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chapter 104: The Bar - Viscount James Bryce, The American Commonwealth, vol. 2 [1888]

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The American Commonwealth, with an Introduction by Gary L. McDowell (Indianapolis: Liberty Fund, 1995). Vol. 2.

Part of: The American Commonwealth, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


chapter 104

The Bar

Among the organized institutions of a country which, while not directly a part of the government, influence politics as well as society, the bar has in England, Scotland, and France played a part only second to that played by the church. Certainly no English institution is more curiously and distinctively English than this body, with its venerable traditions, its aristocratic sympathies, its strong, though now declining, corporate spirit, its affinity for certain forms of literature, its singular relation, half of dependence, half of condescension, to the solicitors, its friendly control over its official superiors, the judges. To see how such an institution has shaped itself and thriven in a new country is to secure an excellent means of estimating the ideas, conditions, and habits which affect and colour the social system of that country, as well as to examine one of the chief among the secondary forces of public life. It is therefore not merely for the sake of satisfying the curiosity of English lawyers that I propose to sketch some of the salient features of the legal profession as it exists in the United States, and to show how it has developed apart from the restrictions imposed on it in England by ancient custom, and under the unchecked operation of the laws of demand and supply.

When England sent out her colonies, the bar, like most of her other institutions, reappeared upon the new soil, and had gained before the revolution of 1776 a position similar to that it held at home, not owing to any deliberate purpose on the part of those who led and ruled the new communities (for the Puritan settlers at least held lawyers in slight esteem), but because the conditions of a progressive society required its existence. That disposition to simplify and popularize law, to make it less of a mystery and bring it more within the reach of an average citizen, which is strong in modern Europe, is of course still stronger in a colony, and naturally tended in America to lessen the corporate exclusiveness of the legal profession, and do away with the antiquated rules which had governed it in England. On the other hand, the increasing complexity of relations in modern society, and the development of many new arts and departments of applied science, bring into an always clearer light the importance of a division of labour, and, by attaching greater value to special knowledge and skill, tend to limit and define the activity of every profession. In spite, therefore, of the democratic aversion to exclusive organizations, the lawyers in America soon acquired professional habits and a corporate spirit similar to that of their brethren in England; and early last century they had reached a power and social consideration relatively greater than the bar has ever held on the eastern side of the Atlantic.

But the most characteristic peculiarity of the English system disappeared. In the United States, as in some parts of Europe, and most British colonies, there is no distinction between barristers and attorneys. Every lawyer, or “counsel,” is permitted to take every kind of business: he may argue a cause in the Supreme Federal Court at Washington, or write six-and-eightpenny letters from a shopkeeper to an obstinate debtor. He may himself conduct all the proceedings in a cause, confer with the client, issue the writ, draw the declaration, get together the evidence, prepare the brief, and conduct the case when it comes on in court. He is employed, not like the English barrister, by another professional man, but by the client himself, who seeks him out and makes his bargain directly with him, just as in England people call in a physician or make their bargain with an architect. In spite, however, of this union of all a lawyer’s functions in the same person, considerations of practical convenience have in many places established a division of labour similar to that existing in England. Where two or more lawyers are in partnership, it often happens that one member undertakes the court work and the duties of the advocate, while another or others transact the rest of the business, see the clients, conduct correspondence, hunt up evidence, prepare witnesses for examination, and manage the thousand little things for which a man goes to his attorney. The merits of the plan are obvious. It saves the senior member from drudgery, and from being distracted by petty details; it introduces the juniors to business, and enables them to profit by the experience and knowledge of the mature practitioner; it secures to the client the benefit of a closer attention to details than a leading counsel could be expected to give, while yet the whole of his suit is managed in the same office, and the responsibility is not divided, as in England, between two independent personages. However, the custom of forming legal partnerships is one which prevails much more extensively in some parts of the Union than in others. In Boston and New York, for instance, it is common, and I think in the Western cities; in the towns of Connecticut and in Philadelphia one is told that it is rather the exception. Even apart from the arrangement which distributes the various kinds of business among the members of a firm, there is a certain tendency for work of a different character to fall into the hands of different men. A beginner is of course glad enough to be employed in any way, and takes willingly the smaller jobs; he will conduct a defence in a police court, or manage the recovery of a tradesman’s petty debt. I remember having been told by a very eminent counsel that when an old apple-woman applied to his son to have her market licence renewed, which for some reason had been withdrawn, he had insisted on the young man’s taking up the case. As he rises, it becomes easier for him to select his business, and when he has attained real eminence he may confine himself entirely to the higher walks, arguing cases and giving opinions, but leaving most of the preparatory work and all the communications with the client to be done by the juniors who are retained along with him. He is, in fact, with the important difference that he is liable for any negligence, very much in the position of an English leader or King’s counsel, and his services are sought, not only by the client, but by another counsel, or firm of counsel, who have an important suit in hand, to which they feel themselves unequal. He may however be, and often is, retained directly by the client; and in that case he is allowed to retain a junior to aid him, or to desire the client to do so, naming the man he wishes for, a thing which the etiquette of the English bar is supposed to forbid. In every great city there are several practitioners of this kind, men who only undertake the weightiest business at the largest fees; and even in the minor towns court practice is in the hands of a comparatively small group. In one New England city, for instance, whose population is about 50,000, there are, I was told, some sixty or seventy practising lawyers, of whom not more than ten or twelve ever conduct a case in court, the remainder doing what Englishmen would call attorney’s and conveyancer’s work.

