No falsehood can endureTouch of celestial temper, but returnsOf force to its own likeness.
No falsehood can endureTouch of celestial temper, but returnsOf force to its own likeness.
The object of this Essay is to arrive at some accurate and intelligible rules by which to guide and govern the conduct of professional life. It would not be a difficult task to declaim in general propositions—to erect a perfect standard and leave the practitioner to make his own application to particular cases. It is a difficult task, however, as it always is in practice, to determine the precise extent of a principle, so as to know when it is encountered and overcome by another—to weigh the respective force of duties which appear to come in conflict. In all the walks of life men have frequently to do this: in none so often as at the Bar.
The responsibilities, legal and moral, of the lawyer, arise from his relations to the court,to his professional brethren and to his client. It is in this order that it is proposed to consider and discuss the various topics which grow out of this subject.
The oath directed by law in this State to be administered upon the admission of an attorney to the bar, "to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause for lucre or malice," presents a comprehensive summary of his duties as a practitioner.[1]
Fidelity to the court, fidelity to the client, fidelity to the claims of truth and honor: these are the matters comprised in the oath of office.
It is an oath of office, and the practitioner, the incumbent of an office—an office in the administration of justice[2]—held by authority from those who represent in her tribunals the majesty of the commonwealth, a majesty truly more august than that of kings or emperors. It is an office, too, clothed with many privileges—privileges, some of which are concededto no other class or profession.[3]It is, therefore, that the legislature have seen fit to requirethat there should be added to the solemnity of the responsibility, which every man virtuallyincurs when he enters upon the practice of his profession, the higher and more impressive sanction of an appeal to the Searcher of all Hearts.
Fidelity to the court, requires outward respect in words and actions. The oath as it has been said, undoubtedly looks to nothing like allegiance to the person of the judge; unless in those cases where his person is so inseparable from his office, that an insult to the one, is an indignity to the other. In matters collateral to official duty, the judge is on a level with the members of the bar, as he is with his fellow-citizens; his title to distinction and respect resting on no other foundation, than his virtues and qualities as a man.[4]There are occasions, no doubt, when duty to the interests confided to the charge of the advocate demands firm and decided opposition to the views expressed or the course pursued by the court, nay, even manly and open remonstrance; but this duty may be faithfully performed, and yet that outward respect be preserved, which is here inculcated. Counsel should ever remember how necessary it is for the dignified and honorable administration of justice, upon which the dignityand honor of their profession entirely depend, that the courts and the members of the courts, should be regarded with respect by the suitors and people; that on all occasions of difficulty or danger to that department of government, they should have the good opinion and confidence of the public on their side. Good men of all parties prefer to live in a country, in which justice according to law is impartially administered. Counsel should bear in mind also the wearisomeness of a judge's office; how much he sees and hears in the course of a long session, to try his temper and patience. Lord Campbell has remarked that it is rather difficult for a judge altogether to escape the imputation of discourtesy if he properly values the public time; for one of his duties is to "render it disagreeable to counsel to talk nonsense." Respectful submission, nay, most frequently, even cheerful acquiescence in a decision, when, as is most generally the case, no good result to his cause can grow from any other course, is the part of true wisdom as well as civility. An exception may be noted to theopinion of the Bench, as easily in an agreeable and polite, as in a contemptuous and insulting manner. The excitement of the trial of a cause caused by the conflict of testimony, making often the probabilities of success to vibrate backwards and forwards with as much apparent uncertainty as the chances in a game of hazard, is no doubt often the reason and apology for apparent disrespect in manner and language; but let it be observed, that petulance in conflicts with the Bench, which renders the trial of causes disagreeable to all concerned, has most generally an injurious effect upon the interests of clients.
Indeed, it is highly important that the temper of an advocate should be always equal. He should most carefully aim to repress everything like excitability or irritability. When passion is allowed to prevail, the judgment is dethroned. Words are spoken, or things done, which the parties afterwards wish could be unsaid or undone. Equanimity and self-possession are qualities of unspeakable value. An anecdote may serve to illustrate this remark.There was a gentleman of the Bar of Philadelphia, many years ago, who possessed these qualities in a very remarkable degree. He allowed nothing that occurred in a cause to disturb or surprise him. On an occasion in one of the neighboring counties, the circuit of which it was his custom to ride, he was trying a cause on a bond, when a witness for defendant was introduced, who testified that the defendant had taken the amount of the bond, which was quite a large sum, from his residence to that of the obligee, a distance of several miles, and paid him in silver in his presence. The evidence was totally unexpected; his clients were orphan children; all their fortune was staked on this case. The witness had not yet committed himself as to how the money was carried. Without any discomposure—without lifting his eyes or pen from paper—he made on the margin of his notes of trial a calculation of what that amount in silver would weigh; and when it came his turn to cross-examine, calmly proceeded to make the witness repeat his testimony step by step,—when, where, how, and how far the money wascarried—and then asked him if he knew how much that sum of money weighed, and upon naming the amount, so confounded the witness, party, and counsel engaged for the defendant, that the defence was at once abandoned, and a verdict for the plaintiff rendered on the spot.[5]
Another plain duty of counsel is to present every thing in the cause to the court openly in the course of the public discharge of its duties. It is not often, indeed, that gentlemen of the Bar so far forget themselves as to attempt to exert privately an influence upon the judge, to seek private interviews, or take occasional opportunities of accidental or social meetings to makeex partestatements, or to endeavor to impress their views. They know that such conduct is wrong in itself, and has a tendency to impair confidence in the administration of justice, which ought not only to be pure but unsuspected. A judge will do right to avoid social intercourse with those who obtrude suchunwelcome matters upon his moments of relaxation. There is one thing, however, of which gentlemen of the Bar are not sufficiently careful,—to discourage and prohibit their clients from pursuing a similar course. The position of the judge in relation to a cause under such circumstances is very embarrassing, especially, as is often the case, if he hears a good deal about the matter before he discovers the nature of the business and object of the call upon him. Often the main purpose of such visits is not so much to plead the cause, as to show the judge who the party is—an acquaintance, perhaps—and thus, at least, to interest his feelings. Counsel should set their faces against all undue influences of the sort; they are unfaithful to the court, if