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E SSAY S

LEGAL ET H I C S

BY

GEO . W . WARVELLE , LL . D .

AU THOR OF A TREATI SE ON AB STRACTS OF T ITLE ; THE

LAW OF VENDOR AND PU RCHASER ; PRINCI PLESOF REAL PROPERTY , ETC.

CHICAGO

CALL AGHAN COMPANY

1902

HO N . THO MAS D ENT,

OF CH I CAGO , I LL .,

who, in his life an b character, has so ful ly expresseb

the professional ibeal, this book is in scrib eb by

THE AUTHOR.

PREFACE .

Th is l ittle book i s a compend of lectures del ivered

at various t imes to my own students and has been

produced in response to numerous requests for pub

lication . I have endeavored to treat the subject as

an integral part of undergraduate study and to con

fine it within th e l ine s of the regular law course .

But little space has been devoted to ethical theory,

the design of the work being rather an exposition

o f ethical precept, and only the practical phases o f

accepted mode rn the ories have be en presented . TO

a large extent profe ss ional conduct,l ike all othe r

forms of ethical affirmation , i s a matter o f opinion

yet, in many o f its mani festations , we may discern

underlying principles that se em to compe l the rule .

Whenever possible I have endeavored to show this

principle in connection with th e rule that is founded

upon it . In stating a rule or pre cept I have uni

formly presented that which se ems to have re

c e ived the large st amount of adherence and when

ever opportunity Offered have reinforced same by

a citation of judicial authority. These latter op

v i PREFACE .

portun itie s have necessarily been few . In the main,

the ethical code o f the legal pro fe ss ion has not been

the subject o f either legislative or judicial action,

nor can it ever become such .

I do not offe r this book as a treatise on moral

duties, nor do I assume the character o f a teache r

o f morals . It purports to be,and is

,nothing more

than a serie s of brief suggestions relative to pro

fe ssional conduct, and as such it i s submitted to

those for whom the subj e ct may possess interest .

G. W. W

Chicago,February I , 190 2 .

CONTENTS.

!THE REFERENCES ARE To THE PAGES.]

CHAPTER I .

PREL IM INARY OBSERVATIONS .

I n troduct i on— Pr imary Conce ptions—E th i cs defin e d

D e r ivat i on—Fundame ntal notions— Ge ne ral e th icalth e or ie s—Oppos ing school s Of e th ical thoughtLaw and moral s d i st ingui sh e d—Moral s and e th i csdi s t ingui she d—Th e standard of m oral s ; consc ie nce ;publ i c Op in ion—Obe die nce to l aw a moral dutyAuthor i ty Of publ ic Op ini on—Le gal e th i cs

,de fine d

and di st ingu i sh e d—S cope and clas s ification o f p ro

fe ssional duty

CHAPTER II .

THE O FF ICE OF THE ADVOCATE .

Gene ral ly cons ide re d—Th e e s sential pr incipl e Of ad

vocacy and th e condi t i ons that suppor t it—Or i g inof advocacy and characte r of e ar ly pract iti one r sEar ly conce pts Of profe s s i onal duty and th e ir e ffe cton l ate r d e ve l opme nts—D iv is i on of l e gal labor andi t s e ffe ct on profe s s i onal e th ics—Ge n e ral duti e s o fth e advocate and immemor ia l obl igat ions— Conne ct i on and profe s s ional r e lati on Of th e b e nch and bar .

CHAPTER II I .

THE ADVOCATE AND THE COURTS .

Ge ne ral ly cons ide re d—Th e summary jur i sd ict ioncourts—M e th ods of summary d isc ipl ine—Nature

vi i

CONTENTS .

di sc ipl inary pow e r— Effe ct Of di scip l ine on th e le galr ights of th e c i tiz e n—Grounds fo r di sc ipl ine—D i s c ip l i ne for unoffi c ial m i sconduct—Misconduct withoutdi sc ipl ine

CHAPTER IV .

PROMOTION AND PUBL IC ITY .

Ge n e ral ly cons ide r e d—H ow may th e lawye r re ach th e

publ ic— Pe rsonal so l i c itat ion—Adve rt i s ing,whe n

and how— Profe s s ional cards,and how th ey may

b e use d—N ewspap e r adve rti s ing—Anonymous ah

n oun c em e n ts— D ivor ce s— Bad d e bts—Le tte r s andc irculars—Se lf prai se

CHAPTER V .

COMPENSATION .

Prin cip le s gove rning th e r i gh t of compe nsat ion—The oryOf comp e nsati on in England and Ame r i ca—Gratuitous se rvi ce—Sp e c ial agre em e nts— Exte nt of c om

p e n sation—Cons ide rations affe ct ing th e e xte nt of

comp e nsati on— Continge nt fe e s— R ight Of comp e n

s at ion of a s s i gne d counse l of poo r p e rson

CHAPTER VI .

GENERAL PRACTICE .

D efin e d—Th e place of moral i ty in pract ice -Th e dutyof ve racity—Th e cl i e nt and h is cause—Product ionOf te stimony— Exam inat ion of witne s se s—I n structing and advis ing witne s s e s—Attorneys a s witn e s se s—Addre s s ing th e jury—Tamp e r ing with re cordsAbuse of proc e s s—Duty to th ird pe r sons 96

CONTENTS .

CHAPTER VI I .

CR IM INAL PRACTICE .

Ge ne ral ly cons id e re d—Th e re ta ine r—Duty to p e rsonsaccus e d—Knowl e dge Of pr i s one r’s gui l t—Ge ne ra ldutie s in de fe nse - Th e pro se cut i on of cr iminal sDuty of p e r sons official ly charge d with p rose cu

ti on—Propr ie ty Of p r ivate couns e l ass i s t ing in pros ecution s—D ange r s of cr im inal pract i ce

CHAPTER V III .

RELATIONS W ITH CL IENT .

Ge ne ral Obse rvations—Th e re lati on of attorne y andcl i e nt—Attorne y’s author i ty

,powe r s and dut ie s

L iab i l i t ie s and d i sabi l i t ie s Of th e r e lat i on—Pro ie ssional Opinions and advi ce— R e fusal of r e taine rConduct of case s—Re pre se nting both s ide s— Pr ivi l e ge d communicat ions Adve r se employme ntWithdrawal s— Incons i s te nt po sit ions—Mone y lo stby attorney o r d e taine d by h im—R i ght Of cl i e nt tod is charge hi s attorne y . .

CHAPTER I X .

RELATIONS W ITH COURT .

Nature of th e judic ial Offic e—Conduct i n court—Conduct out of court— I nflue nc ing judge s—Cr i t i c i sm of

judge s—D e ce iv ing th e court—Mis stating law o r

facts

CHAPTER X .

RELATIONS W ITH THE BAR .

Characte r of th e re lati on— Profe ss ional cour te sy—Resp e ct for age—Obse rvance of agre eme nts—S e rv ice s

CONTENTS .

fo r attorne ys—I nte ‘

rfe re nce—Substi tuti on of atto rne ys—Conclus ion

APPENDI X .

S ir Matthew Hal e’s Rul e sChivalry of AdvocacyD e fe nse of Courvois ie rLe gal Comme rci a l i smEth ics a R e quireme nt of Le gal Educati on

TABLE OF CASES.

! TH E REFERENCES ARE TO THE SECTIONS .]

Ande rson v. Bosworth , 63 .

Arde n v. Patte r son , 143 .

Arr ington v . Arr ington , 277.

Austin , case of, 305.

B abb i t t v . Bumpus , 135.

Bake r v . S tat e , 309 .

Ballard v. Carr, 146.

Balsbaugh v. Frase r , 140 .

Bank v. Ward , 207.

Barne s v . Harr i s , 271 .

Bathgate v . Haskin , 12 9.

B e ck v . B e l lamy , 2 40 .

B e e ne v. S tate , 73.

B igle r v . Reyh e r, 271 .

B ige l ow v . Toy, 243.

Biggs,e x parte , 62 , 69 .

B il l s v . Polk, 134.

B ingham v . Sale ne , 127.

Boone , i n re , 73 , 272 , 277, 2 86.

Boylan v . H olt , 141 .

B radle y v . F i she r , 308 .

B r i tton v. Lore nz , 275.

B rown in re , 308.

B rul e , i n re , 188.

Burnham v . H e se lton , 128.

Burns v . A l le n, 71 .

Burr, e x parte , 64.

Cain v . Warford, 146.

Cairo , e tc

Koe rne r,2 78, 279 .

R . R . CO . v.

Ch e st e r County v . Barb e r ,146.

Chicago Bui ld ing Soc ie ty v .

Haa s,2 83 , 2 85.

Co le , e x parte , 73 .

Col eman v . B il l ings , 145.

Commonwe al th v . Pe rry , 9 1 .

Conway County v. Ry . CO . ,

2 42 .

Cook v. Mackre l l , 12 3.

Coop e r v . Ham i l ton , 1 19 , 1 2 2 ,2 67.

D avis v . Nat . Bank, 156.

Davi s v. Hal l , 2 83.

D i ckson v . Wr i ght,2 43.

Duke v . Harpe r , 2 92 .

Dunde e Mtg. CO. v . Hughe s ,2 07.

E ctor v. Wiggins,12 2 .

Edward s v . Edward s, 2 43 .

Eggle ston v . Boardman , 13 1 ,132 , 135, 2 50 .

E ldr idge , matte r o f, 183 .

E lmore v.

'

Joh n son ,1 27, 12 8,

13 1 .

Fairfie ld Bar v. Taylor, 2 77.

Fore r v. Pe opl e , 9 1 .

Fraz ie r v. Parks , 2 41 .

Fre ar v . D r inke r, 192 .

TABLE OF CASES .

! TH E REFERENCES ARE TO TH E SECTIONS . ]

Gale , in r e , 309.

Gamb e rt v . H art, 246.

Gar land , e x parte , 62 .

G i lbe rt v . Will iams , 2 47.

G i lbe r t v . We l s ch , 2 89 .

Gol tra v . Wolcott, 276.

Goode nough v . Spe nce r , 2 58.

Goodwin’s App e al , 275.

Graydon v . S toke s , 32 2 .

Gre e n v . Milbank, 250 .

Gul i c v . Gul i c , 275.

Haight v . Moore , 2 51 .

Halaska v . Cotzhause n ,135,

137.

Hal lam v . H al lam,12 3 .

Hatch v . Fogarty , 277.

Hav e rty v . Hav e rty , 2 84.

H eme nway v . Smi th , 271 .H e nde rs on , in re , 30 9.

H e nry v . Vance 2 93.

H i l l e gas s v . B e nde r , 242 .

Hous e v . White , 154.

H owe v . Lawre nce , 2 84.

Huson , matte r of, 70 .

Hut ch inson v . S tephe ns , 160 .

Jackson v . S tate , 69 .

J o h n s O n v . White s ideCounty , 152 , 153 .

Kaut v . Ke s sle r, 275.

Ke l ly v . Wr igh t,243.

Ke rse y v . Garton , 134.

K i s l ing v . Shaw, 12 8.

Knox v . Randal l, 325.

Lamar I n s. Co . v . Pe nne l l ,13 1.

Lawal l v . Groman,2 39 , 2 67.

Le catt v . Sall e e,1 2 8, 13 1 .

L e n gsfie ld v. R i chardson,

2 75.

Lou i sv i l le , e tc ., R. R. CO. v.Reynolds , 135.

Maddux v . B e van,2 43 .

Mande vi ll e v . Re ynolds, 243.

Marbourg v . Sm i th,243 .

Maye r v . B lease , 2 42 .

M cDonald v . R . R . CO ., 146.

McMah on v . Smi th , 251 .

Mi ll s case, 75.

Moore v . Rob inson,2 92 .

Morgan v. Robe rts,192 .

Nave v . Baird , 2 49.

N ewkirk v . Cone , 146.

N ic h e lls v . N ic h e l ls, 278, 2 83 .

Norwood v . Harne s s ,2 89.

Ogde n v . D e vl in, 325.

O h lquist v . Farwe l l , 2 84.

O rman v . S tate , 2 75.

Orr v. Tanne r, 71 .

Parke r v . Parke r , 2 77.Paschal

,in re , 325.

Pfiste r v. Wade,243.

Ph i l l ip s v . Dobbins , 243 .

P i cke tt v . Bank, 2 43.

Pe opl e v . Gre e n, 64.

Pe ople v. A l l i s on , 70 , 74.

Pe ople v . Apple ton, 70 , 75.Pe ople v. B arke r, 73, 271 ,

272 .

TABLE OF CASES . x ii i

! THE REFERENCES ARE TO THE SECTIONS .]

Pe ople v . G i l l son , 9 1 .

Pe opl e v . MacCab e , 92 , 1 00 ,

10 2 .

Pe ople v . Goodr i ch , 99, 10 3 .

Pe ople v . B rown , 1 03 .

Pe ople v . Smi th , 196.

Pe ople v . Moutray, 2 0 1 .

Pe op le v. Hur st,2 33 .

Pe op le V. Atkinson , 2 72 .

Pe opl e v . Mahon , 275.

Pe op le v . VanAlstin e , 275.

Pe op le v . Ryalls, 2 90 .

Pe ople v. Palme r , 2 9 1 .

Pe opl e v . B e att ie , 309 .

Pryor , in re , 2 97.

! u int v . Min ing CO.,2 92 .

Randal l’s case , 75.

Robe rts v. N e l s on,242 .

Rob ins on , e x parte , 69 .

Robinson v. Murphy,2 42 .

Rombe rg v . Hugh e s,276.

Ros s v . Payson, 12 8.

Ros s v . D emos s, 193.

Rowe v. Yuba County,153 .

Ruh strat v . Pe opl e , 92 .

Savin , e x parte , 188.

S champ v . Sch e nck,130 .

