The Solicitors' Journal and Weekly Reporter – February 1, 1913

Fees payable to Junior Counsel

For some time past there has been increasing dissatisfaction among solicitors with one, at least, of the rules which govern the payment of fees to counsel; and the recent discussion at the General Meeting of the Law Society shews that steps are being taken by the Council of the Society to place before the Bar Council the causes of this dissatisfaction.

By a rigid rule of professional etiquette, when two counsel are engaged together in any case, the junior must receive a fee which bears to that of his leader the proportion of either two-thirds or three-fourths, as nearly as these proportions can be estimated in round guineas. If three or more counsel are engaged, each junior counsel must exact a fee calculated in the same way with reference to that of his immediate senior; so that the fee which the leading counsel is able to command on the market automatically fixes those of his juniors. Again, when the leader receives a refresher, his juniors must obtain one bearing this same proportion to his. And since another rule of etiquette forbids king's counsel to appear in court without a junior (except when they appear at Government inquiries, when ordinary bar etiquette does not apply), it follows that the client who secures an expensive leader has not only to pay the fancy price which the latter's reputation enables him to command, but has to pay a junior, whom he often does not require at all, a fee vastly beyond any the latter is himself in the habit of obtaining.

Such a system is really not defensible at all. It is easy to say that people who can afford to brief a fashionable leader can probably afford to pay his junior a handsome fee; but that sort of argument would justify the action of Robin Hood, who robbed the rich in order to befriend the poor. The best defence which can be put up for the system is that suggested by the Times in a leading article last Saturday. Its contention is that the etiquette of the bar must be taken as a whole, and that anomalies which bear hardly in particular cases are really necessary in order to secure a living wage for the profession. Some work is overpaid, so runs the argument, but other work is underpaid; the two balance each other. But the underlying fallacy which vitiates such arguments as this lies in the assumption that the barrister whose work is not well paid is the same individual who reaps occasionally a handsome fee for doing nothing as the result of some anomalous rule. As a matter of fact, in practice they are seldom the same.

The Line of Least Resistance

It is not difficult to criticize anomalies in professional remuneration, but the real point is to discover a practicable remedy. Any remedy, to be acceptable, must commend itself not merely to litigants and solicitors, but also to practising barristers. It must therefore fulfill two conditions: it must not be too sweeping, and it must be in harmony with existing professional traditions. To abolish altogether the two-thirds rule, or to allow king's counsel to appear in court without a junior, offends against the first condition as well as the second. But there is one simple way out of the difficulty, in our opinion, which violates neither.

At the present moment there is a recognized minimum fee which every leader must obtain in a common jury case; it is ten guineas in London and fifteen on circuit. He may, of course, receive as much more as his clerk can successfully ask in view of his standing and reputation. Similar minima are recognized in special jury, commercial court, divisional court and parliamentary cases. Why not divide the leader's brief fee into two, one consisting of the recognized minimum for the class of work, and the other a special fee based on the advocate's personal position? With regard to the former fee, junior counsel should be entitled as of right to his two-thirds; but the special fee would be no concern of his.

A principle resembling this is already in operation both in the Chancery Division when a leader who goes "special" is briefed, and on circuit when a practitioner is taken into a circuit or sessions of which he is not a member. No violent breach with tradition would be involved in the adoption of such a rule, and it has the advantage of preserving the rights of the junior practitioner to a living wage. This plan, or some modification of it, we are confident is a solution which, vigorously pressed, would commend itself as essentially reasonable to those whose duty it is to determine the etiquette and watch over the privilege of the bar. SJ