Tuesday, September 27, 2016

Professional Etiquette

Some years ago a gentleman, who lived in a somewhat lonely part of the country, was asked to go and see a poor neighbour who was very ill. On his arrival he found the man at the point of death, and extremely anxious to see a clergyman. The visitor went to the house of a clergyman who lived near, and told him of the dying man's wish. The clergyman replied that as the house of the dying man was out of his parish he could not interfere, nor would any remonstrances induce him to do so. An eminent lawyer was so fortunate as to be made the heir of a rich and childless old man, who, falling ill, showed him his will, by which it appeared that the testator had given a life-interest only to his intended heir. When this was pointed out to the sick man he said, "Yes, but I understood you to say you meant never to marry?" "I may have said so," was the answer," but I certainly did not seriously mean it, and at any rate I should not wish you to act upon that assumption." "Then," said the sick man, "draw up the will so as to give yourself the absolute property, and I will execute it." The lawyer replied, that he could not make a will in his own favour, and before another lawyer could be found the testator had died, and the mistake had become irreparable. A gentleman was poisoned but escaped with his life; the poison remained in his body, and caused him grievous suffering. He employed certain unrecognized remedies, and by means of them, as he considered, recovered his health, and got the poison out of his system. He went to an eminent physician and described his case. The physician said, "I will treat you on the supposition that you really have got rid of the poison, but don't tell of me, for the remedy, which, as you say, has got it out, is not recognized by the profession."

These illustrations are instances taken from the three learned professions of a sort of secret code of laws, of which the outside world understands neither the principles nor the applications, but which exercise a wider influence than most people would suppose over the proceedings of some of the most important classes of the community. Such rules are almost always unpopular, and even if they are acknowledged to exist, are submitted to unwillingly by the public, though, like almost all peculiar jurisdictions, they often seem to be regarded with a strange sort of unreasonable loyalty by those who are subject to their provisions. In all probability each feeling springs from the same root. Professional men like professional rules, because they are usually founded on the principle that the profession to which they apply is something extremely dignified, and as such, entitled to exact from its members a corresponding demeanour, and from the public a corresponding degree of respect. The public view them with impatience, and at times even with disgust, because they are generally disposed to look upon them as organized hypocrisy, and because, at all events, they do not like to admit that any class has a right to claim any sort of permanent superiority over others. Each of these feelings acts, no doubt, as a useful check upon the other, and their relative force and utility depend upon the circumstances of the times and places in which they exist. In order to consider how they are related to each other in our own times it will be desirable to say a few words on the position which is at present occupied by professional men. Most of the liberal professions are closely connected with the Government. The Church, the Law in all its branches, and the Army and Navy may be considered as the great permanent link between the great bulk of the nation and the aristocracy. The nature of the connection is in each case obvious enough. An Established Church possessing endowments in every parish in the kingdom, and adorned with a certain number of such prizes as bishoprics and deaneries, offers to many thousands of families—who would otherwise have no sort of tie with the rich and great—a chance, remote it is true, but still appreciable, of becoming eminent, if not rich, and the certainty of occupying a position which ensures them the character and position of gentlemen, if their personal qualities enable them to assert and maintain it.

The profession of the law must always stand in the most intimate relation to the government of every country, whatever its form may be, for law and government are nearly convertible terms; and the mere fact that a man passes his life in putting in force, by the help of the law, the commands of the ruling power in the State naturally tends to give him a degree of sympathy with and interest in it, which would surprise those who have never seen it. The same is true even more strongly of the military and naval services, in which indeed the sentiment of a sort of special personal connection with the Government is carried almost to an unamiable extent.

