Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

Barristers' Retainers [1847] NSWSupC 4

barristers' retainers, practice

Supreme Court of New South Wales

April 1847

Source: Sydney Morning Herald, 22 April 1847, in Supreme Court Collection, Vol. 1, p. 108 [1]

BARRISTERS' RETAINERS. - On the occasion when the minutes of the decree in the case of Brown and others v. The Bank of Australia were spoken to by counsel, it was remarked that there had been a change of sides on the part of the barristers, and some strong expressions then fell from the CHIEF JUSTICE, reprehending this kind of practice. With reference to this subject SIR ALFRED STEPHEN made the following remarks yesterday morning on taking his seat upon the Bench:- On the occasion of my delivering judgement in this case on Saturday last, I expressed myself in strong terms of disapprobation, concerning the strange transposition which had taken place, by the counsel having in the same cause and subject matter, and within a few weeks, changed sides; each now appearing in support of the cause of his adversary. I said that such a circumstance could only, as I imagined, have arisen from some act or neglect on the part of the solicitors; as I could not believe, that any member of the Bar would voluntarily be placed in so embarrassing and undesirable a position; one of which the appearance, to say to say the least, was so unseemly. I observed, that the Bar had rules of their own, by which they probably felt themselves bound, in the question of retainers; but that no solicitor acted becomingly, who availed himself of any such matter, to place an advocate in the very extraordinary position in which the gentlemen on both sides were then exhibited. I said, that I could not but feel disgust at such conduct. In so expressing myself, I was not aware that I could be understood, as necessarily casting censure on both the solicitors engaged, I certainly did not intend so to express myself; because the fault might clearly rest with one only, and I was not in a position to decide which of the gentlemen committed the impropriety. I have now received a letter from Mr. Want, exonerating himself from all blame in the transaction. It is right to say that, (on the assumption, which I cannot hesitate to make, that he is correct in his statements,) he has done so fully. And, having stated this, it is my intention here to let this subject drop. Without a disregard of my duty as a Judge, I could not have omitted to notice publicly an occurrence, which I regarded as one eminently calculated to lower the character of the profession, and bring the administration of justice itself, by the instrumentality and aid of the Bar, into disrepute. I assert no right to dictate rules of conduct to the Bar; and on those which Mr. Want states to prevail, on the subject of retainers, among the Bar, I shall offer no opinion. But whenever I shall perceive, that these or any other rules, or any advantage taken of such rules, in any instance occurring before me, shall tend to obstruct justice, or to cause injury to a suitor in this Court, I will unflinchingly interfere. I will, at all risks, oppose myself to such consequences, by whatever notions of professional etiquette they may have been brought about, or permitted. To sanction them, by silently permitting parties to turn round on their former clients, their former arguments, and the cause previously advocated by them, against the consent of that client, and to his injury, would be most inconsistent with my ideas of judicial duty. Fortunately, the occurrence of the other morning, though much to be regretted, did not immediately tend to results so serious: because, however embarrassing the duty imposed on the advocates, the point in debate involved no facts, acquired in confidence, and was one susceptible of discussion, without necessarily undoing all that previously had been done, at the instance and on the arguments, of the same counsel. It was an exhibition, nevertheless, which I hope never to witness in this Court again.

27 April 1847

Source: Sydney Morning Herald, 30 April 1847, in Supreme Court Collection, Vol. 1, p. 109 [2]

Banco Sittings.

Before their Honors the three Judges.

BARISTERS RETAINERS.