Whatever disadvantages this system of one undivided legal profession has, it has one conspicuous merit, on which anyone who is accustomed to watch the career of the swarm of young men who annually press into the Temple or Lincoln’s Inn full of bright hopes, may be pardoned for dwelling. It affords a far better prospect of speedy employment and an active professional life, than the beginner who is not “strongly backed” can look forward to in England. Private friends can do much more to help a young man, since he gets business direct from the client instead of from a solicitor; he may pick up little bits of work which his prosperous seniors do not care to have, may thereby learn those details of practice of which in England a barrister often remains ignorant, may gain experience and confidence in his own powers, may teach himself how to speak and how to deal with men, may gradually form a connection among those for whom he has managed trifling matters, may commend himself to the good opinion of older lawyers, who will be glad to retain him as their junior when they have a brief to give away. So far he is better off than the young barrister in England. He is also, in another way, more favourably placed than the young English solicitor. He is not taught to rely in cases of legal difficulty upon the opinion of another person. He does not see the path of an honourable ambition, the opportunities of forensic oratory, the access to the judicial bench, irrevocably closed against him, but has the fullest freedom to choose whatever line his talents fit him for. Every English lawyer’s experience, as it furnishes him with cases where a man was obliged to remain an attorney who would have shone as a counsel, so also suggests cases of persons who were believed, and with reason believed, by their friends to possess the highest forensic abilities, but literally never had the chance of displaying them, and languished on in obscurity, while others in every way inferior to them became, by mere dint of practice, fitter for ultmate success. Quite otherwise in America. There, according to the universal witness of laymen and lawyers, no man who combines fair talents with reasonable industry fails to earn a competence, and to have, within the first six or seven years of his career, an opportunity of showing whether he has in him the makings of something great. This is not due, as might be supposed, merely to the greater opportunities which everybody has in a new country, and which make America the working man’s paradise, for, in the Eastern states at least, the professions are nearly as crowded as they are in England. It is owing to the greater variety of practice which lies open to a young man, and to the fact that his patrons are the general public, and not, as in England, a limited class who have their own friends and connections to push. Certain it is that American lawyers profess themselves unable to understand how it can happen that deserving men remain briefless for the best years of their life, and are at the last obliged to quit the profession in disgust.

A further result of the more free and open character of the profession may be seen in the absence of many of those rules of etiquette which are, in theory at least, observed by the English lawyer. It is not thought undignified, except in the great cities of the Eastern states, for a counsel to advertize himself in the newspapers.1 He is allowed to make whatever bargain he pleases with his client: he may do work for nothing, or may stipulate for a commission on the result of the suit or a share in whatever the verdict produces—a practice which is open to grave objections, and which in the opinion of more than one eminent American lawyer, has produced a good deal of the mischief which caused it to be seventeen centuries ago prohibited at Rome. However, in some cities the sentiment of the bar seems to be opposed to the practice, and in some states there are rules limiting it. A counsel can, except in New Jersey (a state curiously conservative in some points), bring an action for the recovery of his fees, and, pari ratione, can be sued for negligence in the conduct of a cause.

