A Philadelphia Lawyer in the London Courts Part 4

CHAPTER VII

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 establis.h.i.+ng 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 cla.s.ses: those which are found contrary to a "Rule of the Profession" and those which are p.r.o.nounced 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 const.i.tute 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 ill.u.s.trates 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 const.i.tute evidence:

"_Stamps_: It is undesirable that counsel should object to the admissibility of any doc.u.ment upon the ground that it is not, or is insufficiently, stamped, unless such defect goes to the validity of such doc.u.ment. 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 a.s.sizes for his county. (An. St. 1901-1902, p. 6.)

The following ill.u.s.trates 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 publis.h.i.+ng 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 p.r.o.noun, and a verbatim report of graphic pa.s.sages, 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 ill.u.s.trates 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 circ.u.mstances 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 p.r.o.nouncement 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 circ.u.mstances the rule may be departed from."

An. St. 1904-1905, p. 10.

The complicated subject of one barrister a.s.sisting another, usually in the capacity of a devil, while avoiding quasi-partners.h.i.+ps, 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 a.s.sistance 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 a.s.sistance in drafting opinions is not common. In both Divisions occasionally such work is remunerated either by casual or periodical payments."