The connection of other professions with the Government is less well marked and less important, though in a country like ours it pervades them all more or less. The medical profession is, in its essence, entirely independent of all the variable parts of human affairs. It discharges the same functions, under analogous conditions, in every part of the world, whatever may be the form of government of particular countries, or the circumstances of particular times; but, independent as it is in its substance, it has still a considerable connection with the Government. In most countries, and certainly in our own, the qualifications of medical men are ascertained by law, and bodies like the Colleges of Physicians and Surgeons, and Apothecaries' Hall, have a corporate existence and corresponding legal powers. Besides this, the Government, in its capacity of an employer of every kind of intellectual labour on a large scale, exercises considerable direct influence over this as well as other callings. There are, indeed, not more than one or two intellectual professions which are substantially unincorporated, and so completely unconnected with the political constitution of the country. Even in the case of art, there is the Royal Academy, with its own laws and customs. Literature can hardly be called a profession at all—so far as it is one, it is almost entirely lawless. Science, on the other hand, cannot, except in particular instances, be pursued as a regular occupation, unless those who pursue it are provided for by endowments, such as professorships, museums, or lectureships at scientific institutions. Professional etiquette may thus be described as a code of rules regulating to some extent the conduct, and deeply affecting the habits and feelings, of the members of all corporate professions. It also appears that, from the nature of the case, it always must be an essentially conservative institution, meant to maintain and carry out in practice whatever happens to be the established theory as to any particular profession, at any given time and place. How far, in our own time and country, is it a good thing? How far is the dislike with which it is regarded just?

The answer to these questions is obviously twofold. There are some merits and some defects inherent in professional rules as such. There are others which are appropriate to the rules which regulate the proceedings of every particular profession. The merit of professional rules, as such, almost always is that they are based upon a high-minded view of the nature of the profession to which they refer. For instance, the rule—a rule which has been recognized by and embodied in the law of the land—that the services of barristers and physicians are in substance gratuitous, and that the payment which they receive is voluntary on the part of the person to whom it is rendered, is no doubt based upon the general principle that the skill of both the lawyer and the physician ought to be regarded to some extent as an advantage, not to its possessor merely, but to all who stand in need of it, and that the rewards to be earned by those who acquire it are not to be measured exclusively by commercial principles. This rule, like many others, is an attempt, which may or may not be skilful, to give form to the sentiment that men have a common interest in the administration of justice and in the cure of disease, and that those who specially devote their attention to such subjects should, in doing so, be actuated not merely by the ordinary selfish motives of interest and ambition, but also by the nobler wish to promote the common good. The existence of such a sentiment, so long as it is put into a reasonable shape and kept within due bounds, is no doubt an excellent thing, but it is open to the great objection that it never is, nor can be, consistently acted on, and that, if it is professed without being acted on, it becomes the source of hypocrisy and falsehood.

It must, however, be observed that the existence of these things does not imply the total absence of that higher vein of sentiment upon the assumption of the existence of which the rules in question proceed. There is amongst the better kind of lawyers a sincere desire to do justice, or rather not to do injustice, and it is by no means an uncommon thing for them to be infinitely more peace-making than the inclination of their clients would lead them to be. That physicians have as a rule a most sincere and disinterested wish to do what they can to alleviate human suffering is within the experience of every family in the country. Hence professional etiquette may be regarded as a sort of black and white shield, on one side of which is written "principles," and on the other "hypocrisy." That the two do to some extent reproduce each other cannot be denied. It is in the nature of anything that approaches to a definite system of rules to do so. Professional rules are perhaps more open to this objection than most other systems, for they not only hold out the temptation to irregularity which is held out by rules of every description, but they hold it out to one particular class. The successful members of professions can afford to act upon high principles. A barrister or physician who counts his income by thousands has no occasion to fish for briefs or patients. It is often worth his while to tell disagreeable truths, and to refuse mean compliances, and it would be worth his while to do so even if he looked merely at the consequences as measured in fees; for though the immediate result might give offence to those by whom fees are dispensed, yet the general character for independence is to such a man matter of primary importance, and one which it would be worth his while to retain at the expense of a considerable money sacrifice. This, however, is true principally of successful men. It is on those who are just beginning to get on in their profession that the rules of professional etiquette weigh most heavily, and it is amongst them accordingly that they are most frequently disregarded, and that they cause the greatest amount of hypocrisy. To a man who, after years of suspense and difficulty, is just beginning to succeed, any one who has power to promote or hinder his success is a great man, and the immediate importance of pleasing him is such, that if professional rules stand in the way of doing so it requires great courage and good faith to act up to them. The most unpleasant and unamiable result of professional etiquette is the production of a class of men who enforce against others rules which they put themselves into a position to enforce by disregarding them during the earlier period of their career. Unpleasant as this may be, and wide as is the field which it opens to sarcasm, there can be little doubt that on the whole professional etiquette is a good, though it is often a highly invidious thing. Nearly all the most important affairs of life are in the hands of professional men, and the honour and dignity with which they are conducted depends to a great extent on the maintenance of a high sense of professional honour amongst those who conduct them, and to this sense of honour systems of etiquette contribute on the whole, though subject to the deductions just referred to.