they allow any improper means of the kind to be resorted to.Judicem nec de obtinendo jure orari oportet nec de injuria exorari.It may be in place to remark here that the counsel in a cause ought to avoid all unnecessary communication with the jurors before or during any trial in which he may beconcerned. He should enforce the same duty upon his client. Any attempt by an attorney to influence a juror by arguments or otherwise, will, of course, if discovered and brought to the notice of the court, lead to expulsion or suspension from the Bar, according to the degree and quality of the offence. The freedom of the jury-box from extraneous influences is a matter of such vital moment in our system that the courts are bound to watch over it with jealous eyes. "It would be an injury to the administration of justice," says C. J. Tilghman, "not to declare that it is gross misbehavior for any person to speak with a juror, or for a juror to permit any person to speak with him, respecting the cause he is trying, at any time after he is summoned and before the verdict is delivered." "The words thus uttered," says Judge Hare, "by one of the best men and purest magistrates that ever filled the judicial office, must find an echo in every bosom. The principle which dictated them does not require the aid of argument or elucidation; itis native to the conscience, and will be apparent to all who consult the monitor in their own breast. The wrong is aggravated when the taint of personal interest mingles with it, as when committed by a party to the cause, but appears in the worst form when it is the act of attorneys or counsel, who are the sworn officers of the court, whose duty it is to act as guardians of the fountains of justice, and who are false to their charge when they defile or taint those waters, which they are pledged to keep pure and unpolluted. Such conduct in counsel is a gross breach of trust, for which a removal from the trust is but an inadequate punishment."[6]
There is another duty to the court, and that is, to support and maintain it in its proper province wherever it comes in conflict with the co-ordinate tribunal—the jury. The limits of these two provinces are settled with great accuracy; and even if a judge makes a mistake,the only proper place to correct his error is in the superior tribunal,—the Court of Errors. It has been held in a multitude of cases, that verdicts against the charge of the court in point of law, will be set aside without limitation as to the number of times, and that without regard to the question whether the direction of the court in point of law was right or wrong. There is a technical reason, which makes this course in all cases imperative. The losing party, if the jury were allowed to decide the law for him, would be deprived of his exception, and of his unquestionable right to have the law of his case pronounced upon by the Supreme Court.Ad questiones juris respondeant judices,—ad questiones facti juratores.A disregard by the jury of the law, as laid down by the judge, is always therefore followed by additional and unnecessary delay and expense, and it is never an advantage to a party in the long run to obtain a verdict in opposition to the direction of the court.[7]It is best forcounsel to say in such cases, where nothing is left by the charge to the jury, that they do notask for a verdict. It has a fair, candid, and manly aspect towards court, jury, opposite party, and even client. Instances of counsel urging or endeavoring to persuade a jury to disregard the charge may sometimes occur, but they are exceedingly rare when there is good feeling between the Bench and the Bar, and when the members of the profession have just and enlightened views of their duty as well as interest.
It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, imposition, or evasion—to make no statements of facts which he does not know or believe to be true—to distinguish carefully what lies in his own knowledge from what he has merely derived from his instructions—to present no paper-books intentionally garbled. "Sir Matthew Hale abhorred," says his biographer, "those too commonfaults of misrepresenting evidence, quoting precedents or books falsely, or asserting anything confidently by which ignorant juries and weak judges are too often wrought upon."[8]One such false step in a young lawyer will do him an injury in the opinion of the Bench and of his professional brethren, which it will take years to redeem, if indeed it ever can be entirely redeemed.
A very great part of a man's comfort, as well as of his success at the Bar, depends upon his relations with his professional brethren. With them he is in daily necessary intercourse, and he must have their respect and confidence, if he wishes to sail along in smooth waters. He cannot be too particular in keeping faithfully and liberally every promise or engagement he may make to them. One whose perfect truthfulness is even suspected by his brethren at the Bar has always an uneasy time of it. He will be constantly mortified by observing precautions taken with him which are not used with others. It is not only morallywrong but dangerous to mislead an opponent, or put him on a wrong scent in regard to the case. It would be going too far to say that it is ever advisable to expose the weakness of a client's cause to an adversary, who may be unscrupulous in taking advantage of it; but it may be safely said, that he who sits down deliberately to plot a surprise upon his opponent, and which he knows can succeed only by its being a surprise, deserves to fall, and in all probability will fall, into the trap which his own hands have laid. "Whoso diggeth a pit," says the wise man, "shall fall therein, and he that rolleth a stone, it will return upon him." If he should succeed, he will have gained with his success not the admiration and esteem, but the distrust and dislike of one of his associates as long as he lives. He should never unnecessarily have a personal difficulty with a professional brother. He should neither give nor provoke insult. Nowhere more than at the Bar is that advice valuable:
"BewareOf entrance to a quarrel; but being in,Bear it that the opposed may beware of thee."
"BewareOf entrance to a quarrel; but being in,Bear it that the opposed may beware of thee."
There is one more caution to be given under this head. Let him shun most carefully the reputation of a sharp practitioner. Let him be liberal to the slips and oversights of his opponent wherever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal—and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety.
Nothing is more certain than that the practitioner will find, in the long run, the good opinion of his professional brethren of more importance than that of what is commonly called the public. The foundations of the reputation of every truly great lawyer will be discovered to have been laid here. Sooner or later, the real public—the business men of the community, who have important lawsuits, and are valuable clients—indorse the estimate of a man entertained by his associates of the Bar, unless indeed there be some glaring defect of popular qualities. The community know thatthey are better qualified to judge of legal attainments, that they have the best opportunity of judging, and that they are slow in forming a judgment. The good opinion and confidence of the members of the same profession, like the King's name on the field of battle, is "a tower of strength;" it is the title of legitimacy. The ambition to please the people, to captivate jurors, spectators, and loungers about the court room, may mislead a young man into pertness, flippancy, and impudence, things which often pass current for eloquence and ability with the masses; but the ambition to please the Bar can never mislead him. Their good graces are only to be gained by real learning, by the strictest integrity and honor, by a courteous demeanor, and by attention, accuracy and punctuality in the transaction of business.
The topic of fidelity to the client involves the most difficult questions in the consideration of the duty of a lawyer.
