1911 Encyclopædia Britannica/Bar, The

From Wikisource
Jump to: navigation, search

BAR, THE. This term, as equivalent to the profession of barrister (q.v.), originated in the partition or bar dividing the English law-courts into two parts, for the purpose of separating the members and officials of the court from the prisoners or suitors, their advocates and the general public. Theoretically, this division of the court is still maintained in England, those who are entitled to sit within the bar including king's counsel, barristers with patents of precedence, serjeants (till the order died out) and solicitors, while the other members of the bar and the general public remain without. Parties in civil suits who appear in person are allowed to stand on the floor within the bar instead of, as formerly, appearing at the bar itself. In criminal trials the accused still stands forward at the bar. There is also a "bar" in parliament. In the House of Commons it remains literally a bar—a long brass rod hidden in a tube from which it is pulled out when required to mark the technical boundary of the House. Before it appear those who are charged with having violated the privileges of the House; below it also sit those members who have been returned at bye-elections, to await their introduction to the House and the taking of the oath of allegiance. In the House of Lords the place where Mr Speaker and the members of the House of Commons stand when summoned by Black Rod is called "the bar."

The "call to the bar" in England, by which a law student at one of the Inns of Court is converted into a barrister, is dealt with under Inns of Court. The exclusive privilege of calling to the bar belongs to those bodies, which also exercise disciplinary power over their members; but it was widely felt by members of the bar in recent years that the benchers or governing body with their self-elected members did not keep a sufficiently watchful eye on the minutiae of the profession. Consequently, in 1883, a bar committee was formed for the purpose of dealing with all matters relating to the profession, such as the criticizing of proposed legal reforms, and the expression of opinions on matters of professional etiquette, conduct and practice. In 1894 the committee was dissolved, and succeeded by the general council of the bar, elected on a somewhat wider basis. It is composed of a due proportion of king's counsel and outer barristers elected by voting-papers sent to all barristers having an address in the Law List within the United Kingdom. Its expenses are paid by contributions from the four Inns of Court. Its powers are not disciplinary, but it would draw the attention of the benchers to any gross violation of the professional etiquette of the bar.

Each state in America has its own bar, consisting of all attorneys-at-law residing within it who have been admitted to practice in its courts. Generally attorneys are admitted in one court to practice in all courts. Each of the United States courts has a bar of its own. An attorney of a state cannot practise in a court of the United States unless he has been admitted to it, or to one of the same class in another district or circuit. He cannot appear in the Supreme Court of the United States unless specially admitted and sworn as an attorney of that court, which is done on motion in case of any one who has practised for three years in the highest courts of his state and is in good standing at its bar. In most of the states there is a state bar association, and in some cities and counties local bar associations. These consist of such members of its bar as desire thus to associate, the object being to guard and advance the standards of the profession. Some own valuable libraries. These associations have no official recognition, but their influence is considerable in recommending and shaping legislation respecting the judicial establishment and procedure. They also serve a useful purpose in instituting or promoting proceedings to discipline or expel unworthy attorneys from the bar. There is an American Bar Association, founded in 1878, composed of over 3500 members of different states of like character and position. Some of these associations publish annually a volume of transactions. The rights, duties and liabilities of counsellor-at-law are stated under Attorney. As members of the bar of the state in which they practise they are subject to its laws regulating such practice, e.g. in some states they are forbidden to advertise for divorce cases (New York Penal Code [1902] § 148a) (1905, People v. Taylor [Colorado], 75 Pac. Rep. 914). It is common throughout the United States for lawyers to make contracts for "contingent fees," i.e. for a percentage of the amount recovered. Such contracts are not champertous and are upheld by the courts, but will be set aside if an unconscionable bargain be made with the client (Deering v. Scheyer [N.Y.], 58 App. D. 322). So also by the U.S. Supreme Court (Wright v. Tebbets, 91 U.S. 252; Taylor v. Benis, 110 U.S. 42). The reason for upholding such contracts is that otherwise poor persons would often fail of securing or protecting their property or rights. In fact such contracts are seldom set aside, though no doubt the practice is capable of abuse.