A lawyer can readily gain admission to practice in the federal courts, and may by courtesy practise in the courts of every state. But each state has its own bar, that is to say, there is no general or national organization of the legal profession, the laws regulating which are state laws, differing in each of the forty-eight commonwealths. In no state does there exist any body resembling the English Inns of Court, with the right of admitting to the practice of public advocacy and of exercising a disciplinary jurisdiction; and in few have any professional associations resembling the English Incorporated Law Society obtained statutory recognition. State law generally vests in the courts the duty of admitting persons as attorneys, and of generally excluding them if guilty of any serious offence. But the oversight of the judges is necessarily so lax that in many states and cities voluntary bar associations have been formed with the view of exercising a sort of censorship over the profession. Such associations can blackball bad candidates for admission, and expel offenders against professional honour; and they are said to accomplish some good in this way. More rarely they institute proceedings to have black sheep removed from practice. Being virtually an open profession like stockbroking or engineering, the profession has less of a distinctive character and corporate feeling than the barristers of England or France have, and I think rather less than the solicitors of England have. Neither wig, bands, gown, cap, nor any other professional costume is worn, and this circumstance, trivial as it may seem, no doubt contributes to weaken the sentiment of professional privilege and dignity, and to obscure the distinction between the advocate as an advocate, not deemed to be pledging himself to the truth of any fact or the soundness of any argument, but simply presenting his client’s case as it is presented to him.

In most states the judges impose some sort of examination on persons seeking to be admitted to practice, often delegating the duty of questioning the candidate to two or three counsel named for the purpose. Candidates are sometimes required to have read for a certain period in a lawyer’s office, but this condition is easily evaded, and the examination, nowhere strict, is often little better than a form or a farce. Notwithstanding this laxity, the level of legal attainment is in some cities as high or higher than among either the barristers or the solicitors of London. This is due to the extraordinary excellence of many of the law schools. I do not know if there is anything in which America has advanced more beyond the mother country than in the provision she makes for legal education.2 As far back as 1860, when there was nothing that could be called a scientific school of law in England, the Inns of Court having practically ceased to teach law, and the universities having allowed their two or three old chairs to fall into neglect and provided scarce any new ones, several American universities possessed well-equipped law departments, giving a highly efficient instruction. Even now, when England has bestirred herself to make a more adequate provision for the professional training of both barristers and solicitors, this provision seems insignificant beside that which we find in the United States, where, not to speak of minor institutions, all the leading universities possess law schools, in each of which every branch of Anglo-American law, i.e., common law and equity as modified by federal and state constitutions and statutes, is taught by a strong staff of able men, sometimes including the most eminent lawyers of the state.3 Here at least the principle of demand and supply works to perfection. No one is obliged to attend these courses in order to obtain admission to practice, and the examinations are generally too lax to require elaborate preparation. But the instruction is found so valuable, so helpful for professional success, that young men throng the lecture halls, willingly spending two or three years in the scientific study of the law which they might have spent in the chambers of a practising lawyer as pupils or as junior partners. The indirect results of this theoretic study in maintaining a philosophical interest in the law among the higher class of practitioners, and a higher sense of the dignity of their profession, are doubly valuable in that absence of corporate organizations on which I have already commented.4

In what may be called habits of legal thought, their way of regarding legal questions, their attitude towards changes in the form or substance of the law, American practitioners, while closely resembling their English brethren, seem on the whole more conservative. Such law reforms as have been effected in England during the last century have mostly come from the profession itself. They have been carried through Parliament by attorneys general or lord chancellors, usually with the tacit approval of the bar and the solicitors. The masses and their leaders have seldom ventured to lay profane fingers on the law, either in despair of understanding it or because they saw nearer and more important work to be done. Hence the profession has in England been seldom roused to oppose projects of change; and its division into two branches, with interests sometimes divergent, weakens its political influence. In the United States, although the legislatures are largely composed of lawyers, many of these have little practice, little knowledge, comparatively little professional feeling. Hence there is usually a latent and sometimes an open hostility between the better kind of lawyers and the impulses of the masses, seeking probably at the instigation of some lawyer of a demagogic turn to carry through legal changes. The defensive attitude which the upper part of the profession is thus led to assume fosters those conservative instincts which a system of case law engenders, and which are further stimulated by the habit of constantly recurring to a fundamental instrument, the federal Constitution. Thus one finds the same dislike to theory, the same attachment to old forms, the same unwillingness to be committed to any broad principle which distinguished the orthodox type of English lawyers in the first half of last century. Prejudices survive on the shores of the Mississippi which Bentham assailed when those shores were inhabited by Indians and beavers; and in Chicago, a place which living men remember as a lonely swamp, special demurrers, replications de injuria, and various elaborate formalities of pleading which were swept away by the English Common Law Procedure Acts of 1850 and 1852, flourish and abound to this day.