He is legally responsible to his client only for the want of ordinary care and ordinaryskill. That constitutes gross negligence. It is extremely difficult to fix upon any rule which shall define what is negligence in a given case. The habits and practice of men are widely different in this regard. It has been laid down that if the ordinary and average degree of diligence and skill could be determined, it would furnish the true rule.[9]Though such be theextent of legal liability, that of moral responsibility is wider. Entire devotion to the interest of the client, warm zeal in the maintenance and defence of his rights, and the exertion of his utmost learning and ability,—these are the higher points, which can only satisfy the truly conscientious practitioner.
But what are the limits of his duty when thelegal demands or interests of his client conflict with his own sense of what is just and right? This is a problem by no means of easy solution.
That lawyers are as often the ministers of injustice as of justice is the common accusation in the mouth of gainsayers against the profession. It is said there must be a right and a wrong side to every lawsuit. In the majority of cases it must be apparent to the advocate, on which side is the justice of the cause; yet he will maintain, and often with the appearance of warmth and earnestness, that side which he must know to be unjust, and the success of which will be a wrong to the opposite party. Is he not then a participator in the injustice?
It may be answered in general:—
Every case is to be decided by the tribunal before which it is brought for adjudication upon the evidence, and upon the principles of law applicable to the facts as they appear upon the evidence. No court or jury are invested with any arbitrary discretion to determine a cause according to their mere notions of justice. Such a discretion vested in any body of men wouldconstitute the most appalling of despotisms. Law, and justice according to law—this is the only secure principle upon which the controversies of men can be decided. It is better on the whole that a few particular cases of hardship and injustice, arising from defect of evidence or the unbending character of some strict rule of law, should be endured, than that general insecurity should pervade the community from the arbitrary discretion of the judge. It is this which has blighted the countries of the East as much as cruel laws or despotic executives. Thus the legislature has seen fit in certain cases to assign a limit to the period within which actions shall be brought; in order to urge men to vigilance, and to prevent stale claims from being suddenly revived against men whose vouchers are destroyed or whose witnesses are dead. It is true,in foro conscientiæ, a defendant, who knows that he honestly owes the debt sued for and that the delay has been caused by indulgence or confidence on the part of his creditor, ought not to plead the statute. Butif he does plead it, the judgment of the court must be in his favor.
Now the lawyer is not merely the agent of the party; he is an officer of the court. The party has a right to have his case decided upon the law and the evidence, and to have every view presented to the minds of his judges, which can legitimately bear upon that question. This is the office which the advocate performs. He is not morally responsible for the act of the party in maintaining an unjust cause, nor for the error of the court, if they fall into error, in deciding it in his favor. The court or jury ought certainly to hear and weigh both sides; and the office of the counsel is to assist them by doing that, which the client in person, from want of learning, experience, and address, is unable to do in a proper manner. The lawyer, who refuses his professional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury.
As an answer to any sweeping objection made to the profession in general, the view thus presentedmay be quite satisfactory. It by no means follows, however, as a principle of private action for the advocate, that all causes are to be taken by him indiscriminately and conducted with a view to one single end,success. It is much to be feared, however, that the prevailing tone of professional ethics leads practically to this result. He has an undoubted right to refuse a retainer, and decline to be concerned in any cause, at his discretion. It is a discretion to be wisely and justly exercised. When he has once embarked in a case, he cannot retire from it without the consent of his client or the approbation of the court.[10]Tocome before the court with a revelation of facts, damning to his client's case, as a ground for retiring from it, would be a plain breach of the confidence reposed in him, and the law would seal his lips.[11]How then is he to acquit himself?Lord Brougham, in his justly celebrated defence of the Queen, went to very extravagant lengths upon this subject; no doubt he was led by the excitement of so great an occasion to say what cool reflection and sober reason certainly never can approve. "An advocate," said he, "in the discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them to himself, is his first and only duty; and in performingthis duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences; though it should be his unhappy lot to involve his country in confusion."
On the other hand, and as illustrative of the practical difficulty, which this question presented to a man, with as nice a perception of moral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir Matthew Hale: "If he saw a cause was unjust, he for a great while would not meddle further in it, but to give his advice thatit was so; if the parties after that would go on, they were to seek another counsellor, for he would assist none in acts of injustice; if he found the cause doubtful or weak in point of law, he always advised his clients to agree their business. Yet afterwards he abated much of the scrupulosity he had about causes that appeared at first unjust, upon this occasion; there were two causes brought him, which by the ignorance of the party or their attorney, were so ill-represented to him that they seemedto be very bad; but he inquiring more narrowly into them, found they were really very good and just; so after this he slackened much of his former strictness of refusing to meddle in causes upon the ill circumstances that appeared in them at first."[12]
It may be delicate and dangerous ground to tread upon to undertake to descend to particulars upon such a subject. Every case must, toa great degree, depend upon its own circumstances, known, peradventure, to the counsel alone; and it will often be hazardous to condemn either client or counsel upon what appears only. A hard plea—a sharp point—may subserve what is at bottom an honest claim, or just defence; though the evidence may not be within the power of the parties, which would make it manifest.
There are a few propositions, however, which appear to me to be sound in themselves, and calculated to solve this problem practically in the majority of cases: at least to assist the mind in coming to a safe conclusionin foro conscientiæ, in the discharge of professional duty.
There is a distinction to be made between the case of prosecution and defence for crimes; between appearing for a plaintiff in pursuit of an unjust claim, and for a defendant in resisting what appears to be a just one.
