BARRISTERS' FEES.

Lyttelton Times, Volume XIX, Issue 1100, 27 May 1863, Page 5

BARRISTERS' FEES.

The judgment pronounced -by the Court of Common Pleas in the case of Kennedy v. Broun will be hailed with satisfaction. The Court have unanimously decided that neither directly nor indirectly can an advocate bargain for the price of his professional services. The time-honored custom which made the remuneration of counsel, in the strictest sense, a voluntary act on the part of his client has now received all the confirmation which can be derived from the concurrent opinions of four eminent judges, who not only brought their own vast experience to bear upon the subject, but who had heard every possible argument employed, and every appropriate authority cited by the learned plaintiff in the cause, in support of an advocate's right to recover his fees. Mr. Kennedy is a gentleman of undoubted ability, and, as a lawyer, may well claim to stand in the foremost rank amongst his compeers. He supported his case in person, and those who heard his arguments must admit that never was a doubtful point of law more thoroughly and more ably ventilated. From the earliest year books and cases were cited by him in support of his views, and the civil law of Rome and the traditionary law of England were both appealed to, as conferring on an advocate the right of recovering remuneration at the hands of his client. Mr. Kennedy cannot complain, therefore, that full justice was not done to his case, since it was conducted chiefly by himself; nor that it did not receive patient consideration at the hands of the Court, since the arguments, if we mistake not, extended over several days, and the Court employed the Christmas recess in estimating their weight before delivering judgment. The decision which has now been pronounced is adverse to him upon every point, and although an appeal lies to a superior tribnnal, there seems little probability that the judgment will be set aside. Without entering minutely into the antecedent circumstances which led to the action being brought by Mr. Kennedy against his former client, it may suffice to state the following facts:—-Mrs. Swinfen having sought some six or seven years since, to establish the will of her father-in-law, was opposed by his heir-at-law. On the trial of a cause a compromise was entered into, without her consent by the present Lord Chelmsford, then Sir F. Thesiger. A rule for a new trial having been subsequently obtained, Mr. Kennedy, a barrister, possessing at Birmingham a practice estimated by him as worth about £900 a year, consented to abandon this practice, and devote himself exclusively to Mrs. Swinfen's service, and to endeavour to obtain for her a declaration of the validity of the will devising to her the Swinfen estates. In consideration of his thus taking upon himself the management of her affairs as advocate, she promised, if she succeeded in establishing her claims, to give him £20,000. The cause of Swinfen v. Swinfen accordingly again came on for trial, and Mrs. Swinfen obtained a verdict. Under Mr. Kennedy's advice she also brought an action against Lord Chelmsford, for negligence in compromising the case at the first hearing, but in that instance was defeated. The intimacy which had previously subsisted between Mr. Kennedy and Mrs. Swinfen seems, after the close of the litigation, to have considerably cooled; and although on one occasion, according to the evidence of Mr. Kennedy, she admitted that she owed him £20,000, she took no steps to pay the debt. Shortly afterwards she married a Mr. Broun, and refused to requite Mr. Kennedy for those services to which she in a measure owed the recovery of the estates bequeathed to her by her father-in-law. Under these circumstances, Mr. Kennedy brought an action against Mrs. Broun and her husband to recover remuneration for his professional services, or if that should be disallowed, then on " an account stated " between them, of which the admission of the debt on her part was the evidence relied upon. On this latter count a verdict was found for Mr. Kennedy, for the whole sum of £20,000. A rule nisi was subsequently obtained by the defendants to have the verdict set aside, on the ground that an action on account stated could not be maintained when the foundation of that account was services rendered by a barrister to a client, and this rule the Court of Common Pleas yesterday made absolute. There are, no doubt, a great number of persons who will urge that an advocate who in his youth expends large sums of money on a suitable education, who devotes his life to a certain career, and not unnaturally expects to obtain for his professional services the wherewithal to support himself and family, ought, like an engineer, or an attorney, or a medical man (since the passing of a recent Act of Parliament), or any of the other working men of whom society is composed, to be enabled to recover remuneration for work done. The labourer is worthy of his hire, Then why should he not be allowed to compel the payment of his wages? To these arguments it is not easy, speaking in a prosaic way, to offer a reply. No one supposes that any barrister would take the trouble of mastering the subjectmatter of a voluminous brief, and afterwards of unfolding it to a jury, unless lie expected to be paid for his services Men of the highest honour go to the bar every day with the object of making it a means of livelihood, and men holding the highest rank in the profession daily refuse briefs, because, in then opinion, the fees marked upon them are inadequate. Whatever it may have been amongst the patricians of Rome, the honorarium has long become a necessary concomitant of the papers detailing the client's cause, and one without the other, or the certain expectation of receiving the other, is invariably refused. It is, therefore, only by fiction that an advocate's services are now considered as gratuitous, to be rewarded, or not, at the discretion of the client. Indeed, the physician might with greater truth than the advocate allege that the services he renders are gratuitous. The physician who is called on to prescribe for a sick man must go to his bedside without hesitation, and trust to his generosity, or that of his relatives, to acknowledge the obligation in a pecuniary form. But with the advocate it is different. According to the strict etiquette of the profession, he should not receive a brief unless accompanied by a fee. Practically, therefore, he is enabled to secure payment for his services, although, if once rendered, he is powerless to compel his client to remunerate him. And we are of opinion that in this respect the law is a just one. The Bar stands upon a footing peculiarly its own, and it is in the highest degree expedient, not only in the interests of the legal profession but of the public, that its high and exceptional position should not be entrenched upon. Advocates are allowed to receive gifts, but are very properly prohibited from making contracts tor the services which they render. In Rome, no only under the Republic, but in the first years of the Empire, advocates wei'e not only precluded from contracting: foi their services but even from receiving gifts. At the present day it is impossible to render the profession of an advocate equally disinterested; but, at the s'ime time, it need not be permitted to degenerate into a trade. Everything which, however indirectly, tends to preserve the independence of the Bar confers a benefit on society at large. It is to the independence of the Bar that the English people are in no small degree indebted for the preservation, even in very troubled times, of their most valued privileges. It is impossible to doubt that this lias been mainly owing to the high tone preserved in the profession by debarring its members from selling their services in the open market.—Times.