LEGAL ETHICS
I have heard the utility of legal ethics denied. It is said that the
rules in legal ethics are the same as the moral rules that govern men in
every branch of society and in every profession--except as there may be
certain conventions as to professional etiquette--and that if a man is
honest, there ought to be no difficulty in his following the right
course in the discharge of his professional duties. If a man is lacking
in probity of character, it is said the discussion of legal ethics will
do him no particular good, because if he is tempted to a crooked path or
an unjust act by his pecuniary interest, he will yield, and neither
lectures on ethics nor the establishment of an ethical code will make
him good; whereas the upright man will either not be so tempted, or
should he be, he will clearly perceive the necessity for resisting the
temptation.
In the course of my consideration of this subject, I looked into a
text-book on moral philosophy and the general system of ethics with the
hope that I might find something there that would suggest, by analogy,
a proper treatment of the subject in hand. I consulted Paulsen's "A
System of Ethics." The analogy between moral philosophy and legal ethics
is not very close, but I found a passage or two bearing on this very
issue, which it seems to me might not be inappropriately quoted here. In
the conclusion of his introduction, Paulsen says:
"Let me say a word concerning the _practical value_ of ethics. Can
ethics be a practical science, not only in the sense that it deals
with practice, but that it influences practice? This was its
original purpose. 'It is the function of ethics,' says Aristotle,
'to act, not only to theorize.'"
Paulsen refers to the fact that Schopenhauer takes a different view:
"All philosophy," he says, "is theoretical. Upon mature reflection
it ought finally to abandon the old demand that it become
practical, guide action, and transform character, for here it is
not dead concepts that decide, but the innermost essence of the
human being, the demon that guides him. It is as impossible to
teach virtue as it is to teach genius. It would be as foolish to
expect our moral systems to produce virtuous characters and saints
as to expect the science of æsthetics to bring forth poets,
sculptors and musicians." To this view Paulsen replies:
"I do not believe that ethics need be so faint-hearted. Its first
object, it is true, is to understand human strivings and modes of
conduct, conditions and institutions, as well as their effects upon
individual and social life. But if knowledge is capable of
influencing conduct--which Schopenhauer himself would not deny--it
is hard to understand why the knowledge of ethics alone should be
fruitless in this respect.... Moral instruction, however, can have
no practical effect unless there be some agreement concerning the
nature of the final goal--not a mere verbal agreement, to be sure,
but one based upon actual feeling.... It will be the business of
ethics to invite the doubter and the inquirer to assist in the
common effort to discover fixed principles which shall help the
judgment to understand the aims and problems of life."
What is here said concerning the usefulness of an investigation of fixed
ethical principles has application to a consideration of what rules of
conduct should prevail in the legal profession. The high social purpose
of the profession, its beneficial function, and the limitations upon its
action that should be self-enforced in order to make the calling an
advantage and not a detriment to the public weal, should be understood.
Indeed, the profession of the law, if it serves its high purpose, and
vindicates its existence, requires a double allegiance from those who
have assumed its obligations, first, a duty toward their clients, and
second, a duty toward the court. And though the two sometimes seem to
conflict, they must be reconciled in the way which will best promote the
effective administration of justice and the peace of society. The path
to be followed in achieving this golden mean in the intricacies of
professional relations is not as manifest as the rule of honesty and
morality in ordinary life. The great problem of government that is never
completely solved and that is changing with changing conditions is how
to reconcile the protection of individual rights, helpful to the pursuit
of happiness and the welfare of society, with the necessary curtailment
of those rights and freedom, by governmental restriction, to achieve the
same object. So the adjustment of the duties of the lawyer toward his
client and toward the court in the interest of society, are not always
easily distinguishable and an attempt to make them clear, therefore, is
justified.
An understanding between the client and his representative that
remuneration is a proper incident to their relation insures a greater
confidence in the activity and devotion of his lawyer to his interest on
the part of the client and stimulates industry and sincere effort on
the part of the lawyer. It is far better that the employment on a
pecuniary basis should be understood by all men, by the courts and by
the parties, than that some secret arrangements should exist unknown to
the court and the opposing party. But it is said that to give to
counsel, skilled, learned and familiar with the arts of advocacy and the
preparation of cases, a pecuniary motive to make the worse appear the
better reason, necessarily leads him to an attempt to influence the
court against a just result. For since one or the other conclusion must
be unjust, one of the paid attorneys arguing the cause before the court
must be arguing for the unjust side and in favor of wrong. Hence, it is
claimed, the system of paid advocacy must in every case tend to an
effort on one side or the other to pervert justice and mislead the
judges into inequity and wrong.