Scobe y v . Ross,2 92 .

S e l ove r v . B ryant, 135.

Se r c omb e , e x parte , 64, 75.

S impson v . Brown,2 83 .

Sh e ldon v . Rie se dorph , 241 .

Sh e rman v . Scott,2 75.

Ski l le n v . Wal lace , 2 46.

Sm i th v . Ry. CO .,2 87.

Spinks v. Davi s , 2 77.

S taat s , e x par te , 63 .

S tanton v . Embre y,137.

State v . K irke , 64.

S tate v . Winton , 69 .

State v . McCh e sn ey ,275.

S tate v . Ande rson, 305.

S te arns v. F ie ld , 171 .

S te inman, e x par te , 304, 305.

S teve ns v . Walke r , 2 45.

Tane r e v. Reynold s,2 54.

Templ e,i n r e , 2 90 .

Te nney v. B e rge r, 2 78, 2 82 ,

2 84.

Thompson v. R e ynolds , 145.

Tre adwe l l , i n re , 2 90 .

Unite d S tate s v . Coffin,1 2 8.

Vale nt ine v . S tewar t,2 77.

V i cke ry v . McCle llan ,244.

V i las v . Down e r , 137.

Wadhams v . Gay,243 .

Waile s v . Brown, 12 3 .

Walde n v . B olton,2 43 .

Wal l, e x parte , 62 , 69 , 309 .

Ward v . Roy,241 .

Wass e l v. Re ardon,2 67.

Wayn e County v . Wal le r,153 .

We the rbe e v . F i tch,243 .

Whippl e v . Barton , 2 54.

Whitcomb’s cas e , 62 .

White v. Johnson , 2 41 .

Wile y v. Mahood , 2 43 .

Wil l iams v . Will iam s , 2 89 .

Wr igh t v . Baldwin , 1 2 3 .

! e i gle r v . Hugh e s , 2 51 .

ESSAYS IN LEGAL ETHICS

CHAPTER I .

PREL IM INARY OBSERVATIONS .

I ntroduct ion—Pr imary Conce p t ions—E th i cs de fin e d—D e r ivation—Fundame ntal noti ons—Ge ne ral e th ica l th e or ie s—Oppo s ing school s of e th i cal thought—Law andmora l s d i s tingu i she d Moral s and e th ics d i stinguish e d—Th e standard of moral s ; conscie nce ; publ i cOp in ion—Obe dience to l aw a moral duty—Author i tyOf publ i c Op inion—L e gal e th ic s , de fin e d and distinguish e d— Scope and clas sification o f profe ss ional duty.

1 . INTRODUCTION . It has long been customary,for wr ite rs of books intended for the use of

students of the law , to re fer in a vague andgeneral way to a certain abstraction

,which

,for

want o f a better name, final ly came to be called“ legal ethics . ” Not infrequently these writers , bythe employment of concre te examples

,have e n deav

ored to explain their conceptions o f the character

of this indefinite quantity,and from these example s

we find that the term is now employed to connote

the ideas that are ordinar i ly involve d in the wordduty. In othe r words , that it is a compendiousexpre ssion indicat ive of what

,under given circum

stances , should or should not be done,and

,by some

2 ESSAYS IN LEGAL ETH ICS.

writers,its meaning se ems to b e furthe r extende d

so as to include th e re asons which underl ie suchaction or forbearance.

2 . Again,we O ften hear the actions o f prae

tition e rs condemned as being “ contrary to th e

ethics o f the profe ssion ,” and occasionally attorneys

are suspende d from practice,or disbarred

,not for

the infraction of any law, but for a violation of“professional e thics

,

” and this seems to mean,when

translate d into th e ve rn acular,

“ conduct unbecom

ing a lawyer and a gentleman . It would appear,therefore

,that two phrase s are current in profe s

sional circles which indicate th e same thing, i . e .,

conduct; and wh ile th e writer’s own judgment

would have led h im to adopt as a title for this

work the term “profe ssional ethics, as more clearlyindicative o f what is re ally me ant, yet th e first me n

tion ed expression , having become imbedded in court

rule s and judicial deci sions , has been chosen as the

on e in more popular use .

3 . For many ye ars the importance of this

subject,as a special unde rgraduate study, has been

urge d by learned and influential lawye rs and legaleducators

,

l and,as th e study of Moral Philosophy

Obtains a place in th e curr iculum of every l iterarycollege , so, i t is contende d , th e study Of Legal Ethicsshould b e given a distinct position in th e course s of

th e law school . The result of this agitation has

1 Se e , Re p . Commi t te e on L e gal Educat ion to Am. Bar

A s sn,1895, p . 16.

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4 ESSAYS IN LEGAL ETH ICS .

th e di stinguishing feature which serves to separateethics from other departments of psychical inquiry .

6. The fundamental concepts of ethics se em

to have reference to the posit ion and relations ofman as a free and inte l l igent be ing

,and the good

that may be accompli shed by, through and for him.

Upon this foundation have be en ere cted many theo

ries, systems and schools Of thought , but from allOf these systems we may fairly draw one broadconclusion , and thi s we may formulate in the following definit ion : Ethics

,i s the sum of the aggregate

of the rules o f duty,4 or right l iving. This mayor may not coincide with the definitions found insome of the technical treatises, but it does quite fullye xpress the notion represented by our term “ legal

ethics,” and hence, i t i s sufficient for our purpose.

7. GENERAL THEORIES OF ETH ICS . As pre

viously remarked, th e science o f ethics , being purelyspeculative

,has produced many var ieties an d shades

Of Opinion. A favorite theory with many of thephilosophers i s that ethics is an exposition of the

moral law as distinguished from th e civil law ; the

former being imposed by the conscience, the latterby the power of the state. Hence , they say, ethicsregards mental dispositions ; jur i sprudence, outwardacts .5 From this differentiation they evolve mental

4 Dut ie s, are act ions , or course s of act ion , cons ide re d as

b e ing r ight. Whewe l l , E l eme nt s of Moral ity, b . i , c . 4.5 Th e charact e r of act ion s cons ide red with re fe re nce t o th einte rnal spr ings Of act ion from whi ch the y proce e d, i s the irmoral characte r . Whewe l l , El. Moral ity, b. i i i, c. I .

PREL IM INARY O BSERVATIONS . 5

conditions which they term vic e and virtue , and

distingu i sh between them and their legal counter

parts .6 Thus,vice i s that which morally a man

may not do ; crime i s that which legally he may not

do . It will be perceived that in this form of ethicaltheory the j ural notion i s paramount

,but

,as the

framers o f these theories have not usually beenlawyers, or, at best, but what are termed

“ specula

tive juri sts,” a number of misleading ideas have

been engendered, or, to employ a more euphemisticexpression , ideas that are not in accord with th emodern analytical school o f juri sprudence .

8 . I t i s said that the first inquiry in moralscience is after an ultimate rule

,a supreme prin

c iple of l i fe, which shall be o f imperative and universal authority

,and around which shall be grouped

all the motives and maxims o f action .

7 This seems

to be the essential feature o f every ethical svstem,

but the variations Of method by which this en d shallbe attained are very numerous .

9 . In what are known as th e objective theories,that is

,i n the systems which se ek the ultimate

6 It has be en said , th at virtues are th e hab it s o f mind bywhich we are led to pe rform dut ie s. Th e transgre s s ion of aduty, cons ide re d as a hab it, i s a vi c e . V irtue s and v i ce s mayal s o b e con s ide re d as th e re sul t s of th e di spo s it i ons of me n .

Thus, con side re d a s a dispos ition , vice i s deprav ity, or wicke dn ess. Whewe l l’s E l . Moral i ty, b . i , c . 4.

7 Se e , Am. Cyc. Art. Moral Phi lo sophy ; S idgwick , H ist.Eth i cs , 8 ; Wayland’s Moral S cience , 33 ; W hewe l l

’s El .

Moral i ty, b . i i i,c . 1 .

6 ESSAYS IN LEGAL ETH I CS.

moral rule outside of th e mind , the jural ideai s generally present and the authority of the state

as well as o f divine reve lation is recognized. Inthese systems the old classification of the schoolmenand their successors seems to be retained, and in a

series Of three ascending degrees , positive law ,

natural law,and moral law

,i s usually embraced the

whole science of duty or right conduct.8

1 0 . In the subje ctive the ories, or those systems which find the ultimate basis of moral ity

within the mind,the prevail ing view denies the

existence o f virtue and vice in the abstract andasserts the existence of a moral sense which approves certain acts and intentions as righ t and dis

approves othe rs as wrong ; in other words, anappeal is made to re ason, which i s taken as of ultimate and conclusive authority and the source of al lmoral truth .

9 In this theory,i t will be perceived,

th e j ural element is not apparent, yet, as it involves

the general doctrine o f free will this notion Of free

dom,i t i s claimed, serves to connect ethics with

jurisprudence. Thus , i t is said, the fundamental8 Thi s repre sents th e doctr in e s o f S . Thomas Aquinas, andh is fol lowe r s , and i s th e crown ing re sult o f th e gre at constructive e fforts o f me dieval phi losophy. I ts influence hasbe e n gre at and l ong e ndur ing, not only in theology but inlaw as we l l, and consp icuous e xample s w i l l b e found in th ewr i t ings both o f Blackstone and Kent.9 Th is repre se nts th e school o f Kant, an d ce rtain Of th e

Ge rman moral i st s . I t al so furnishe s th e basi s upon whichmany o f th e col lege text-books have be en prepare d. Se e ,Champl in’s Pr incip le s o f Eth ics.

PREL IM INARY O BSERVATIONS . 7

aim of jurisprudence is to real ize external freedom

by removing the hindrances imposed on each one’sfree action through the interferences o f other’s

wills ; ethics, on the other hand, i s concerned with

the real ization of internal freedom by the resolute

pursui t o f rational ends in opposit ion to those ofnatural incl ination .

1 0

1 1 . It will, o f course, be understood that

the foregoing i s only the barest outline o f the two

great branches Of ethical thought an d th at bothbranches are subj ect to much modification by the

various schools” which have been founded upon

them . With respect to the subj ective theory wemay pass it

,for the present

,without further com

ment, but the Obj ect ive theory raises a few interesting points that can best be considered in this

connec tion.

1 2 . LAW AND MORALS DISTINGUISHED . It i sn ot proposed to enter into a discussion o f theprinciples of j urisprudence , but the loose and indis

criminate manner in which the term “ law” is constan tly employed, particularly by writers on moral

philosophy,would seem to ren der ne ce ssary at least

a passing allusion to that term in connection with

morals .13 . While we are accustomed to minute classi

fication s of scientific knowledge,i t must yet

be remembered that these classifications are very

modern . There was no such separation.

o f sciences1 ° S idgwick, H i st . Eth i cs, 2 74.


known to the ancients,and the world, with all its

varied phenomena,mental and physical , was con

side red and studied as a whole . In time, l ines ofdemarcation we re drawn and what are known as

the physical and mathematical science s came to beseparated and formed into distinct classes, but, for

many years after this process of differentiation hadcommenced, such topics as government, pol itics,l e g i slation , ethics , and other kindre d abstractions ,continued to b e classed toge ther under the generalname of philosophy. Th e word “ law” had no defi

nite and specific meaning. It was used to denotethe Observed relations Of phenomena, of every kindand nature

,as well as to indicate rules for the regu

lation of human actions,i rrespective Of origin or

me thod of enforcement. This indiscriminate andimproper employment o f the term has continued toour own day

,

1 1 and notwithstanding that it i s nowemployed in the physical science s me rely as a

1 1 On e o f th e re su l tants of th is use i s th e con fus ion growing out o f th e appl ication o f th e te rm “natural l aw .

” I t i se xtens ive ly u se d by both phys ici sts and moral i sts, but withqu ite diffe re nt me an ings . Th e forme r emp loy it to ind icateth e orde r Of nature ; th e l atte r to ind icate moral pre cepts .With th e forme r w e are not now conce rne d , but th e moral i st

’sconception i s ve ry lucid ly e xpre s se d by Prof. R. J . Ho lain d ,

S . J ., in th e fol lowing definition : “Natural l aw i s a body ofmoral pr incip le s which re ason itse l f te ache s , and which areb inding on al l me n .

”

Se e Natura l Law and Legal Practice ,48. Some wr i te rs , e ven legists , have furthe r confounde dth e te rm by applying it to that cl ass o f animal p rope ns it ie susual ly known as in stinct .

PREL IM INARY OBSERVATIONS . 9

metaphor, or figure of speech , i t is stil l used by

writers on moral philosophy in its early and incor

rect sense ; that is, to denote either a mode Of exist~

ence or an order of se quence.1 2

14. We have se en that in the Obj ective theory

of ethics th e jural idea i s the control l ingmotive . The theory rests on th e notion of law ,

and

conduct i s regulated and governed by rules . The

framers of this theory,however, did not distinguish

between law and morals,but only between a higher

and a lower law and the highe r law was always

made to supe rse de the lower whenever they came

in apparent confl ict .1 3 This view prevailed for

many years and finds expression,eve n in legal

treatise s , unti l as late as the middle o f the last cen

tury. But , in modern jurisprudence the word“ law has now come to have a fixed and definitemeaning. The old classification of the schoolmen

has been rej ected,and

,instead of an ascending scale

o f positive natural and moral law, we now use the

term “ law, with no qual i fying words whatever, as

indicative o f a rule o f human action,re ferring only

to external acts,and enforcible by a sovereign

pol itical authority 1 4 Al l other rules for the guidance of human action are called laws merely by

analogy ; and any propositions that are not rule s

1 2 S e e , Wayland’s Moral Science , 2 5.

1 3 Hooke r, E ccl . Pol . b . i i i , c. 9 ; Locke , C iv . Govt . 1 1 . B lackstone advance s th e same vi ew ; se e Black . Corn . Intr . p . 43 .

