A Pleading Two-Step, Part 2: The Proper Business of the Junior Bar, 1856-64

From the Dublin Evening Packet and Correspondent, Saturday 8 March 1856:

IMPORTANT – BAR PRACTICE

Judge Ball having during the day proceeded to settle issues in records to be tried in Cork at the ensuing assizes, and Mr Brereton, QC, having appeared for one of the parties, Mr John Leahy interrupted the learned gentleman, and said that as the senior of the junior bar in court, he had been requested to object to a Queen’s counsel acting in the settlement of issues without a junior with him.  The drawing of the pleadings, and the settlement of the issues as a part of the pleadings, were by long-established practice the proper business of the junior bar, and a Queen’s counsel had no right to draw them under the old system, or to settle issues under the modern practice without having a junior with him.

Mr Brereton stated that the point raised by Mr Leahy did not arise, inasmuch as he was only holding the brief of Mr Exham, who was prevented from coming on circuit by unforeseen circumstances.  He said that he was one of the seniors employed for the trial, and admitted that he had no brief of his own on the present motion.

Judge Ball observed that the practice was most objectionable, and one that ought not to be followed.  He would, however, allow Mr Brereton to act for Mr Exham on the present occasion; but in doing so, he wished it to be understood that it was not to be considered as a precedent, and that he disapproved of the practice.”

The practice, that Queen’s Counsel could not appear at the trial of cases without Junior, was well established in the Courts of Chancery and King’s Bench, but the question of whether they could draft and sign pleadings, move motions and agree settlements, thereby potentially limiting the Junior Bar’s role to the substantive hearing, was less certain.

On 8 June 1858, the Belfast Newsletter reported that

“There are rumours of the probability of a meeting of the Junior Bar being held shortly, or the purpose of considering the subject of the serious encroachments by the ‘silk gowns’ on ‘junior business.’   This unprofessional evil has grown, it is said, to an inconvenient extent, and some Queen’s Counsel – regardless of the honour of the silk – hesitate no to draft and sign pleadings, move trivial guinea motions, and motions of course.  Indeed, there are rumours that the right Hon. Lord Chancellor when conferring the honour of silk gowns, during the present term, on several utter-barristers, required of each of them a pledge that he would not receive or transact junior business.”

On the 16th of the same month, the Southern Reporter and Cork Commercial Courier reported the Lord Chancellor as having stated in court that there was as subject he wished to mention, which he hoped would not be taken in ill part by any members of the Bar. Having noticed that several Chancery petitions had been signed by members of the Inner Bar, he thought it of the greatest importance to the Bar generally to preserve the classification of business. He knew that in the King’s Bench, it was thought that a Queen’s Counsel ought not to sign pleadings unless signed by a member of the Junior Bar, and he thought it of the greatest importance to suitors that the Outer Bar should have the proper training which the discharge of Junior business would give them, and that the Queen’s Counsel should be relieved of such business.  All such petitions should in future be drawn and moved by members of the Outer Bar and if the case was one of difficulty or required the intervention or assistance of a member of the Inner Bar it might be sent after being prepared by Junior Counsel for the revision and consideration of a Queen’s Counsel.  He thought it was a matter which affected the public and he would not make any orders on such petitions unless signed by Junior Counsel.

The Lord Chancellor’s statement did not resolve the matter, and in June 1863 a meeting of the Bar of Ireland appointed a Committee of 12 Queen’s Counsel and 12 Junior Counsel to consider if members of the Inner Bar should sign pleadings at law or Equity unless countersigned by Junior Counsel. Having completed the Herculean task of analysing the pleadings in the Court of Chancery during every sixth year since 1800, and the Court of Queen’s Bench in Trinity Term during every tenth year of the same period, the Committee found that, although no positive rule had hitherto existed as to the signature of Queen’s Counsel of pleadings in Equity or at law, it was desirable that, for the future, no Queen’s Counsel should sign any pleading at law or Equity, or any document to which the signature of counsel was required – a recommendation subsequently approved by the Bar of Ireland at an 1864 meeting convened to discuss the Committee’s report.

The rule applied to pleadings only, and did not extend to petitions of appeal.   Though not included in the current Bar Council Code of Conduct, it seems to have survived into the twentieth century, being referenced in a taxation application in 1912. Subjected to some criticism from the Incorporated Society of Attorneys and Solicitors of Ireland for its potential to result in additional costs for clients, the requirement that a Junior Counsel’s name appear on pleadings did have the benefit of securing, for the Outer Bar, drafting, motion and settlement experience (not to mention fees) which might otherwise have been denied to them and, in so doing, may have provided some compensatory public service by raising the standard of subsequent Senior Counsel and judiciary. Even today, it remains most unusual to find Junior Counsel’s name omitted from pleadings – something which almost certainly would not have been the case but for that 1864 resolution!

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