There is, perhaps, no profession, after that of the sacred ministry, in
which a high-toned morality is more imperatively necessary than that of
the law. There is certainly, without any exception, no profession in
which so many temptations beset the path to swerve from the line of
strict integrity; in which so many delicate and difficult questions of
duty are continually arising. There are pitfalls and man-traps at every
step, and the mere youth, at the very outset of his career, needs often
the prudence and self-denial, as well as the moral courage, which belong
commonly to riper years. High moral principle is his only safe guide;
the only torch to light his way amidst darkness and obstruction. It is
like the spear of the guardian angel of Paradise:
No falsehood can endure
Touch of celestial temper, but returns
Of 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 conceded to no other class or profession.[3] It is,
therefore, that the legislature have seen fit to require that there
should be added to the solemnity of the responsibility, which every man
virtually incurs 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 dignity and 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 the opinion 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 was carried--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 make _ex parte_ statements, 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 such unwelcome 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 be
concerned. 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; it is 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 for counsel to say in such cases, where nothing is left by
the charge to the jury, that they do not ask 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 common faults 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 morally wrong 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:
"Beware
Of 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 that they 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 ordinary skill. 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 the extent 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 the legal 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?