Is the American lawyer more like an English barrister or an English solicitor? This depends on the position he holds. The leading counsel of a city recall the former class, the average practitioners of the smaller places and rural districts the latter. But as every American lawyer has the right of advocacy in the highest courts, and is accustomed to advise clients himself instead of sending a case for opinion to a counsel of eminence, the level of legal knowledge—that is to say, knowledge of the principles and substance of the law, and not merely of the rules of practice—is somewhat higher than among English solicitors, while the familiarity with details of practice is more certain to be found than among English barristers. Neither an average barrister nor an average solicitor is so likely to have a good working all-round knowledge of the whole field of common law, equity, admiralty law, probate law, patent law, as an average American city practitioner, nor to be so smart and quick in applying his knowledge. On the other hand, it must be admitted that England possesses more men eminent as draftsmen, though perhaps fewer eminent in patent cases, and that much American business, especially in state courts, is done in a way which English critics might call lax and slovenly.

I have already observed that both in Congress and in most of the state legislatures the lawyers outnumber the persons belonging to any one other walk of life. Nevertheless, they have not that hold on politics now which they had in the first and second generations after 1783. Politics have, in falling so completely into the hands of party organizations, become more distinctly a separate profession, and an engrossing profession, which a man occupied with his clients cannot follow. Thus among the leading lawyers, the men who win wealth and honour by advocacy, comparatively few enter a legislative body or become candidates for public office. Their influence is still great when any question arises on which the profession, or the more respectable part of it, stands together. Many bad measures have been defeated in state legislatures by the action of the bar, many bad judicial appointments averted. Their influence strengthens the respect of the people for the Constitution, and is felt by the judges when they are called to deal with constitutional questions. But taking a general survey of the facts of today, as compared with those of the middle of last century, it is clear that the bar counts for less as a guiding and restraining power, tempering the crudity or haste of democracy by its attachment to rule and precedent, than it did then.

A similar decline, due partly to this diminished political authority, may be observed in its social position. In a country where there is no titled class, no landed class, no military class, the chief distinction which popular sentiment can lay hold of as raising one set of persons above another is the character of their occupation, the degree of culture it implies, the extent to which it gives them an honourable prominence. Such distinctions carried great weight in the early days of the Republic, when society was smaller and simpler than it has now become. But of late years not only has the practice of public speaking ceased to be, as it once was, almost their monopoly, not only has the direction of politics slipped in great measure from their hands, but the growth of huge mercantile fortunes and of a financial class has, as in France and England, lowered the relative importance and dignity of the bar. An individual merchant holds perhaps no better place compared with an average individual lawyer than he did forty years ago; but the millionaire is a much more frequent and potent personage than he was then, and outshines everybody in the country. Now and then a brilliant orator or writer achieves fame of a different and higher kind; but in the main it is the glory of successful commerce which in America and Europe now draws wondering eyes. Wealth, it is true, is by no means out of the reach of the leading lawyers; yet still not such wealth as may be and constantly is amassed by contractors, railway men, financial speculators, hotel proprietors, newspaper owners, and retail storekeepers. The incomes of the first counsel in cities like New York are probably as large as those of the great English leaders. I have heard firms mentioned as dividing sums of $300,000 a year, and individual lawyers as earning $200,000 or more. It is, however, only in two or three of the greatest cities that such incomes can be made, and possibly not more than thirty counsel in the whole country make by their profession more than $100,000 a year. Next after wealth, education may be taken to be the element or quality on which social standing in a purely democratic country depends. In this respect the bar ranks high. Most lawyers have had a college training, and are, by the necessity of their employment, persons of some mental cultivation; in the older towns they, with the leading clergy, form the intellectual elite of the place, and maintain worthily the literary traditions of the Roman, French, English, and Scottish bars. But education is so much more diffused than formerly, and cheap literature so much more abundant, that they do not stand so high above the multitude as they once did. It may, however, still be said that the law is the profession which an active youth of intellectual tastes naturally takes to, that a large proportion of the highest talent of the country may be found in its ranks, and that almost all the first statesmen of the present and the last generation have belonged to it, though many soon resigned its practice. It is also one of the links which best serves to bind the United States to England. The interest of the higher class of American lawyers in the English law, bar, and judges, is wonderfully fresh and keen. An English barrister, if properly authenticated, is welcomed as a brother of the art, and finds the law reports of his own country as sedulously read and as acutely criticized as he would in the Temple.5

