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 would constitute 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 conscientiae_, 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. But if 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 presented may 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] To come 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 performing this

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 that _it 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

seemed to 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, to a 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

conclusion _in foro conscientiae_, 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 convicted and

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 was daunted 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 there is 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, but that of the Attorney-General, whose _locum tenens_

at 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 brought nearer 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 plead his 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 dictates of 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 tongue

Protect 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

against the 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 to gain 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 supersedes the 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, like all 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, may be 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--and that confirmed by Chief Justice Tindal,

is conclusive. To charge him with _acting 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, who demurred 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_, and _whether guilty or

not guilty_, if the evidence is insufficient to convict him, he has _a

legal right_ to be acquitted. The tribunal 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 use ALL 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 candor should 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 principle

to 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 worth the 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, in any

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 to what 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 demands of 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 such laws. 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-men to 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, is not 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 once frankly 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 privy or 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 permit such 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 generally

tells 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 of his

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, who fell 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 take the 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 the aptitude 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 as he 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 in the 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 one of 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 law may 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 and principles, 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 of the Colonies had been originally

granted by the Crown, and were held _ut 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 preparation and 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.

Another very delicate and often embarrassing question in the relation of

attorney and client is in regard to the subject of compensation for

professional services.

In all countries advanced in civilization, and whose laws and manners

have attained any degree of refinement, there has arisen an order of

advocates devoted to prosecuting or defending the lawsuits of others.

Before the tribunals of Athens, although the party pleaded his own

cause, it was usual to have the oration prepared by one of an order of

men devoted to this business, and to compensate him liberally for his

skill and learning. Many of the orations of Isocrates, which have been

handed down to us, are but private pleadings of this character. He is

said to have received one fee of twenty talents, about eighteen

thousand dollars of our money, for a speech that he wrote for Nicocles,

king of Cyprus. Still, from all that appears, the compensation thus

received was honorary or gratuitous merely. Among the early institutions

of Rome, the relation of patron and client, which existed between the

patrician and plebeian, bound the former to render the latter assistance

and protection in his lawsuits, with no other return than the general

duty, which the client owed to his patron. As every patrician could not

be a sufficiently profound lawyer to resolve all difficulties, which

might arise in the progress of a complex system of government and laws,

though he still might accomplish himself in the art of eloquence, there

arose soon a new order of men, the jurisconsults. They also received no

compensation. On the public days of market, or assembly, the masters of

the art were seen walking in the forum, ready to impart the needful

advice to the meanest of their fellow-citizens, from whose votes on a

future occasion, they might solicit a grateful return. As their years

and honors increased, they seated themselves at home, on a chair or

throne, to expect with patient gravity the visits of their clients, who

at the dawn of day, from the town and country, began to thunder at their

doors.[32] Often, indeed, the patron was able in his own person to

exercise the office both of advocate and counsellor. It was only in the

more glorious, because the more virtuous, period of the republic, that

the relation was sustained upon so honorable a foundation. In the

progress of society, the business of advocating causes became a distinct

profession; and then it was usual to pay a fee in advance, which was

called a gratuity or present. As this was a mere honorary recompense,

the client was under no legal obligation to pay it. But the result

necessarily was, that if the usual present was not given, the advocate

did not consider himself bound in honor to undertake the advocation of

the cause before the courts. Afterwards, Marcus Cincius Alimentus, the

tribune of the people, procured the passage of the law known as the

_Cincian_ law, prohibiting the patron or advocate from receiving any

money or other present for any cause; and annulling all gratuities or

presents made by the client to the patron or advocate. But as no penalty

was prescribed for the breach of the law, it of course became a dead

letter. The Emperor Augustus afterwards re-enacted the Cincian law, and

prescribed penalties for its breach. But towards the end of his reign,

the advocates were again authorized to receive fees or presents from

their clients. The Emperor Tiberius also permitted them to receive such

forced gratuities. This led to the abuse referred to by Tacitus, and

induced the Senate to insist upon the enforcement of the re-enactment of

the Cincian law, or rather a law limiting the amount of the fees of

advocates.[33] Nero revoked the law of Claudian, which was subsequently

re-enacted by the Emperor Trajan, with the additional restriction that

the advocate should not be permitted to receive his fee or gratuity,

until the cause was decided. The younger Pliny mentions a law, which

authorized the advocate, after the pleadings in the cause had been made

and the judgment had been given, to receive the fee, which might be

voluntarily offered by the client, either in money or a promise to pay.