The ATTORNEY-GENERAL said that he would beg leave to draw the attention of the Court to a case which had occurred a few days since, in which some remarks had fallen from His Honor the Chief Justice with reference to two members of the bar, and with respect to which His Honor had made some further remarks on a subsequent day, in consequence of having received a remonstrance from one of the attorneys. These latter observations had appeared in the Sydney Morning Herald unaccompanied by any more detailed statement of the case, and the members of the Bar, conceiving that these remarks might be understood to imply a jurisdiction by the Court which they were not prepared to assent to, had requested him (the Attorney-General) to protest most strongly, although at the same time, most respectfully, against the assumption of any such jurisdiction. He deemed it necessary to remind the Court that on every occasion in which the usages or practice of the Bar had been brought under the cognizance of the Judges in England , the latter had always disclaimed any jurisdiction over the Bar in these matters. The learned Attorney-General referred, in proof of this statement, to a case in which the Lord Chancellor (Eldon) had expressly disclaimed such a power, although he had consented as amicus curiae to hear and determine a petition which had reference to a question of retainer, at the request of the gentleman concerned. He (the Attorney-General) then proceeded to remark that what could not be done directly, ought not to be done indirectly, and although his Honor the Chief Justice had expressly disclaimed any desire to dictate rules to the Bar, the members of that branch of the profession did not think it fair that extra judicial observations should be made which might be regarded as reflecting upon their practice. For the information of the Court he would state that a meeting of the Bar had been called for the purpose of considering the practice of retainers, so that the whole question was now in the hands of those competent to deal with it. Under any mode of practice difficulties would occasionally arise, and when this was the case, it was the practice to refer to a brother barrister, or to call together and consult as many of the profession as could be conveniently assembled. So far back as the 10th instant one of the gentlemen concerned in the present case, feeling a difficulty on the subject of his retainer, had suggested the propriety of calling a meeting for the consideration of the whole subject. This meeting had therefore been called before the circumstances which he now drew the attention of the Court to had occurred. His learned brethren were most anxious to preserve the friendly relations which had hitherto subsisted between the Bench and Bar, and it was in order to prevent any collision or misunderstanding which might interrupt this good feeling that he had been requested to protest, with all due respect to their Honors, against the assumption of any such jurisdiction on the part of the Bench.

The CHIEF JUSTICE said, that in the first place he must express his gratification at the temperate and gentlemanly manner in which the learned Attorney-General had addressed the Court. Without derogating from his firmness of manner and of language, the remarks of the learned gentleman had been distinguished by that courtesy which characterised all his actions. He (the Chief Justice) must remark in the outset that nothing would give him greater pain than the probability of any collision between the Bench and the Bar. Since he first had the honour of a seat on that Bench, it had been his study to cultivate relations of friendship and good feeling with the gentlemen of the Bar, and he had happily succeeded in so doing. He trusted, therefore, that this harmony would not be interrupted by anything which had fallen from him at the time alluded to; nor did he apprehend any such results if a careful consideration was given to these remarks. He did not make these observations without previous consideration, for the question was one which had long occupied his mind, and he had before him the best work on the subject of retainers, from the pen of Mr. Basil Montague, which he had received from that gentleman himself, with whom he had conversed upon the subject. This work defended the present system, but he had also before him a more lengthened treatise upon the same subject in the Law Magazine , by which the opposite view was argued. The determination which he had expressed the other day was one which he was prepared and determined to adhere to, and he had no desire to shrink from the responsibility of so doing. He had expressly declared that in making these remarks he spoke only for himself, for he had not consulted with his learned brethren on the Bench, and although he had, as he stated, no reason to suppose that they differed from him in opinion he did not know whether they might be inclined to offer any observations on the subject. He was far from desirous of assuming any actual jurisdiction over the Bar; nor had he the most remote desire of punishing the members of the profession for any matter springing out of mere rules. He had, however, laid down a principle for himself which he was determined to abide by. It was his sworn duty as a Judge, to see that no injustice was done; and although he entertained for the Bar the most deep respect; although he was aware that they occupied a high social position, which it was important for them, as well as for the public, to maintain, he looked upon them in that Court as ministers of Justice assisting the Bench to dispose rightly, and with fairness, of the claims of the suitors. He had expressly disclaimed all authority or intention to interfere except in a case where he might see clearly that the interests of the suitors, to which those of the Bar were subservient, would be likely to suffer if he refrained from doing so. As it was much easier to illustrate his meaning by putting a case, than by any other means, he would at once do so. He would suppose a suit in which the plaintiff's case, although based in justice, contained some point which it was desirable to have passed lightly over, and others which it was important to keep out of view from the other side. He would also suppose that a barrister after having become master of all the intricacies of the plaintiff's case, should, in consequence of some slip on the part of the attorney, of which the opposite attorney had taken advantage, be retained for the defendant, and should feel himself bound by any such retainer to attack the case he formerly studied to defend. If it were represented to him (the Chief Justice) that such circumstances had occurred, he should see clearly that the interests of justice were likely to suffer, and he should so far interfere, as to refuse to sit for the trial of such a case. He would not permit any such an exhibition to take place in his presence; and, as he had before said, he would rather retire from the Bench altogether than become a party to any such proceeding. This, however, was not the nature of the case which occurred the other day, but still the decree was not settled, an alteration in the minutes which was sought would have been most material to the parties. The appearance of such a change in the advocates, therefore, in the eyes and estimation of the public, was most undesirable and to be regretted. A Judge really anxious for the welfare and reputation of the Bar, could hardly avoid noticing such an occurrence; but no blame was attached to the gentlemen engaged in this case as advocates, because it was obvious that they had considered themselves, by their rule, to be deprived of all discretion in this matter. It was one of the attorneys who had availed himself of these rules to select from all the gentlemen of the Bar his opponent's counsel. Speaking as an individual, he had no respect whatever for the rules of the Bar with reference to retainers. Indeed, so far from approving of these rules, he actually despised them, and if he were a member of the Bar he would cast them to the winds in every case where they had a tendency to embarrass him, or to lead to an undesirable or questionable position. The gentlemen of the Bar were undoubtedly quite competent to make rules for themselves, but with every respect for their opinion, he could not help entertaining as a private individual, the view which he had mentioned. The advocates of that Court were apt to identify themselves most strongly with the interests of their clients, occasionally to such an extent as to be even painful to the Court, and such changes of position as those he had alluded to could not fail to injure the reputation of the Bar in the minds of the public, who neither could nor would understand the influence of professional rules to this extent. If he said anything which could be regarded as disrespectful to the Bar, he could only say that he had no intention whatever of doing so, as his only desire was to perform satisfactorily his own duty as a Judge of that Court, and to discharge with efficiency the obligations which in that position he owed to the suitors.

