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and at the smallest fee for which they can be induced to undertake cases ; and still less are they in the real interest of the Bar, who are yet more concerned in having the largest field open for their professional careers. Of the nature are rules prohibiting barristers from travelling in coaches or stopping at hotels, which seem to have been framed to create needless expense, or were made in times when there were fewer family ties than now between barristers and attorneys, and are out of date in these railroad days.
A rule of etiquette that barristers shall not refuse to hold briefs with one another, and shall not attempt to interfere with the attorney's choice of junior or leader, is one which is beyond criticism, and is, I believe, universally observed.
There are other rules of etiquette relating to precedence, which are by no means unimportant, with reference to the general organization of the Bar, and with reference to a very important question as to the appointment of Queen's Counsel. It is against the etiquette for a barrister to hold a brief as junior to one who was called after him. It is the etiquette for a leader to have a junior to him in all cases in which he appears for the plaintiff in a suit, but not so when he is instructed for the defendant. I will only mention that there has been some tendency to a departure from the rules as to precedence of juniors in the freer practice of the Parliamentary Bar, but without any notice being taken of it by any of the Inns of Court.
Besides these rules to which I have adverted there are many others which I have not adverted to, as presenting no subject of remark or objection; there may be others of which I am not aware, for there is nowhere to be found any written collection, nor is there any publication which takes notice of rules of the Bar. Nor can I find that the Inns of Court have ever defined or collected them for the guidance of their members.
It is among the younger members of the Bar-among those
just pushing into business at Sessions, and at the smaller nisi prius Courts, that the greatest care should be taken in enforcing those rules of etiquette that are considered to be really essential to the dignity of the profession and the protection of the public ; for it is at this stage of their practice that their professional habits are formed, and also it is generally for the purpose of getting an attorney connexion that breaches of etiquette are contemplated; when this is formed, the counsel who has risen thereby is only too glad to keep to the rules, and to enforce them against others who are following his example. Though the profession is full of the most honourable men, and of men of the highest order of intellect, yet it cannot be denied that, from the days of Scroggs, Trevor, and Jeffreys to those of Edwin James, there have been cases in which men unincumbered with scruples have risen in it; and it must be borne in mind that to be known as an unscrupulous counsel, insures of itself a certain amount and class of business; for it is often convenient to men of the same feather among the attorneys to shelter themselves behind the opinion of a barrister, and they naturally look out for one who understands a wink or a nod. Rules forbidding actions not in themselves wrong, or enjoining a particular course which would not otherwise be adopted, will, if they are not strictly enforced, become obstructions only to scrupulous men; to the unscrupulous they present no difficulties; on the contrary, they offer means of advancement. It is for the sake of men who would avoid even the slightest approach to anything which might be considered as a breach of an honourable understanding in the profession that all rules which are really necessary should be enforced. It is on the same principle that I would urge that the rules of etiquette should be as few as possible, and that all rules at present existing, which cannot be supported on good and sure grounds, should be abolished. In the words of Lord Denman, “we may safely lay this down as a rule, that all interference of authority with the freedom of actions, not in them
VOL. XV,-NO. XXIX.
selves wrong, is to be avoided as an evil, and one that most commonly aggravates whatever evil it was designed to correct. The forum domesticum, to which the profession paid allegiance as a band of brothers, can hardly maintain its authority over a family so widely diffused, so indefinitely multiplied. Without rules the honourable man will act correctly, and none will restrain those of opposite character.”*
Now, it certainly would seem to be desirable that the governing body of the Bar should have some discretion vested in them of amending or altering the rules of etiquette, of abolishing such as are no longer of any use, and, perhaps, of establishing new rules. But under the present constitution of the Inns of Court that would be impossible. They have no such power; the utmost they can do, individually, is to take no action upon the breach of a particular rule. They have no common union; each is a separate and distinct body. I cannot ascertain that the benchers of the various Inns systematically, or from time to time, examine into the practices which are growing up at the Bar, or exercise any regular supervision over the conduct of their members. It is not, so far as I am aware, the duty of any one bencher in particular to collect information ; and where, as in the case of Lincoln's Inn, there are upwards of sixty benchers, what is any body's duty becomes nobody's duty.