It may be agreed that if there were not certain limitations upon the
means which counsel may take to maintain the justice of their clients'
cause, if they were justified in suborning witnesses, and coaching them
to testify to an unfounded state of facts, if they were permitted to
misstate the evidence after it has been adduced, if it were regarded as
proper for them to accept employment in the prosecution of a cause which
they knew to be brought only for a wrong purpose and without any just
foundation, or if in a civil cause they were retained to make a defence
which they were advised was false and wrong, then it might be that
advocacy under such freedom from limitation would not aid the judges in
avoiding wrong conclusions and unjust judgments. But there are
limitations upon the duty of counsel to their clients. There are also
limitations upon a lawyer's action which he cannot violate without a
breach of his duty to the court of which he is an officer and to the
public interest in the maintenance of the proper administration of
justice. We find, therefore, that the goal to be reached in reference to
the ethical duty of an attorney in the discharge of the functions
assigned to him by the law, is the reconciliation of his duty to his
client, with his duty to the court. To mark out this line in advance is
easier than to determine each special duty in a concrete way, yet
neither is free from difficulty and each requires a calm and clear
understanding of the function of counsel as an instrument in the
machinery of justice. This is the main object of legal ethics. It covers
other fields and is important in those fields, but no other is of such
primary importance.
Courts sit to hear controversies between parties over facts and law.
Rules of procedure are for the purpose of reducing the issues of fact
and law in such controversies to a form as narrow and concrete as
possible. Men who are able to present a clear statement of the evidence
and who are learned in the principles of the law and their application
to the facts as they are developed are in a position to assist the judge
to a quick and thorough understanding of the exact question which he is
to decide. The real enthusiasm of advocacy which is necessarily
developed by the relation of attorney and client would doubtless have a
tendency to mislead the court if exerted in behalf of one side only, but
where both sides are represented, where the same earnestness in the
proceeding of each side is present, it is the best method within human
ken to reach a sound conclusion both as to the facts and as to the law.
No one who has had experience on the Bench in reaching judicial
conclusions and who has thereafter been obliged in an executive position
to reach important, and it may be final, conclusions upon questions
involving both fact and law, can fail to recognize and acknowledge the
powerful influence for justice that honorable and learned members of the
law exert in the causes which they present to a court. The counsel who
argues the losing side of a case contributes quite as much to the
assistance of the court as the successful advocate. The friction of
counsel's argument against counsel's argument develops every phase of
possible error in a conclusion and thereby enables a just, intelligent,
acute and experienced court to see clearly what is the right which
should be embodied in its judgment.
The practical value of argument by paid counsel on both sides is shown
in many ways. In the first place, it is well understood in weighing
legal precedents that there is little authority in the decision of a
court which has been reached without the benefit of the argument of
counsel. In some states, courts are required to answer questions from
the legislature as to the constitutionality of proposed laws. The best
authorities hold that opinions given under such circumstances are merely
advisory, since they lack opposing arguments made by counsel whom the
spirit of professional advocacy arouses to industry in the search for
precedent. They go so far as to say that answers so given should not
conclude the same court in a litigated case arising subsequently. An
earnest and commendable desire to win leads the counsel to search not
only libraries but his own brain for the strongest reasons that he can
summon upon which to base a judgment in behalf of his client. Why is it
that a great Bar makes a great court? Though it may seem a truism, I
repeat, it is because the great Bar furnishes to the court all the
reasons that can possibly be urged in each case and enables it to select
from among all the reasons developed by the ingenuity and intense
interest of men skilled in the law.
Counsel ought to decline to conduct a civil cause or to make a defence
when convinced that it is intended merely to harass the opposite party
or to work oppression. His appearance in court should, therefore, be
deemed equivalent to an assertion on his honor that in his opinion his
client's case is a debatable one and one proper for judicial
determination. He should know that under a proper code of ethics, no
lawyer is obliged to act either as adviser or as advocate for every
person who may wish to become his client; that he has the right to
decline employment, and that each lawyer on his own responsibility must
decide what business he will accept as counsel, what causes he will
bring into court for plaintiffs, and what suits he will contest in court
for defence. The court knows that the responsibility for bringing
questionable suits or for urging questionable defences, is the lawyer's
responsibility. He can not escape it by urging as an excuse that he is
only following his client's instruction. The judge knows that no
honorable lawyer would coach a witness to testify falsely, and that in
dealing with the court each lawyer is required to act with entire candor
and fairness in the statements upon which he invokes its action. The
judge knows that it would not be candid or fair for the lawyer
knowingly to misquote the contents of a paper, the testimony of a
witness, the argument of opposing counsel, the language of a decision,
or the wording of a text-book. He may fairly rely on a lawyer not to
cite a decision that he knows has been overruled, or a statute that he
knows has been repealed. He may properly rely on the counsel's not
asserting a fact that has not been proven.
