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Supreme Court, Criminal Courts, County Courts in defended cases, drawing of pleadings, and opinions. The attorneys, by means of rules of etiquette, which they have the power to enforce, though under no obligation to observe, and which they recklessly disregard when their own interests are at stake, have thus trespassed to an inconceivable extent on counsel's domain, till at last the whole field of the barristers' employment in Victoria is capable of being monopolised by about fifteen counsel.
The question thus naturally presents itself: Is there sufficient employment to justify an artificial diversion of labour? The attorneys answer in the affirmative, but in another breath tell you: Conveyancing is so simple, we can do it all ourselves, there is no necessity to put my client to the expense of counsel fee. And the same answer is given in justification of appearances by them in the Insolvent Court, County Court, Police Court, Navigation Board, &c., and in the giving of opinions. Is not this an argument by deeds in favour of amalgamation, and an active recognition of the fact that there is not sufficient employment for the lawyers' branch of the profession to justify a division of labour? Is it possible then, that the active opposition of the attorneys to the Amalgamation Bill, which has twice passed the Assembly, and been rejected in the Council through the active advocacy of prominent attorneys, in and out of the House, is due to an aversion on their part to a large accession to the ranks of the lower but more lucrative branch?
Barristers have an undoubted right to see clients direct, and to charge for every species of legal work except litigation (the exception is a legacy from old Roman law, which it is high time to abolish, and render barristers, as physicians, liable for negligence). Why then the necessity for legislation, ask some, if etiquette alone, not law, stands in the way? The inquirer who asks this pertinent question is little acquainted with the opposition and embarrassment, amounting almost to a practical disability, in the transaction of business, that any barrister sufficiently venturesome to break through conventional rules and assert his right to see clients direct, would meet with at the hands of so influential a body as the attorneys of Melbourne. Moreover, this august body would use every available means to depreciate him in the eyes of the public, to place him under a social ban, and reduce him. to the condition of a very Ishmael without even the guiding hand of Hagar to lead him. His treatment would be held forth as a warning to prevent similar action by any other, casting anxious
eyes at the profits to be derived from intrusion on the usurped domain. Further, there is this practical difficulty, as already mentioned: The English judges have thought fit to superinduce upon the vocation of the advocate the rights and immunities peculiar to the Roman juris-consult, the nature of the liabilities incidental to whose function were described to be otium cum dignitate negotium sine periculo; he was incapacitated from charging, and consequently recovering, fees in a court of justice, and enjoyed perfect immunity from all liability for negligence, which operated as a quid pro quo in return for his services being gratuitous; this immunity was deemed necessary in order that the juris-consult might be free and untrammeled in mind in the execution of his arduous duties. It must be evident to any discreet and prudent man that this is a provision totally inapplicable to the practical age in which we live; and that it is high time intelligence, reasonable diligence, and freedom from negligence should be secured to the public on the part of counsel, on whose exertions, to a great degree, the laws and rules which underlie the mercantile world and regulate business dealings between man and man depend. It is a matter of surprise that Lord Brougham, when wielding with such efficacy the sway of legal reform, did not use his broom to brush away this ancient and musty cobweb, which has long been removed from the medical profession.
England is the only country on the face of the globe that provides artificial means for the division of legal labour, but its expediency there has been gravely questioned in the Times newspaper of late years. That such a condition of affairs should be translated to these colonies was not the intention of the British Government, if the Charter of Justice granted by Her Majesty to New South Wales is to be regarded as any criterion. That Charter distinctly provided for amalgamation, so that the division of labour in that colony, at least, by artificial means, is open to impeachment, on the ground of its being ultra vires. Besides, without entering into any argument, it is easily conceivable that there may be, and are, many reasons for preserving a division of labour in England, which do not exist here; for there, courts of justice are very numerous, so much so that a barrister finds it expedient to limit his practice to one court; titles are extremely complicated, so that some counsel concentrate their attention and efforts on conveyancing alone.
It has been contended that, under amalgamation, we would run the risk of the judicial Bench being weakened, by rendering men
VOL. III.-No. 13.
who have practised as attorneys purely, eligible for elevationto the bench. This argument, upon a very cursory analysis, soon falls to the ground, as there are men at the Bar, who have practised sufficiently long to qualify themselves for the Bench, who are not nearly so fitted as many of our able and astute attorneys to hold so high a position. So that difficulty already exists, and will exist to the end of all time, whilst the bench remains the subject of political patronage. Moreover, the judges of our neighbouring colonies, New Zealand, South Australia, and the great continent of America, where amalgamation exists, are noted for their ability and learning. No one has ventured to express an opinion that abler men would have been selected if legal labour in these countries had been divided; rather may it be contended that the existence of amalgamation affords a larger field to choose from. Another argument advanced by an honourable member (an attorney) in the Legislative Assembly, in opposition to the Bill, is, that gentlemen in large practice as barristers could not spare time and attention to listen to the irrelevant and disconnected statements of a client. Surely this contention is too ingenious. This gentleman must have sorely cudgelled his brains, and compromised his reputation for logic, in his pardonable anxiety to avert the evil hour. Care kills the cat! The care implied in this argument will go nigh to effect the speedy demise of the Bar. Perhaps I have needlessly stated that this gentleman was an attorney. Perforce the learned counsel could send the long-winded and circumlocutionary client to his clerk, and require him to take the facts down, and submit them in a compressed form to his master. The learned counsel, whose opinion is so much sought after, might be a member of a firm, and require his partner to exercise his patience. And if, indeed, none of these opportunities of extricating himself from the fix were available to the learned counsel, he might bid the client good-bye. The client would probably then seek some gentleman whose services were not so anxiously sought after, and require him to send a case to the first-sought eminent counsel. 'Tis but "breaking a butterfly on a wheel," to adduce arguments in answer to such nonsense. Has this difficulty presented itself as an insurmountable barrier in America, South Australia, or New Zealand? If so, the knowledge of it must be confined to the honourable gentleman, who advanced such a threadbare contention.
