Blackwood's Edinburgh Magazine, Volume 59, No. 363, January, 1846. VariousЧитать онлайн книгу.
departed, to believe his conduct to have been principally influenced by such considerations. All men have many faults – most men have grave faults. Is parsimony intrinsically more culpable than prodigality? Have not most of mankind a tendency towards one or the other? for how few are ennobled by the ability to steer evenly between the two! And even granting that Sir William Follett had a tendency towards the former failing, it was surely exhibited under circumstances which warrant us in saying, that "even his failings leaned to virtue's side."
Connected with and immediately dependent upon this imputation upon the late Sir William Follett, is another which cannot be overlooked. He is charged with having made a profit of his prodigious popularity and reputation, by discreditably and unconscientiously receiving fees from clients for services which he well knew at the time that he could not possibly render to them; in short, with taking briefs in cases to which he had no reasonable hope of being able to attend. This is a very grave accusation, and requires a deliberate and honest examination. It is a long-established rule of English law, that barristers have no legal means of recovering their fees, even in cases of most arduous and successful exertion, except in the very few instances where a barrister may consider it consistent with the dignity of his position to enter beforehand into an express agreement with his client for the payment of his fees1. A barrister's fee is regarded, in the eye of the law, as quiddam honorarium; and is usually – and ought to be invariably – paid beforehand, on the brief being delivered. A fee thus paid, a rule at the bar forbids being returned, except under very special circumstances; and the rule in question is a very reasonable one. As counsel have no legal title to remuneration, however laborious their exertions, what would be their position if they were expected or required to return their fees at the instance of unreasonable and disappointed clients? Where ought the line to be drawn? Who is to be the judge in such a case? A client may have derived little or no benefit from his counsel's exertions, which may yet have been very great; an accident, an oversight may have intervened, and prevented his completing those exertions by attending at the trial either at all, or during the whole of the trial; he may have become unable to provide an efficient substitute; through the sudden pressure of other engagements, he may be unable to bestow upon the case the deliberate and thorough consideration which it requires – an unexpected and formidable difficulty may prove too great for his means of overcoming it, as might have been the case with men of superior skill and experience; – in these and many other instances which might be put, an angry and defeated client would rarely be without some pretext for requiring the return of his fees, and counsel would be subject to a pressure perfectly intolerable, most unreasonable, most unfair to themselves, leading to results seriously prejudicial to the interests of their clients; and a practice would be introduced entailing great evils and inconveniences, affecting the credit and honour of both branches of the legal profession. The rule in question rests upon the above, among many other valid reasons, and is generally acted upon. No one, however, can have any practical knowledge of the bar, without being aware of very many instances of counsel disregarding that rule, and evincing a noble disinterestedness in the matter of fees, either returning or declining to accept them, at a severe sacrifice of time and labour, after great anxiety and exertion have been bestowed, and successfully bestowed. The rule in question is rigidly adhered to, subject to these exceptions by eminent counsel, on another ground; viz. for the protection of junior counsel, who would be subject to incessant importunities if confronted by the examples of their seniors. Take, now, the case of a counsel who has eclipsed most, if not every one, of his competitors, in reputation, for the skill and success of his advocacy – who is acute, ready, dexterous, sagacious, eloquent, and of accurate and profound legal knowledge: that is the man whose name instantly occurs to any one involved, or likely to be involved, in litigation – such an one must be instantly secured —at all events, taken from the enemy– at any cost. The pressure upon such a counsel's time and energies then becomes really enormous, and all but insupportable. As it is of the last importance either to secure his splendid services, or deprive the enemy of them, such a counsel – and such, it need hardly be said, was Sir William Follett – is continually made the subject of mere speculation by clients who are content to take the chance of obtaining his attendance, with the certainty of securing his absence as an opponent. When, however, the hour of battle has arrived, and, with a compact array visible upon the opposite side, the great captain is not where it had been hoped – or thought possible that he might have been – when, moreover, no adequate provision has been made against such a serious contingency – when the battle has been fought and lost, and great interests are seriously compromised, or