1 4 Hol land , Jur . 37; Markby, E l . Law , 3 ; Pol lock, Jur . 2 1 .

I'

O ESSAYS IN LEGAL ETH ICS .

for human action are calle d laws by metaphoronly.

15

15. There are, however, a large numbe r of whatwe may call , principles of conduct , or preceptsof moral ity, which obtain a general recognition ineve ry civilized community but which are enforced

,

i f at all, on ly by public opinion or some other equally

indeterminate authority . These principle s havebe en de veloped through a variety of means . Re

ligion has b een a potent factor, prob-ably the mostpowerful o f all

,

1 6 but many other causes have con

tributed and the principles themse lves are constan tly being subjecte d to new adaptations to meetthe changing conditions o f the people and the

exigencies Of the t imes .16 . In many ways these precepts resemble

rules Of law and not infrequently th e two se em tocoincide . Thus

,th e moral precept,

“Thou shalt

not steal,i s

,in a gene ral way, the same as th e

legal rule , but th e further moral pre cept,“Thou

shalt not covet,

finds no coincident rule in the law .

Now,as a matter Of fact

,the inward covetous de sire

invariably pre cedes the outward act of theft, and ,from a moral point o f view

,i s far the more repre

h e n sib le of th e two , and ye t, it i s not the subject

1 5 Hol land , Jur . 37.

1 6 Many wr i te rs conte nd the re can b e no moral i ty without re l igion . For an inte re sting di scuss ion , se e , Mal lo ck

’s,

“ I s L i fe Worth Living a lso, a thoughtful and scholar lymonograph by W m. Poland, S . J ., on

“True Pe dagogics andFal se Eth ics .


1 2 ESSAYS IN LEGAL ETH ICS .

precepts , communal Obse rvance s and usage s whichregulate and govern human conduct without

any positive sanction, and which furnish , in a gen

eral way, a standard of righteous l iving, finds anexpression among all civil ized peoples . But

, th e

prevail ing moral ity o f a community i s a fact,not

a theory ; neither i s i t in any way dependent ontheories . When or how it became establ ished maynot be known , nor i s i t material that it should be .It i s sufficient that it exi sts . In an age of simplefaith and passive Obedience no explanation is askedor given as to what duty is, nor why a duty in onecase Should be different from that in another.General notions are acquired and transmitted, andare observed and followed without question . But

in time, as the study of mental phenomena develops,men see k for a rational explanation of these existing facts . Theorie s are framed and views areadvanced

,and so th e science of ethics comes into

being.

19 . This may not be in strict accord with thestatements o f some of th e expositors Of ethical

science,but it ce rtainly is sustaine d by the history

Of the subject ,1 9 and while ethical theory may, and

does,have a marked influence on moral practice,

the distinction sti l l remains . As has been aptly said

by one le arne d wr ite r 2 ° “when man reaches th e

stage of philosophical questioning, and communes

1 9 Se e , S idgwick, H i st . Eth ics, passim.

2 ° Pol lock’s Es says, 2 93.

PRELIM INARY OBSERVATIONS. 13

with himsel f concerning morals as Of other things

in general, he comes to the task with moral ity

ready-made and in full operation . H i s real Obj ect

i s not to find speculative principles and deduce

morality from them as i f moral ity had to be invented for the first time

,but to assign principles

on which he may account for the morality already

famil iar to h im. It wil l be seen,therefore

,that

while we are accustomed to connote the same ideas

in morals and ethics, and while to a considerable

extent the two words involve the same gen eral

notion , yet, they are distinct in this ; that moral ityrepresents existing facts, while ethics i s the sc ien

tific hypothesi s for the explanation of existingfacts .2 1

2 0 . By making thi s distinction we are rel ievedOf much embarrassment. We are not required

to discuss the merits o f confl icting ethical

theories , nor to cho ose between them,for th e law

does not concern itsel f with the ories Of morality

but with morality itsel f, as attested by the prevail

ing publ ic sentiment.2 1 . TH E STANDARD OF MORALS. There are in

constant use , as parts o f our common speech, th e

words “ right” and “wrong,

” to which we all attach

a more or less definite me aning. When we shallcome to analyze this meaning it wil l almost invariably be found that our conception is ethical , not2 1 Th e student wi l l find th i s phase o f our subj e ct ve ryably and le arn e dly di scus se d in Pol lock’s Essays , passim.


j ural . In other words, that our sense of right and

wrong i s measured by some internal standard ofour own and not by one which the law has establish ed. As a consequence, n o one has yet comeforward with a definition of these te rms, consideredas ethical concepts

,that i s

,in all respects

,satisfac

tory. It is said that wrong impl ies a departurefrom some assumed standard, and r igh t a conformity to it, but, while this i s undoubtedly true, i t Shedsno light upon the terms themselves, and we are as

much in the dark as ever with respect to their essential character. Like th e antithesis of “good” and“bad, they represent diame trically opposed ideas

in morals,but this i s about all that can

,with any

degree of certainty, be said concerning them .

2 2 . The inte rnal standard by which we deter

mine right and wrong w e call the con sc ien c e ,

and,gene rally

,the prevailing views Of a community,

with respe ct to morals, are cre ate d by th e concurr ing consciences of all or a majority o f the people

that constitute such community 2 2 Now , whatever

2 2 A s science me ans knowl e dge , so conscie nce e tymologically me an s se l f-knowle dge ; and such i s i ts meaning in Latinand French, and o f th e corre sponding word in Gre ek. But

th e Engl i sh word se ems to have a more extende d sign ifica

t ion , implying a moral standard o f action in th e m ind, as we l las se l f-knowle dge o f our own action s . Thi s d i stinction wasnote d by th e e ar ly Chr i st ian moral i sts , and has s ince be enfol lowe d by th e commentators, who separate th e office s o fconscience and assign to e ach re spe ct ive ly th e province o fwitne sse s, accuse r, and j udge . Unde r th i s arrangemen t h ewho i s condemne d by h is own conscience i s con side re d as

PRELIM INARY OBSERVATIONS . 15

else may be said concerning it, this something

which we call conscience is largely a matter of

education,association and environment.2 3 This i s

evident from the fact that morality, or at least thepopular conception of moral duties

,i s different

among different peoples at the same time and among

the same people at different times . And even wherewe find a substantial conformity to what we may

term the customary morality of a community therewill yet be classes

,who

,by reason of their associa

tion and education, seem to have a morality to someextent peculiar to themselves . This is particularlytrue of the pro fess ions

,where th e abstract principle

Of right and wrong is appl ied on special ized l ine s

and it is from this special ization that w e Obtain

what is popularly called “ legal e thics . ”

2 3 . Where the moral convictions o f a commun ity generally coincide it produces a force called

public opin ion,which

,i f sufficiently strong and long

continued , eventually crystall izes into a law. Whenthis consensus of moral op inion has developed into

a law of the state the words “ right” and “wrong,”

as they may represent e thical concepts,are no

hav ing offe nde d against th e supreme rule , and from th i s i sde duce d th e conclus ion, that, h e who acts contrary to th e

dictate s o f h i s conscience i s a lways wrong. Th e fal lacy o fth e conclus ion i s apparent without demonstration, yet i t cont inne s to find large numbe rs o f adhe re nts .

2 3 S e e , Pale y, Moral Ph i losophy, b . i , c. 5 ; Locke , HumanUnde r standing, b . i i, 1 - 12 ; Whewe l l , E leme nts Moral i ty,b. i i i, c. 28.

I 6 ESSAYS IN LEGAL ETH ICS.

longe r appl icable. Th e law is always right, even

though it be iniquitous from the moral point o fview of the individual . Any other theory inevitably

leads to civil disruption and anarchy.

2 4. OBEDIENCE To LAW A MORAL DUTY. Thequestion of moral right and wrong has always beena debatable one and will doubtless eve r so continue .

Not infrequently we find men who assert thatspecific provisions of the law are morally wrong

,

an d hence not obligatory on conscien ce, while somee ven go so far as to say that when conscience condemn s a law it should be resisted .

24 This comes,it would seem ,

from an undue exaltation of sel f ;an apparent bel ief in an inward divinity whose dictates are unerring and infall ible . Now, no person

more than the writer reverences this internal mentorwe call conscience

,but the experience o f the ages

teaches us that i t i s a most fall ible guide,and h is

tory teems with instances o f oppression, inj ustice ,and crime

,resulting from a narrow and darkened

conscien ce.

2 5. The moral faculty being thus fall ible, i tlogically follows that in eve ry community there

2 4 Thi s pe rnicious doctr ine may e ven b e found in booksprepare d for th e e ducation of Ame r ican youth . Thus, on e

wri te r says : that, whe re th e l aws impose dutie s wh ich th e

indiv idual conscience pronounce s wrong, such pe rson may“openly re fuse obe dience , b e th e con se quence s what they may.

Conscience i s highe r than law ; and, in a cle ar case o f confl ie t be twe e n them, th e l aw must yie l d—at le ast, conscie ncecannot .” Champl in, Pr in cip le s o f Eth ics, 49.

PRELIM INARY OBSERVATIONS . 17

must be,to some e xtent

,a confl ict o f consciences .

Men divide on all the questions o f the hour . Theyhave always done so ; they wil l always continue to

do so . Both side s are equally hone st and sincere ,and both are equally insistent . In a rude and bar

barous age the appeal , in such a case , was to force ,and might became right . But, in time , anothe r

arbiter arose. Organized society— the state— came

into be ing, and a new an d con trol l ing element wasintroduced. This element we call law ,

but it i spractically nothing more than the embodied con

science Of the pol itical community. To this paramount assertion of control and direction each

individual of the community is bound to submit .

Obedience to law is a moral duty .

2 6. AUTHORITY OF ETH ICAL OPINION . While

the proposition ' of the last paragraph must beaccepted, by every lawyer at least, as final and con

e lusive, there may, perhaps, be room for question

where a rule i s proposed which lacks the legal sanction . It i s o ften contended, that every man in the

possession Of unimpaired faculties has a right to be

the sole j udge o f h is own course Of conduct , andthat to compe l him to shape such conduct in con

formity to the mere opinions of others i s virtually

to enslave him . The argument is not W i thout forceand rests upon a foundation of truth. But in everyorganized society there i s

,and always has been , a

series o f rules,maxims and precepts

,which have

never been resolved into laws , but which , n otw ith


standing, continue to Obtain a gene ral re cognitionand Obse rvance. They are the re ceived opinions o fth e community respecting th e matte rs to which the yre late and represent

,in many instances

,the results

o f long experience .

2 7. The acceptance of these maxims i s basedmainly upon th e facts, that the individual cannothave an experience Of all things ; that his opportun itie s for Observation are ne ce ssarily limited ; andthat a consensus o f intell igent opinion upon almost

any subject,i s usually supe rior to that o f the indi

v idual . I f eve ry man were perm itted to exercisehi s own uncontrolled judgment with

'

respect to hi s

own conduct,even though he conformed to the let

te r Of the law,most deplorable consequences must

often result,while such a course would directly

tend to cre ate a Spirit Of l icentiousne ss that in thee n d would subve rt the good order of society andoverturn the law itse l f.2 8. Nor does this proposit ion involve any legalinconsistency . There are many forms of author ity

outside Of th e law and we are constantly re cogn iz

ing them and submitting to them . We de fe r to th e

opinions o f our legal advisers,physicians, trade s

men and artisans,in al l matte rs relating to thei r

respective avocations . We do this for the reason ,that their expe rience and Observation in the specialmatter has be en gre ate r than that Of our own . Inl ike manner we acknowledge th e aggregate Opinions Oi community with respe ct to customary



those which apply to th e re st Of mankind ! Th e an

swer i s an unqualifie d No ! Truth , s incerity, hon

esty , fidel ity and the rest o f the virtues, are imposed alike upon the humble arti san and eminentadvocate , while the rule s which prompt to action arethe same in e ithe r case.

3 1 . But convenience has invented phrases

which custom has sanctioned,until the y have b e

come parts o f our common speech,and thus have

been coined such barbarous terms as “ legal ethics ,”

medical ethics,etc . , meaning thereby the moral

pr inciple s and code s o f special ized rules that have

been built upon them,which

,in theory at least, are

to govern the conduct of the practitione r as a prae

tition e r. It will be found upon investigation , how

eve r , that while many of these rules are but special

appl ications Of broad principles others are strictly

conventional usages Of the particular pro fession .

This is strikingly illustrated by those rules which

relate to the profe ssional intercourse Of practition

e rs,and

,while such rule s have a decide dly ethical

basi s,they are yet of that character to which we or

dinarily apply the term“ etiquette . ”

32 . Legal ethics may also be di stinguished from

th e gene ral subj e ct in that while a violation of themoral code

,as establ ished by th e conventions o f so

c le ty,will usually resul t in nothing worse than so

c ial ostracism,a disregard Of the ethics Of the bar

may re sult in professional de ath . In society menare kept within bounds by no stronge r a force than

PRELIM INARY OBSERVATIONS . 2 1

public opinion, but in the legal pro fession a sum

mary jurisdiction is lodged in the courts to disci

pl ine Offenders against morals and good conscience.To this extent legal ethics partakes o f the nature

Of law.

33 . But thi s discipl inary power extends onlyto the lawyer as a lawyer. It i s exercised onlywith respect to pro fessional duty . As a man and a

citizen the lawyer is not distinguishable from other

men . H is Obligations to society are the same as

those Of every other citizen , and for any bre aches

thereof, amounting to no more than a disregard of

conventional usage, he can be arraigned only at thebar of public opinion .

