BARRISTERS AND ATTORNEYS.
THE project of fusing the two branches of the Legal Profes- sion, which has often been started, and which has been lately brought into more active discussion by the Liverpool Law Society, seems likely to lead to some practical results, though of an indirect rather than of a direct nature. Some time ago we gave a short sketch of Mr. Jevons' proposal. We have now before us the Report of a Committee which was- formed for the consideration of the subject, and a scheme for the formation of a Legal University in London as the first step towards such an end. The Committee report that the profession generally approves the suggestion of a Central Law University, but is by no means unanimous with regard to "an amalgamation of the two branches, or the combination in the same individual of the duties of both branches." This, how- ever, is what in our opinion the public interest demands. It is, no doubt, highly useful to Barristers themselves that there- should be some means of testing their capacity, and that those. who are the most capable should have an opportunity of distinguishing themselves without waiting on the sons and brothers of attorneys. The Attorneys, in like manner, may justly complain that as things stand they have to go through a regular apprenticeship and pass examinations, while the barrister has only to eat a few bad dinners and attend as many unprofitable lectures. But these evils, though they may be felt in turn by both branches of the profession, do not at all exhaust the list. There is the further complaint on the part of the barrister that lie is wholly dependent on the attorney for the materials of his case, that he is forbidden by the rules of his profession to see his client, to volunteer information which may be necessary for success, to test the credibility of the witnesses for whom he must vouch to the jury. On the other hand, the attorney complains that when he has done his utmost with a case he must transfer it to- some one who has no interest in it, who perhaps does not read it through, who sometimes makes a compromise without authority, and who is not responsible for the grossest negli- gence. Between the two complaints the public suffers. In either case it is the client that is sacrificed. The man who is made to pay the two fees falls between the two stools. The in- justice of excluding attorneys from all the chief legal appoint- ments is no doubt felt by them alone, but it is none the less real, and it carries with it a diminution of social status which is a clog upon the whole of that branch of the profession. It is said that the attorney makes up for this by earning money more quickly than the barrister, and that the banister ought to be rewarded for his early disappointments by "high patronage late in life." No doubt there are compensations in all the troubles of life, but that does not prove that life is perfect. It might be better if the barrister could also earn money when he was young, and yet there would be no reason why he should forfeit his subsequent chance of patronage. If a man is fit for both, why is he to be restricted to one ? Why is he to remain idle in youth, or be incapable of a rise in manhood, unless it be for the public interest that tried ability should not have the stimulus of hope, and growing ability should be pressed down under the load of disappointment ? It is said that a division of labour is necessary in the legal profession, that an attorney in large practice keeps different clerks for different kinds of work, and that barristers also devote them- selves to special subjects. If, therefore, the distinction between barristers and attorneys is to be abolished, a fortiori all these minor distinctions must go with it. But this is just what will not follow. At present there are arbitrary distinc- tions as well as necessary distinctions, the first being the creatures of law, the second those of practical convenience.
It cannot be thought that if barristers were to be allowed to take their instructions from clients, and attorneys were to be allowed to practise in Court, the next step would be for Chancery barristers to be defending prisoners at the Old Bailey, and for the Bar of the Middlesex Sessions to migrate in a body to the House of Lords. There might be other incon- veniences in a simple fusion of the two branches of the pro- fession as they stand at present. The change would be too sweeping to be unaccompanied with matters of grave doubt and difficulty. But we hope before long to see the principle conceded. The details may be worked out more slowly.