Every man, accused of an offence, has a constitutional right to a trial according to law: even if guilty, he ought not to be convictedand undergo punishment unless upon legal evidence; and with all the forms which have been devised for the security of life and liberty. These are the panoply of innocence when unjustly arraigned; and guilt cannot be deprived of it, without removing it from innocence. He is entitled, therefore, to the benefit of counsel to conduct his defence, to cross-examine the witnesses for the State, to scan, with legal knowledge, the forms of the proceeding against him, to present his defence in an intelligible shape, to suggest all those reasonable doubts which may arise from the evidence as to his guilt, and to see that if he is convicted, it is according to law. A circumstance the celebrated Lord Shaftesbury once so finely turned to his purpose must often happen to a prisoner at his trial. Attempting to speak on the bill for granting counsel to prisoners in cases of high treason, he was confounded, and for some time could not proceed, but recovering himself, he said, "What now happened to him would serve to fortify the arguments for the bill. If he innocent and pleading for others wasdaunted at the augustness of such an assembly, what must a man be who should plead before them for his life?"[13]The courts are in the habit of assigning counsel to prisoners who are destitute, and who request it; and counsel thus named by the court cannot decline the office.[14]It is not to be termed screening the guilty from punishment, for the advocate to exert all his ability, learning, and ingenuity, in such a defence, even if he should be perfectly assured in his own mind of the actual guilt of the prisoner.[15]
It is a different thing to engage as private counsel in a prosecution against a man whom he knows or believes to be innocent. Public prosecutions are carried on by a public officer, the Attorney-General, or those who act in his place; and it ought to be a clear case to induce gentlemen to engage on behalf of private interests or feelings, in such a prosecution. It ought never to be done against the counsel's own opinion of its merits. There is no call of professional duty to balance the scale, as thereis in the case of a defendant. It is in every case but an act of courtesy in the Attorney-General to allow private counsel to take part for the Commonwealth; such a favor ought not to be asked, unless in a cause believed to be manifestly just. The same remarks apply to mere assistance in preparing such a cause for trial out of court, by getting ready and arranging the evidence and other matters connected with it: as the Commonwealth has its own officers, it may well, in general, be left to them. There is no obligation on an attorney to minister to the bad passions of his client; it is but rarely that a criminal prosecution is pursued for a valuable private end, the restoration of goods, the maintenance of the good name of the prosecutor, or closing the mouth of a man who has perjured himself in a court of justice. The office of Attorney-General is a public trust, which involves in the discharge of it, the exertion of an almost boundless discretion, by an officer who stands as impartial as a judge. "The professional assistant, with the regular deputy, exercises not his own discretion, butthat of the Attorney-General, whoselocum tenensat sufferance, he is; and he consequently does so under the obligation of the official oath."[16]On the other hand, if it were considered that a lawyer was bound or even had a right to refuse to undertake the defence of a man because he thought him guilty, if the rule were universally adopted, the effect would be to deprive a defendant, in such cases, of the benefit of counsel altogether.
The same course of remark applies to civil causes. A defendant has a legal right to require that the plaintiffs demand against him should be proved and proceeded with according to law. If it were thrown upon the parties themselves, there would he a very great inequality between them, according to their intelligence, education, and experience, respectively. Indeed, it is one of the most striking advantages of having a learned profession, who engage as a business in representing parties in courts of justice, that men are thus broughtnearer to a condition of equality, that causes are tried and decided upon their merits, and do not depend upon the personal characters and qualifications of the immediate parties.[17]Thus, too, if a suit be instituted against a man to recover damages for a tort, the defendant has a right to all the ingenuity and eloquence he can command in his defence, that even if he has committed a wrong, the amount of the damages may not exceed what the plaintiff is justly entitled to recover. But the claim of a plaintiff stands upon a somewhat different footing. Counsel have an undoubted right, and are in duty bound, to refuse to be concerned for a plaintiff in the legal pursuit of a demand, which offends his sense of what is just and right. The courts are open to the party in person to prosecute his own claim, and pleadhis own cause; and although he ought to examine and be well-satisfied before he refuses to a suitor the benefit of his professional skill and learning, yet it would be on his part an immoral act to afford that assistance, when his conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him. "It is a popular but gross mistake," says the late Chief Justice Gibson, "to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself, in his office of attorney, with all fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment, much more so when he presses for the conviction of an innocent man.... The high and honorable office of a counsel would be degraded to that of a mercenary, were he compelled to do the biddings of his client against the dictatesof his conscience."[18]The sentiment has been expressed in flowing numbers by our great commentator, Sir William Blackstone:—
"To Virtue and her friends a friend,Still may my voice the weak defend:Ne'er may my prostituted tongueProtect the oppressor in his wrong;Nor wrest the spirit of the laws,To sanctify the villain's cause."
"To Virtue and her friends a friend,Still may my voice the weak defend:Ne'er may my prostituted tongueProtect the oppressor in his wrong;Nor wrest the spirit of the laws,To sanctify the villain's cause."
Another proposition which may be advanced upon this subject is, that there may and ought to be a difference made in the mode of conducting a defence against what is believed to be a righteous, and what is believed to be an unrighteous claim. A defence in the former case should be conducted upon the most liberal principles. When he is contending againstthe claim of one, who is seeking, as he believes, through the forms of law, to do his client an injury, the advocate may justifiably avail himself of every honorable ground to defeat him. He may begin at once by declaring to his opponent or his professional adviser, that he holds him at arm's length, and he may keep him so during the whole contest. He may fall back upon the instructions of his client, and refuse to yield any legal vantage ground, which may have been gained through the ignorance or inadvertence of his opponent. Counsel, however, may and even ought to refuse to act under instructions from a client to defeat what he believes to be an honest and just claim, by insisting upon the slips of the opposite party, by sharp practice, or special pleading—in short, by any other means than a fair trial on the merits in open court. There is no professional duty, no virtual engagement with the client, which compels an advocate to resort to such measures, to secure success in any cause, just or unjust; and when so instructed, if he believes it to be intended togain an unrighteous object, he ought to throw up the cause, and retire from all connection with it, rather than thus he a participator in other men's sins.
Moreover, no counsel can with propriety and a good conscience express to court or jury his belief in the justice of his client's cause, contrary to the fact. Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scales in favor of the side he has espoused. If that opinion has been formed on a statement of facts not in evidence, it ought not to be heard,—it would be illegal and improper in the tribunal to allow any force whatever to it; if on the evidence only, it is enough to show from that the legal and moral grounds on which such opinion rests. Some very sound and judicious observations have been made by Mr. Whewell in a recent work on the Elements of Moral and Political Science, which deserve to be quoted at length;—
"Some moralists," says he, "have ranked with the cases in which convention supersedesthe general rule of truth, an advocate asserting the justice, or his belief in the justice, of his client's cause. Those who contend for such indulgence argue that the profession is an instrument for the administration of justice: he is to do all he can for his client: the application of laws is a matter of great complexity and difficulty: that the right administration of them in doubtful cases is best provided for if the arguments on each side are urged with the utmost force. The advocate is not the judge.