To discuss the merits and defects which belong not to all professional rules as such, but in relation to the particular subjects to which they refer, it would be necessary to go through all the leading professions, and to possess a familiarity with their usages, and with the practical effects of them which hardly any one possesses. The limits of the present paper, to say nothing of any other reason, would render such a course impossible on the present occasion, but some observations may be made on the subject of the professional rules of lawyers—rules which are, perhaps, the most important and most characteristic of their class. The most important of these rules is that by which the profession is divided into two branches—attorneys and solicitors on the one hand, and barristers on the other. It is often asked, and with a great deal of reason, why the distinction should be kept up. In one of those singular controversies on what are sometimes described as "social" subjects which are sometimes admitted into the columns of The Times, a succession of anonymous voices crying in the wilderness, asked, on the one hand, "Why should not I, the client, see you, the barrister, face to face? Why, if I want a lease drawn, must I go to an attorney and pay him a long bill filled with aggravating items, when you who draw the deed get only one item out of the bill, and that not a large one?" Other anonymous persons, dating principally from the Temple and Lincoln's Inn, replied in woeful tones, "Why, in truth, should not you pay to us an angel's visit, and some three or four guineas, for which we would give you a lease which any law-stationer could engross, and which would be quite as good as the one for which the attorney (who, alas! does not come to us; such, at least, was the inference which the tone of the letters suggested) would charge you, say, twenty pounds?" Such laments arise from time to time without producing any particular result, and it is worth while to inquire why they do not, and why they should not.

The general theory of the distinction between the two branches of the legal profession would seem to be that the one is, and the other is not, a liberal profession; that the barrister is the superior and the attorney the inferior; that the one requires the manners, the accomplishments, and the education of a gentleman, and that these things are not to be expected of the other. Hence on all public occasions whatever the barrister is the conspicuous person. He sits in high places, and wears the professional uniform. The attorney comes to him, and he is fenced off from going to the attorney with a degree of care which seems to indicate that his virtue requires external fortification. Then, again, the attorney sends in his bill, and, if it is not paid, may bring an action for it; but the barrister has no claim whatever for his fees. According to the strictest view of the subject, he ought hardly to notice them; that is to say, he cannot in any way proportion the work to the money: a tariff is provided, specifying the prices below which he is not allowed to go, but beyond that he ought by rights to take what comes and make no bargains. This general view of his position is corroborated in detail by a number of little usages, all of which may be traced to the operation of the same sentiment.

If this general view of the profession be compared with the facts, a remarkable divergence between them displays itself. It is no doubt true that, if the duties of the two professions are compared, those of the barrister require the higher qualities—at least, in the higher class of men; but it is far from being true that the two professions differ on the whole as superior and inferior. The most distinguished members of the bar occupy, no doubt, a higher position than the most eminent attorney or solicitor; but the lower class of barristers would stand very low indeed amongst attorneys. It is childish to look on a man who passes his life in prosecuting and defending petty criminals at the Old Bailey and the quarter sessions, as in any respect the superior of one who has to manage the most important affairs of private families and public bodies. There are probably very few barristers who have to transact business as important as that which comes before the solicitors to a great railway company or any other great trading body. On what grounds, then, can the existing distinction between the two branches of the profession of the law be maintained, and what meaning has it?

In so far as it implies any personal superiority on the part of every barrister as such over every attorney as such, it is certainly idle and injurious, and ought not to be maintained at all. It ought, on the contrary, to be strenuously discouraged, for it operates in a singularly absurd and injurious way. It has undoubtedly produced a foolish notion that the profession of a barrister is much more fit for a gentleman than that of an attorney, and that the latter profession does not form one of the few callings between which a young man has to choose after completing that sort of education at a public school and university on which English parents (not unjustly) set so high a value. Novels afford excellent illustrations of the current fancies of the public on such topics as these. In a story lately published, Mrs. Gaskell makes the whole subsequent career of her hero turn on the fact that, instead of sending him from Eton to Oxford and thence to the bar, his father took him into partnership in his own firm, which had transacted the business of all the country gentlemen of a prosperous county time out of mind. The young man is mortified by finding that his old schoolfellows do not consider him as their equal, and ultimately (not exactly in his capacity of a solicitor, but on general grounds) knocks his partner on the head and buries him in a flower-garden, where he reposes till he is dug up in a railway cutting.