Erskine, in his Institutes of the Law of Scotland, understands the law

in the Digest _De Extraordinariis Cognitionibus_ as authorizing a suit

for the fee of a physician or advocate without a previous agreement for

a specific sum.[34]

The consequences may be best told in the impressive language of the

historian of the Decline and Fall of the Empire: "The noble art, which

had once been preserved as the sacred inheritance of the patricians, was

fallen into the hands of freedmen and plebeians, who, with cunning

rather than with skill, exercised a sordid and pernicious trade. Some of

them procured admittance into families for the purpose of fomenting

differences, of encouraging suits, and of preparing a harvest of gain

for themselves or their brethren. Others, recluse in their chambers,

maintained the dignity of legal professors, by furnishing a rich client

with subtleties to confound the plainest truth, and with arguments to

color the most unjustifiable pretensions. The splendid and popular class

was composed of the advocates, who filled the Forum with the sound of

their turgid and loquacious rhetoric. Careless of fame and of justice,

they are described for the most part, as ignorant and rapacious guides,

who conducted their clients through a maze of expense, of delay, and of

disappointment; from whence, after a tedious series of years, they were

at length dismissed when their patience and fortune were almost

exhausted."[35] Is not this probably the history of the decline of the

profession in all countries from an honorable office to a money-making

trade?

It is the established law of England, that a counsellor or barrister

cannot maintain a suit for his fees.[36] There is in that country a

class of mere attorneys, who attend to legal business out of court, who

bring suits and conduct them up to issue; but who are not allowed to

speak in court. This latter privilege is confined to serjeants and

barristers. Attorneys are regulated by statute, and are subject to many

restrictions; having a rate of fees, settled either by statute or

established usage; and required to be fixed by the taxation of an

officer of the court before a suit can be brought for them. Barristers

are admitted only under the regulations established by the various inns

of court; and the serjeants, who long had the monopoly of the Bar of the

Common Pleas, are appointed by patent from the king. A barrister cannot

be an attorney.[37]

In this country, there is in general no distinction between attorneys

and counsellors. The same persons fulfil the duties of both. Hence no

difference is made between their right to recover compensation for

services in the one capacity or the other.[38] In Pennsylvania, it was

held at one time that an attorney could not recover, without an express

promise, anything beyond the trifling and totally inadequate sum

provided in the fee-bill. That pure and eminent jurist Chief Justice

Tilghman thought that the policy of refusing a legal remedy for anything

beyond that had not been adopted without great consideration.[39] He

stands not alone in the opinion that it has been neither for the honor

nor profit of the Bar to depart from the ancient rule.[40] It has been

departed from in this State, and the early decision overruled, however;

and it must be frankly admitted, that the current of decisions in our

sister States is in the same way.[41]

It is supposed that the ancient rule was artificial in its structure,

and practically unjust,--that it is wholly inconsistent with our ideas

of equality to suppose that the business or profession, by which any one

earns the daily bread of himself or of his family, is so much more

honorable than the business of other members of the community as to

prevent him from receiving a fair compensation for his services on that

account.[42] It has been pronounced ridiculous to attempt to perpetuate

a monstrous legal fiction, by which the hard-working lawyers of our day,

toiling till midnight in their offices, are to be regarded in the eye of

the law in the light of the patrician jurisconsults of ancient Rome,

when

---- dulce diu fuit et solemne, reclusa

Mane domo vigilare, clienti promere jura,--

and who at daybreak received the early visits of their humble and

dependent clients, and pronounced with mysterious brevity the oracles of

the law.[43]