"This may be all well, if the advocate let it be so understood. But if in pleading he assert his belief that his cause is just when he believes it unjust, he offends against truth, as any other man would do who in like manner made a like assertion.
"Every man, when he advocates a case in which morality is concerned, has an influence upon his hearers, which arises from the belief that he shares the moral sentiments of all mankind. This influence of his supposed morality is one of his possessions, which, likeall his possessions, he is bound to use for moral ends. If he mix up his character as an advocate with his character as a moral agent, using his moral influence for the advocate's purpose, he acts immorally. He makes the moral rule subordinate to the professional rule. He sells to his client not only his skill and learning, but himself. He makes it the supreme object of his life to be not a good man, but a successful lawyer.
"There belong to him, moreover, moral ends which regard his profession; namely, to make it an institution fitted to promote morality. To raise and purify the character of the profession, so that it may answer the ends of justice without requiring insincerity in the advocate, is a proper end for a good man who is a lawyer; a purpose on which he may well and worthily employ his efforts and influence."[19]
Nothing need be added to enforce what has been so well said. The remark, however, maybe permitted, that the expression of private opinion as to the merits of a controversy often puts the counsel at fearful odds. A young man, unknown to the court or the jury, is trying his first case against a veteran of standing and character: what will the asseveration of the former weigh against that of the latter? In proportion, then, to the age, experience, maturity of judgment, and professional character of the man, who falsely endeavors to impress the court and jury with the opinion of his confidence in the justice of his case, in that proportion is there danger that injury will be done and wrong inflicted—in that proportion is there moral delinquency in him who resorts to it.
Much interest was excited some years ago in England, by the circumstances attending the defence of Courvoisier, indicted for the murder of Lord William Russell. The crime was one of great atrocity. It came out after his conviction, that during the trial he had confessed his guilt to his counsel, of whom the eminent barrister Charles Phillips, Esq., was one. Mr.Phillips was accused of having endeavored, notwithstanding this confession, to fasten suspicion on the other servants in the house, to induce the belief that the police had conspired with them to manufacture evidence against the prisoner, and to impress the jury with his own personal belief in the innocence of his client. How far these accusations were just in point of fact was the subject of lively discussion in the newspapers and periodicals of the time.[20]
The language of counsel, on such occasions, during the excitement of the trial, in the fervor of an address to the jury, is not to be calmly and nicely scanned in the printed report. The testimony of such a witness as Baron Parke, at the time and on the spot,—he, too, aware of the exact position of Mr. Phillips—andthat confirmed by Chief Justice Tindal, is conclusive. To charge him withacting falsehood, that is, with presenting the case as it appeared upon the testimony, earnestly and confidently, means that he did not do that, which would have been worse than retiring from his post.
The non-professional, as well as professional public in England, however, agreed in saying that he would not have been justified in withdrawing from the case: he was still bound to defend the accused upon the evidence; though a knowledge of his guilt, from whatever source derived, might and ought materially to influence the mode of the defence. No right-minded man, professional or otherwise, will contend that it would have been right in him to have lent himself to a defence, which might have ended, had it been successful, in bringing down an unjust suspicion upon an innocent person; or even to stand up and falsely pretend a confidence in the truth and justice of his cause, which he did not feel. But there were those on this side of the Atlantic, whodemurred to the conclusion, that an advocate is under a moral obligation to maintain the defence of a man who has admitted to him his guilt. Men have been known, however, under the influence of some delusion, to confess themselves guilty of crimes which they had not committed: and hence, to decline acting as counsel in such a case, is a dangerous refinement in morals.[21]Nothing seems plainer than the proposition, that a person accused of a crime is to be tried and convicted, if convicted at all,upon evidence, andwhether guilty or not guilty, if the evidence is insufficient to convict him, he hasa legal rightto be acquitted. Thetribunal that convicts without sufficient evidence may decide according to the fact; but the next jury, acting on the same principle, may condemn an innocent man. If this be so, is not the prisoner in every case entitled to have the evidence carefully sifted, the weak points of the prosecution exposed, the reasonable doubts presented which should weigh in his favor? And what offence to truth or morality does his advocate commit in discharging that duty to the best of his learning and ability? What apology can he make for throwing up his brief? The truth he cannot disclose; the law seals his lips as to what has thus been communicated to him in confidence by his client. He has no alternative, then, but to perform his duty. It is his duty, however, as an advocate merely, as Baron Parke has well expressed it, to useall fair arguments arising on the evidence. Beyond that, he is not bound to go in any case; in a case in which he is satisfied in his own mind of the guilt of the accused, he is not justified in going.
Under all circumstances, the utmost candorshould be used towards the client. This is imperatively demanded alike by considerations of duty and interest. It is much better for a man occasionally to lose a good client, than to fail in so plain a matter. It is nothing but selfishness that can operate upon a lawyer when consulted to conceal from the party his candid opinion of the merits, and the probable result. It is fair that he should know it; for he may not choose to employ a man whose views may operate to check his resorting to all lawful means to effect success. Besides, most men, when they consult an attorney, wish a candid opinion; it is what they ask and pay for. It is true, that it is often very hard to persuade a man that he has not the best side of a lawsuit: his interest blinds his judgment: his passion will not allow him to reflect calmly, and give due weight to opposing considerations. There are many persons who will go from lawyer to lawyer with a case, until they find one who is willing to express an opinion which tallies with their own. Such a client the lawyer, who acts firmly upon the principleto which I have adverted, will now and then lose; but even such an one, when finally unsuccessful, as the great probability is that he will be, when he comes to sit down and calculate all that he has lost in time, money, and character, by acting contrary to the advice first given, will revert to the candid and honest opinion he then received, and determine, if ever he gets into another difficulty of the kind, to resort to that attorney, and abide by his advice. Thus may a man build up for himself a character far outweighing, even in pecuniary value, all such paltry particular losses; it is to such men that the best clients resort; they have the most important and interesting lawsuits, and enjoy by far the most lucrative practice.
