From the Dublin Evening Mail, 24 October 1866:
“A gentleman who signs himself ‘A Stuff Gown,’ states in a letter addressed to a Dublin contemporary… that ‘bar etiquette requires that barristers shall not accept briefs unless they get the fees with them, and that gentlemen who do otherwise violate, in a most important particular, the unwritten law of the profession.’
However we have the concurrent testimony of several distinguished junior counsel in Ireland that no such rule, in their opinion is in force… True, if a solicitor of note or respectability sends a stray brief to any barrister it is usual to send the fee along with it, but so well understood is this practice that we have frequently heard counsel say – ‘I have received a brief from so and so, in such a case, but I don’t consider him a new client, for he has sent the fee with it.’
The rule of etiquette which does exist – and which we believe to be the one to which ‘A Stuff Gown’ was attempting to refer – is that modification engrafted on to the rule requiring counsel to accept the first offered retainer. Although it is true that counsel cannot, with propriety, refuse a brief properly offered, yet this rule only applies when the fee is offered along with the brief, and he is at liberty, but not required, to refuse to accept papers sent to him without the fee.
All respectable solicitors pay the counsel whom they regularly employ at fixed periods; monthly, half yearly, annually, or as may be understood or agreed; and if this be not done, the ‘Ill Paid Barrister’ had better concede that ‘the first loss is the least’ and by refusing any longer to work for such a client, free himself from the risk of unrewarded labour.
We know, indeed, that there are some attorneys who go from counsel to counsel, but not only are the defaulters in this matter so comparatively few as to be hardly worth notice , but the amount of business which they have is generally inconsiderable, and therefore the extent to which any one can be victimised before he has had ample opportunity for finding out the delinquent is but small; if, after that, he trusts him, he has only his only greediness or timidity to blame.”
Unlike other professionals, barristers are unable to sue the client for their fees, which must be recovered for them by their instructing solicitor. There is now, but was not in the 19th century, a facility for barristers to complain solicitors who do not make proper efforts to recover their fees.
The.professional restriction on the recovery of fees, and the possible knock-on effect of individual barristers taking too many briefs as a result, was much discussed in the 19th century press, with responses to proposed change polarised between those barristers fortunate enough to be in a position where the current system worked well for them, and those less so.
Under the current Bar Council Rules, barristers are entitled to request advance payment of their fees as a condition of taking a brief. The 19th century Irish practice of a solicitor automatically enclosing the fee with the first brief to a new barrister seems, however, to be long extinct!