London Legal Letter.
39 1
LONDON LEGAL LETTER. London, July 6, 1895. THE line which divides the barrister from the solicitor in the Knglish practice is so shadowy in some re spects, although so distinct in others, that it is hardly to be wondered at that confusion exists on the subject in America. In fact there are a good many professional men in England who would be puzzled to know where the function of the solicitor stops and the practice of the barrister begins. An American who was recently called to the bar desired to retain a copy of a letter on private and personal business, which, therefore, he had taken pains to write in copying ink. He handed it, with a letter-press copying book, to the clerk of his chambers. The latter understood that a copy was required, but he failed to see what the copying book had to do with it. At last when it dawned upon hiin, he said with much disdain : " I am sorry, sir, but there is no copying press in the- Temple. Solicitors take letter-press copies of their letters, but bar risters have their opinion's written out in fair hand." In other words, the clerk plainly intimated that Barristers had no connection with business, that was an affair of Solicitors only. He was, in the main, correct. Solicitors do what in America is known as " chamber work." They see the client, and act for him, in every possible way, performing services in this respect which an American lawyer would never dream of consenting to do, and charging therefor fees of " six-and-eight pence " and " thirteen-and-fout pence " and other small sums which would be too trivial to figure on the books of your lawyers, as well as larger and more imposing amounts. And now, of recent years, they are encroaching upon the preserves of the barrister to an extent which is most alarming to the latter. They may appear as advocates in the County Courts and before referees, masters and judges in chambers. In the County Courts they don a gow n and wear bans at the neck, and, but for the absence of the wig, would pass in appearance for Barristers. In almost every respect except in high court work, they are taking the places of those who are popularly spoken of as belonging to the " upper branch" of the profession. But the barrister has exclusively the right of audience in the higher courts. In addition to this he is called upon by the solicitors to "settle" the pleadings, that is to say, to draft them; and to pass upon all the formalities in a case which is the subject-matter of litigation up to the point where issue is joined. He is also " instructed " to give an opinion upon evidence and such technical questions of law as may arise. This he is supposed to do only upon a " brief " submitted to him by a solicitor. But, fortunately for him, and as a set-off to the encroachments upon his functions by the so licitor, he is now beginning to see the lay client directly, and not solely, as heretofore, through the intervention of the solicitor. When Sir Richard Webster was Attorney-
General some time ago, and, therefore, the leader of the bar and the custodian of its prerogatives, he decided that a barrister might advise a layman in all matters which were not in litigation or likely to result immediately in litigation. It cannot be said in truth that in consequence of this clients are tumbling over each other in their mad eagerness to get access to the sacred precincts of a barrister's chambers; but it is true that more and more, each year, consultations are being held with those who seek legal advice, and opinions are being written without the intermediary of solicitors' briefs. Just now both branches of the profession are agitated over matters which affect them most closely. The Lord Chancellor has brought in a bill to create the office of legal trustee. At present there is no such office. Trustees act independently of all control, and are only answerable, in case of breach of trusts, to their cestui que trust, who must apply to the Chancery Courts for relief. Most of the trus tees are solicitors, and all of them serve without compensa tion. The idea of fees or commissions is abhorrent to the Eng lish Courts, and they are never allowed. It is sometimes the case that when solicitors are appointed the instrument creating the trust provides that they shall be allowed to charge for such work as they may professionally perform, but otherwise even such services receive no compensation. Notwithstanding this rule the solicitors make money out of trusts and trustees. A trustee is not simply the holder of a legal title or the administrator of a fund. He is a family friend and confidant, a representative of a deceased father, or the grantor of a marriage settlement. He sympathizes with the beneficiary of the trust — but he takes no step without consulting the solicitor, and the solicitor permits no consultation without entering up a charge for it. An ag grieved party stated in one of the newspapers a few days ago that the appointment of an additional trustee of his estate, although there was no opposition, and the proceed ings were of the friendliest character, had cost a little over eighty pounds! In other words, nearly four hundred dollars had been expended in " consultations," " conferences," "visits," " instructions," and the "fair copying" of formal documents. It is feared that if an official trustee is ap pointed he will not allow these charges and in consequence there will be so much the less business to do. The argu ment in favor of the official trustee is based upon the fact that he will be an officer of the Court and that he will be obliged to give a bond and will be compelled to report at stated intervals to the Court the result of his transactions. It is urged that the irresponsibility of trustees under the present system encourages malversations and misappropria tions of moneys. The other day five solicitors were struck off the rolls for wrongdoing. Lord Halsbury, now again the Lord Chancellor, says that no less than seventy-seven solicitors were disqualified during his last administration