A very important part of the advocate's duty is to moderate the passions of the party, and where the case is of a character to justify it, to encourage an amicable compromise of the controversy. It happens too often at the close of a protracted litigation that it is discovered, when too late, that the play has not been worththe candle, and that it would have been better, calculating everything, for the successful party never to have embarked in it—to have paid the claim, if defendant, or to have relinquished it, if he was plaintiff. Counsel can very soon discover whether such is likely to be the case, and it cannot be doubted what their plain duty is under such circumstances.
Besides this, the advocate is bound in honor, as well as duty, to disclose to the client at the time of the retainer, every circumstance of his own connection with the parties or prior relation to the controversy, which can or may influence his determination in the selection of him for the office. An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. No man can be supposed to be indifferent to the knowledge of facts, which work directly on his interests, or bear on the freedom of his choice of counsel. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements which interfere, inany degree, with his exclusive devotion to the cause confided to him; that he has no interest which may betray his judgment or endanger his fidelity.[22]
It is in some measure the duty of counsel to be the keeper of the conscience of the client; not to suffer him, through the influence of his feelings or interest, to do or say anything wrong in itself, and of which he would himself afterwards repent. This guardianship may be carefully, and at the same time kindly exerted. One particular will be mentioned in which its exercise is frequently called for. The client will be often required, in the course of a cause, to make affidavits of various kinds. There is no part of his business with his client, in which a lawyer should be more cautious, or even punctilious, than this. He should be careful lest he incur the moral guilt of subornation of perjury, if not the legal offence. An attorney may have communications with his client in such a way, in instructing him as towhat the law requires him to state under oath or affirmation, in order to accomplish any particular object in view, as to offer an almost irresistible temptation and persuasion to stretch the conscience of the affiant up to the required point. Instead of drawing affidavits, and permitting them to be sworn to as a matter of course, as it is to be feared is too often the case, counsel should on all occasions take care to treat an oath with great solemnity, as a transaction to be very scrupulously watched, because involving great moral peril as well as liability to public disgrace and infamy. It lies especially in the way of the profession to give a high tone to public sentiment upon this all-important subject, the sacredness of an oath. It is always the wisest and best course, to have an interview with the client, and draw from him by questions, whether he knows the facts which you know he is required to state, so that you may judge whether, as a conscientious man, he ought to make such affidavit.
Another particular may be adverted to: the attempt to cover property from the just demandsof creditors. It is to be feared that gentlemen of the Bar sometimes shut their eyes and, under the influence of feelings of commiseration for an unfortunate client, feign not to see what is really very palpable to everybody else. Surely they ought never to sanction, directly or indirectly such shams, especially when the machinery of a judicial sale is introduced more securely to accomplish the object. A purchase is made in the name of a friend for the debtor's benefit and with the debtor's money, though it may be hard to make that appear by legal evidence. When advice is asked, as it sometimes is, how such a thing may be safely and legally done, the idea held prominently before the party by his counsel should be, that his estate is the property of his creditors, and that nothing but their consent will justify an appropriation of any part of it to his benefit.
Lawyers too may very materially assist in giving a high tone to public sentiment in the matter of stay and exemption laws. It is not every case in which a man has a legal that he has a moral right to claim the benefit of suchlaws. When a debtor with ample means to pay only wants to harass and worry his creditor, who has resorted to legal process and obtained a judgment, by keeping him out of his money, as it is often expressed, as long as he can; or where he wishes to take advantage of hard times to make more than legal interest, or with concealed means unknown to the execution plaintiff, claims the exemption: these are cases which counsel ought to hold up in their proper light to those whom they advise, and wash their hands of the responsibility of them. According to the Jewish law, the cloak or outer garment, which was generally used by the poorer classes as a covering during sleep, could not be retained by the creditor to whom it had been given in pledge, and of course was exempt by law from seizure for debt; and our blessed Saviour, in his sermon on the mount, has been supposed to refer to this exemption law, when he said: "And if any man will sue thee at the law and take away thy coat, let him have thy cloak also;" that is, confine not yourself in your transactions with your fellow-mento giving them simply the strict measure of their legal rights: give them all that is honestly theirs as far as you have ability, whether the law affords them a remedy or not. There have been some noble instances of bankrupts who, upon subsequently retrieving their fortunes, have fully discharged all their old debts, principal and interest, though released or barred by the Statute of Limitations; but such instances would be more common if the spirit of the high and pure morality, which breathes through the sermon on the mount, prevailed more extensively.
An important clause in the official oath is "to delay no man's cause for lucre or malice." It refers, no doubt, primarily, to the cause intrusted to the attorney, and prohibits him from resorting to such means for the purpose of procuring more fees, or of indulging any feeling he may have against his client personally. Such conduct would be a clear case of a violation of the oath. But it is a question, also, whether the case generally, in which he is retained, isnot comprehended.[23]How far, then, can he safely go in delaying the cause for the benefit of, and in pursuance of the instructions of his client? A man comes to him and says: "I have no defence to this claim; it is just and due, but I have not the means to pay it; I want all the time you can get for me." The best plan in such instances, is, no doubt, at oncefrankly to address his opponent, and he will generally be willing to grant all the delay which he knows, in the ordinary course can be gained, and perhaps more, as a consideration for his own time and trouble saved. If, however, that be impracticable, it would seem that the suitor has a right to all the delay, which is incident to the ordinary course of justice. The counsel may take all means for this purpose, which do not involve artifice or falsehood in himself or the party. The formal pleas put in are not to be considered as false in this aspect, except such as are required to be sustained by oath. In an ejectment, for example, an appearance need not be entered until the second term, the legislature having seen fit to give that much respite to the unjust possessor of real estate. But to stand by and see a client swear off a case on account of the absence of a material witness, when he knows that no witness can be material; or further to make affidavit that his appeal or writ of error is not intended for delay, when he knows that it is intended for nothing else, no high-minded man will be privyor consent to such actions, much less have any active participation in them.
Subject, however, to the qualifications which have been stated, when a cause is undertaken, the great duty which the counsel owes to his client, is an immovable fidelity. Every consideration should induce an honest and honorable man to regard himself, as far as the cause is concerned, as completely identified with his client. The criminal and disgraceful offence of taking fees of two adversaries, of allowing himself to be approached corruptly, whether directly or indirectly, with a view to conciliation, ought, like parricide in the Athenian law, to be passed over in silence in a code of professional ethics.[24]All considerations of self should be sunk by the lawyer in his duty to the cause. The adversary may be a man of station, wealth, and influence; his good will may be highly valuable to him; his enmity may do him great injury. He should not permitsuch thoughts to arise in his mind. He should do his duty manfully, without fear, favor, or affection.
