Fees. Neither a barrister nor an advocate can take legal proceedings against his client for the recovery of his fees, even under a special contract. The case of Kennedy v. Broun (13 Common Bench Reports, N.S., p. 677) clearly established this doctrine: 'The relation of counsel and client,' it was laid down, 'renders the parties mutually incapable of making any legal contract of hiring and service concerning advocacy in litigation.' There is nothing, however, to prevent an advocate recovering fees earned by him, by the exercise of his professional knowledge where the relation of counsel and client did not exist between the contracting parties—e.g. by acting as arbitrator or returning officer. There is some, but not strong, authority for the proposition that an express promise to pay fees might be enforced by a barrister against a solicitor who had actually received them from the client. On the other hand, a solicitor is entitled under his general retainer to employ and pay counsel; and fees so paid can be recovered by the solicitor from his client, or from an unsuccessful adversary. No action lies to recover back fees given to a barrister to argue a cause which he did not attend. Special pleaders, equity draftsmen, and conveyancers who have taken out certificates to practise under the bar, and are not therefore counsel, may recover their reasonable charges for business done by them. Barristers' and advocates' fees are paid before being earned. This rule, by removing from members of the bar all pecuniary interest in the issue of suits, has done much to maintain its independence and integrity.
In the United States the two branches of the legal profession are not separated as in England. A barrister is entitled to recover his fees, and is liable to be sued for professional incompetency or negligence. Nor is there anything illegal or improper in an American counsel agreeing to let the payment of a fee by a poor client depend on the issue of his action.
In France an action by a barrister for his fees is maintainable, but in most of the French bars such a proceeding is rigorously discontenanced, and in Paris it would lead to disbarment. The fees of French advocates are now usually paid in advance, and any bargain between an advocate and his client which made the amount depend upon the issue of an action would be regarded as most dishonourable.
The theory that an advocate's services ought to be given gratuitously arose at Rome. To defend his client was one of the duties incumbent upon a patron, and it was all the more readily and faithfully discharged when forensic eloquence was perceived to be an avenue to political power. The Cincian law (204 B.C.), in which the receipt of pecuniary reward by an advocate was simply prohibited, gave expression to the prevalent public feeling upon the subject at this time. The Cincian law was first systematically evaded, and was then practically repealed by a decree of the Emperor Claudius, which limited the maximum fee which an advocate might receive to 10 sestertia (about £78). The old Roman idea that the gifts of eloquence and persuasion should not be sold has made itself felt in the restrictions imposed by law or custom upon an advocate's power to bargain for fees or to secure their payment.
By the common law of England, a physician could not recover his fees by an action at law; but this rule was repealed in 1849.
The members of the inferior branches of both professions, such as solicitors, apothecaries, and dentists, have never been prevented by any rule of law from taking legal proceedings for the recovery of their charges.