Yet he knows that lawyers owe entire devotion to the interest of the
client, and warm zeal in the maintenance of his rights and that they
will exert their utmost ability lest anything be taken or be withheld
from him, save by the rules of law, legally applied. He knows that
counsel has the right to proceed in the view that his client is entitled
to the benefit of every remedy and defence authorized by the law of the
land and that the lawyer is expected to assert every such remedy or
defence. But it is steadfastly to be borne in mind that the great trust
to the lawyer is to be formed within and not without the bounds of the
law. The office of a lawyer does not permit, much less does it demand of
him, violation of law or any manner of fraud for any client. He must
obey his own conscience and not that of his client. These limitations
are binding upon the lawyer as a sworn officer of the court, and
compliance with them is the true reconciliation of the primary duty of
fidelity to the client, with the constant and ever present duty owing to
the minister of justice in the person of the judge. These statements of
the duty of the lawyer to the court in the advocacy of causes and in the
presentation of his client's case, are taken from the Code of Legal
Ethics, which was approved by the American Bar Association. I think that
all lawyers and judges will agree that when lawyers live up to them, the
danger of injustice from the enthusiasm, skill or eloquence of their
advocacy is quite remote.
I don't mean to say that lawyers do not differ in the force of their
statements, in their logical faculty, in their method of arranging
arguments, in their fluency and in the cogency with which they present
the cause of their respective clients. Of course the man who is
fortunate enough to engage the abler lawyer enjoys the advantage of
those gifts with which nature has endowed his representative, but that
element of inequality can hardly be eliminated from the administration
of justice. It has more weight in a jury trial than it has before a
court, for the lawyers before a court are matching their acuteness and
learning not alone with the counsel for the other side, but with the
cold scrutiny of a calm, intellectual and judicial mind, trained to
consider argument, and experienced in the elimination of the
irrelevant, the emotional and the illogical.
The jury system, though somewhat crude and not always certain, has
advantages that outweigh its possibility of injustice in the judicial
system of a free government among a free people. It is important that
the people shall have confidence in the courts, and it is important that
they shall feel that they may themselves be a part of the judicial
machinery. The value of popular confidence in the verdict of a jury
selected at random from a community is great enough to offset any
tendency to error that may at times arise from the undue influence of a
jury advocate upholding one side of the controversy before them. If the
jury is misled by the histrionic eloquence of counsel so that it clearly
violates justice in its verdict, the court may always set aside its
decision and give a new trial. Moreover, in any properly adjusted
system, the judge should be able to clear the atmosphere of any false
emotion that counsel may have created. He can remind the jury in his
charge that they are judges, who may not indulge their emotions or their
prejudices. He should follow closely the argument of counsel to the jury
in order that his charge may clear up the evidence by inviting the
attention of the jury to the weakness of proof at critical points of the
cause, or by pointing out either the bias of witnesses or their
opportunity or lack of it for observation, thereby eliminating those
phases of the controversy that the earnestness of counsel may have
seized upon to divert the attention of the jury from the real issue.
I have recently heard an arraignment of our present judicial system in
the trial of causes by a prominent, able and experienced member of the
Boston Bar. (I am glad to call him a friend. I value him highly as
such.) He ascribes what he calls the growing lack of confidence in the
justice and equity of litigation in the courts to the fundamental error
in their procedure. He feels that the procedure now in vogue authorizes
and in fact requires counsel to withhold facts from the court which
would help the cause of justice if they were brought out by his own
statement. To remedy this he suggests that all counsel should be
compelled to disclose any facts communicated to them by their clients
which would require a decision of the case against the clients. He
contends further that the rules of procedure, which exclude hearsay
evidence, and prevent the jury from hearing many facts which business
men regard as important evidence, make it difficult to reach the truth
which is essential to justice.