for ever sacrificed —then the client is apt, in the first smarting agony of defeat, to forget the chance which he had been content to run, and to persuade himself that he had from the first calculated as a matter of certainty on the great man's attendance – and intense is that client's chagrin, and loud are his complaints. Can it be supposed that this eminent counsel is not sufficiently aware of the true state of the case? It is but fair to give him credit for being under the impression, that all which is expected from him, in many cases, is his best exertions to attend the trial or hearing – to provide an effective substitute, if unable to attend – and give due attention to the case at consultation. For counsel to act otherwise, deliberately to receive a brief and fee, in a case which he knows that he cannot possibly attend, without in the first instance fairly intimating as much to the client – to do so, in cases of importance, and habitually – is surely most foully dishonourable, dishonest, and cruel; and conduct which there is no pretence for imputing to the members of the bar. It cannot, however, be denied, that very serious misunderstandings occasionally arise on such occasions; but there are many ways of accounting for them, without having recourse to a supposition involving such serious imputations upon the honour of counsel – arising out of bonâ fide accident and mistake – the unavoidable hurry and sudden emergencies of business – misunderstandings between a counsel and his clerks;2 between either or both, and the client – and the perplexity and confusion almost necessarily attending the movements of very eminent counsel. On such occasions every thing is usually done which can be dictated by liberality and honour, and fees are returned without hesitation. If, however, the case can be looked at from another point of view – if the eager client be fairly apprised by the clerk, that Sir – or Mr – "may not be able to attend" – or, "there is a chance of his attending" – or "he is very likely to be elsewhere" – and, aware of the multifarious and conflicting calls upon the time of Sir – or Mr – , will be content to take his "chance," and deliver his brief, and pay his fee; in such a case the client will have had all which he had a right to expect, – viz. the chance, not the certainty; there will be no pretence for alleging careless misunderstanding or deception.
If ever there were a member of the English bar who may be said to have been overwhelmed by the distracting importunities of clients to secure his services, at all hazards and at any cost, it was the late Sir William Follett; and how he contrived to satisfy the calls upon him, to the extent which he did, is truly wonderful. How can one head, and one tongue, do so much, so admirably? is a question which has a thousand times occurred to those of his brethren at the bar, who knew most of his movements, and were least likely to form an exaggerated estimate of his exertions. The litigant public seemed to feel that every moment of this accomplished and distinguished advocate's waking hours was their own, and they were restricting his sleeping hours within the very narrowest limits. Every one would have had Sir William every where, in every thing, at once! Whenever, during the last fifteen years of his life, there was a cause of magnitude and difficulty, there was Sir William Follett. What vast interests have been by turns perilled and protected, according as Sir William Follett acted upon the offensive or defensive! Misty and intricate claims to dormant peerages, before committees of privileges, in the House of Lords; appeals to the High Court of Parliament, from all the superior courts, both of law and equity, in the United Kingdom, involving questions of the greatest possible nicety and complexity – and that, too, in the law of Scotland, both mercantile and conveyancing, so dissimilar to that prevailing in other parts of the kingdom; appeals before the Privy Council, from the judicial decisions of courts in every quarter of the globe where British possessions exist, and administering varying systems of law, all different from that of England; the most important cases in the courts of equity, in courts of error, and the common law courts in banc;
This has been recently the subject of a decision of the Court of Queen's Bench, in the case of
Leading counsel, indeed all counsel much engaged in business, necessarily place their time almost altogether at the disposal of their clerks, whose duty it is to keep an exact record of their employer's engagements, and see that no incompatible ones are made for him. Counsel find quite enough to do, in adequately attending to the matters actually put before them by their clerks, without being harassed by adjusting the very troublesome arrangements and appointments, for time and place, where their duties are to be performed or, at all events, doing more than keeping a general superintendence over their arrangements thus made. To all this must be added those innumerable contingencies in the arrangements of the courts, and the course of business, which no one can possibly foresee; and which often derange a whole series of arrangements, however cautiously and prudently made, and render counsel unable, after having carefully mastered their cases, to attend at the trial or argument.