Some of the public, unacquainted with the rules of etiquette, make their way occasionally into a barrister's chambers in Temple Court; and there and then, money in hand, request certain counsel
to give them an opinion. The barrister thus favoured, however anxious to pocket the shining coin, informs the client, with much reluctance, that he must not enter here; that the only means of access to the presence of the "oracle" is through the medium of an attorney's office; in other words, that he must pay a penalty to an attorney in consideration of his being allowed to enter the sacred presence of counsel learned in the law. The result is that the unfortunate client has to pay ten guineas, instead of three or four, when he wishes to obtain an opinion from counsel; and through the consequent expense entailed, more than nine-tenths of legal opinions given are given by the attorneys, they thus usurping a branch of the legal dominion peculiarly within a barrister's scope, and for which his knowledge of law and its technicalities, apart from its practice, peculiarly fits him. How many actions which now come into court, at great expense, would never have been launched if sound opinion had been obtained before embarking? The barrister knows that he is justly entitled, according to the rights and etiquette of his profession, to see the client direct. He remembers Chaucer's lines:
A sergeant at law, ware and wise,
Where counsel saw face to face such clients as chose to consult him. "The same right," says Sir Archibald Michie, "counsel still possess, have always possessed, and have frequently, even in our own generation, exercised." But the expediency of acting in the due exercise of a right may depend on matters beyond the ken of the superficial observer. There is a reason beneath the surface, which would render it nothing short of professional death for a barrister to advise a client direct, without the intervention of the unnecessary medium, medium, and the payment of the requisite penalty; in short, counsel well knows that if it once became known that he, in direct violation of what the attorneys are pleased to create as etiquette, had advised a client direct, his doom would be sealed, and never again would a brief find its way into his chambers. It has been stated that amalgamation would increase the costs of litigation, and thus be detrimental to the interests of the public; that in South Australia and New Zealand, where the system exists, enormous fees are charged by the lawyers for costs of advocacy; that in Victoria the fees on a barrister's brief are previously marked by the attorney employing him, which operates as a check. The fair inference from the state
ment (if true) is that in Victoria counsel are underpaid for advocacy, or lawyers in South Australia and New Zealand, when acting as counsel, are overpaid; and that, if amalgamation became law in Victoria, an attorney, when acting as a barrister, would charge a larger fee than he would mark on counsel's brief under the present system. Carrying this inference a little further, the conclusion must be arrived at that attorneys in Victoria, when acting as advocates, e.g., in the County, Police, and Insolvency Courts, charge more than they would mark on a barrister's brief, if they had employed one in the same case, instead of appearing themselves. So, if the fee that would have been marked on counsel's brief (if employed) is adequate remuneration, then the attorneys overcharge; if the fee the attorneys charge is adequate remuneration, then counsel would not have been fairly dealt with. Further, it is difficult to conceive, on what principles of fairness and justice, a barrister should be subject to a check, but an attorney when transacting similar work should be subject to none. Moreover, the Amalgamation Bill does not propose to abolish the taxing-master, who is an officer appointed by the State for the special purpose of protecting the public against inordinate charges of lawyers. answer to this, some contend with undoubted truth, but questionable logic, that the taxing-master, though he has the power, is seldom called upon to tax the cost between attorney and client. His services are mainly limited in practice to the taxation of costs between party and party; therefore, he is practically useless to protect the client against his attorney. But surely this is the client's own fault; the machinery exists, let him use it. By others, it is stated that although the costs as between party and party are regulated by the taxing-officer, under amalgamation this would not operate as a check, for the lawyer when acting as counsel would make the client pay a larger fee than the master would allow. Again, the answer to this contention is, let the client avail himself of the machinery provided by law, and tax as between attorney and client. Further, this difficulty exists under the present system. Amalgamation would render matters nowise worse, as costs between attorney and client always exceed costs as between party and party, and are taxed on a higher scale. The labourer is worthy of his hire; the more efficient and skilled the labourer, the better remuneration his services will command. So with lawyers. Clients employ an eminent man and pay him a high fee to conduct a cause, not in the expectation, if successful in the cause, of recovering it from