I have left to the last the question which a stranger finds it most difficult to answer. The legal profession has in every country, apart from its relation to politics, very important functions to discharge in connection with the administration of justice. Its members are the confidential advisers of private persons, and the depositaries of their secrets. They have it in their power to promote or to restrain vexatious litigation, to become accomplices in chicane, or to check the abuse of legal rights in cases where morality may require men to abstain from exacting all that the letter of the law allows. They can exercise a powerful influence upon the magistracy by shaming an unjust judge, or by misusing the ascendency which they may happen to possess over a weak judge, or a judge who has something to hope for from them. Does the profession in the United States rise to the height of these functions, and in maintaining its own tone, help to maintain the tone of the community, especially of the mercantile community, which, under the pressure of competition, seldom observes a higher moral standard than that which the law exacts? So far as my limited opportunities for observation enable me to answer this question, I should answer it by saying that the profession, taken as a whole, seems to stand on a level with the profession, also taken as a whole, in England. But I am bound to add that some judicious American observers hold that since the Civil War there has been a certain decadence in the bar of the greater cities. They say that the growth of enormously rich and powerful corporations, willing to pay vast sums for questionable services, has seduced the virtue of some counsel whose eminence makes their example important, and that in a few states the degradation of the bench has led to secret understandings between judges and counsel for the perversion of justice. Strenuous efforts have of late been made by the bar associations to establish codes of legal ethics and etiquette, and much good is expected from their action.

As the question of fusing the two branches of the legal profession into one body has been of late much canvassed in England, a few words may be expected as to the light which American experience throws upon it.

There are two sets of persons in England who complain of the present arrangements—a section of the solicitors, who are debarred from the exercise of advocacy, and therefore from the great prizes of the profession; and a section of the junior bar, whose members, depending entirely on the patronage of the solicitors, find themselves, if they happen to have no private connections among that branch of the profession, unable to get employment, since a code of etiquette forbids them to undertake certain sorts of work, or to do work except on a fixed scale of fees, or to take court work directly from a client, or to form partnerships with other counsel. Attempts have also been made to enlist the general public in favour of a change, by the argument that law would be cheapened by allowing the attorney to argue and carry through the courts a cause which he has prepared for trial.

There are three points of view from which the merits or demerits of a change may be regarded. These are the interests respectively of the profession, of the client, and of the community at large.

As far as the advantage of the individual members of the profession is concerned, the example of the United States seems to show that the balance of advantage is in favour of uniting barristers and attorneys in one body. The attorney would have a wider field, greater opportunities of distinguishing himself, and the legitimate satisfaction of seeing his cause through all its stages. The junior barrister would find it easier to get on, even as an advocate, and, if he discovered that advocacy was not his line, could subside into the perhaps not less profitable or agreeable function of a solicitor. The senior barrister or leader might, however, suffer, for his attention would be more distracted by calls of different kinds.