The ATTORNEY-GENERAL remarked, that no case could be more opposed to the suppositions one put by the Chief Justice than the one which drew forth the former remarks from his Honor. He also reminded the Court that, according to the opinion expressed by Lord Eldon, the Bar was public property. Their services were open to all, but they identified themselves with none; and the interests of the public would sustain the most serious injury if a barrister was permitted to choose his own client.

The CHIEF JUSTICE remarked, that he had already disclaimed any desire to treat the case which had already occurred as one which could be productive of actual injury to the suitors.

The ATTORNEY-GENERAL replied, that acting on the part of the Bar, he felt bound to protest against what had fallen from his Honor, as well upon the present as upon the former occasion.

Note

[2] On 30 April 1847, the Sydney Morning Herald published a very long editorial on this decision (in Supreme Court Collection, Vol. 1, pp 109-111).

On 23 October 1848, the Sydney Morning Herald published the following:

PRACTICE OF RETAINERS.

(From the Legal Observer.)

PROPOSED RULES.

Our readers may recollect that in our number for the 10th April last year, we laid before them twenty-six questions on the practice of retainers, which had been sent by the Council of the Incorporated Law Society to every attorney and solicitor practising in London .

In answer to the circular there referred to, the Council received much useful information, from which it appeared that comparatively few points in the practice were clearly settled and uniformly acted upon;---that others, although well known and generally complied with, were injurious to the suitors, and inconvenient to solicitors,---and many were so doubtful, that the most experienced practitioners differed with regard to them widely in opinion.

The Council, from the materials thus collected, assisted by their own professional knowledge, prepared with much care a series of rules to be observed in retaining counsel, calculated to settle the practice, and to exclude doubt and dispute. Anxious that the proposed regulations should receive the sanction of the Bench and Bar, the Council in the month of May last submitted them to the Judges, to the Attorney and Solicitor General, the Benchers of the Inns of Court, the Serjeants, and the Queen's Counsel.

In consequence of this, the Council were favoured with some valuable suggestions from two gentlemen of great eminence at the Bar, which were most carefully considered, and for the most part adopted. These being the only alterations proposed by the Bar, the Council might have felt at liberty to conclude that the rules generally were approved of by that branch of the profession; but to avoid the danger of mistake on this important point, they at the end of Michaelmas Term last addressed a letter to the Attorney-General, requesting to be favoured with the sentiments of the Bar on the proposed rules, and soliciting the benefit of their opinion in the final settlement of them before the commencement of another Term.

It appears that no farther objections or observations in consequence of this last application have been received, and the Council therefore conceive the time has arrived for submitting the results of their labours to their professional brethren in general, and consequently a printed copy of the proposed regulations as now settled has been forwarded to every attorney and solicitor in London, inviting their sentiments upon them in their present state;---the anxious wish of the Council being that rules which are designed to regulate the practice on this important subject should be rendered as perfect as possible, and be adopted with the full concurrence and approbation of the solicitors.

The following are the proposed Rules of Practice relating to Retainers of Counsel, submitted to the Judges of the Superior Courts and to the Bar, by the Council of the Incorporated Law Society.

General Retainers.

