As Berry laid his manuscript down –
“Quite lovely, darling,” said Daphne.
“I entirely agree,” said I. “It’s much the best thing you’ve done. Please let it distinguish the book.”
My brother-in-law frowned.
“And give up the Poets’ Corner?”
“Well, you know how sticky they are. And we don’t want this to be lost.”
“If you slipped the Dean a fiver…”
“I may predecease you,” I said.
“So you may,” said Berry. “So you may. Oh, well… After all, what’s sacrilege today?”
“Sorry,” said Berry, “to keep on returning to the Law, but what about etiquette?”
“Etiquette of the Bar?”
“Yes. I don’t know if that’s the right word: but you probably know what I mean.”
“I think it’s a very good word. More than any other profession, the Bar has been ruled by etiquette, some of it very ancient. No rules were ever drawn up; but there were certain understandings which counsel were expected to honour.”
“A pregnant phrase,” said Jonah. “You mean that some members of the Bar were less, shall we say, scrupulous than others?”
“I’m afraid so. But I think that on the whole the rules were faithfully observed. If they were not, except in an outrageous case, no action was taken: but the man who continually broke them soon got a very bad name. But please remember that I am speaking of the Bar as I knew it, nearly fifty years ago.
“I think the most ancient matter of etiquette is shewn forth by the appearance on the back of the gown worn by the Junior Bar of a tiny triangular pouch, into which you might inveigle a threepenny bit. This is a survival of the purse which was worn on the back of the gown, into which counsel’s clients were supposed to slip the fee, the idea being that counsel was above taking money and, if he were to be paid, must know nothing about it. That custom, in another form, survives today, for counsel’s fee is always arranged by his clerk and never by counsel himself. Naturally, the private discussions between counsel and his clerk are nobody’s business but in point of fact I never knew what I was to be paid till I saw the fee in writing upon the brief. Of course the clerks were pretty hot, for the more their master earned, the more they received. When I was Travers Humphreys’ pupil, I remember overhearing his clerk, Hollis, speaking on the telephone. ‘I can’t let you ’ave Travers for that: you can ’ave Boyd if you like – ’e’ll do it quite well.’ Boyd was in Humphreys’ chambers. And the clerk, of course, kept the fee-book. Naturally, the cheques were made out to counsel himself, I don’t think we gave receipts. Oh, yes: stamps were put on the back-sheet of the brief, and we signed across them. And, as you probably know, if the client didn’t pay up, we could take no action. Counsel may not sue for his fees. But the clerk was careful. If he wasn’t sure of his man, he demanded the fee with the brief.
“Another most important matter of etiquette is that counsel must always be instructed by a solicitor and never by the client direct. Only if you took what was called a ‘dock brief’, or the Judge asked you to defend some prisoner, could the solicitor be omitted.”
“What,” said Daphne, “is a ‘dock brief’?”
“This, my sweet. If, when he is arraigned—”
“Sorry. What do you mean by ‘arraigned’?”
“The arraignment consists of calling the prisoner to the bar by name, telling him what he is charged with and then asking him whether he is guilty or no. The Clerk of Assize (at the Old Bailey, the Clerk of Arraigns) does that.
“Well, if, when he is arraigned, he speaks up and asks the Court for permission to be legally represented and shows that he has a guinea, he can choose one of the counsel in court to represent him. I never saw it happen, but I know that it did.”
“What, any barrister?” said Berry. “Supposing he picked a QC?”
“Well, he was told that he couldn’t have him, because he was otherwise engaged. So he tried again. He always got someone, you know. And now let’s get back to the rule that counsel must always be instructed by a solicitor.
“Some counsel, particularly ‘thieves’ lawyers’, did break that rule. The Judges spotted it, of course, and did what they could. I remember a fellow who appeared in the High Court for one of the militant suffragists, without a solicitor behind him. And I heard the Lord Chief ask him who was instructing him, and I heard him admit that there was no solicitor in the case. The bleak look the Lord Chief gave him made me feel cold. I imagine he reported the case to the Bar Council. I don’t think anything was done in the case of ‘thieves’ lawyers’. You see, they were case-hardened and the only way to stop them would have been to disbar them. But all were pariahs.