The prejudice which remotely contributed to this rash act undoubtedly exists, though, when looked at steadily, it is so absurd that it is hardly credible that it should exist. A man who picked up a scanty livelihood by holding briefs at circuit and sessions would, if his personal qualities entitled him to such treatment, be received as an equal by the squires whose pride so grievously mortified Mr. Wilkins; yet Mr. Wilkins's occupations required probably more mind, and certainly involved the possession of far greater power, and the receipt of a very much larger income. If the foolish notion which depreciates the importance and denies the dignity of such occupations were as universally despised as it ought to be, two great benefits would result to the very classes who keep up the prejudice. In the first place, the absurdly small list of professions recognized as liberal would be increased, and, though it would be increased by one only, this would be an increase in the proportion of 20 or 25 per cent. A young man leaving college may become a clergyman, a barrister, a doctor, or a soldier, or he may try to get an Indian appointment. For various reasons the number of such youths who become clergymen is rapidly decreasing, and is not likely to increase. To be a doctor requires special tastes, and though the profession of a soldier is an excellent one to die in, it holds out little prospect of living with comfort, except to those who could live as well without it. The Indian service is for some strange reason not very popular; of course the number of those who can enter it is strictly limited. Hence year after year the long list of idlers at the bar increases and multiplies. What such men do with themselves it is not easy to say, unless they write to The Times to know whether they can marry on £300 a year. If the profession of an attorney stood, as it ought, upon the same footing in regard of social consideration as that of a barrister, numbers of these men might be both usefully and profitably employed in it. With good connections, good manners, a good head for business, and money enough to buy a partnership, a man may be pretty sure of a good income, and of an occupation which will not only provide for his expenses, but give vigorous exercise to all his faculties. It is surely the height of folly to look with prejudice on such an occupation.

It is undoubtedly true that the public prosperity, in the best sense of the word, depends to a great extent on the degree in which the institutions of a country are calculated to produce and to reward the moral and intellectual qualities which go to make up what we understand by a gentleman, and it is also true that there is no country in the world in which such qualities have been or are held in such esteem as in our own. In order to keep up this state of things, notwithstanding the changes which time produces in the state of society, it is absolutely indispensable that gentlemen should be always ready to show practically as well as theoretically that they are better fitted as such for any kind of business to which they may put their hands than those who have no claim to the title; in short, that they occupy the best places because they are the best men, instead of claiming to be the best men because they are put in the best places. It is a trite remark, that the stability of the House of Lords is owing to the fact that it is continually being recruited by the most distinguished members of all the principal classes in the community. The stability and permanence of aristocracy, in that wider sense of the word in which it applies to all persons who have the sentiments, the manners, and the education of gentlemen, depends on the extension of that education to as many classes as possible. If the time should ever come when as much courtesy and polish was expected of a crossing-sweeper as is now expected of a peer of the realm, the position of the peer of the realm would be better than it is now, for the grounds on which he ought to rest his claims to respect would be understood and admitted by all the world, and the respect, if he deserved it, would be paid without grudging or envy.

Every one, therefore, who wishes to see high and honourable feelings and educated minds invested with the importance which properly belongs to them, ought to discourage every prejudice which deters gentlemen from entering upon any kind of occupation, and to enlarge, as much as possible, the number of occupations conventionally regarded as liberal professions.