34. It may be said, and with much truth, that

a man called to the honorable position Of an advocate should exhibit, both in and out o f his profe ssion, the sterling qualities that constitute the highe st excellence o f righteous l iving. But this i s a

duty incumbent on all men, whatever may be their

avocation or thei r position in society. The law

does not concern itsel f with moral duties,however

much they may serve to influence legislation,nor

does legal ethics properly extend to individual char

acter. It i s upon this theory that the present work

has been constructed , and in the chapters that fol

low a consistent effort has been made to confine thesubject within its legitimate channel . The writerdoes not assume to be a mentor nor to teach morals .

35. SCOPE OF PROFESSIONAL DUTY. The ma


jority Of the write rs who have he re tofore discussedthe subj ect o f legal ethics have generally dividedtheir work into a number Of succinct heads

,under

each Of which they have treated a specific phase of

professional duty . The lawyer i s regarded as beingcharged with a number of distinct professional obli

gation s to society and certain o f its members , andthe enumeration is usually as follows :

1 . TO the public—th e state .

2 . To the suitors— the cl ients .

3 . To th e court— judge s and juries .4. TO the bar— his profe ssional bre thren .

This method of treatment is not without its advantage s and serve s to sharply define the profe ssional relations which a lawyer sustains . Indeed

,

every writer, whatever may be th e arrangement ofh is work, must necessarily cover these four formaldivisions . In the pre sent work, however, the writerhas , to some extent , disregarded the usual con ve ntional disposition of topics and

,while covering each

of them,has endeavored to secure a greater free

dom and range of action by adopting a less arbitra

ry division . While the discussions which follow all

relate, directly or indirectly , to the topics above

enumerated , they have been considered separatelyor in conjunction

,as seemed most conducive to

clearness o f statement and a be tter understandingof the general subj ect . No attempt has been made

to pre sent them in the order above shown nor to

preserve the respective heads .

CHAPTER I I .

THE OFFICE OF THE ADVOCATE.

Ge ne ral ly cons ide re d—Th e e s se ntial pr i nc ip le of advocacyand th e condit ion s that support it—Or igin Of advocacyand characte r

“

Of e ar ly practi tione rs—Ear ly conceptso f profe ss ional duty and the ir e ffe ct on late r deve lopments—D iv i s ion o f l egal labor and its e ffe ct on pro i e ssional e th ics—Gene ral dutie s o f th e advocate and immemor ia l obl igat ions— Conne ction and profe s s ional rel ation of th e bench and bar .

36. GENERALLY CONSIDERED . In an ear l ier

age, when society existed only in its pr imitive forms ,the transactions o f the people were simple ande asily adjusted . I f

,perchance , differences arose,

which resulted in judicial inquiry,the process was

summary and the procedure unartific ial , as b efitte d

the rude simplicity Of the times . The inquiry mighttake any form that seemed best suited to the exigencies of the particular case and any and all kinds of

evidence might be received. But in t ime, as civil ization advance d

,as transact ions became more com

plex, and as cle are r ide as o f rights and duties cameto prevail

,i t was found necessary to e stabl ish rules

for the presentation of causes and the manner in

which they should be conducted . Experience demon strated that the want of settled methods of proc edure produced a confusion and uncertainty which

2 3


not infrequently resulted in great injustice,and with

the deepening o f this conviction came the first regular forms of legal actions . Later

,as the rules b e

came more numerous and more nicely distingui shed ,they became also less easily unde rstood and appl iedby the great mass o f th e people, unti l finally no onewho had not given the subj ect particular attention

could safe ly assume to conduct a l itigation . Fromthese conditions was evolved a class Of men who

,by

thei r learning and skill,have rendered themselve s

competent to discharge th e duties incident to theconduct o f cases in th e courts , and this class we nowcall the Legal Profe ssion .

37. With the accumulation Of years has comealso an incre ase d degree of importance for the mem

bers Of the legal profession . Originally employedonly as a convenience

,their services have now b e

come indispensable. NO one thinks o f applying to

th e courts save through the medium of the law

ye rs.

“They have become,

” says one writer,“th e

organs whereby the complicate d wants of mankind

reach the ear o f Themis,

” 25 and, as the relations of

society continue to grow more varied and complex,so wil l th e lawye r’s profession be come correspond

ingly more e ssential in the adjustment of any di f

fe re n c e s that may arise. For many years it hasbeen a recognize d division o f civil society, exertinga power ful and

,in some respe cts , dominating in

flue n c e . Its character and honor have therefore2 5 Forsyth , Hortens ius th e Advocate , 388.

THE OFFICE OF THE ADVOCATE .2 5

become matters o f public conce rn , and because ofthe magnitude o f the inte rests placed in the hands of

its members,the responsibil ities which they assume ,

and the con fiden c e s with which they are intrusted ,there i s demanded of them in the exercise of the ir

duties an ex empl ification of the highest qual ities Of

moral excellence . Indeed,as has been declared in

one case, the purity and efficiency of judicial administration , which unde r our system is largely gove rnme n t i tsel f, depend as much upon the character ,conduct and deme anor of attorneys as upon the

fidelity and le arning of courts, or the honesty andinte l l igence Of jur ie s .2 6

38 . TH E PRACTICE OF ADVOCACY. With the

growth and development of the practice of advoca

cy there has also grown and developed a class o fdetractors who not only attack the lawyers but as

sai l the principle of advocacy itse l f, which they are

wont to characterize as repugnant to good moralsand sound ethical precept. It would seem that this

class has always existed,an d presumably wil l con

tin ue to exist, so long as advocacy shall continue to

be practiced. While we can afford to smile at themal ignant spiri t which prompts these invectives , as

well as pity th e narrow-mindedness that can foster

such a Spirit,we cannot afford to pass the matter

without a fair examination of the proposit ions involved.

39 . The essential principle of advocacy consists2 ° Proce e dings A l a. Bar Assn . ; in 1 18 A l a. xx i i i .


in the substitution of pe rsons professing special skilland le arning in l itigated matters for the actual l itigan ts, to do , on their behal f and in their stead, allwhich they, i f possessing sufficient knowledge and

abil ity, might do for themselves with fairness totheir opponents . This very tersely

,but it i s bel ieved

accurately, describes the full scope of the advocate’s

cal l ing. To the proper operation of this principlei t is a necessary condition that the advocate shal lreceive such reward for his exertions as may com

pensate him as well for the preparatory study re

quired as for the actual labor involved . It i s afurther condition that he should be will ing, as arule, to render his services without pre viously decid

ing upon the merits of the cause for which h e i sretaine d .

2 7 These conditions must exist to sustainthe principle

,yet it is these that furnish to the as

sailan ts Of the profession the arguments which form

the basi s of their attacks .

40 . In the discussions o f the different phases o fprofessional characte r and duty that follow we shallhave occasion to examine these conditions in con

n e ction with the principle which they support . It

is enough , at this time, to show how utte rly im

practicable is the idea, that, in a society l ike ours ,e very man involve d in l itigation should conduct hisown cause or pre sent it only through the medium of

unpaid and unskilled friendship . For th e due administrat ion of j ustice w e must have men compe2 7 U . S . Law Mag . vol . i , p . 3 .



He does not even furnish all o f the materials out ofwhich such decisions are to be framed . He standsin the shoes o f his cl ient and presents only hiscl ient’s side of the case. Neither in law nor morals

is the cl ient required to do more, and th e advocatei s under no greater an obligation than the person

he represents .

42 . ORIGIN OF ADVOCACY. The attorney andcounsellor o f the American law courts i s a l ineal desce n dan t of th e ancient Engl ish barri ster, and , byan unbroken chain of ped igree, may trace hisgenealogy back to the first rudimentary forms of

our present legal procedure. It i s impossible , however, to say at what time or in what manner thepractice of advocacy was introduced into England ,and while some imaginative legal historians have

assigned a date as early as A l fred the consensus ofcritical opinion places it at a much later period.

43 . It would seem that under the Saxon kingsand certainly for some time under Norman rule.every l itigant spoke for himsel f

,or

,in some cases ,

i f laboring under a disabil ity,by his representative .

But in the latter case there was no l imitation uponthe l itigant as to whom h e should select as his repre se n tative , nor was exclusive audience in th e

courts reserved for any class o f th e king’s subj ects .Thus matters continued until about the t ime ofHenry II ., when legal procedure commenced to assume its present form, and th e latter hal f o f the

twelfth century was probably the time when ad

THE OFFICE OF THE ADVOCATE.

vocacy may be said to have made its appearance.It was n ot unti l the century following, however , that

we may pe rceive the actual exi stence of a body ofme n following the law as a profession

,in which is

involve d th e notion Of advocacy with its attendantrights and dutie s .

44. The ear ly lawyers,in the main

,seem to

have been eccle siastics,but about 1 2 0 7, priests, and

persons in holy orders generally,were forbidden to

act as advocates in the secular courts , and from

thenceforward w e find the profession composed e ntire ly of a specially trained class o f laymen . It issaid that when th e prohibition above mentionedwent into effe ct those o f th e clergy who had adoptedlaw as a profe ssion

,and were unwill ing to be de

prived of this means Of l ivel ihood, assumed a coi f

fure, or close-fitting head-dre ss, to hide the clericaltonsure, and this became the distinguishing badge

of the legal profession for many years thereafter.2 8

TO this circumstance i s also ascribed that pecul iar

feature Of the modern Engl ish barri ster—the wig .

45. The first pe rsons regularly l icensed to appear as advocates in the king’s courts were calledserj eants

,

” although thei r full official t itle seems

to have been S ervie n tes Domin i Regis ad legun i ,

2 8 Th i s i s th e accepte d theory but i t has be e n den ie d by alate wr i te r who contends that th e coi f was honorab ly assume d by th e e ar ly lawye r s as a di stinctive badge , which , l iketh e cap o f th e doctor, carr ie d with i t th e ide a o f spe cial auth ority and le arning. Se e , Pu l l ing, Orde r o f th e Coi f, 2 4.


that i s, Se rvants at law of our Lord th e K ing .

Unlike all prior advocates, they were a part o f thecourt itse l f ; were regularly appointed by royal patent ; were admitted only upon taking an oath ; hada monopoly of all the practice

,and were directly

amenable to the king as parts o f his j udicial sys

tem . The fundamental ideas involved in the creation of this class have never been abandoned

,and ,

notwithstanding that the class itsel f by th e name“ serj e ants” has ceased to exi st, they are stil l thedistinguishing characteristics of the bar in all

countries where the English common law prevails .

46. For several generations the serj e ants con

stituted the entire bar,but about the t ime of Ed

ward II . other persons came to be admitted to prae

tice under the name “Counsellors at law,

” and, until

very recent years,a distinction was made in Eng

land between serjeants and counse l lors, the former

be ing the ranking class . At present the order o f

serj eants2 9 i s extinct.

47. The writer has dwelt at length on thisgenesi s of the legal profession for th e reason that

much of the customary Observance, rules of conduct ,and professional moral ity which at present obtain ,arose from and grew out Of the character Of thesee ar ly practitioners and the relations they sustained .

48 . EARLY CONCEPTS OF PROFESSIONAL DUTY .

As stated in the foregoing paragraph , th e first ad

2 9 Frequently cal le d th e orde r o f th e coi f, in al lus ion toth e he ad-dre s s .

THE OFFICE OF THE ADVOCATE . 3 1

vocate s admitted to practice in the cour ts were

called “

Servants at law of our Lord the K ing,” a

title, Observes one writer,

3 0 that “has stereotyped th e

functions o f an English barr i ster at all t ime s . ” Thatis

,the bar i s an integral part Of the judicial sys

tem , an assistant in the administration Of j ustice,and as such it occupies a pecul iar and unique posi

tion with reference both to th e bench and the publie . The oath of the ancient advocate bound him

to serve bo th th e king and “

h is people, thus pre

scribing,as it we re , a divided allegiance , and this

character,impressed upon th e profe ssion at its very

inception, has never been changed .

49 . The serj eant,being thus doubly bound , was

required to act with absolute good faith towards

both the judges and the clients,owing no more duty

to one than to the other . As representing the king

he was bound to avoid all deceit upon the court and

to act uprightly in the conduct of his business ; as

representing the people he was bound to give hone st

advice and his best aid to the suitor . Time has

changed the complexion of the bar in many respects ,but these fundamental ideas o f professional dutyremain unaltered .

50 . DIVISION OF LEGAL LABOR. In the Unite d

States a l icentiate in law is admitted to practice as

an “attorney and counse llor, a combination ofname s and functions unknown to the English law .

We have seen that the English barrister was made a3 0 I n de rw ick, Th e King’s Pe ace , 93


part of the court. H i s Office was as distinct andwel l defined as that of the judge, who, in the common law courts , was always taken from the rankso f the bar. He became an actual sworn assistant

in the administration of justice . It was his dutyto advise the court upon the law of the case and to

advise and assist the suitor in presenting his evidence, and to both he was required to act with theutmost fairness and good faith .

51 . But to enable him to properly fulfil l th eduties involved in his divided allegiance to the

king and his people, and to preserve an in depe n dence o f judgment and action which

,i t was contend

ed, could not be guarantee d i f by any means th e

counsel should be pecuniarily interested in the resultof the l itigation

,

3 1 there grew up a custom of in

te rve n tion between the advocate and the cl ient by aclass known as “ attorneys and solicitors . ” The attorney meets the cl ient

,enters hi s appearance upon

the record,prepares and files the pleadings , and

generally manages the case in all of its details, ex

cept the trial . At the trial the counsellor, or bar

rister,assumes charge, receiving his instructions

from the attorney.

52 . This distinction of practitioners and division of labor has never prevailed to any appreciableextent in the United States . It i s a me dieval Eng

3 1 In the ory th e Engl i sh barr i ste r make s no charge for

h i s se rvice s, his emoluments be ing in th e nature o f an honorarium.

