usually precede a lawsuit and if compromise is impossible he brings a suit and retains a junior barrister by handing him a brief, which consists of a written narrative of the controversy, with copies of all papers and correspondence--in short, the facts of the case--and which states on its back the amount of the barrister's fee. The brief is engrossed or type-written on large-sized paper with very broad margins for notes, and is folded only once and lengthwise so as to make a packet fifteen by four inches.

All Englishmen of substance, and all firms and corporations, have their regular solicitors and the relation is frequently handed down from generation to generation. It is, of course, unusual except in large corporations to have a permanent barrister, because the solicitor selects one from time to time, as the occasion requires, and the client is rarely even consulted in the choice. When an Englishman speaks of his lawyer, he always means his solicitor and if he wishes to impress his auditor with the seriousness of his legal troubles, he adds that his lawyer has been obliged to take the advice of counsel--perhaps of a K. C.

Hence, the solicitor, unlike the barrister, is not ambitious for fame, nor does he worry because he can not become the Attorney-General or a judge; his mind is intent upon the pounds, s.h.i.+llings and pence of his calling. He may seek business, which the barrister can not do, and he is something of a banker, often a promoter. Some solicitors, especially those practicing at Liverpool, are admiralty men, others are adepts in the organization of corporations and in litigation arising concerning them and there are many other specialties. Some are men of the highest grade--particularly those employed by big companies or by families with large estates.

The venerable family solicitor of the novel and stage--that custodian of private estates and secrets who appears in all domestic crises, warning the wayward son, comforting the daughter whose affections are misplaced and succoring the gambling father, is sufficiently familiar. The worldly experience, which this kindly old gentleman brings from his musty office, is invaluable to his clients.

The large City firms of solicitors, on the other hand, occupy s.p.a.cious suites of offices and maintain elaborate organizations like modern banks, with scores of clerks distributed in many departments, whose duties are so specialized that no one of them has much grasp of the business as a whole. The name of such a firm, appearing as sponsor for an extensive financial project, carries weight in the business world and its heads enjoy generous incomes, besides being men of much importance upon whom the honor of knighthood is sometimes conferred.

In all England and Wales only about 17,000 solicitors took out annual certificates last year. This indicates the number of offices and does not include clerks (many of whom have been admitted to practice as solicitors), nor those who, for one reason or another, do not practice. Instead of being concentrated, like the barristers, in the Inns of Court in London, solicitors are scattered all over the town and throughout the Kingdom itself. Some, especially in the minor towns or poorer quarters of London, are in a small way of business and must earn rather a precarious living. Others are of a still lower cla.s.s and seek business of a more or less disreputable character by devious methods, but all are supposed to have been carefully educated in the law and are answerable to their Society and to the courts for questionable practices.

The division of the profession between the solicitors and the Bar is no doubt a survival in modern, or socialistic, England of aristocratic conditions which it is the tendency of the times to weaken, if not eventually to abolish. It is somewhat hard upon the solicitor of real ability to be confined to a limited field and to feel that, no matter how great his powers and acquirements, it is impossible to rise to the best position in his profession without abandoning his branch and beginning all over again in the barrister's ranks.

In a.s.sociating with solicitors, one can not fail to be struck by their att.i.tude towards barristers, as a cla.s.s, which is hardly flattering to the latter; they frequently allude somewhat lightly to them as though they were useless ornaments and as if such a division of the profession were rather unnecessary. Upon asking whether the distinction exists in America, they receive the information that it does not with evident approval.

The advantages, however, of the separation of the functions of the solicitor from those of the barrister are distinctly felt in the superior skill, as trial lawyers, developed by the restriction of court practice to the limited members.h.i.+p of the Bar, which would hardly exist if the practice were distributed over the whole field of both branches of the profession. Then, too, the small number of persons composing the Bar enables greater control by the benchers over their professional conduct, and helps to maintain a high standard of ethics and the feeling of _esprit de corps_. Moreover, the Bar is not distracted from the science, by contact with the business, of the law and it is saved from the contaminating effect of partic.i.p.ation in the sordid details of litigation. At the same time, this very condition may be calculated to develop in the average barrister, as distinguished from one of real ability, an att.i.tude approaching dilettanteism.

If the division of the profession ever ceases to exist, the change will no doubt come about by the gradual encroachment of the solicitors' branch upon the Bar. Already solicitors possess the right of audience in the county courts, the limit of whose jurisdiction is constantly being increased, with the result of developing a species of solicitor-advocate, whose functions are very similar to those of the barrister. The more this progresses, the greater will be the number of solicitors who will become known as court pract.i.tioners, and whose services will be sought by the public and even by other solicitors, providing an existing act forbidding the latter is repealed.

While such is the drift in England, there is at the same time a tendency in America to approach English conditions in the evolution of the law firm composed of lawyers of whom some are known as distinctively trial lawyers, while the other members devote themselves to the business the science, by contact with the business, of the law and it is saved from the contaminating effect of partic.i.p.ation in the sordid details of litigation. At the same time, this very condition may be calculated to develop in the average barrister, as distinguished from one of real ability, an att.i.tude approaching dilettanteism.

If the division of the profession ever ceases to exist, the change will no doubt come about by the gradual encroachment of the solicitors' branch upon the Bar. Already solicitors possess the right of audience in the county courts, the limit of whose jurisdiction is constantly being increased, with the result of developing a species of solicitor-advocate, whose functions are very similar to those of the barrister. The more this progresses, the greater will be the number of solicitors who will become known as court pract.i.tioners, and whose services will be sought by the public and even by other solicitors, providing an existing act forbidding the latter is repealed.

While such is the drift in England, there is at the same time a tendency in America to approach English conditions in the evolution of the law firm composed of lawyers of whom some are known as distinctively trial lawyers, while the other members devote themselves to the business of the law, and indeed one now occasionally hears of such partners.h.i.+ps designating one of their number as "counsel" to the firm--which is, perhaps, an affectation.

Solicitors often become barristers--sometimes eminent ones, for they have an opportunity to study other barristers' methods, and have acquired a knowledge of affairs. Of course they must first retire as solicitors and enter one of the Inns for study. The late Lord Chief Justice of England began his career as an Irish solicitor.

Solicitors wear no distinctive dress (except a gown when in the county court, as will be explained hereafter) but attire themselves in the conventional frock or morning coat and silk hat which is indispensable for all London business men. They all, however, carry long and shallow leather bags, the shape of folded briefs, which are usually made of polished patent leather.

CHAPTER VI

BUSINESS AND FEES

INFLUENTIAL FRIENDS OF BARRISTER--JUNIOR'S AND LEADER'S BRIEF FEES--FEES OF COMMON LAW AND CHANCERY BARRISTERS--BARRISTER PARTNERs.h.i.+PS 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 pa.s.s 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 fas.h.i.+on 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 Generals.h.i.+p, 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.

Partners.h.i.+ps, 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 circ.u.mstances.

In order to appreciate the abhorrence of partners.h.i.+ps, 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 circ.u.mstance rather indicates that the popular estimate of fees is above the truth, and this is the acceptance of judges.h.i.+ps 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 establis.h.i.+ng 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 a.s.sociations.

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 cla.s.s 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 s.h.i.+llings and sixpence, but, for a letter the demand may be five s.h.i.+llings 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.