“Then again it was an unwritten law that members of the Bar should not tout for work. Again the ‘thieves’ lawyers’ broke that rule – I’ve seen them doing it. And so did other members of the Bar
through their clerks
. I knew one very bad case – and the man was a QC. His clerk touted right and left. Of course it soon got known, and the Bench and the Bar didn’t like it. His chambers got a bad name, and his work began to fall off. (I met him at a private house soon after he’d taken silk; and that very slight acquaintance convinced me that he did not deserve that honour. His promotion had gone to his head and his manner was insufferable. And he didn’t spare his wife, who was really very lovely and very sweet. She left him a year or two later, and God knows I didn’t blame her. Years afterwards I met her again, when, I’m glad to say, she was very happily married to somebody else.) Soon he came to be employed only by firms of solicitors which were not above reproach, and that was the beginning of the end: but he had a powerful friend who got him a very good job. So he left the Bar.
“Then, again, there was a popular fellow who did a lot of work in the country. He was a member of the Junior Bar, but he ran a damned fine car – and he made a practice of giving solicitors lifts… Well, you know, that Rolls paid dividends. Solicitors much preferred a luxurious ride to and from some country court to a couple of train journeys, especially in the winter and when trains didn’t fit. But he was within the law and he was a jolly rogue, so people turned a blind eye and most of us wished him well.
“Then there was another unwritten law governing the ‘devil’s’ fees. If a ‘devil’ did a case for the Head of his Chambers in the country, then he was entitled to receive half the fee which was marked on the brief. I’m afraid he didn’t always get it – particularly if the fee was a big one. Still, that was the rule.”
“You say ‘in the country’. What about London?”
“Any case the ‘devil’ did in London, he did for nothing at all.”
“That seems rather hard.”
I shrugged my shoulders.
“Some masters were generous, I know. But they need not have been. That was the recognized rule. After all, the ‘devil’ was gaining valuable experience.”
“What about that case you did in the Court of Chancery?”
I shook my head.
“Oh, I got nothing, of course. I never expected a fee. But the experience I got was very well worth having. You see, the ‘devil’ was really an apprentice, and he learned his profession by doing his master’s work. He was given half the fee in the country because it cost him a lot to get to and from the court. I seldom made a penny, but that was my fault.”
“How was that?”
“Well, the Bar wasn’t allowed to travel third class – etiquette again – but the Junior Bar was supposed to travel second class and the ‘silks’ first. But I liked being comfortable, so I always travelled first. And if my case was at Brighton, as it sometimes was, I travelled to and fro by ‘The Southern Belle’, or whatever the train was called: so there wasn’t much left out of my half-fee.”
“Comfort first,” said Jonah. “You put up a better show.”
“I think I probably did.
“Another piece of etiquette has just occurred to me. No member of the Bar, however young and inexperienced, ever called any other member of the Bar, however exalted, by any name other than that by which he usually went: and he used that name
tout court
. I found this embarrassing, but I knew that I had to conform. Shortly after I had been called, I often had to speak to Denman, the famous Clerk of Assize. He was twice my age and a most distinguished and important man. But if I had called him anything but ‘Denman’, he would have come down upon me like a ton of bricks. And before I had been at the Bar for six months, I was Dickens’ junior – Henry Fielding Dickens QC. Well, I had to call him ‘Dickens’. When I was junior to Marshall Hall, I had to call him ‘Marshall ‘ – and that was that. And the same with Charles Gill, though that was easier, for we were both members of the same Club. My instinct was, of course, to call each of them ‘Sir’, but, if I had, they would have instantly corrected me.”
“That,” said Berry, “was valuable. The brotherhood of the Bar.”
“I agree. But to take the plunge was most embarrassing.”
“If you’d been Rufus Isaacs’ junior, would you have called him ‘Rufus’?”
“I suppose I should have tried to; but the thought of it makes me feel weak.”
“And F E Smith?”
“I think I could have managed ‘F E.’ And now I have remembered a very curious point of etiquette, which prevailed in my time. I had to observe it once – and it lost me the case.”
“Proceed,” said Berry.
“Well you probably know that Agreements which have been reduced to writing and signed have to be stamped. That is to say they have to be taken to Somerset House or some local government office, where for a trifling sum they will be officially impressed with a kind of red seal. I think they have to be stamped within fourteen days of being signed. You can get them stamped later on, but if you are out of time you have to pay a fine. And for every month that you are out of date, the fine is increased; so that if you forget all about the matter for two or three years, to have them stamped may cost a considerable sum.
“Well, if you want to produce an Agreement in court, it’s got to be stamped. Otherwise, the Court will not accept it. Without its stamp, in the eyes of the Law it is a valueless document. But sometimes the Court is nodding, and an unstamped Agreement is produced and accepted, because neither the Judge nor his Registrar or Associate has noticed the omission.”