These are arguments which are more plausible than sound: they are

imposing, but not solid. The question really is, what is best for the

people at large,--what will be most likely to secure them a high-minded,

honorable Bar? It is all-important that the profession should have and

deserve that character. A horde of pettifogging, barratrous,

custom-seeking, money-making lawyers, is one of the greatest curses

with which any state or community can be visited. What more likely to

bring about such a result than a decision, which strips the Bar of its

character as a learned profession, on the principle avowed by one court,

that it is now a calling as much as any mechanical art,--or by another,

in effect, that the order of things is in the present condition of

society reversed, and clients are really the _patrons_ of their

attorneys? A more plausible reason is that the client is safer from the

oppression of extortionate counsel, by putting both upon the equal

footing of legal right and obligation. It would appear, however, better

that the parties should make an express agreement before or at the time

of retainer, or that the amount should be left to the justice of the

counsel, and the honor and liberality of the client subsequently. Every

judge, who has ever tried a case between attorney and client, has felt

the delicacy and difficulty of saying what is the measure of just

compensation. It is to be graduated, according to a high legal

authority, with a proper reference to the nature of the business

performed by the counsel for the client, and his standing in his

profession for learning and skill; whereby the value of his services is

enhanced to his client.[44] Is then the standing and character of the

counsel in his profession for learning and skill to be a question of

fact to be determined by the jury in every case in which a lawyer sues

his client? How determined, if necessary to the decision of the

question? Not surely by the crude opinions of the jurors; but by

testimony of members of the same profession on the subject. This never

is done; it would be a very difficult as well as delicate question for a

lawyer to pronounce upon the standing of a professional brother. The

most that can be done is to call gentlemen to say what they would have

considered reasonable for such services, had they been performed by

themselves. Some may testify up to a very high point, from an excusable,

though foolish vanity; others to a very low one, from the despicable,

desire of attracting custom to a cheap shop.[45] No one can ever have

seen such a cause tried without feeling, that the Bar had received by it

an impulse downwards in the eyes of bystanders and the community. The

case is thrown into the jury-box, to be decided at haphazard, according

as the twelve men may chance to think or feel. He, who narrowly watches

such controversies, cannot fail to see that the right of a counsel to

enforce his claim for legal compensation is far from being calculated to

protect the client from oppression and extortion.

It is not worth while, however, to quarrel with the decision. Let us

inquire rather what should be the course of counsel, without regard to

it. He certainly owes it to his profession, as well as himself, that

when the client has the ability, his services should be recompensed; and

that according to a liberal standard.[46] There are many cases, in which

it will be his duty, perhaps more properly his privilege, to work for

nothing. It is to be hoped, that the time will never come, at this or

any other Bar in this country, when a poor man with an honest cause,

though without a fee, cannot obtain the services of honorable counsel,

in the prosecution or defence of his rights. But it must be an

extraordinary--a very peculiar case--that will justify an attorney in

resorting to legal proceedings, to enforce the payment of fees. It is

better that he should be a loser, than have a public contest upon the

subject with a client. The enlightened Bar of Paris, have justly

considered the character of their order involved in such proceedings;

and although by the law of France, an advocate may recover for his fees

by suit, yet they regard it as dishonorable, and those who should

attempt to do it, would be immediately stricken from the roll of

attorneys.[47]

Regard should be had to the general usage of the profession, especially

as to the rates of commission to be charged for the collection of

undefended claims. Except in this class of cases, agreements between

counsel and client that the compensation of the former shall depend upon

final success in the lawsuit--in other words contingent fees--however

common such agreements may be, are of a very dangerous tendency, and to

be declined in all ordinary cases. In making his charge, after the

business committed to him has been completed, as an attorney may well

take into consideration the general ability of his client to pay, so he

may also consider the pecuniary benefit, which may have been derived

from his services. For a poor man, who is unable to pay at all, there

may be a general understanding that the attorney is to be liberally

compensated in case of success. What is objected to, is an agreement to

receive a certain part or proportion of the sum, or subject-matter, in

the event of a recovery, and nothing otherwise.