The gain to the client is still clearer; and even those (very few) American counsel who say that for their own sake they would prefer the English plan, admit that the litigant is more expeditiously and effectively served where he has but one person to look to and deal with throughout. It does not suit him, say the Americans, to be lathered in one shop and shaved in another; he likes to go to his lawyer, tell him the facts, get an off-hand opinion, if the case be a simple one (as it is nine times out of ten), and issue his writ with some confidence; whereas under the English system he might either have to wait till a regular case for the opinion of counsel was drawn, sent to a barrister, and returned, written on, after some days, or else take the risk of bringing an action which turned out to be ill-founded. It may also be believed that a case is, on the whole, better dealt with when it is kept in one office from first to last, and managed by one person, or by partners who are in constant communication. Mistakes and oversights are less likely to occur, since the advocate knows the facts better, and has almost invariably seen and questioned the witnesses before he comes into court. It may indeed be said that an advocate does his work with more ease of conscience, and perhaps more sangfroid, when he knows nothing but his instructions. But American practitioners are all clear that they are able to serve their clients better than they could if the responsibility were divided between the man who prepares the case and the man who argues or addresses the jury. Indeed, I have often heard them say that they could not understand how English counsel, who rarely see the witnesses beforehand, were able to conduct witness causes satisfactorily.

The English plan is more conducive to the despatch of business, because in England the few leading counsel know the judges, and the judges know them, whereas in America, the absence of a small class to whom advocacy is restricted brings into court a number proportionately much larger of lawyers handling causes. Where the counsel and the judges are in constant contact, cases are more promptly dealt with. The counsel knows when he has said enough to the judge. The judge knows how far he can trust the counsel.

If asked whether the community has gained by the disappearance of a distinction between the small body of advocates and the large body of attorneys, I should reply that it has not. Society is interested in the maintenance of a high tone among those who can powerfully influence the administration of justice and the standard of commercial morality. It is easier to maintain such a tone in a small body, which can be kept under a comparatively strict control and cultivate a warm professional feeling than in a large body, many of whose members are practically just as much men of business as lawyers. And it may well be thought that the conscience or honour of a member of either branch of the profession is exposed to less strain where the two branches are kept distinct. The counsel is under less temptation to win his cause by doubtful means, since he is removed from the client by the interposition of the attorney, and therefore less personally identified with the client’s success. He probably has not that intimate knowledge of the client’s affairs which he must have if he had prepared the whole case, and is therefore less likely to be drawn into speculating, to take an obvious instance, in the shares of a client company, or otherwise playing a double and disloyal game. Similarly it may be thought that the attorney also is less tempted than if he appeared himself in court, and were not obliged, in carrying out the schemes of a fraudulent client, to call in the aid of another practitioner, amenable to a strict professional discipline. Where the advocate is also the attorney, he may be more apt, when he sees the witnesses, to lead them, perhaps unconsciously, to stretch their recollection; and it is harder to check the practice of paying for legal services by a share of the proceeds of the action.

Looking at the question as a whole, I doubt whether the result of a study of the American arrangements is calculated to commend them for imitation, or to induce England to allow her historic bar to be swallowed up and vanish in the more numerous branch of the profession. Those arrangements, however, suggest some useful minor changes in the present English rules. The passage from each branch to the other might be made easier; barristers might be permitted to form open (as they now sometimes do covert) partnerships among themselves; students of both branches might be educated and examined together in the professional law schools as they now are, with admittedly good results, in the universities.

[1] California has passed a statute forbidding counsel to advertise for divorce cases.

[2] Modern England seems to stand alone in her comparative neglect of the theoretic study of law as a preparation for legal practice. Other countries, from Germany at the one end of the scale of civilization to the Mohammedan East at the other end, exact three, four, five, or even more years spent in this study before the aspirant begins his practical work.

[3] This instruction is in most of the law schools confined to Anglo-American law, omitting theoretic jurisprudence, Roman law (except, of course, in Louisiana, where the Civil Law is the basis of the code), and international law. The latter subjects are, however, now beginning to be more frequently taught, though sometimes placed in the historical curriculum. In some few law schools educational value is attributed to the moot courts in which the students are set to argue cases, a method much in vogue in England two centuries ago.

[4] Some of the best American lawbooks, as for instance that admirable series which has made Justice Story famous, have been produced as lectures given to students. Story was professor at Harvard while judge of the Supreme Court, and used to travel to and from Washington to give his lectures. A few years ago there were several men in large practice who used to teach in the law schools out of public spirit and from their love of the subject, rather than in respect of the comparatively small payment they received.

[5] American lawyers remark that the English Law Reports have become less useful since the number of decisions upon the construction of statutes has so greatly increased. They complain of the extreme difficulty of keeping abreast of the vast multitude of cases reported in their own country, from the courts of all the states as well as federal courts.