Apart, however, from the advantages which would accrue to the class of young men who have to choose their professions from having a larger number to choose from, there can be no doubt that great advantages would result to the public from the fact of the profession of an attorney being regarded as a liberal profession. The prejudice noticed above may be and is foolish, and as regards the better members of the profession scandalously unjust, but it cannot truly be described as unfounded. There are amongst attorneys and solicitors a large proportion of men as well educated, possessed of as high principles of honour, and as much entitled, in all respects, to every sort of social consideration, as any members of the community; but there are also a considerable number of persons of whom not one of these assertions is true. There are many attorneys to whom a man might with perfect satisfaction intrust his character and his fortune. There are also many whom, if he was wise, he would not trust with the opportunity of forging his name. It is obvious that the public estimation in which the profession as a whole is held will have a great effect on the relative numbers and influence of these classes. Men are always judged by the standard of their profession, and so long as attorneys are viewed with prejudice, the less respectable members of the profession will always be able to say, I am only an attorney, you do not expect me to act up to the standard of what in other walks of life would be considered honourable and high-minded.

If the public sentiment at large did consider the profession of an attorney as a liberal profession, in the full sense of the words, and if that sentiment produced its natural effects on those who were the objects of it, there can be little doubt that the result on the management of a vast mass of affairs would be in the highest degree beneficial. No one can tell, who has not seen and felt it, what an amount of irritation and heart-burning an attorney may cause, with the best intentions in the world, merely by faults of manner, and by being suspicious and over-cautious in the wrong place. For instance, a marriage settlement is to be drawn, the solicitor who draws it is an honest and sensible man, but has little delicacy either of feeling or expression. He is almost sure to look upon the matter as a sort of hostile suit, in which he is to assume every sort of dishonest intention on the other side, to think that every restriction which he can place upon the enjoyment by the one party of the property of the other is so much gained for his own side, and so to make a settlement which can never be anything else than a vexation and incumbrance to both parties, unless, indeed, they live together on such terms that it would have been better if they had never been married at all. This is just the sort of negotiation in which the tact and manners of a gentleman are at least as important as knowledge either of law or of business.

It appears from all this to follow that the sentiment on which the professional etiquette between the two branches of the legal profession is founded is wrong, but it does not follow from this that there is no other principle on which it can be justified. In the United States and in some of our own colonies the distinction between barristers and attorneys is unknown. A lawyer is a lawyer. He sits in his office and goes to his clients as he finds it convenient, and goes into court and there pleads the cause which he has prepared for trial whenever it seems advisable to do so. Does it follow from what has just been said that this is the right course to take, that the two branches of the profession ought to be fused into one, and that the professional etiquette which prevents a barrister from communicating with his client in the first instance, and from collecting the materials on which he afterwards has to address the court, is a mere prejudice. This is by no means a necessary consequence. It may well be that an attorney is entitled to as much social consideration as a barrister, and yet that the two professions are fundamentally distinct, and require both a different education and a different set of professional rules. The more the matter is considered the more it will appear that this is the case, and American experience does not really conflict with this; for so distinct are the two branches of the profession that, as a rule, one member of the firm takes the advocate's department, and the other or others that of the attorney.

Legal business may be divided into that which is and that which is not contentious. Certain kinds of Chancery suits, actions at law, and, in a word, all business which is conducted in a hostile manner between the parties, and which leads to what in the popular sense of the word are called trials, belong to the first class. Sales, negotiations, conveyancing in all its branches, the establishment of companies, and innumerable matters of the same kind, belong to the second. It is in contentious business, or in the steps preparatory to it, such as drawing pleadings, giving opinions, advising on evidence and the like, that barristers are engaged, and their prospect of eminence in their profession depends upon the degree in which they possess the requisite gifts for it. It is by fighting a long succession of battles in a number of different arenas, from the quarter sessions up to the House of Lords, that a man comes to be a judge or a vice-chancellor. The greatest attorneys have comparatively little to do with such scenes. There are many eminent attorneys who hardly ever deliver a brief or issue a writ. They are to barristers what diplomatists are to soldiers. There is the army in the background ready to fight the matter out if hard comes to hard, but the attorney shows his skill far more in keeping out of court than in coming into it. His business is to advise his client not so much on his legal rights as on the course of policy which as a man of sense he ought to follow, whereas the barrister looks to victory in the particular battle in which at the moment he is engaged. He may think his client foolish for having come into court at all, but that is his affair, and as he is there he has to see that he gets his rights, whether or not they are worth getting. Hence the two sets of men use the law for totally different purposes, and require a different kind of knowledge of it. All that an attorney wants for practical purposes is a broad general knowledge of the principles and rules which are most commonly applied in practice. With that amount of knowledge he will be able in ordinary cases to give sound advice. He will be able to tell a man broadly about a will or a purchase, or a contract, and to show him how he may carry out his intentions without exposing himself to any chance of disappointment. In short, he can guide him through the ordinary routine, and advise him as to the policy of transactions which take their natural course, and arrive at their expected conclusion.