I. That a general retainer applies to all Courts in which counsel receiving it usually practises.

II. That if the counsel shall be offered a retainer by the opponent of the party having given such general retainer, in any other Court than that in which he usually practises, the general retainer entitles the party giving it, to notice before the offered retainer is accepted.

III. That except it be lost, according to any of the following rules, the retainer lasts for the joint lives of client and counsel, or so long at the counsel continues in practice.

IV. In case a special retainer or brief is offered to counsel against the party who has given a general retainer, the counsel is at liberty to accept the special retainer or brief of the other party, unless within one week after issue joined, ort replication filed, a special retainer be given by the party who gave the general retainer.

V. Where a general retainer has been given, and a brief is not delivered to the retained counsel in any action or suit in which the party giving the general retainer is concerned, the general retainer is entirely lost, unless in cases where a brief is given to a junior counsel only, and the services of the retained counsel appear unnecessary.

VI. Where a general retainer is given for one person, and he is sued or sued with others, and he defends separately, the retainer is binding; but it is otherwise if he defend jointly.

Corporation and Partnership Retainers.

VII. Subject to the foregoing rules, a general retainer given for a corporation will continue, unless the corporation be dissolved or the grant of a new charter be accepted.

VIII. When a general retainer is given for a partnership or firm, it continues so long as the style of the partnership or firm continues.

IX. A general retainer may be given for a provisional committee in respect of any subject of action or suit by or against such committee, or any member of members of it, arising out of the concern in which they are provisional committee-men.

Special Retainers.

X. A special retainer may be given before the commencement of an action at law or a suit in equity.

XI. A special retainer gives the client a right to the services of the counsel during the whole progress of the cause, including interlocutory applications, and bills of exception and re-hearings.

XII. The retained counsel is entitled to a brief on every occasion in which the case is brought before the Court, except where the services of the junior counsel only appear to the retaining solicitor necessary.

Circuit Retainers.

XIII. A special retainer in a country cause must be given for a particular assize.

XIV. If the venue be changed for another place on the same circuit, a fresh retainer is not required.

XV. If the cause be not tried at the assizes for which the retainer is given, the retainer must be renewed for every subsequent assize until the cause is disposed of, unless a brief has been delivered, and then the usual refresher fee is sufficient.

XVI. A retainer may be given for future assizes, without a retainer for the intervening assizes, unless notice of trial shall have been given for such intervening assizes.

XVII. When a renewed retainer is necessary, it must be given before the end of the term preceding the assize.

XVIII. In any case requiring the renewal of a retainer, an adverse brief or retainer cannot be accepted without notice to the original client.

Appeals, Writs of Error, and Nonsuits.

XIX. A special retainer, in an appeal or on a writ of error, may be given before the appeal has been lodged or the writ of error issued.

XX. Counsel in the original cause cannot accept a retainer on an appeal or writ of error for the opposite party, without affording the client in such original cause the opportunity of giving such retainer.

XXI. After a nonsuit, a retainer cannot be accepted from the adverse party in a second action without notice to the client for whom a brief has been held in the first action.

Opinions and Pleadings.

XXII. Where counsel has drawn pleadings or advised, during the progress of an action or suit, a retainer cannot be accepted from the opponent, without notice to the first client.

Promotion of Counsel.

XXIII. The retainer of a counsel does not cease upon his being promoted to a higher rank at the bar.

Form of Retainer.---Notice.

XXIV. When a retainer is given by the plaintiff in a cause A. v. B., and an action or suit is afterwards brought by B. v. A., the counsel cannot take the retainer of B. without notice to A., if the causes of action are connected.

XXV. A mistake in the title of an action or suit does not render the retainer inoperative, if it can be shown that the cause of action or suit is the same, and that there is no other to which the retainer can apply.

XXVI. The notice to the client mentioned in these rules, is intended to afford him an opportunity to give a special retainer to counsel.

Amount of Fees.

XXVII. The fees given for general retainers are as follows:---

£ s. d.

In the Court of Queen's Bench, Common Pleas, and

Exchequer of Pleas 5 5 0

In Chancery and bankruptcy appeals 5 5 0

In bankruptcy 5 5 0

In Parliament 10 10 0

In the Privy Council 10 10 0

XXVIII. The fees given for special retainers are as follows:---

At common law and in equity 1 1 0

In Parliament, on bills and election committees 5 5 0

In appeals to the House of Lords 2 2 0

In the Privy Council 2 2 0

April 6, 1848.

 

Published by the Division of Law, Macquarie University