THE OFFICE OF THE ADVOCATE. 33

l ish exotic which did not se em to thrive in our

soil,and

,while traces of the practice are observable

during th e e arl ie r years of the Republ ic, partien

larly in the federal courts , the dual character soon

came to be assumed by the same person . As the

conventional rules governing the two classes werein many respects dissimilar

,the result Of thi s union

o f duties has been to produce a code o f ethics di ffe ring in some particulars from that which obtainsat the English bar.

53 . GENERAL DUTIES OF TH E ADVOCATE . NO

very spe cific e numeration Of the duties o f th e advo

cate has ever bee n made by statute,either in Eng

land Or Ame rica . In some instance s courts havespoken and announce d a rule o f conduct for th e

particular case, but, in the main, the e thical code ofthe profession i s unwritten . On se ve ral occas ions sporadic attempts have bee n made to intro

duce something of this kind into the codes Of civi lprocedure,3

2 apparently under th e mistake n idea

that a moral principle i s suspectible o f the same

method Of treatmen t as the axioms of mathematics .

The basi s for most o f these attempts i s the ancient

oath administered to advocates by the laws o f Ge

neva,3 3 and the prescriptions o f professional duties

3 2 Se e , Report, Com. Code C iv. Pro. N . Y . 51 1 ; Code ,A la . 79 1 .

‘ 3 3 Th e oath re fe rre d to i s a s fol lows“ I swe ar be fore God ,To b e faith fu l to th e Repub l i c and th e canton o f Geneva ;

l

34 ESSAY S IN LEGAL ETH ICS.

have usually be en but fe eble paraphrases of thatinstrument .

54. Fortunately , for th e bar and for th e public ,there are no rules o f moral ity for the lawye rs whichdo not apply with e qual force to th e laity, and iti s we l l that there should not be. The lawyer i s

pretty much what the laity make s him . Th e char

acter o f th e bar i s but a reflex of th e character o fthe community. As has been well said

,

“An un

scrupulous bar could not exist in a high-minde d

community; and i f anywhere a corrupt legal pro fe ss ion i s to be found it i s found in the midst of a corrupt and corrupting people .” 34 This i s th e lessonOf history and the experience o f all th e ages .”

Neve r to depart from th e re spe ct due to th e tr ibunal s andf'

author i t ie s ;Neve r to counse l or maintain a cause , which doe s not appe ar to b e j ust or e qu itable , unle s s i t b e th e de fense o f anaccuse d pe rson ;Neve r to employ knowingly, for th e purpose Of maintaining th e cause s confide d to me , any me ans contrary to truth ,and neve r to se ek to m i s le ad th e j udge s by any artifice o r

fal se stateme nt of fact or law ;To abstain from a l l Offens ive pe rsonal i ty, and to advanceno fact contrary to th e honor or reputation o f th e part ie s

,i f

it b e not indi spe nsable to th e cause with which I may b e

charge d ;Not to encourage e i the r th e commencement or th e continu

Xan c e o f a su i t from any motive of pass ion or inte re st ;Not to re j e ct , for any cons ide ration s pe rsonal to myse l f,

fh e cause of th e we ak, th e strange r, or th e oppre sse d .

“4 Commrs. Report, N . Y . Code C iv . Pro. 51 1 .

3 5 This phase of our subj e ct finds an apt i l lustration in th econdition s which pre va il e d at Rome dur ing th e de cl in ing



i s not meant the promptings of wayward impulsebut the e ducated, judicial conscience, that carefully

distinguishe s the relative positions o f rights andduties in all the ir bearings .

56. The whole duty o f the lawyer i s tersely summarized in the oath of office now generally administe re d in all o f th e states as well as in the federal

courts . This , in gene ral terms, requires him to uphold the law ; to demean himsel f, as an Officer o fthe court, uprightly to be faithful to his trust . No

more could be required ; no less should be demanded . TO attempt to define the infinite variety of aspeets and phases that are involved in the foregoing

simple enumeration would be an impossible task .

Nor i s such a definition nece ssary.

57. In the pages that follow I have endeavored

to discuss, in a necessari ly brief and desultory manner, a few of the sal ient feature s Of our subject ,and have se le cted those topics which seem of mostimportance to the young and inexperienced attor

ney. Some of the propositions will re ce ive a re adyconfirmation by hi s own moral sense o f right and

wrong . Some may appear a trifle fin ical, particular

ly those which relate to profe ssional etiquette , but

it must b e remembered that they represent the Old

and long—establ ished customs of th e most respect

able and conse rvative Of all th e learned professions .

The generation that is laying down the burdens ofprofessional l i fe expects from those who are coming

in to take them up , a careful adherence to th e Old

THE OFFICE OF THE ADVOCATE . 37

customs and established usages . They were given

to us by the fathers a fore time , to be guarde d withj ealous care and transmitted to our successors in the

same form in which they were rece ived . They are

a part of th e glorious inheritance o f the Amer ican

bar ; th e characte ristics which serve to distingui shus ; the badges of our respec tabi l ity . Let no mode rn

spirit o f innovation disturb these ancient landmarks .

58 . RELATIONS OF TH E BENCH AND BAR. W e

have seen that when advocacy finally became an ex

e lus ive calling and the advocates a distinct class with

special pr ivi lege s , i t was provided, among othe r

things, that the j udges o f the king’s courts should

always be selected from their ranks . Th e educa

tion and associations o f the judges and lawyers

we re therefore the same, and they invariably ad

dressed each other as “brother , both in publ ic and

private.3 7 This intimate relationship has been gen

e rally continued, and, as a rule , the bench i s sti l l re

c ruited from the legal profession . This i s strictlytrue of the federal courts and generally so of th e

state courts , although in the latter we occasionallvmeet with the anomaly Of a man presiding over a

court in which he has never been admitted to

practice .

59 . But, happily, the condition j ust noted i s b ecoming e ve ry day more rare

,and the general prop ~

osition holds good that judge s must first be law

ye rs. The very fact, then, that one of the great coordinate departments of government i s administered3 7 I n de rw ick, K ing

’s Pe ace , 94.


by men selected only from one profe ssion'

give s tothat profession a certain pre-eminence which calls

for a high standard of morals as well as inte l lectual

attainment. The integrity o f the j udiciary is th e

safeguard of the nation,but the character Of the

j udges i s practically but the character of the law

ye rs. L ike bege ts l ike. A degrade d bar will in ev

itab ly produce a degraded bench , and just as cer

tain ly may w e expect to find the highest excellence

in a judiciary drawn from th e ranks o f an enlight

ened, learned, and moral bar.

60 . Not only are the judges , the interprete rs ofthe laws , drawn from the ranks of the lawyers , but

that profession, more than all others, contribute s tofi l l the halls o f legislation and supply the chairs of

administrative Office s o f high position and responsi

b ility3 8 Learning, honor , and integrity are al ike

necessary in those who are called to discharge the se

great trusts ; the future stabil ity of th e countryrests , in very large measure, on those who make andexecute the laws

,and our guarante e s for the pe ace

ful enjoyment of l i fe , l iberty and prope rty must besought in their character and moral qual it ies .3 8 I t i s sa id that “ twenty-five out o f fifty-s ix s igne rs o f th eDe claration o f Independe nce , 50 out of 55 membe rs o f th econve ntion which frame d our Fe de ral Constitution , 19 out o f2 4 Pre s ide nts , 17 out o f 2 3 V ice -Pre s idents o f th e Unite dS tate s , and 2 19 out o f 2 34 Cabine t offi ce rs , we re lawye rs ;that more than two- th irds o f th e Unite d S tate s Se nators , andabout on e -hal f our Repre sentat ive s in Congre s s , and Gove rnors Of th e se ve ral state s , and th e maj or i ty o f our diplomatsand repre se ntative s in fore ign countr ie s have be e n lawye rs.”

CHAPTER II I .

THE ADVOCATE AND THE COU RTS .

Gen e ral ly con s ide re d—Th e summary j ur i sd iction of court sMe thods o f summary discipl ine—Nature of d i scip l inarypowe r— Effe ct o f d iscip l in e on th e legal r ights of th ecitize n—Grounds for di scip l ine—D i scip l ine for un offi

c ial mi s conduct—Misconduct w ithout d i scip l ine .

6 1 . GENERALLY CONSIDERED . The legal pro

fe ssion occupies, in many respects , an unique posi

tion among the call ings and occupations of men .

While its general feature s bear some simil itude to

th e other le arned profe ssions it diffe rs from them in

many important particulars . The lawyer, l ike thephysician , serves the publ ic ; the on e as an assistant

in th e protection and preservation o f rights, the

other in the protection and preservation of health ;but here the paralle l ends . The lawye r not only

se rves the publ ic— that i s,the individuals who com

pose the body politic— but he also se rve s the bodypolitic itsel f— th e state

,and for this purpose meces

sarily occupies a dual relation , which distinguishes

his profession from all othe rs . He not only praet ice s in the courts but is himsel f an integral part

of th e j udicial machinery,and as such i s subj e ct to

a discipl inary power from which the members o f

othe r profe ssions are exempt . He e njoys ce rtain39


exclusive privileges and i s under certain spe cial oh

l igations and subject to certain responsibilities. For

an abuse of his pr ivi leges , as well as for derelictionso f professional duty, he may be compelled to ac

count,not only at the bar of publ ic Opinion but also

Of the court that admitted him to practice . In ad

dition to the punishments infl icted by socie ty he

must also bear th e marks of sovere ign displeasure,and

,in this respect

,the code Of profe ssional ethics

resembles a code of law

62 . SUMMARY J URISDICTION OF COURTS . Th e

summary jurisdiction which a court i s permitted to

exercise over attorneys and counsellors , while to

some extent con ferre d by statute , seems to originatein the inherent discipl inary power which the court

possesses over its attorneys as Officers o f the court.It i s, in fact, but a continuation of the old ideas thatwere involved in the original appointment of th ese rj eants, and has always formed a part Of the judic ial scheme o f every country where the common lawprevails . The attorney of the United States

,no less

than the barrister Of England, stil l represents the

sovereign as we l l as the people. He i s a part o f thejudicial machinery ; an assistant in the administra

t ion of justice ; and the theory is that as such of

fic e r of th e court he is responsible to it for profe ssional misconduct.

3 9

3 9 Ex parte Gar land , 4 Wal l (U. S . ) 333 ; Ex parte Wal l ,107 (U . S . ) 2 65 ; Ex parte Biggs , 64 N . C. 2 0 2 ; Whitcomb

’scase , 1 2 0 Mass . 1 18.

THE ADVOCATE AND THE COURTS . 41

63 . The opinion at one time Seems to have been,

that the jurisdiction extended only to attorneys em

ployed as such in suits depending in court, and that

it could be exercised only to hold them to theirduty in such suits . But a broader view is now taken ,and it would appear to be well settled that suchjurisdiction applies to any matter in which an attorney has been employed by reason of hi s profe ssional character,"l o and extends to all cases of profe ssional misconduct

,whether in or out of court flt1

The exe rci se o f this summary jurisdictionrests in the sound discretion of the court , but mustbe employed with caution and moderation .

42 The

power is not an arbitrary or despotic one, to be ex

e rc ised at the mere pleasure o f th e presiding judge ,or from motives o f passion , prejudice or personalhostil ity, for it i s quite as necessary for the proper

administration o f justice that the rights and inde

pe n de n c e o f the bar should be guarded and main

tain ed as the rights and dignity of the court itsel f.43

65. METHODS OF SUMMARY DISCIPLINE . For

any flagrant derel iction or di sregard o f professionalduty on the part o f the attorney the licen se by which

he was admitted to practice may be revoked . Thisi s known as disbar in e n t, and the effect o f a disbar40 Ande rson v . Bosworth , 15 R. I . 443 ; Ex parte S taats, 4Cow. (N . Y.) 76.

41 Pe ople v . Gre en , 7 Colo. 2 37.

42 S tate v . K irke , 12 F l a . 2 87 ; Ex parte Burr, 9 Whe at.(U . S .) 52 9 .

43 Ex parte Se rcomb e , 19 How . (U . S . ) 9 .


ment i s the utter extinction of professional character. It is only for grave offenses , however, thatthis method of discipl ine i s resorted to . Sometimesthere i s infl icted a qual ified disbarment

,as that the

attorneymay not practice in the courts for a specified

period . This is known as suspen sion ,and its effect

,

while it lasts is the same as disbarment .66. By far the more common methods o f dis

c iplin e are repriman ds and fin es, the latter o fttimesentail ing a deprivat ion of personal l iberty until paidor discharged .

67. For violations o f professional etiquette orbreaches o f decorum

,particularly i f committe d in

the presence o f the court , the offending attorney

may be punished by reprimand , fine or imprisonment . Where the offense amounts to what is techn ically known as con tempt of court the Offender isusually fine d, and may b e committed until the finei s paid . Where the contempt i s of a flagrant char

acter imprisonment is frequently infl icted . Thesepunishments are resorted to for the purpose o f Vindicating th e outraged dignity of the court, for unless the solemn and dignified character of the courtis maintained the administration of law and theforms of j ustice would soon sink into a meaninglesstravesty.