The knowledge which the barrister requires, on the other hand, is a knowledge not so much of rules as of principles. It will not do for him to know generally—to put a very simple case—what is the regular way of making a particular kind of agreement, but he must also know, or at least must be able to find out, what will happen if it is made in an irregular manner, and what will be the particular consequences of different degrees of irregularity. He must not only know his way along the road, but he must in case of need be able to take an observation, and find out his position on the chart.

It is obvious that a different sort of education is required in order to get these different sorts of knowledge of the law. There is no reason for representing the two callings as superior and inferior, but they are radically distinct. A man might be an admirable attorney without the slightest pretensions to being a good lawyer in the barrister's sense of the words, and he might be a first-rate lawyer and an excellent advocate, without having any of the qualities which would fit him for an attorney. Where there is of necessity a difference in the kind of education required for different walks of life, there ought to be, and, under some form or other, there always will be, a distinction between the walks of life themselves.

These considerations answer the questions asked by the newspaper correspondents referred to above, as to the reason why the barrister should be approachable only through the attorney. The answer is, that as there is a substantial distinction between the duties of the two men, it is better to lay down a rule which prevents them from interfering with each other. Of course, if the original client would be his own attorney, and would himself do what the attorney does for him, he might dispense with the attorney, but as a general rule, if he went to a barrister instead of an attorney he would find that he didn't get what he wanted. To take the case which was discussed in the newspapers. Suppose a man goes himself to a barrister, and says, "Draw me a lease of such a house," the barrister might, no doubt, take his instructions and draw the lease; which when copied out by the law-stationer would look as neat and formal as if it had come through an attorney's office. It is, however, ten to one that the lease would be a mere snare and delusion. In order to make it worth having, it is necessary to have the title examined, searches made in various registers, original deeds compared with copies, and all manner of questions discussed in which the expediency of standing on a strict legal right is at least as important as the question of the existence of such a right. If the barrister is to do all this, besides drawing the lease and settling the phraseology of particular clauses, he must of course be paid for it, and then the client gains nothing except that he pays one man instead of another. If he does not do it, what is the lease worth?

This general difference between the duties and objects of the two professions is the root from which many other differences spring. Litigation is private warfare. It is the process by which, in an advanced and polished state of society, men redress their wrongs by the intervention of physical force. The ultimate result of a lawsuit, the gist and essence of the whole proceeding, without which it would not take place at all, is not the decision that the one party is right and the other wrong, but the fact that the one party seizes and carries off in a cart to the auction-room the other's household furniture, or sends his body to gaol. Private as well as public war has its rules, and its hardships are considerably mitigated by their observance. By distinguishing between the barrister and the attorney, the soldier and the diplomatist, considerable security is given to the public at large that the contest shall be fought out in a satisfactory manner. If the parties themselves conducted their own causes, courts of justice would constantly present spectacles like those which sometimes occur in the county courts, especially when the parties are females. A question having arisen touching a sale of eggs or crockery, one of the ladies became so furious that the judge (not very legally) ordered a policeman to put her in the corner, with her face to the wall, till the other side had said her say. If the attorneys who advised the proceedings, knew the parties from the first, and took all the evidence, were also to conduct the case in court, they would no doubt import far more personal feeling and much less temperate zeal into the matter than is the case at present—a conclusion which county-court experience confirms. The interposition of another link greatly cools matters down, and saves the public time, to say nothing of decency and propriety.

The position thus assigned to barristers gives birth to the whole of that system of professional rules by which it is determined what a barrister may and may not say and do in the management of a cause. They are numerous and somewhat too technical to admit of popular explanation, but they are, on the whole, a great safeguard to the public against needless harshness in the discharge of what cannot but be a harsh and unamiable process.

Cornhill Magazine, July 1863.

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