The Report to which we have alluded proposes that there should be a Central University of Law for both branches of the profession. No one should be entitled to practise either as attorney or barrister without taking the degree of Associate of Laws for the first and of Bachelor of Laws for the second. We think that in this we may trace the germ of a future amal- gamation of the two branches. If the education of both is to be the same, but the one which is higher in the social scale and in the rewards reserved for it is to entail a longer course of study and a severer test, the rise from one to the other becomes more natural. At present, there is no connection between the two. If an attorney wishes to become a barrister he must first have his name struck off the rolls, and must then qualify for a call by keeping terms for three years, and attending either chambers or lectures, or passing an examination. In the same way a barrister must be disbarred before he can be articled. None of the time passed in studying for one branch is counted by the other. According to the present scheme, a course of study in an attorney's office is to be recognized as part of a barrister's qualification. This, again, gives us a point of contact between the two branches. It has already been found that a year or two with an attorney is an extremely serviceable part of a barrister's training. We believe one of our present judges started as an attorney. A late Attorney-General was articled in his father's office. One of the leading juniors on the Home Circuit owes much of his success to the same cause. The insight into the mechanism of law as a business which is thus gained has its effects on the subsequent practice of law as a science. This may be but a very gradual convergence of the two branches, and, indeed, the Committee have altogether postponed the consideration of any actual fusion. But when lines cease to be parallel, they must meet some time or other if prolonged at both ends, and the ultimate tendency of the present scheme is to bring the two branches together. No doubt, long before they actually join, many other distinctions will have to be abolished. The attorneys will not always be tied down by such strict rules as to their fees, and the barristers will not always be limited to a honorarium. The payment of both ought to be arranged on a different scale. At present neither of them make their incomes by their real work, for that is in- sufficiently remunerated. The attorney gets the same fee for signing a cheque or reading a letter, as for answering a difficult question of mixed law and fact which needs all his learning and experience. The barrister earns as much by going before a Judge in Chambers and obtaining leave to plead several matters, as by waiting in court for ten days while the cases that stand before his are being disposed of. We hear occasionally of immense charges for marriage settlements, and exorbitant fees in heavy cases. But if lawyers were able to bargain, could charge the real value of their work in one case, and do without any fee in another, such payments would be more evenly distributed. Lord Westbury's Bill to enable attorneys to dispense with the regular scale would have this effect so far as they were con- cerned. Unfortunately, the profession was against that scheme, and nothing has yet been devised to touch the sacred honorarium of barristers.
There can be little doubt that whatever may be done with a view to a fusion of the two branches, the present division of labour will continue. Perhaps the effect of a change will be to extend it. The preparation of a case will still rest with the man who is versed in business details, but he will not think it necessary to carry the case himself through all its stages. Indeed, if by accident the business details were to be entrusted to the wrong man, he would have the simple remedy of transferring them to another. Barristers in large practice could not count on having the greater part of their work done for nothing, as is so much the case at present, but they will be able to make over a minimum of the gain, together with the maximum of the business. We question if this would not be a more healthy system, as far as the pro- fession is concerned, than the one which is now in vigour. But the real point to be considered is the public interest. Would the legal work of the country be better or worse done if these arbitrary distinctions were abolished ? We think it would be done better. As things stand, the work is portioned out, not with regard to practical difficulty, but to theoretical fitness. An attorney can conduct the case against the Overend and Gurney Directors before the Lord Mayor, and can be highly complimented on the skill with which he has presented it to the Court, but when the very same case comes on before the Lord Chief Justice, Mr. Lewis can be heard no longer. An immense amount of Chancery business is transacted by the chief clerks, and as barristers will not go before those who were originally solicitors, solicitors have to appear and argue. But should any case be referred from the chief clerk to the Vice-Chancellor, the argument has to be taken up by counsel, not because Vice-Chancellors are more difficult to move than chief clerks, but because barristers have an exclusive audience. Of course, a solicitor may feel that he is unfitted to argue a case, just as a barrister may feel that he is unfitted to get up the necessary evidence. But the converse may sometimes occur. An attorney may learn by experience that he is more fitted for work in court than for office work, and a barrister may find that his presence of mind always deserts him as soon he is on his legs. Under present circumstances, the first can only practise in county courts and before magistrates ; the other must restrict himself to chamber practice, which is not always of a very lucrative order. There is no other remedy. It is all very well to say that both branches of the profession are open to all the world, but a man who has committed himself to one does not care to throw away all his time and money and start afresh in the other. If there was even a simple and ready means of transition from one to the other, some improvement would be made. Yet here again the interests of the profession would be advanced, rather than those of the public, though the public would benefit indirectly from anything that rendered the profession more practically useful. A simple and econo- mical division of labour would serve the public best, and the profession need hardly fear an injury to itself from a scheme nursed in its own bosom, and countenanced by the ablest of its leaders.
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