68. But the lawyer is not alone a gentleman ;he is a sworn minister of justice . H i s Office impose s high moral duties and grave responsibil ities

,

an d he is he ld to a strict fulfillment of all that these



moved , not as a punishment of the offender but as aprotection to the court, the bar and the publ ic .45

70 . DISCIPLINE DOES NOT AFFECT LEGALRIGHTS . I t will be perceived from the foregoingthat the summary power exercised by courts in the

punishment or exclusion of Offending attorneys rests

almost wholly on ethical grounds and appl ies onlyto pro fess ional misconduct . I f the matter in ques

tion i s entirely unconnected with the attorney’s profe ssional character, or i f the misconduct charged relates to something outside o f the l ine of pro fessional

duty, then , as a rule , the court wil l have no right to

interfere,46 and, generally, charges that affect theattorne y’s character only as a man or his integrity

as a citizen,will furnish no grounds for discipl inary

proceedings .47

71 . Thus , it may often happen that a cl ien t feels

aggrieved at the action of his counsel in the with

holding o i funds that have been received in thecourse of his professional employment . In thisevent he may apply to the court to discipl ine the

attorney, and, in a proper case , the court may inter

fere in a summary manner to compel the performance of a professional duty, for the l iabil ity o f anattorney to summary process for the paymen t o f

45 Ex parte Wal l , 107 U. S . 2 65; S tate v . Winton, 1 1 Greg.

456 ; Ex parte Biggs , 64 N . C. 2 02 .

46 Matte r o f Huson , 62 How. Pr. (N . Y.) 358 ; Pe ople v .

Apple ton , 1 05 I l l . 474.

47 Pe op le v . A l l i son , 68 I l l . 151 .


money in his hands belonging to hi s client has frequently been re cognized.

“ But a proceeding of

this kind will not be ente rtained when the case simply presents adifference Of opinion as to the amount

to be charged and retaine d for service s,for courts

cannot thus undertake to adjust accounts betwe enattorney and cl ient 49 A j ury is the proper tribunal

to asce rtain and determine what is fairly due to par

ties under their contracts,and

,unless the charge in

volves a palpable bre ach of duty and raises a pre

sumption of bad faith,a court will not inte rfere .

72 . But, as has bee n shown , an attorney i s anOfficer Of the court

,and th e court which admits

him to the pr ivilege Of practicing at its bar may,and Should

,re quire o f him th e fulfil lment o f th e

obligations that attend the privilege. And,in th e

furtherance o f this right, th e court may inquire

into transactions between attorney and client and

compel such conduct as the circumstances of the

case may seem to demand . Nor is such summaryprocess in contravention o f th e right of trial by jury,for when a court undertakes to enforce the plain

duty of its officer it i s doing that which a jury can

not do.

73 . GROUNDS FOR DISCIPLINE . Upon his ad

mission to the bar an attorney makes a solemnpromise that he wil l deme an himsel f

,as an attorney

an d counsellor o f the court,uprightly and accord

Orr v. Tanne r , 1 2 R. I . 94.

49 Burns v . A l len , 15 R. I . 32 .


ing to law, and that he will faithfully perform the

duties of his office. This promise he seals with anoath . In return for the privileges which his admission confers he is held to a strict fulfil lment of

his promise, and its violation call s for the exerci seO I th e court’s discipl inary powers . He is bound toobserve all o f the rules of practice

,as well as such

as relate only to the decorum of the court,whether

wr itten or unwritten . Nor is his Obl igation di scharged by merely Observing the conventional

rules o f courteous demeanor in open court ; hemust abstain, out of court, from the indulgence o fany practice l ike ly to bring discre dit upon himsel fas a practit ioner or reflect unfavorably upon thecourt . I f his conduct i s such as to show that hei s un fitted to practice he may be suspended or disbarred, and it i s immaterial for this purpose thatsuch acts neither constitute a criminal offense norcre ate a civi l l iabil ity 50 It is e nough that they indicate such an absence of moral character as to ren

der him unworthy Of publ ic con fiden ce .

51 The di ffe ren t phases o f the subj ect will be d i scussed in thesucceed ing chapters .

74. DISCIPLINE FOR UNOFFICIAL M ISCONDUCT.

As a general rule a court will not assume jurisdict ion to summarily discipl ine one of its Officers for

50 Ex parte Cole , 1 McCrary (C . Ct. ) 405; Bradley v .

Fi she r , 13 Wal l (U. S .) 335 ; Pe ople v . Barke r , 56 111. 2 99 ;Be e ne v . S tate , 2 2 Ark . 157.

51 Re Boone , 83 Fe d . Rep . 944.


misconduct alleged to have been committed in h is

private character. In such cases rel ie f can be Ob

tain ed only by a suit regularly instituted in th e

proper tribunal at the instance of the party who

claims to have been injure d .

52 So , too, it would

seem that where acts charged against an attorney

were not done in his Official character, n otw ith

standing they may b e o i an indictable nature , i f they

are not confesse d, there should b e a regular con

v iction before a court wil l strike h is name from th e

roll .53

75. But,while the foregoing statements may b e

taken as expressive of the general rule , and while th e

rule will,in most cases that come within it, be ap

pl ied, yet it i s not without exceptions . There maybe cases where an attorney’s misconduct in his private capacity me re ly i s o f so gross a character asto warrant summary judicial intervention .

54 It i s

an essential condition to admission to practice thatthe appl icant shall be a man of good moral charac

ter. It i s not enough that he shall b e learned in

the law and competent to conduct l itigation . H e

must, in addition , furnish proof that he is fit to b eentrusted with the con fide n ce s which his Office invites, and fail ing in this a court may deny him ad

52 Pe ople v . A l l i son , 68 I l l . 151 .

53 On thi s po int th e author i t ie s are not agre e d, but th e

text s tate s th e gene ral and be tte r cons ide re d rule .

54 Pe ople v . Apple ton , 105 111. 474.


mission .

55 Th e primary obj e ct Of this i s to main

tain a high standard of moral excellence in the profe ssion and conserve the ancient dignity and re

spe ctab ility of the bar. This being true, i t n e ce ssarily follows that this essential character should

be maintained after admission , and when the conduct o f the l icentiate clearly shows , either that the

court was deceived at the time of hi s admission,or

that there has been a moral degeneracy since that

t ime, a proper case for discipl ine may be presented .

76. We have se en that legal ethics has to do

only with professional character and with miscon

duct in a profess ional capacity. This i s true. Buta lawyer i s yet a man . We cannot wholly separate

the professional abstraction from the concrete h uman personality, and while courts in some instancesh ave assumed so to do , yet the result has usuallybeen detrimental to the fair fame and high standingof the pro fession . It is further true, that where a

moral del inquency amounts to a violation of legalduty i t should form th e subj ect o f j udicial investi

gation in the regular courses that the law provides .Indeed, to do otherwise is to deny justice and de

prive the citizen of his civil rights . But,where the

fact has been established , whe re i t has been clearly

demonstrated that a practit ioner i s a dishonest man,

whether he was acting profess ionally or otherwise

should be an immaterial question . I f he has become55M i l l’s case , 1 Mich . 392 ; Se comb

’s case , 19 How . (U. S.)

9 ; Randal l’s case , 1 1 A l le n (Mass ) 472 .


an unworthy membe r of society h e is unfit to repre

sent the noble profess ion o i the law. He has violated the fundamental condition Of his entrance and

for fe ited his r ight to profe ss ional re cognition ;hence , h e should no longer b e permitted to pract ice

in th e courts . This principle i s ful ly recognized,and courts frequently strike the names of such pe r

sons from th e roll,notwithstanding th e particular

offense was not committed in a professionalcapacity .

77. M ISCONDUCT WITHOUT DISCIPLINE . Note ve ry infraction of ethical precept, however, will

warrant th e summary intervention Of a court or theexercise o f disciplinary powers

,and in many things

the Offender incurs the l iability o f no gre ater punishmen t than may be infl icted by the force of publ icopinion . Thus th e bar has a rigid form of etiquette

with re spect to many transactions . A violation Of

this form i s attended only by a loss of pro fe ssional

standing. At first blush this punishment doe s not

seem very severe,and

,because its effect i s not al

way s immediate ly apparent , many me n are induced

to pe rsist in practice s that contravene acceptedstandards o f good manners . But, in th e end, there

is scarcely any form of punishment that can com

pare with it.

78. There i s not a man l iving, who , in his in

most soul,does not desire to b e well thought o f by

his associates,however much h e may affect an in

different exterior. As time flows on this desire


de epens and intensifies , and, all too late, he finds

that his profe ssional reputation has become establish e d and that he is regarded as a trickster

,a sharp

er, a person to be avoide d, or, i f met , to be watchedand distrusted . And when this reputation has once

become e stabli shed it fastens itsel f to the individual

with a tenacity that frequently cannot be broken,

e ven by a subsequent l i fe of exemplary conduct .Inde e d, so firmly does this reputation become fixed

that, in many instances , it survives the individual andremains to taint his memory long after h e i s dead .

79 . Let no on e imagine,then , that because his

unprofe ss ional practice s are of such a nature as to

escape judicial scrutiny they may be followed with

impunity . The good opinion of his profe ss ional

brethren can only be created and retained by a strict

observance of those matters which long experience

and common consent have sanctioned, and without their good opinion eminence at the bar i s im

possible,i rre spective Of whatever attainments he

may possess in th e way of learning and technical

skill .



ce dents . To a l imite d extent this i s true. Now, inth e early days of advocacy, i t was he ld to be in com

patible with professional dignity for a lawyer to te n

de r his services or offer to conduct a case in court .

H i s province lay entirely in pe rsonal le arning and

ski ll,and th e ste rn e thics Of that day did not permit

him to apply to othe rs to make a trial o f his intel

lectual powers . He must be sought . O f course,the re we re many whose merits were e ither neve r

discovere d or not appreciated,and

,as a conse quence ,

b riefle ss barristers” abounded in profusion in andabout We stminster Hall . The barri ster might gohungry, but his dignity must stil l b e maintained ,and this e arly notion of dignity has remained in

various modified forms unti l the present day.

82 . It would seem to be a present rule in England that a counselor shall not in any way, norunder an y pre tence , ask for practice , and n otw ith

standing that h e pl ie s his call ing for hire he may

not sol icit custom .

56 This anomalous condition

seems to be founded on much th e same principle asthat which forbids him to claim his fe e as a debt,and

,in theory

,tre ats that as a mere honorary gra

tn i ty which constitutes in fact his me ans of l ivel i

hood. But this rigorous rule has long ceased toObtain more than a nominal Observance in England ,and never seems to have se cured a practical re cogn i

t ion in th e Unite d State s .

56 Forsyth , Hortens ius th e Advocate , 350 . Thi s se ems al soto b e on e o f th e cardinal ru le s o f th e Fre nch bar ; se e Jone s,H i story o f th e French Bar , 198.

PROMOTION AND PUBLICITY. 53

83 . On e reason for the non-adoption of th e

rule in thi s country grows out o f the union Of th e

two branches Of th e legal profess ion— attorneys and

counselors . While the counselor was not permitte d

to sol ici t no such inhibition se ems to have been

placed upon th e attorne y. But th e attorney, formany years

,was rathe r looked down upon by hi s

brother at the bar . Indeed, he was not regarded asa lawye r

,or

,at best

,but as a partial lawye r oc cu

pying a me an and infe rior position . Time has rem

e died this matte r in England, while in th e United

State s the te rm “ attorney ” has come to have a

gene ric significance that embraces all branches o f

legal practice .

84. But thi s Old notion of pro fe ssional dignityhas never been wholly e radicate d, so far, at least , as

re spects the solicitation of cl ients . In a general way

it may sti ll b e said that sol icitation i s unprofess ional ,and notwithstanding that th e practitione r is an at

torney he is also a counse lor,with all the tradit ions

of his legal ancestry . H e may indeed announce his

profe ssional character,but only in a mode st and

de corous way. He may,in a proper manne r and

upon proper occasions,speak of hi s profession and

even of his own conne ction the rewith , but cannot,without violating the canons o f good taste

,as well

as the ethics o f the bar,offer h is services for sale

n or vaunt his own abil itie s . The profession of law

remains today what i t always has been,a high and


honorable call ing,and no on e investe d with the pres

tige which it confers should be permitted to degradei t to the level o f a mercenary trade . The huckste r ,or even th e hustler

,

” has mistaken his avocationwhen he selects advocacy . H i s talents will show

to much bette r advantage in some other l ine wherehis comme rcial instincts will not be shackled by ancient conventionalitie s .85. But however much we may the orize we can

not escape th e conclusions announced at the Open ing

of this section . The lawyer has no immunity fromth e common lot Of mankind . H e must l ive ; and, i f

he i s to l ive by his pro fession,h e must have cl ients.

These proposit ions are se l f-evident , and the re i s noway of evading thei r i rre futable logic . The ques

tion, then , would se em to be : To what extent may

a lawyer sol icit custom and what methods may h eproperly employ !

86 . PERSONAL SOLICITATION . As stated in thepreceding paragraph

,i t was formerly a rule of ge n

eral and uni form observance , in all countrie s whe readvocacy was practiced as an exclusive call ing

,that

it was beneath the dignity of an advocate to solicitbusiness

,and this rule se ems to have been of such

imperative obligation that to violate i t in any re

spect was to lose standing at the bar . In England

it was appl ied with practically no exception , but onthe continent

,where the right to demand and re

ce ive fee s was recognized, i t was qual ified by the

PROMOTION AND PUBLICITY . 55

proviso that in case of a defense an advocate might

offe r hi s services gratuitously to the poor .57

87. I f w e are to regard the pro fession o f law

as a legitimate me ans of l ivel ihood and not as a

me re honorary occupation, then it should be gov

e rne d,in the main

,by the same rule s and subj ecte d

to th e same tests that are applie d to othe r honorable

call ings , and , i f thi s b e true , the re can be no wellgrounded reasons for denying to th e lawyer th e

same opportunities for acqui ring practice as are ai

forded to me n in othe r walks o f l i fe . Nor i s there

any improprie ty in a respe ct ful sol icitation of busine ss from friends and acquaintance s, o r e ve n fromth e gene ral public . Th e manner in which this Shall

be accompl ishe d i s practical ly the only question tob e conside red . Indee d

,in many case s

,the young

attorney must resort to his acquaintances and re ly,

to some extent, on their good offices in his behal f.

