Malpractices of the Senior Bar, 1862

From the King’s County Chronicle, 5 March 1862, an impressive editorial diatribe against the then practice of Irish Queen’s Counsel accepting multiple briefs for the same day while asserting the right to retain all fees paid in advance, even where they failed, as a result, to appear in one or more of the case in which they had been briefed:

“We have repeatedly heard of complaints from the Bench of the usage which is prevalent among barristers to accept briefs with fees in cases which are to be heard in different courts, and may be called on at the same time.  Such a practice is not only injurious to the right administration of justice between the parties and disrespectful and slighting to the judges, but it is beyond doubt discreditable and immoral in those barristers who adopt it; moreover, it is beyond doubt fraudulent and dishonest towards the clients whose cash they have accepted upon the understanding and undertaking that they shall attend and advocate their causes which at hearing in court.

 At the Irish Bar, the evil has become a vexatious and mischievous nuisance, which is disingenuously preserved and committed by several leading members of the profession; in England, this is not so much the practice, because the common law and equity bar are each composed of different members of the profession; but the gentlemen of the Long Robe in Ireland act as if they were omnipresent and omniscient, and do not confine themselves to any one branch of the profession, to any court of law or equity, or even to all the tribunals at the Four Courts.  They are not only looking for and ready to take fees in all the High Courts, but also in the Landed Estates, in the Bankruptcy and Insolvency, in the Probate, and Consistorial, in the Admiralty courts, or even at the Green Street Sessions, or the Pol ice Offices; before all these tribunals the Irish Barrister is prepared to appear; all required to secure him is the honorarium which is the Latin designation to distinguish the guineas given to the Barristers from the six and eight penny costs, exacted by the attorney; an Irish practising Barrister is prepared to accept fees for cases in all these courts, with an implied understanding that he will give his time and personal advocacy to the clients retaining him, whilst he is himself perfectly aware that he will not or may not keep his engagement, because he cannot do so without breaking other engagements.

We have been induced to offer these remarks, because we know them to be called for, and further because of the like nonfeasance having occurred in a case recently tried, the parties in which reside in the King’s County.  The case referred to is Davis v Davis, it was an action for alleged slander spoken at the Parsonstown Quarter Sessions; it appeared that the defendant by an oversight in the pleadings was precluded from relying for his defence on the fact that these words were spoken on a trial in a court of justice, and that they were pertinent to the issue therein depending; but the defendant’s attorney had retained two eminent Queen’s Counsel, with whom a Junior was allocated, but when the trial came on both the Queen’s Counsel were absent until its termination, and took no active part in it, both of them being engaged in other cases in other courts, then at hearing.  That their presence should not have altered the event is no excuse if it be alleged, but we do think that both those learned gentlemen are in honour and honestly bound not only to return their fees, but to indemnify their client from the possible losses which their breach of contract may have occasioned.

This is a long existing practice by the leading practitioners of the Irish Bar by which many confiding clients have been injured; and not a few ruined, it is high time for the judges to take measures that every client retaining and paying counsel shall not be abandoned.  This practice is as derogatory to the reputation of the profession as it is averse to the fair administration of justice.”

Powerful stuff, which resulted in the following letter to the Chronicle from none other than the successful plaintiff’s solicitor:

“Having been present on this trial on behalf of the plaintiff, I can state what then occurred afforded rather an illustration of a defendant extricated from a serious dilemma with a comparatively small loss, by the prudence of his professional advisers, than of injuries sustained by suitors through any malpractice of the bar.   The defendant, having accused the plaintiff in the public court of Quarter Sessions, at Birr, of having robbed a certain chest, instead of offering any amends when an action was brought against him, he alleged in his defence that he was justified in what he said inasmuch as his charge was true.  On the trial of case, however the plaintiff, who was ably cross-examined completely disproved the charge, and the defendant’s counsel having no defence and to save him from a verdict with heavy damages, expressed his regret for ever having made such imputation, and undertook that he would pay all the costs. 

The defendant, it is true, when his defence of justification had wholly failed, was not permitted to resort to another and totally different defence, that the language had been used by him on  privileged occasion, but even had such further pleading been then received, contrary to all precedent, it would have only affected the result by preventing the defendant from getting any favour, and thus have made him liable for damages as well as costs, for plaintiff’s counsel were prepared to show, if necessary, that the facts of this case afforded neither grounds nor pretence for relying on a plea of privilege. 

William A Cooke.”

Somewhat embarrassingly for Mr Cooke, the King’s County Chronicle published his letter with the following response immediately below:

Mr Cooke has, in the above communication, raised an issue which we entirely avoided in the article referred to by him.  We confined our remarks to animadversions on careless and bad pleading, and the non-attendance of counsel retained at the hearing of the case in court.  We did not enter into the merits of the case, and, therefore Mr Cooke is unnecessarily reviving the contest in which he had already gained a victory as the attorney of the suit of the successful litigant. THE EDITOR”

Difficult to disagree!  Surely a client who retains counsel is entitled to expect that such counsel would make reasonable efforts to attend – or at least, if precluded from attending, that they would return any fees paid in advance!

So we might now think – but to mid-19th century judges who had themselves benefited from this practice as Queen’s Counsel, the answer was a little less obvious…

More to come!

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Author: Ruth Cannon BL

Irish barrister sharing the history of the Four Courts, Dublin, Ireland, and other Irish courts.

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