It is unnecessary to inquire here whether such a contract is void as

champertous, and contrary to public policy. None of the English statutes

on the subject of champerty have been reported as in force here; but it

was once a question whether it was not an offence at common law,

independently altogether, of any statute enactment. Enlightened judges

in several of our sister States have so considered it. "The purchase of

a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its

most odious form; and it ought equally to be condemned on principles of

public policy. It would lead to fraud, oppression, and corruption. As a

sworn minister of the courts of justice, the attorney ought not to be

permitted to avail himself of the knowledge he acquires in his

professional character, to speculate in lawsuits. The precedent would

tend to corrupt the profession, and produce lasting mischief to the

community."[48] "This is not the time nor place," says Chief Justice

Gibson, "to discuss the legality of contingent fees; though it be clear

that if the British statutes of champerty were in force here, such fees

would be prohibited by them. But a contract of the sort is certainly not

to be encouraged by implication, from a questionable usage, nor

established by less than a positive stipulation."[49] A contract to

allow a compensation for services in procuring the passage of a private

Act of Assembly, has been held to be unlawful and void, as against

public policy.[50] "The practice," said Judge Rogers, in delivering the

opinion of the court, "which has generally obtained in this State, to

allow a contingent compensation for legal services, has been a subject

of regret; nor am I aware of any direct decision by which the practice

has received judicial sanction in our courts." The case of _Ex parte

Plitt_,[51] however, recognizes fully the lawfulness of contingent fees,

though in his opinion Judge Kane says: "It is not a practice to be

generally commended, exposing honorable men not unfrequently to

misapprehension and illiberal remark, and giving the apparent sanction

of their example to conduct, which they would be among the foremost to

reprehend. Such contracts may sometimes be necessary in a community such

as that of Pennsylvania has been, and perhaps as it is yet; and when

they have been made in abundant good faith--_uberrima fide_--without

suppression or reserve of fact or exaggeration of apprehended

difficulties, or under influence of any sort or degree; and when the

compensation bargained for is absolutely just and fair, so that the

transaction is characterized throughout by 'all good fidelity to the

client,' the court will hold such contracts to be valid. But it is

unnecessary to say, that such contracts, as they can scarcely be

excepted from the general rule, which denounces as suspicious the

dealings of fiduciaries with those under their protection, must undergo

the most exact and jealous scrutiny before they can expect the judicial

ratification." Finally, the question of law may be considered as at rest

in Pennsylvania by the decision of the Supreme Court in Patten _v._

Wilson,[52] which recognized an agreement between counsel and client to

pay him out of the verdict as an equitable assignment, and gave effect

to it as against an attaching creditor.

It is not, however, with the lawfulness, but with the policy and

morality of the practice, that we are now dealing. Admitting its

legality, is it consistent with that high standard of moral excellence,

which the members of this profession should ever propose to themselves?

Let us look at what would be the results of such a practice, if it

became general. If these are bad, if its tendency is to corrupt and

degrade the character of the profession, then, however confident any man

may feel in his moral power to ward off its evil influences from his own

character and conduct, he should be careful not to encourage and give

countenance to it by his example.

It is one of that class of actions, which in particular instances may be

indifferent; but their morality is to be tested by considering what

would be the consequences of their general prevalence.

It is to be observed, then, that such a contract changes entirely the

relation of counsel, to the cause. It reduces him from his high position

of an officer of the court and a minister of justice, to that of a party

litigating his own claim. Having now a deep personal interest in the

event of the controversy, he will cease to consider himself subject to

the ordinary rules of professional conduct. He is tempted to make

success, at all hazards and by all means, the sole end of his exertions.

He becomes blind to the merits of the case, and would find it difficult

to persuade himself, no matter what state of facts might be developed in

the progress of the proceedings, as to the true character of the

transaction, that it was his duty to retire from it.

It places his client and himself in a new and dangerous relation. They

are no longer attorney and client, but partners. He has now an interest,

which gives him a right to speak as principal, not merely to advise as

to the law, and abide by instructions. It is either unfair to him or

unfair to the client. If he thinks the result doubtful, he throws all

his time, learning, and skill away upon what, in his estimation, is an

uncertain chance. He cannot work with the proper spirit in such a case.

If he believes that the result will be success, he secures in this way a

higher compensation than he is justly entitled to receive.