SO long as this sol icitation is made in a modest and

de corous manner it i s difficult to perceive wherein

any injury can result to either the sol icitor or theprofession . On th e other hand

,a pers istent and of

fensive assertion of sel f wil l usually create an aver

sion in the m inds o f those sought to be affected .

88 . This phase o f our subj ect has produced a

large amount o f sentimental gush and high-flownrhe toric, and students , from time immemorial , havebe en admonished that law should be pursued for it sown sake and not for gain ; that th e philanthropic

ide a should alone actuate the advocate and stimulate57 Jone s , H i s t . French Bar , 198.


hi s en de avors, and that th e time -honored rules of

th e bar must not b e in fr inged . In a way all of this

i s true, yet the fact remains that law is pursued as

a lucrative calling, and much of the real good which

the advocate i s enabled to accompl ish for his cl ientresults from thi s fact . It i s a further fact that the

ethical idea involved in sol icitation is not so much aregard for ancient conventional rules as a proper

de fe rence to pre sent public opinion concerning th edignity of th e legal profession. When a sol icita

tion can be made without a loss o f professional dign ity or a lower ing of professional standing, then it

i s proper ; when it cannot, then there should be no

sol icitation . This i s about all that can be said uponthe subj ect with any degree of certainty, and the

circumstances of the particular case must determineth e conduct of th e attorney .

89 . In th e foregoing paragraph the subj e ct o f

solicitation has been conside red from the point ofview of the respe ctable practitione r who hesitatesbetween sel f- inte rest and profe ssional decorum ;who seeks practice but i s yet observant of the pro

prie tie s. The re are , however, some very obj e ction

able fe atures o f sol icitation to be seen in th e cities ,whe re a horde of so—calle d lawye rs find a regularand profitable employment in following accidentsand soliciting retaine rs from th e injured . This i ssolicitation in its most degrading form

,and a vile

prostitution of th e advocate ’s call ing. Yet the “am

bulan c e chaser has be come a recognize d fe ature of


city l i fe. He haunts the hospitals and visits th e

home s of the afflicted, offic iously intruding hi s pres

e nce and persistently Offe ring his service s on th e

basis of a contingent fe e . This i s not law practice ;i t i s simply a form of legalized piracy . No man canadopt such a course and ye t re tain the re spect Of h is

profe ssional brethren,for while the person so doing

violates no rule of law h e i s guilty of a gross in fraction Of on e of the be st-known and longe st- e stablish ed ethical precepts of the bar . Unfortunate ly ,this is a practice that cannot be stoppe d by legalmethods . Th e re course i s to th e moral sense of the

bar ; i f this se nse i s weak no rel ie f may b e e xpe cted,and

, so long as complacent jurie s shall free ly give

away othe r people ’s money and this class of practi

tion e rs continue s to receive the favorable conside ration of bench and bar

,so long will th e practice itse l f

continue.

90 . ADVERTISING. In a small communitywhe re the local attorneys are known to all or th e

large r portion of th e pe ople and the i r respectiveabilitie s are matte rs o f common notorie ty

,the re

exists no ne ce ssity for an attorney to adve rtise hisbusine ss through any other than th e legitimate me

dium of ordinary practice . But in large cities and

centers o f population,where both business and so

c ial acquaintance i s l imite d, i t seems almost a matterof absolute ne ce ssity for the young advocate to

reach the publ ic through some Of the methods thatmay prope r ly be denominated

“ adve rti sing.

”


9 1 . Now it i s we l l se ttle d that eve ry man has aright to choose his own occupation in li fe

,subj e ct

only to the restraint necessary to se cure th e common wel fare . This i s one of the privileges of citize n sh ip .

58 He not only has a right to choose his

occupation , but the further right to pursue andcarry on the business o f such occupation in any wayan d by any methods that are lawful and proper. As

has been well said,in the se days Of commercial e n

te rprise , advertis ing i s an important factor in business pursuits

,and the re fore every man has a right

to adve rtise h is business in any legitimate mannerso as to attract th e attention of th e public .59

92 But the ethics of the legal profe ssion forbid

that an attorney should advertise his talents or hisskil l as a shopkeeper advertise s his wares ,60 and

publ ic policy is distinctly opposed to any effortsthat may tend to invite or encourage l itigation . Towhat extent, then , may an attorney pre sent himse l f

for publ ic consideration,and how far may he pro

c e ed without infracting any of th e rule s which th e

force o f long and well- settle d public opinion has es

tab lish ed for the regulation of this branch of profe ssional conduct ! The solution of this que stion isfar from easy . Mode rn methods of transactingbusine ss have mate rially changed th e ancient formu

58 Fore r v . Pe ople , 141 I II. 171 ; Commonwe alth v . Pe rry,155 Mass . 1 17 ; Pe ople v . G i l l son , 109 N . Y . 389 .

59 Ruh strat v . Pe opl e , 185 I l l . 133 .

6 0 People v . MacCab e , 18 C0 1. 186.



94. It certainly must be admitted, that a plainand mode stly lettered card carries with it a certaindignity that i s wholly lost whenever an ostentatiousdisplay i s attempte d, and as th e ob j e ct of all adve r

tising is to interest th e . publ ic in th e adverti se r or his

wares,then

,as a matter of good business policy,

that me thod should b e pursue d which is most l ike ly

to attain such end. Th e legal advertiser does n ot

offer a marketable commodity, th e merits Of which

he may with propriety vaunt . He offers himse l fhi s talent and his skill . It i ll be comes him , then ,

to sound h is own praise, even though it be done in

dire ctly by a recital Of the things h e i s able to ac

compli sh .

95. It i s enough , therefore, simply to announce

th e fact of pro fessional character and the plac ewh e re

cl ients may attend. This latter should always be th e

attorney’s Office . The re are certain classes of prae

tition e rs who also state the ir place of residence ,and

,impliedly at least

,invite cl ients to consult them

there. As a general proposition, however, the se

classes do not represent th e better elements o f th e

profession,and while an attorney may receive his

cl ients at his home the pre vail ing sentiment of th e

bar is distinctly Opposed to such a practice . For

thi s reason th e placing of a res idence addre ss on aprofessional card is always regarde d as bad form .

96. Attorneys pursuing a special branch of th elaw may also announce the i r specialty

,yet such an

n oun ceme n t should be made in the same dignifie d

PROMOTION AND PUBLICITY.61

manner. Probably the widest departure s from good

taste occur in thi s form of adverti s ing. In these

mode rn days of commercial activity too many at

torn eys become impressed with the idea that to sue

c e ed at th e bar the practitione r must b e a“ hustler,

”

and it i s through th e precept and e xample of this

class that law is so fre quen tly degraded from its

true character as a le arne d and l iberal profe ssion and

made to“

assume the feature s o f a mean , sordid,and grasping trade.

97. NEWSPAPER ADVERTISING. As stated in

the last section,an attorney may, without violating

any of th e proprieties,inse rt his card in periodical

publ ications Of standing and repute. Th e village

newspape r i s a conspicuous illustration of the mann e r in which this can be done with no diminution

of profe ssional dignity . Law journals , and periodicals de vote d to l egal and financial in te re sts,are nowregarded as prope r media whereby to re ach the pub

l ic . H igh-class l ite rary magaz ines occasionally in

sert a column of profe ssional cards , and this form

of advert i sement i s probably unobjectionable at the

present time. But this practical ly comple tes the l ist .

The trade journal,the flashy or sensational weekly,

th e nondescript purveyor of che ap fiction,and th e

ephemeral advertis ing sheet,are all to b e avoide d .

No sel f-respect ing lawyer will ever pe rmit himsel fto be represented in the columns of thi s class o f

j ournals, and no one can be so represen ted withoutlosing caste as a practitione r.


98 . The daily newspape r o f th e cities i s equallyobj ectionable .

‘

Th e‘

characte r of the paper i tsel f i simmaterial ; i t is th e fact o f adve rti sing and the

company in which th e advertiser is found that i scondemned . What shall we think

,what can we

think,of the attorney who plaintively appeals for

publ ic recognition with a medical quack on on e sideand a humbug clairvoyant on the other ! O f th ethree, th e seventh son of a seventh son most com

mands our respect, for h e , at least, impl iedly admits that h e i s a fraud, while the othe rs attempt to

screen themselve s under the mantles o f the learne d

profe ssions .

99 . ANONYMOUS ANNOUNCEMENTS . The dailypapers of our large c iti e s c onstantly pre sent anon

ymous announcements in which the undisclosed ad

ve rtise r offers his services to the public as a legalpractitione r e ithe r in a ge ne ral way or

,as i s more

frequently th e case , as an expert in some special

l ine . These announcements are some times signedwith the name of an actual or fictitious corporation

,

but th e usual plan i s to invite correspondence by

prospective l itigants directed to a post office box .

Now it cannot be denied that a lawye r,in the e x e r

c i se of his own judgment, may make any of th ebranches o f th e law a specialty, and may invite thegene ral publ ic to te st his abil ity in th e l ine he has

so chosen . But h e must n ot, in so doing, use un

dignified means nor re sort to low artific e s, and , least

o f all,should not withhold h is name from his ad


ve rtisemen ts.

6 1 The ve ry fact that such adve rti se

ment is without signature indicates that the con

c ealed adve rtiser fe e l s a sense of shame in its publ ication , and n o honorable practit ioner will ever

stoop so low as to commit an act that he wil l feelashame d to own .

10 0 . CONTINUED—DIVORCES . By far the larger

portion of the specie s o f advertis ing men tioned inth e foregoing paragraph have for their Object the

solicitation of suits for divorce . Now the procuringof divorce s is a legitimate branch of legal practice ,and th e law has made spec ial provision for such

separations . As before remarked , a lawyer has anundoubted right to pursue any branch of th e law as

a special ty , and , while we might question the tasteof on e who se lects SO unsavory a l ine for special

work,there i s no legal and possibly no e thical obj c c

tion that can b e urge d against his adopting pro

c e edings for divorce . But for any one to invite or

encourage such litigation is most reprehensible,62

an d while any adve rtisement having this end in

view i s to b e condemned,as contrary to the e thic s

o f the bar,i t follows , with stronge r re ason , that on e

who thus adve rti ses by anonymous announcementshas so far lowe re d th e dignity of h is calling as to

me rit the severe animadversion o f hi s profe ssional

brethren and an appl ication of the discipl inary

powe rs of th e court whose privileges he has abused.

6 1 Pe ople v . Goodr ich , 79 I l l . 148.

6 2 Pe ople v. MacCab e , 18 Colo. 186,


1 0 1 . The marriage relation , in law as in morals,has always been conside red sacred, and it affects toodeeply the happine ss o f the family

,as also the w e l

fare o f society, and l ies too near the foundation of

al l good government, to be disturbed or sundere d

for slight or transi ent causes . Th ere fore,the law

has de fined with certainty the only causes for which

a judicial separation will be permitted and the meth

ods that must be pursued to effect same. Neithe rj udges nor lawye rs may change this proce dure . And

yet,i t i s by no means uncommon to meet with ad

ve rtiseme n ts to the effect that divorces may be Oh

tain ed, through the medium of the advert iser,

“ quietly,

” “without publicity,” “good everywhe re

,

”

etc. , and, to make the matter worse , the identity o f

such advertiser i s frequently concealed behind afictitious name or a postoffic e box . Such an adve rtiseme n t is not only Obj ectionable from a moralpoint o f view but is distinctly a false representa

t ion of facts and a l ibel on courts o f justice.

1 0 2 . It is a matter o f common knowledge that

divorces cannot be legally Obtained anywhere “with

out publicity,

” nor even “ quie tly, for in every in

stance a publ ic record must be made and a public

he aring had before a decree can be entered. Al lo f these publ ic proceedings the statute imperatively

re quire s,and for a lawyer

,by an advertisement or

otherwise , to indicate that such public procee dingscan or will be dispensed with by the courts havingjurisd iction o f such cases

,i s a l ibel on the integrity


of the j udiciary that courts cannot overlook when

same is brought to their notice.63

1 0 3 . A person enjoying the rights and priv

ilege s of an attorney must al so respect the duties

and obligations o f hi s position . H is l icense was

grante d on th e ex press promise that he would at all

times demean himsel f in a proper manner, and with

the implied agreement that even though he Should

not,by his professional conduct, reflect honor upon

th e court appointing him ,he would at least refrain

from such practices as could not fai l to bring dis

grace upon such court, the bar, and himsel f.64 Th e

public and every individual coming in contact with

him in his professional capacity,have a right to ex

pee t that he wil l act with the scrupulous propriety

that should ever characterize one commissioned to

so high and honorable an office, and whe n it shall

appear that he has abused,or perverted to im

proper uses,the license he has received

,i t i s th e

duty of both the bar and the courts to purge them

selves of the unclean member.1 04. CONTINUED— BAD DEBTS . Anothe r form

of highly obj ectionable adverti semen t i s that o f the“wage s ” and “bad debts ” collector . This method of

sol icitation i s usually made under the guise o f a“bureau,

” “ agency,

” “ association,

” etc .,and, to this

extent, partakes o f the character of anonymous an

8 3 Pe ople v. MacCab e , 18 Colo. 186.

6 4 Pe opl e v . Goodr ich, 79 I l l . 148 ; Pe ople v . Brown , 17

Colo . 43 1 .


n oun cemen ts. As a rule, the bait o f no fee unless

successful” is held out to catch th e economically

disposed publ ic , while not infre quently , where thestatut e permits the re covery of attorney fe es by th eprevail ing party, the services o f the

“bureau”

are

Offered free o f charge .1 0 5. Thi s form of advertisement i s quite as

much to be condemne d as the one discussed in thelast section

,in so far as it tends to lowe r the dignity

and importance of the legal pro fe ssion . It i s open

further to the stil l weightier objection that it is aproposal for l itigation that practical ly amounts to

common barratry . The policy of the law distinctly

discourages the inciting or sti rring up of quarrel s

and suits , and it i s the vile brood of generators ofpetty stri fe and fomenters of neighborhood quar

re l s that has tended to bring the pro fession of lawinto disrepute.