“But surely,” said Daphne, “surely—”
“I know, my sweet. Speaking for myself, the stamp would have been the first thing I looked for; but, as you will hear, its absence was sometimes unnoticed.
“Now it was a matter of etiquette that the counsel against whom the Agreement would militate should never draw the attention of the court to the fact that it was not stamped.”
“Well, that’s a good one,” said Berry. “Because a couple of doddering old fools can’t use their eyes, you’re to sit still and watch your case go down the drain.”
“You’re telling me,” I said. “I once had that devastating experience, when I was against a very nice fellow called Whitely, in some County Court. He was rather older than I was. He produced his Agreement and, as he put it in – that is to say, tendered it as evidence – he gave me an old-fashioned look; and that, of course, told me that the rotten thing wasn’t stamped. Well, the Court had a look at it, and then, as usual, I asked if I might see it, too. Counsel, of course, has a right to inspect any document produced by the other side. Sure enough, the Agreement wasn’t stamped. Hoping against hope, I handed it back; for if the Court didn’t notice the omission, my cake was dough. You may imagine how fervently I prayed that one of the two would use his blasted eyes. But my prayers were not heard. I remember that the Judge looked at me and smiled very pleasantly – he was a very nice man. ‘In the face of this Agreement, Mr Pleydell, what do you expect me to do?’ I tell you, I could have screamed. Instead, ‘Sir,’ I said, ‘I’m afraid I have nothing to say.’ So judgment was given against me. Sheer misfortune, of course; but there you are. Afterwards, in the robing-room, Whitely came to me and set his hand on my shoulder. ‘Pleydell,’ he said, ‘I have much to thank you for.’ ‘I don’t think you have,’ I said, laughing. ‘I think it’s a poisonous custom, but customs must be observed.’ ‘I know,’ he said, ‘I know. But when you inspected the Agreement, the Judge was watching you, and it would have been so easy for you to have raised your eyebrows or put your head on one side. But you did nothing.’ I smiled. ‘I can’t see you doing that.’ ‘No,’ he said. ‘But – well, it’s nice to know that there are one or two of us who didn’t forget everything when we were called to the Bar.’”
“Well, I’m damned,” said Jonah.
“It’s true,” I said. “You see how it’s stuck in my mind.”
“One moment,” said Berry. “What about your unfortunate client? But for your damned etiquette, he’d have won his case.”
“I know,” I said. “To my mind, it was an outrage. But, to be honest, it’s not as bad as it looks. This particular matter of etiquette arose in this way. If an Agreement was produced in Court and the other side pointed out that it was unstamped, the case was adjourned and the fellow who produced the Agreement went off, paid his fine and got it stamped before the next hearing. Well, that helped nobody except the Revenue. And so it became the custom not to point out that the Agreement was not stamped. The snag was that, if the Agreement was an old one, the fine that the man who produced it would have to pay would be so heavy that, rather than pay it, he would throw in his hand and consent to judgment: in which case, of course, as in mine, his opponent lost his case by holding his tongue.”
“Well, I call it wicked,” said Daphne. “If the Judge had been wearing glasses, you would have won your case. But because of this rubbishy custom, you had to sit still and smile and be disqualified.”
“I know. It was very trying. To this day I can see the Judge’s gentle smile and Whitely sitting there with a hand to his mouth. I daresay things have changed. I hope they have.”
Berry expired.
“Would it be too much to suggest that your luckless client hadn’t the faintest idea that his case was really in the bag, when his highly scrupulous counsel opened the mouth of the bag and damned well shook it out?”
“I hope he hadn’t,” I said.
“And you talk of etiquette. If you called it rank chicanery, you would be nearer the mark. All I can say is that if anyone who is considering going to law in the mistaken hope of obtaining justice reads this book, I should think it will probably stop him from paying handsomely for the privilege of entering what I can only describe as a den of thieves.”
“That’s nonsense,” I said, “and you know it. Taking it by and large the client does very well. He gets a very fair deal. For one thing only, if his counsel is inexperienced, the Judge will always help him, so that he’s not weighted out. And if he appears in person, he’s given great latitude. I’ve given you one or two instances of misfortune or even dereliction of duty; but I have said nothing of the scores of cases I saw, with some of which I had to do, which were admirably conducted and most fairly tried. In my day the Bar was probably the most honest of the professions and I have no doubt that the same can be said today. Indeed, you may take it from me that British justice most truly deserves its name.”