It is an undue encouragement to litigation. Men, who would not think of

entering on a lawsuit, if they knew that they must compensate their

lawyer whether they win or lose, are ready upon such a contingent

agreement to try their chances with any kind of a claim. It makes the

law more of a lottery than it is.

The worst consequence is yet to be told,--its effect upon, professional

character. It turns lawyers into higglers with their clients. Of course

it is not meant that these are always its actual results; but they are

its inevitable tendencies,--in many instances its practical working. To

drive a favorable bargain with the suitor in the first place, the

difficulties of the case are magnified and multiplied, and advantage

taken of that very confidence, which led him to intrust his interests to

the protection of the advocate.[53] The parties are necessarily not on

an equal footing in making such a bargain. A high sense of honor may

prevent counsel from abusing his position and knowledge; but all have

not such high and nice sense of honor. If our example goes towards

making the practice of agreements for contingent fees general, we assist

in placing such temptations in the way of our professional brethren of

all degrees--the young, the inexperienced, and the unwary, as well as

those whose age and experience have taught them that a lawyer's honor is

his brightest jewel, and to be guarded from being sullied, even by the

breath of suspicion, with the most sedulous care.

A gentleman of the largest experience and highest character for

integrity and learning at the Philadelphia Bar, thus strongly confirms

the views which have been here expressed on the subject of contingent

fees: "And further," says Mr. Price in his concluding advice to

students, at the close of his Essay on Limitation and Lien, "permit me

to advise and earnestly to admonish you, for the preservation of

professional honor and integrity, to avoid the temptation of bargaining

for fees or shares of any estate or other claim, contingent upon a

successful recovery. The practice directly leads to a disturbance of the

peace of society and to an infidelity to the professional obligation

promised to the court, in which is implied an absence of desire or

effort of one in the ministry of the Temple of Justice, to obtain a

success that is not just as well as lawful. It is true, as a just

equivalent for many cases honorably advocated and incompetently paid by

the poor, a compensation may and will be received, the more liberal

because of the ability produced by success; but let it be the result of

no bargain, exacted as a price before the service is rendered, but

rather the grateful return for benefits already conferred. If rigid in

your terms, in protection of the right of the profession to a just and

honorable compensation, let it rather be in the amount of the required

retainer, when it will have its proper influence in the discouragement

of litigation."

A lawyer should avoid, as far as possible, all transactions of business

with his clients, not only in regard to matters in suit in his hands,

but in relation to other matters. He should avoid standing toward them,

either in the relation of borrower or lender. A young practitioner

should especially avoid borrowing of any one. Let him retrench, seek the

humblest employment of drudgery rather than do it; but, if borrow he

must, let it be of any one else than a client. All transactions of

business between attorney and client are looked upon with eyes of

suspicion and disfavor, in courts of justice.

It is a settled doctrine of equity, in England, that an attorney cannot,

while the business is unfinished in which he had been employed, receive

any gift from his client, or bind his client in any mode to make him

greater compensation for his services than he would have a right to

demand if no contract should be made during the relation. If an attorney

accept a gift from one thus connected with him, it may be recovered in a

court of chancery, by the donor or his creditors, should it be necessary

for them to assert a right to it to satisfy their demands. When the

relation of solicitor and client exists, and a security is taken by the

solicitor from his client, the presumption is that the transaction is

unfair; and the onus of proving its fairness is upon the solicitor.[54]

A man ought to be very careful of placing himself in a position to have

any of his transactions regarded in that light. If it should ever come

to be canvassed in court, the bandying of the phrases, fraud and

presumption of fraud, as applied to him, may, and probably will, have an

unfavorable effect on his reputation. Most emphatically should it be

said, let nothing tempt him, not even the knowledge and consent of the

client, to keep the money, which may have come to his hands

professionally, one single instant longer than is absolutely necessary.

The consequences of any difficulty arising upon this head, will be fatal

to his professional character and prospects.