I set out this view as a possible basis for a discussion of the grounds
for popular criticism of the courts. To require the counsel to disclose
the confidential communications of his client to the very court and jury
which are to pass on the issue which he is making, would end forever the
possibility of any useful relation between lawyer and client. It is
essential for the proper presentation of the client's cause that he
should be able to talk freely with his counsel without fear of
disclosure. This has always been recognized and has acted as a most
salutary restriction on the conduct of counsel. No litigants, or
intending litigants, would employ counsel if the latter were to assume
the duty of extracting from their clients all their innermost thoughts
with a view to revealing them to the court. The useful function of
lawyers is not only to conduct litigation but to avoid it, where
possible, by advising settlement or withholding suit. Thus, any rule
that interfered with the complete disclosure of the client's inmost
thoughts on the issue he presents would seriously obstruct the peace
that is gained for society by the compromises which the counsel is able
to advise.
The objection to the exclusion of hearsay evidence is equally unfounded.
Its uses are said to be threefold, to convince in affairs of the world,
to serve as the basis of action for business men, and to prevent
opportunity for false witness. Yet it is not admissible in a court of
justice to prove or disprove either a cause or a defence. The rules of
evidence have been worked out by centuries of experience of courts in
jury trials, and are admirably adapted to avoid the danger of error as
to fact. I fully agree that in American courts the trial judges have not
been entrusted with as wide discretion in the matter of admitting or
rejecting evidence as they should have, and judgments have been reversed
on technical errors in admitting testimony which should have been
affirmed. As time goes on, however, the rule against hearsay evidence,
instead of losing its force, is demonstrating its usefulness. The error
and injustice that are committed in the public press by inaccurate,
garbled and sometimes false statements of facts are increased in their
injurious effect by the wider publication that newspapers have today,
and the requirement that when a fact is to be proven in court it should
be proven by those who have a personal knowledge of it, is one of the
most wholesome and searching tests of truth that the whole range of
adjective law furnishes. The opportunity for cross-examination, for
finding out the bias of the witness, the advantage or disadvantage of
his point of observation, the accuracy or inaccuracy in his recollection
of the details of what he saw, are all means of reaching the real truth
that the introduction of hearsay evidence would entirely exclude.
It is now more than fifteen years since this country was following with
bated breath the judicial investigation of the charges against Captain
Dreyfus for treason in having sold secrets of the French War Office to
Germany. Under the civil law procedure, there is little, if any,
limitation upon the kind of evidence which can be introduced to sustain
the issue on either side, and the rule against hearsay evidence does not
prevail. The shock given to the whole community of the United States by
the character of evidence received to help the court determine the
Dreyfus issue, was itself enough to show that the confidence of the
public in the justice of the rule against hearsay evidence had grown
rather than diminished with years.
Yet I am far from saying that we may not have improvement in our laws
concerning testimony in court. The protection of those accused of crime
contained in some of our constitutional restrictions may be too great.
The charge against the administration of justice in the present system
is that it is nothing but a game of wits, of cunning, and of
concealment, promoted by the rules of procedure. I think this
characterization is most unjust and most unwise because it aids the
attack on a valuable and indispensable institution without suggesting
any real security for such evils and defects as there are. An experience
of many years in the trial of all sorts of causes as lawyer and judge
and in framing a judicial system convinces me that the present method of
hearing causes is correct. The enthusiastic advocacy of counsel when
they are properly restrained as above suggested, and the rules of
evidence adapted to winnowing out the false from the true, are admirably
adapted to bringing about right results.
It is also asked whether members of the Bar live up to these rules
restraining their enthusiasm and limiting their proper conduct in the
advocacy of their clients' causes. One can reply that counsel differ in
that regard, but that generally such rules are fairly well observed. The
earnestness of advocacy often blinds them to the proprieties and the
requirements of candor and fairness. They fall into the same errors that
their clients do, though with a better knowledge of their duties in this
regard. They share what has been characteristic of our entire people in
the last two decades. The minds of the great majority have been focused
on business success, on the chase for the dollar, where success seems to
have justified some departure from the strict line of propriety or
fairness, so long as it has not brought on criminal prosecution or
public denunciation.
More than this, the tendency of legislatures, too often controlled by
lawyers engaged in active practice, has been to distrust judges and to
take away from them the power to control in the court room, as they do
in the English and Federal courts. This has had a tendency to transfer
to counsel greater discretion in respect to their conduct of cases and
greater opportunity to depart from ethical rules with impunity in the
somewhat reckless spirit of the times. The hampered power of the court
to prevent the misconduct of counsel in many western states has not been
conducive to certainty of justice nor has it been of a character to
strengthen public confidence in just results. We find the bitterest
attacks upon the administration of justice in those jurisdictions in
which the people and the legislatures have themselves laid the
foundation for the very abuses they subsequently criticise by taking
away the power of the judge.