At the same time, let it be observed, that no man ought to allow himself to be hired to abuse the opposite party. It is not a desirable professional reputation to live and die with, that of a rough tongue, which makes a man to be sought out, and retained to gratify the malevolent feelings of a suitor in hearing the other side well lashed and vilified. An opponent should always be treated with civility and courtesy, and if it be necessary to say severe things of him or his witnesses, let it be done in the language, and with the bearing, of a gentleman. There is no point in which it becomes an advocate to be more cautious, than in his treatment of the witnesses. In general, fierce assaults upon them, unnecessary trifling with their feelings, rough and uncivil behavior towards them in cross-examination, whilst it may sometimes exasperate them to such a pitch, that they will perjure themselves in the drunkenness of their passion, still, most generallytells badly on the jury. They are apt to sympathize with a witness under such circumstances.[25]It is as well unwise as unprofessional, in counsel, to accuse a witness of having forsworn himself, unless some good ground, other than the mere instruction of the client, is present in the evidence to justify it. He may sift most searchingly, and yet with a manner and courtesy which affords no ground for irritation, either in witness or opponent; and in such case, if his questions produce irritation,it is a circumstance which will weigh in his favor.
The practitioner owes to his client, with unshaken fidelity, the exertion of all the industry and application of which he is capable to become perfect master of the questions at issue, to look at them in all their bearings, to place himself in the opposite interest, and to consider and be prepared as far as possible, for all that may be said or done on the contrary part. The duty of full and constant preparation, is too evident to require much elaboration. It is better, whenever it is possible to do so, to make this examination immediately upon the retainer, and not to postpone it to later stages in the proceedings. The opportunity is often lost, of ascertaining facts, and securing evidence, from putting off till too late, the business of understanding thoroughly all that it will be necessary to adduce on the trial. In this way, a lawyer will attain what is very important, that his client may be always prepared, as well as himself, have his attention alive to his case, know what witnesses are important,and keep a watch upon them, so that their testimony may not be lost, and upon the movements of his adversary, lest he should at any time be taken by surprise. It would be an excellent rule for him, at short stated periods, to make an examination of the record of every case which he has under his charge. It always operates disadvantageously to an attorney in the eyes of those who employ him, as well as the public, when he fails in consequence of some neglect or oversight. Frequent applications to the court, to relieve him from the consequences of his inattention, tell badly on his character and business. He may be able to make very plausible excuses; but the public take notice, that some men with large business never have occasion to make such excuses, and that other men with less, are constantly making them. Every instance of the kind helps to make up such a character. A young man should be particularly cautious, and dread such occurrences as highly injurious to his prospects. If he escapes the notice and animadversion of his constituent, and the legal consequences ofhis neglect, by the intervention of the court, or the indulgence of his opponent, the members of the Bar are lynx-eyed in observing such things.
It may appear like digressing from our subject, to speak of such qualities as attention, accuracy, and punctuality, but like the minor morals of common life, they are little rills which at times unite and form great rivers. A life of dishonor and obscurity, if not ignominy, has often taken its rise from the fountain of a little habit of inattention and procrastination. System is everything. It can accomplish wonders. By this alone, as by a magic talisman, may time be so economized that business can be attended to and opportunities saved for study, general reading, exercise, recreation, and society. "A man that is young in years," says Lord Bacon, "may be old in hours, if he has lost no time." Hurry and confusion result from the want of system; and the mind can never be clear when a man's papers and business are in disorder. It is recorded of the pensionary De Witt, of the United Provinces, whofell a victim to the fury of the populace in the year 1672, that he did the whole business of the republic, and yet had time left for relaxation and study in the evenings. When he was asked how he could possibly bring this to pass, his answer was, that "nothing was so easy; for that it was only doing one thing at a time, and never putting off anything till to-morrow that could he done to-day." "This steady and undissipated attention to one object," remarks Lord Chesterfield, in relating this anecdote, "is a sure mark of a superior genius." It is of the highest importance, also, that a lawyer should in early professional life, cultivate the habit of accuracy. It is a great advantage over opposing counsel,—a great recommendation in the eyes of intelligent mercantile and business men. A professional note to a merchant carelessly written will often of itself produce an unfavorable impression on his mind; and that impression he may communicate to many others. The importance of a good handwriting cannot be overrated. A plain legible hand every man can write who chooses to takethe pains. A good handwriting is a passport to the favor of clients, and to the good graces of judges, when papers come to be submitted to them. It would be a good rule for a young lawyer, though at first perhaps irksome and inconvenient, never to suffer a letter or paper to pass from his hands with an erasure or interlineation. The time and trouble it may cost at the outset will be repaid in the end by the habit he will thereby acquire of transacting his business with care, neatness, and accuracy.