The official oath, to which reference has already more than once been

made, obliges the attorney "to use no falsehood." It seems scarcely

necessary to enforce this topic. Truth in all its simplicity--truth to

the court, client, and adversary--should be indeed the polar star of the

lawyer. The influence of only slight deviations from truth, upon

professional character, is very observable. A man may as well be

detected in a great as a little lie. A single discovery, among

professional brethren, of a failure of truthfulness, makes a man the

object of distrust, subjects him to constant mortification, and soon

this want of confidence extends itself beyond the Bar to those who

employ the Bar. That lawyer's case is truly pitiable, upon the

escutcheon of whose honesty or truth, rests the slightest tarnish.

Let it be remembered and treasured in the heart of every student, that

no man can ever be a truly great lawyer, who is not in every sense of

the word, a good man. A lawyer, without the most sterling integrity, may

shine for a while with meteoric splendor; but his light will soon go out

in blackness of darkness. It is not in every man's power to rise to

eminence by distinguished abilities. It is in every man's power, with

few exceptions, to attain respectability, competence, and usefulness.

The temptations which beset a young man in the outset of his

professional life, especially if he is in absolute dependence upon

business for his subsistence, are very great. The strictest principles

of integrity and honor, are his only safety. Let him begin by swerving

from truth or fairness, in small particulars, he will find his character

gone--whispered away, before he knows it. Such an one may not indeed be

irrecoverably lost; but it will be years before he will be able to

regain a firm foothold. There is no profession, in which moral character

is so soon fixed, as in that of the law; there is none in which it is

subjected to severer scrutiny by the public. It is well, that it is so.

The things we hold dearest on earth,--our fortunes, reputations,

domestic peace, the future of those dearest to us, nay, our liberty and

life itself, we confide to the integrity of our legal counsellors and

advocates. Their character must be not only without a stain, but without

suspicion. From the very commencement of a lawyer's career, let him

cultivate, above all things, truth, simplicity, and candor: they are the

cardinal virtues of a lawyer. Let him always seek to have a clear

understanding of his object: be sure it is honest and right, and then

march directly to it. The covert, indirect, and insidious way of doing

anything, is always the wrong way. It gradually hardens the moral

faculties, renders obtuse the perception of right and wrong in human

actions, weighs everything in the balances of worldly policy, and ends

most generally, in the practical adoption of the vile maxim, "that the

end sanctifies the means." If it be true, as he has said, who, more than

any mere man, before or since his day, understood the depths of human

character, that one even may,

"By telling of it,

Make such a sinner of his memory;

To credit his own lie:"--

we should be careful never to speak or act, without regard to the

_morale_ of our words or actions. A habit may and will grow to be a

second nature.

"That monster, custom, who all sense doth eat,

Of habit's devil, is angel yet in this:

That to the use of actions fair and good

He likewise gives a frock or livery

That aptly is put on."

There is no class of men among whom moral delinquency is more marked and

disgraceful than among lawyers. Among merchants, so many honest men

become involved through misfortune, that the rogue may hope to take

shelter in the crowd, and be screened from observation. Not so the

lawyer. If he continues to seek business, he must find his employment in

lower and still lower grades; and will soon come to verify and

illustrate the remark of Lord Bolingbroke, that "the profession of the

law, in its nature the noblest and most beneficial to mankind, is in its

abuse and abasement, the most sordid and pernicious."

While such are the depths to which a lawyer may sink, look, on the other

hand, at the noble eminence of honor, usefulness, and virtue, to which

he may rise. Where is the profession, which, in this world, holds out

brighter rewards? Genius, indeed, will leave its mark in whatever sphere

it may move. But learning, industry, and integrity, stand nowhere on

safer or higher ground, than in the walks of the law. In all free

countries, it is the avenue not only to wealth, but to political

influence and distinction. In England, a large proportion of the house

of peers, owe their seats and dignities, as well as their possessions,

either to their own professional success, or to that of some one of

their ancestors.[55] In this country, all our Presidents but three, have

been educated to the Bar. Of the men who have distinguished themselves

in the cabinet, in the halls of legislation, and in foreign diplomacy,

how large is the proportion of lawyers! How powerful has always been the

profession in guiding the popular mind, in forming that greatest of all

counterchecks to bad laws and bad administration,--public opinion! It is

the school of eloquence--that, which more than all else besides, has

swayed, still sways, and always will sway, the destinies of free

peoples. Let a man, to the possession of this noble faculty, add the

high character of purity and justice, integrity and honor, and where are

to be found the limits of his moral power over his fellow-citizens?[56]