I cannot ascertain that it is the course for the benchers of the Inns to entertain or receive any complaints of their members from the public or from clients who have reason to complain of the conduct of their counsel. With the French Bar the rule is thus laid down :-" The ministry of the advocate being independent, he is no more responsible for his opinion than the judge for his sentence; he is neither liable to disavowal or exposed to an action for damages. The client can only question the conduct of his counsel before the council of the order." + I have now described the nature of the government of the
* Letter to Law Review, vol. xvii. p. 69. † Mollot, Règle 57.
Inns of Court, the authority which they exercise over their members, and the nature of some of the rules of etiquette. I think there are few who will not agree with me in the conclusion that, as now constituted, the Inns of Court are unable to effect that which is their principal object-the maintenance of discipline among their members. It has been seen that they have not established
standard of professional knowledge in members on their call to the Bar. They do not systematically enforce such rules of etiquette as are certain, or ascertain and make known the lessknown rules; while in the cases which do from time to time come before them, there is not that security which there ought to be to the Bar and the public, that the cases shall be fully and properly investigated. And, again, the fact that there is no unity of action between the four Inns, and nothing like a representation of, or special responsibility to the general members of the Bar, militates greatly against the use which they might make of their position. A great want of the Bar, as now constituted, is some body which shall represent their interests in the numerous subjects which from time to time arise affecting them; such, for instance, as the legal education of the Bar-one of the most important subjects, which has only been alluded to in this paper; the concentration of the Law Courts, on which it would be most desirable that the opinion of the Bar should be taken and expressed; the re-distribution of circuits, a question which is most urgent, and which seri- ously affects the interests of one half of the profession; and, lastly, upon all those questions of etiquette which I have already alluded to.
It has been proposed to substitute a central body, chosen by the benchers of the separate Inns,* on the plan which has already been tried in the Council of Education, the result of which cannot be said to augur much energy or
A bill has been brought into the House of Commons by Sir George Bowyer with tbis object, and the Solicitor-General has intimated that the Inns of Court themselves are contemplating some movement in this direction.
success; but although a council thus formed would consist of men of the highest position in the profession, and would remove many difficulties now existing, such as the want of unity of action and concentration, yet it would still be open to the objection of not representing the great body of barristers, and of remoteness from the scene of operations of most barristers, and it would be unable to deal with rules of etiquette as suggested; I cannot, therefore, but think that it
l would be better to adopt a system founded rather on the example of the French Bar. Barristers in France are not, as with us, concentrated at its capital ; in every town where there is a tribunal or court of appeal, with business enough to support a Bar, there is established a distinct society of advocates, each having its separate government and discipline-but they are all modelled upon the same plan and with the same rules, and an advocate practising at any Court in France, inscribed on its tableau, is free to hold a brief at any other Court.* The Bar of Paris, which serves as a model for the rest of France, is governed by a council of twenty-one members, elected annually by the whole body of advocates inscribed on the tableau, and presided over by the batonnier, who is also elected by universal suffrage for two years.
The council thus formed has under its control the discipline of its members, and is able to warn them, to reprimand them, to suspend them from practice for not more than one year, and to disbar them; it has also the power of ordering restitution of fees. From the decisions of this council a collection of rules has been made which is circulated among members of the Bar, and which is an authority upon all matters of etiquette.
* The Court de Cassation at Paris, the court of last appeal from every other court in France, is an exception to the rule; it has a special limited Bar of its own, consisting of 60 advocates, who have exclusive audience there, and are not permitted to practise elsewhere. These advocates are permitted to sell their places, and large sums are given for the right to practise in this court. They have an organization and discipline of their own. Although they embrace among their members men of great ability, yet the best men of the profession, the Berryers, and the Jules Favres are to be found, as might be expected, in the more open competition of the lower courts.