He cannot be faithful to his clients unless he continues to be a hard student of the learning of his profession. Not merely that he should thoroughly investigate the law applicable to every case which may be intrusted to him; though that, besides its paramount necessity to enable him to meet the responsibility he has assumed to that particular client, will be the subsidiary means of important progress in his professional acquisitions. "Let any person," says Mr. Preston, "study one or two heads of the law fully and minutely, and he will have laid the foundation or acquired theaptitude for comprehending other heads of the law."[26]But, besides this, he should pursue the systematic study of his profession upon some well-matured plan. When admitted to the Bar, a young man has but just begun, not finished, his legal education. If he have mastered some of the most general elementary principles, and has acquired a taste for the study, it is as much as can be expected from his clerkship. There are few young men who come to the Bar, who cannot find ample time in the first five or seven years of their novitiate, to devote to a complete acquisition of the science they profess, if they truly feel the need of it, and resolve to attain it. The danger is great that from a faulty preparation,—from not being made to see and appreciate the depth, extent, and variety of the knowledge they are to seek, they will mistake the smattering they have acquired for profound attainments. The anxiety of the young lawyer is a natural one at once to get business—as much business ashe can. Throwing aside his books, he resorts to the many means at hand of gaining notoriety and attracting public attention, with a view of bringing clients to his office. Such an one in time never fails to learn much by his mistakes, but at a sad expense of character, feeling, and conscience. He at last finds that in law, as in every branch of knowledge, "a little learning is a dangerous thing;" that what he does not know falsifies often in its actual application that which he supposed he certainly did know; and after the most valuable portion of his life has been frittered away upon objects unworthy of his ambition, he is too apt to conclude that it is now too late to redeem his time; he finds that he has lost all relish for systematic study, and when he is driven to the investigation of particular questions, is confounded and embarrassed—unable to thread his way through the mazes of authorities, to reconcile apparently conflicting cases, or deduce any satisfactory conclusion from them—in short, he has no greater aptitude, accuracy, and discrimination than when he set out inthe beginning of his studies. No better advice can be given to a young practitioner, than to confine himself generally to his office and books, even if this should require self-denial and privation, to map out for himself a course of regular studies, more or less extended, according to circumstances, to aim at mastering the works of the great luminaries of the science, Coke, Fearne, Preston, Powell, Sugden, and others, not forgetting the maxim,melius est petere fontes quam sectari rivulos, and to investigate for himself the most important and interesting questions, by an examination and research of the original authorities. "He that reacheth deepest seeth the amiable and admirable, secrets of the law,"[27]and thus may the student "proceed in his reading with alacrity, and set upon and know how to work into with delight these rough mines of hidden treasure."[28]
It may be allowed here to commend to most serious consideration, the remarks of oneof the most eminent of the profession—Horace Binney—a gentleman of our own Bar, whose example enforces and illustrates their value: "There are two very different methods of acquiring a knowledge of the laws of England, and by each of them, men have succeeded in public estimation to an almost equal extent. One of them, which may be called the old way, is a methodical study of the general system of law, and of its grounds and reasons, beginning with the fundamental law of estates and tenures, and pursuing the derivative branches in logical succession, and the collateral subjects in due order; by which the student acquires a knowledge of principles that rule in all departments of the science, and learns to feel as much as to know what is in harmony with the system and what not. The other is, to get an outline of the system, by the aid of commentaries, and to fill it up by the desultory reading of treatises and reports, according to the bent of the student, without much shape or certainty in the knowledge so acquired, until it is given by investigation in the course of practice. A good deal of lawmay be put together by a facile or flexible man, in the second of these modes, and the public are often satisfied; but the profession itself knows the first, by its fruits, to be the most effectual way of making a great lawyer."[29]
Such a course of study as is here recommended, is not the work of a day or a year.In the meantime let business seek the young attorney; and though it may come in slowly, and at intervals, and promise in its character neither fame nor profit, still, if he bears in mind that it is an important part of his training, that he should understand the business he does thoroughly, that he should especially cultivate, in transacting it, habits of neatness, accuracy, punctuality, and despatch, candor towards his client, and strict honor towards his adversary, it may be safely prophesied that his business will grow as fast as it is good for him that it should grow; while he gradually becomes able to sustain the largest practice, without being bewildered and overwhelmed.
Let him be careful, however, not to settle down into a mere lawyer. To reach the highest walks of the profession, something more is needed. Let polite literature be cultivated in hours of relaxation. Let him lose not his acquaintance with the models of ancient taste and eloquence. He should study languages, as well from their practical utility in a country so full of foreigners, as from the mental discipline, and the rich stores they furnish. He should cultivate a pleasing style, and an easy and graceful address. It may be true, that in a "court of justice, the veriest dolt that ever stammered a sentence, would be more attended to, with a case in point, than Cicero with all his eloquence, unsupported by authorities,"[30]yet even an argument on a dry point of law, produces a better impression, secures a more attentive auditor in the judge, when it is constructed and put together with attention to the rules of the rhetorical art; when it is delivered, not stammeringly, but fluently; when facts andprinciples, drawn from other fields of knowledge, are invoked to support and adorn it; when voice, and gesture, and animation, give it all that attraction which earnestness always and alone imparts. There is great danger that law reading, pursued to the exclusion of everything else, will cramp and dwarf the mind, shackle it by the technicalities with which it has become so familiar, and disable it from taking enlarged and comprehensive views even of topics falling within its compass as well as of those lying beyond its legitimate domain. An amusing instance of this is said to have occurred in the debate in the House of Commons, on the great question as to the right of the Parliament of Great Britain to tax the Colonies. At the close of the discussion, in which Fox and Burke, as well as others, had distinguished themselves, a learned lawyer arose and said that the real point on which the whole matter turned, had been unaccountably overlooked. In the midst of deep silence and anxious expectation from all quarters of the House, he proceeded to show that the lands ofthe Colonies had been originally granted by the Crown, and were heldut de honore, as of the Manor of Greenwich, in the county of Kent; and thence he concluded that as the Manor of Greenwich was represented in Parliament, so the lands of the North American Colonies (by tenure, a part of the Manor) were represented by the knights of the shire for Kent.[31]
Let me remark, too, before hastening to another topic more immediately connected with the duties of active professional life, that the cultivation of a taste for polite literature has other importance besides its value as a preparationand qualification for practice and forensic contests. Nothing is so well adapted to fill up the interstices of business with rational enjoyment, to make even a solitary life agreeable, and to smooth pleasantly and honorably the downward path of age. The mental vigor of one who is fond of reading, other things being equal, becomes impaired at a much later period of life. The lover of books has faithful companions and friends, who will never forsake him under the most adverse circumstances. "As soon as I found," said Sir Samuel Romilly, "that I was to be a busy lawyer for life, I strenuously resolved to keep up my habit of non-professional reading; for I had witnessed so much misery in the last years of many great lawyers, whom I had known, from their loss of all taste for books, that I regarded their fate as my warning." Mr. Gibbon was wont to say that he would not exchange his love of reading for the wealth of the Indies. It is indeed a fortune, of which the world's reverses can never deprive us. It fortifies the soul against the calamities of life. It moderates,if it is not strong enough to govern and control the passions. It favors not the association of the cup, the dice-box, or the debauch. The atmosphere of a library is uncongenial with them. It clings to home, nourishes the domestic affections, and the hopes and consolations of religion.