It is well to read carefully and frequently, the biographies of eminent

lawyers. It is good to rise from the perusal of the studies and labors,

the trials and conflicts, the difficulties and triumphs, of such men, in

the actual battle of life, with the secret feeling of dissatisfaction

with ourselves. Such a sadness in the bosom of a young student, is like

the tears of Thucydides, when he heard Herodotus read his history at the

Olympic Games, and receive the plaudits of assembled Greece. It is the

natural prelude to severer self-denial, to more assiduous study, to more

self-sustaining confidence. Some one has recommended that Middleton's

Life of Cicero should be perused, at frequent intervals, as the vivid

picture of a truly great mind, in the midst of the most stirring scenes,

ever intent upon its own cultivation and advancement, as its only true

glory; and that in effect sketched by his own master hand.[57] The

autobiography of Edward Gibbon will rouse an ambitious student like the

sound of a trumpet. But of English biographies, there is no one, it

occurs to me, better adapted to the purpose mentioned, than the Life of

Sir William Jones, by Lord Teignmouth. It exhibits the wonders, which

unremitted study, upheld by the pure and noble ambition of doing good,

can accomplish in the space of a short life. He was a man of the most

varied knowledge. An extensive and indeed extraordinary acquaintance

with ancient and modern languages, was perhaps his chief accomplishment.

Although he engaged very late in life in the study of the law, such was

his industry and success, that he soon occupied the highest judicial

station, in British India; and the profession are indebted to his pen,

for one of the most beautiful of the elementary treatises, which adorn

the lawyer's library. "In his early days," says his biographer, "he

seems to have entered upon his career of study, with this maxim strongly

impressed upon his mind, that whatever had been attained, was attainable

by him; and it has been remarked, that he never neglected nor overlooked

any opportunity of improving his intellectual faculties, or of acquiring

esteemed accomplishments." Notwithstanding his numerous occupations at

the Bar at home, the onerous duties of his station in India, and his

premature death, before he had attained his forty-eighth year, he has

left behind many learned works, which illustrate Oriental languages and

history, and attest the extent of his labors and acquisitions. Indeed,

it might be regarded as impossible, were we not informed of the regular

allotment which he made of his time to particular occupations, and his

scrupulous adherence to the distribution he had thus made. The moral

character of this eminent man, was no less exemplary. It is the

testimony of one of his contemporaries: "He had more virtues and less

faults, than I ever yet knew in any human being; and the goodness of his

head, admirable as it was, was exceeded by that of his heart." His own

measure of true greatness, humanly speaking, he has left behind him, in

very emphatic words: "If I am asked, who is the greatest man? I answer,

the best. And if I am required to say, who is the best? I reply, he that

has deserved most of his fellow-creatures."[58]

This department of English literature has been recently much enriched

by the labors of the present Lord High Chancellor of England, Lord

Campbell. In America we have a few well written and instructive legal

biographies, among which ought especially to be named, Mr. Wheaton's

Life of William Pinkney, and Professor Parsons' interesting Memoir of

his distinguished father, Chief Justice Parsons. Mr. Binney, at the

close of his honored and honorable life, is paying the debt, which every

man owes to his profession, in animated spirit-stirring sketches of his

great and good contemporaries. How forcibly does this distinguished

jurist illustrate the remark of Cicero in his Treatise on Old Age: "Sed

videtis, ut senectus non modo languida atque iners non sit, verum etiam

sit operosa, et semper agens aliquid et moliens; tale scilicet, quod

cujusque studium in superiore vita fuit." What a noble example might be

held up, in the life and character of Chief Justice Marshall! His

biography, while it will be the record of active patriotism and

humanity, will exhibit a course of arduous self-training, for the great

conflicts of opinion, in which it was his lot afterwards to appear, with

so much lustre. He had not the usual advantages of a collegiate

education. The war of the Revolution, in which his ardent love of

country, and of the principles of rational liberty, led him to enlist,

and where he distinguished himself in the field, materially interfered

with, and retarded his earlier professional studies; yet, the lofty

eminence to which he attained in the opinion of his compatriots, even of

those who could not concur in some of his views of the Constitution, the

enduring monuments of his greatness in the decisions of the Supreme

Court of the United States, bespeak an intellect of the very first

order, mental power naturally vigorous, but brought, by proper exercise,

to a degree of strength that made it tower above the general level of

educated men. His opinions do not abound in displays of learning. His

simplicity, a character so conspicuous in all his writings and

actions--that first and highest characteristic of true greatness--led

him to say and do just what was necessary and proper to the purpose in

hand. Its reflected consequences on his own fame as a scholar, a

statesman, or a jurist, seem never once to have occurred to him. As a

judge, the Old World may be fairly challenged to produce his superior.

His style is a model--simple and masculine. His reasoning--direct,

cogent, demonstrative, advancing with a giant's pace and power, and yet

withal so easy evidently to him, as to show clearly, a mind in the

constant habit of such strong efforts. Though he filled for so many

years the highest judicial position in this country, how much was his

walk like the quiet and unobtrusive step of a private citizen, conscious

of heavy responsibilities, and anxious to fulfil them; but unaware that

the eyes of a nation--of many nations--were upon him! There was around

him none of the glare, which dazzles; but he was clothed in that pure

mellow light of declining evening, upon which we love to look. Where is

the trust to society more sacred, where are duties more important, or

consequences more extended, for individual or social weal or woe, than

those which attach to the office he held? How apt, and aptly said, is

that prayer of Wolsey, when he is informed of the promotion of Sir

Thomas More to the place of Lord Chancellor:

"May he ... do justice,

For truth's sake and his conscience; that his bones,

When he has run his course, and sleeps in blessings,

May have a tomb of orphans' tears wept on him."

It is surely a just subject of national, as well as professional pride,

that an American lawyer can thus, pointing to the example of such a man

as JOHN MARSHALL, hold up his character, his reputation, his usefulness,

his greatness, as incentives to high and honorable ambition; and

especially, his life of unblemished virtue, and single-hearted

purity,--after all, his highest praise, for, as old Shirley says,

"When our souls shall leave this dwelling,

The glory of one fair and virtuous action

Is above all the scutcheons on our tomb."

Is it possible that a being so fearfully and wonderfully made as man,

and animated by a spirit still more fearful and incomprehensible, was

created for the brief term of a few revolutions of the planet he lives

on? Shall his own physical and intellectual productions so long survive

him? The massive piles of Egypt have endured for thousands of years:

fluted column and sculptured architrave have stood for generations,

monuments of his labor and skill. A poem of Homer, an oration of

Demosthenes, an ode of Horace, a letter of Cicero, carry down to the

remotest posterity the memorial of their names. Men found empires,

establish constitutions, promulgate codes of laws; there have been

Solons, Alexanders, Justinians, and Napoleons. There have been those

justly called Fathers of their country, and benefactors of their race.

Have they, too, sunk to become clods of the valley? The mind, which can

look so far before and after--can subdue to its mastery the savages of

the forests, and the fiercer elements of Nature--can stamp the creation

of its genius upon the living canvas, or the almost breathing, speaking

marble--can marshal the invisible vibrations of air into soul-stirring

or soul-subduing music--can pour forth an eloquence of words, with magic

power to lash the passions of many hearts into a raging whirlwind, or

command them with a "peace, be still"--can make a book, a little book,

which shall outlive pyramids and temples, cities and empires--can

perceive and love beauty, in all its forms, and above all, moral beauty,

and God, the infinite perfection of moral beauty,--no, this mind can

never die. Its moral progress must go on in an unending existence, of

which its life of fourscore years on earth is scarce the childhood. Let

us beware then of raising these objects of ambition, wealth, learning,

honor, and influence, worthy though they be, into an undue importance;

nor in the too ardent pursuit of what are only means, lose sight of the

great end of our being.