1 0 6. It i s not contended that the collection ofclaims so~ called , i s not a proper subj ect for an at

torn ey s work . Indeed ,“ collections ” are usually

resorted to by the young attorney as a steppingstone to other and more lucrative forms Of professional employment . And usually, also, the colle etions then Obtained are o f the sort to which the

term bad may,with great proprie ty, be applied .

The offense is not th e undertaking to co llect claimsbut the proposal for l itigation and the indecent manner in which such proposal i s made.

10 7. NEWSPAPER DISCUSSIONS . An attorney



vent a fair tr ial and otherwise to prej udice the dueadministration of justice , and the attorney who re

sorts to such methods must inevitably lose standing

in the pro fession .

1 0 9 . LETTERS AND CIRCULARS . For a greatmany years it has been customary for lawyers togive notice o f changes in the personne l o f firms

,re

movals, etc . , by a simple announcement of the factthrough the mails . While these announceme ntsare usually intended as advertisements

,and such is

always their effect,yet their primary and ostensible

purpose is merely to communicate a business fact to

the public . This has always been regarded as a lo

gitimate method of attaining publ icity, and i s fully

sanctioned by long and unquestioned usage . A

printed circular i s generally employed for thi s purpose . The statements should be brief, severely conci se , and mode stly displaye d . To depart from thisstandard is conside red an exhibition of bad taste on

th e part of the advertiser .

1 1 0 . This i s about as far as a reputable practi

tion e r may proceed in th e way of circular adverti sing

,and when an attorney transcends this l imit,

either by extoll ing hi s own abil ities , his connections ,or his facil i ties for transacting busine ss, he ap

p roach e s dangerously near the l ine that separate s

the lawyer from the shyster and pe tti fogge r .65

65 Th e te rm shyste r se ems to b e an Ame r i can col loquialism of unknown or igin . I t i s de fine d by We bste r as a “ tr icki sh knave ; on e who carr ie s on any bus ine s s , e spe c ial ly th e


1 1 1 . Th e unsolicited offer of profess ional as

sistan c e sent to a stranger i s distinctly a type of

sh yste rin g practice . In the cit ies we often find men ,who

,by reason Of laxity in the requirements of ad

missi on to the bar, have been permitted to assumethe office and enjoy the privileges o f advocates with

no adequate ideas o f the dignity and importance o fthe legal pro fession . It i s a cardinal rule with these

men that a successful lawyer must “ hustle for busi

ness , and by this is meant , in effect , a total disregard of all conventional rules and Observances . The

business community is overwhelmed with circulars,letters and other advertis ing devices ; court records

legal bus ine s s, in a d ishone st way. A pe tti fogge r i s define d by th e same author i ty, as

“ a lawye r who de al s in pe ttycase s ; an in fe r ior attorn e y emp loye d in me an pro fe s s iona lbus ine ss .”

Mr. R. L. Harmon,addre s s ing th e A l a . Bar A s sn . in 1897,

make s th e fo l lowing d istinct ions and de finit ion s : “Th e pe tti

fogge r , as a lawye r, i s an unle arne d , l i tt le , me an characte r,lacking in abi l ity, sound judgment or good common sense ,whi le th e shyste r may b e posse s se d o f much le arning, gre atabi l ity or an abundance o f shrewdn e s s and cunn ing, b ut h ei s a tr ickste r and a di shon e st scheme r ; h e i s a fomente r o fl itigation , str i fe and discord in th e community ; h e i s a manufacture r o f e vidence , a foste re r o f pe rjury and a promote r o fbr ibe ry ; h e i s a cunning th ie f, who conce al s h i s p e rfidy andrascal i ty unde r th e cloak of th e l aw ; h e cunn ingly abuse s th enoble profe s s ion to which h e has be e n admi tte d as a we apono f Offense in de e ds o f unj ust Oppre ss ion , schem ing knave ryand th e procurement of confidence and th e re pose o f trust ,which h e base ly abuse s , whe n the re i s opportun ity to profit byso doing .


are searched for suits commenced,and defendants

are written to with offers of assistance ; prospectivel itigation i s discovered and fomented ; impertinentinquiries are directed to individuals as to whetherthey are satisfied with their present counsel

,etc .

,

and invitations are extended to call on the adve rt iser and inspect hi s ware s . This i s shyste ring,

pure

an d s imple, and it makes no difference that the adve rtise r occupies spacious and finely appointed o i

fic e s with a retinue of clerks and assi stants .1 1 2 . SELF PRAISE . It remains to speak of one

other form of adverti sement which our ethical

canons have long condemned . Notwithstanding theattorney has been observant of the formal proprie

ties,he may yet be an offender against good taste

by simply talking about himsel f and his own foren

sic achievements . It i s said that no man of fin e se n

sib ilitie s will eve r stoop to blow his own horn ,”

but

must allow his praises to be sounded by others .

With respect to the general truth of thi s proposi

tion,there i s no room for argument , and while the

boaster may at times derive a profit from the re cital

of hi s own exploits,particularly with the simple

and credulous, yet in th e main their effect i s only to

excite aversion and disgust .

1 13 .But while it i s well to be advertised by

our loving friends,

” suppose they refuse to performthis office ! What then ! Now , i t i s not considered

bad taste on the part o f a scient ist to relate hi s own

discoveries nor to dilate on their value, while every


soldier is pe rm itted to fight h is battles over again

for the benefit of his auditors . Then why may n ot

the lawyer re fer to his own experience, his struggles

and his triumphs ! There is no good reason why

one should be permitted and the other prohibited .

1 14. The difficulty l ies in the manner Of the tel l

ing rather than in the thing to ld ; but if time , and

place,and circumstances

,all invite it

,there would

seem to be no well- founded ethical Objection to the

lawyer’s recital o f the things he has accomplished,

notwithstanding that, in effect , he is advertis inghimsel f out o f his own mouth. But in this

, as in

every other form of promotion and publicity, a dueregard for th e proprieties must ever be Observed, forin no other profession does the maxim that “

Mod

esty bespeaks merit,”

so well apply.

CHAPTER V .

COMPENSATION .

Pr in ciple s gove rning th e r ight o f compensation—Theory o fcompe nsation in England and Ame r ica—Gratu itous se rvice— Spe cial agre ements—Extent of compensat ionCon side rations affe cting th e e xtent of compensationContingent fe e s—R ight of compensation of as signe dcounse l o f poor pe rson .

1 15. TH E RIGHT OF COMPENSATION . In one ofthe Oldest and most re spected of ethical codes maybe found the precept,

“Th e laborer i s worthy of his

hire,” and this pre cept never seems to have been se

r iously questioned save in the case of certain of th eprofessions . Now , there can be no question withrespect to th e ethical truth of th e precept . It coincides with our ideas of abstract j ustice . I f one manrenders valuable se rvice to anothe r, at the requesto f the latter

,th e person so serving should be suit

ably compensated . In case such compensation is

withheld the se rvant should have a right to enforcepayment by the power of the state. This principle

the law fully recognizes, and has recognized from

a very early pe r iod, yet, strange as it may appear,th e right o f an attorne y to demand and sue for fees

has been questioned in American courts duringcomparatively recent years .

1 16 . The reason for this must be sought in the72

COMPENSATION . 73

peculiar character of the advocate’s call ing. It

would seem that from the very earl iest times, and

in every country where advocacy has been known,

i t has been th e custom to regard th e services Of the

advocate as a gratuity . It i s true that he has always

been remunerated in some way, but the reward

wh ich the cl ient be stowe d was viewed in th e l ight o f

an honorarium— apure gi ft in token of gratitude

and not as the discharge o f a legal Obligation . Itis said that this ide a was maintained from a j e alous

apprehension lest the pro fessi on should degenerateinto a mere me rcenary trade

,

6 6 but in its inception

the theory of gratuitous se rvice seems to have beenbased on highe r and more chivalric grounds .

1 17. In the earl iest forms of advocacy, where

one appeared in a court to ple ad the cause of an

other,it was usually nothing more than a ne ighbor

ly service, and for such inte rce ss ion on behal f of a

friend and neighbor no pe cuniary reward was ex

pe cte d. Such service was substantially a help af

forded by the strong to th e we ak, prompted by sen

time n ts of pity or affection for on e in distress . It

would seem also,that th e e arly advoc ate s , in many

instances,were cler ics— prie sts or persons in holy

orders— and their se rvices were given without

charge as a pious duty .

1 18. TH E ENGLISH THEORY . When advocacy

first b ecame e stablished as an exclusive profe ssion ,i t was investe d with a dignity which fe l l b ut l ittle8 6 For syth , Horte ns ius th e Advocate , Ch . I X .


short of that bestowed upon the judges. The barrister became an integral part of the court. He

pursued hi s cal ling not for gain,but for the honor

which it brought. The Old custom of gi fts to advocates was then in vogue, and while he might nottake money as a payment for his services he might

accept same as an honorarium, and so the custom

continued under the new order of things . The praetice thus inaugurated was never abandoned

,and

sti l l Obtains at the English bar,although for many

years i t has bee n a transparent fiction . In theory

the English barrister exacts no fee but does expecthi s hon

‘orarium

,

“ being indeed a gi ft which giveth

honor as wel l to the taker as to th e giver . ” 67 TheEnglish attorney

,on the other hand, always seems

to have charged for hi s services , and at presentthere i s a graduated scale, fixed by law, for certain

kinds o f legal employment .1 19 . TH E AMERICAN THEORY. While the gen

eral principles of advocacy are the same in Eng

land and the United S tates, there are yet some strik

ing minor differences . These differences , to some

extent,grow out o f the fact that in this country the

functions of attorney and counselor are united andthe duties o f the dual office are performed by thesame person . But a more cogent reason may be

found in the changed conditions of th e Americanpeople and the position in which advocacy hasthereby been placed . That the trained advocate i s67 Sir John Davy, Pre face to Reports.



1 2 2 . The attorney’s right to charge and recove rcompensation for his professional services is base d

upon a contract of employment, which, as a rule , i sinitiated by a formal request on the part of th ecl ient , technically called a

“ retainer.” But,while

this is the usual method of creating the relation ofattorney and client

,i t is not essential to th e right

of re covery that an expre ss reque st should beshown. The contract of retainer may be made th e

same as any other ; that is, i t may be either expre ssor implied

,and when an attorney rende rs services

under such circumstance s as reasonably imply thatthey were performed with the assent and at therequest o f a party

,

6 9 or where a party by his acts

induce s an attorney to suppose that h is services aredes ired

,and avails himsel f o f them without obje c

tion,

70 the law wil l raise a promise of payment onwhich a recovery may be had .

1 2 3 . LIAB ILITY FOR FEES . As a general rule ,in the absence of a special agreement, an attorneymust look to the person employing him for h is com

pe n sation for services rende re d , and cannot recove rfrom one who did not employ him , however valu

able may be the result of his services to such pe r

son .

71 Thus, i f a numbe r are inte rested in thesubject-matter of the employment he can haverecourse only against those who actually retained

69 Coope r v . Hami l ton , 52 I l l . 1 19 .

7° Ector v . Wiggins , 30 Te x . 55.

71 Waile s v . Brown , 2 7 La . Ann . 41 1 .

COMPENSATION . 77

h im.

72 SO, too , although the employer is a trustee,an d the serv ices are rendered for the benefit o f thetrust estate

,yet the attorney will not, in virtue o f

these facts merely,acquire any claim against the

estate .73 And,i f an agent, through a false repre

sen tation o f his authority, secures professionalservices in the business of hi s principal , and it sub

sequently appears the agent was without authority,the attorney must rely upon the agent personally for

the value o f hi s services .74

1 2 4. GRATUITOUS SERVICE . Having estab l ishedthe fact, as a legal proposit ion, that a lawyer may

demand and obtain compensation for his efforts asan advocate , i t remains to inquire to what extent,i f any, he may be expected to render gratuitous

service in a worthy cause. We have no authorized

scal e of charges, as is the case with certain depart

ments o f legal practice in England, nor are there

even conventional rules for the government and

guidance of practitioners . The uni form practice

has been to permit counsel to make his own estimates of value. On e man , in th e exercise o f this

pr ivilege, may de em his services worth more thananothe r , similarly s ituate d, would or might havecharged

,and generally

,unless the case i s one o f

flagrant extortion , no ethical question is rai sed .

The magnitude and importance o f the matters in72 Cook v . Mackre l l , 70 Pa . S t. 12 .

73 Hal lam v . Hal lam, 2 C in . (Ohio ) 384.

7‘ W r ight v . Baldwin, 51 Mo. 2 69 .


volved, the time and labor nece ssari ly required, andthe circumstances o f the parties, are all factors in

the fixing of fees, and, except in cases of specialassignment by the court, as where counsel i s

assigned to defend a criminal , no lawyer i s com

pe lled to accept a retainer i f the cl ient i s unable orunwill ing to pay the amount which he names asthe price o f his employment .

1 2 5. Yet, the poor we have always with us .They have rights to be established, protected andmaintained, and the only persons, as a rule, who

are competent for this purpose,are the lawyers . It

wil l o ften happen that the establishment of a rightwill bring with it a pecuniary advantage sufficientto remunerate counsel for his services , and, in suchcase, a contingent fee may be provided for. ButOften, also, the right i s o f such a nature that itpossesses no pecuniary features and its establishment wil l result in n o pecuniary gain . In such

event may counsel re fuse his aid ! It would seemthat he may

,for, whatever may have bee n the early

characteri stics o f advocacy, he is under no other orgreater obligations to society than the artisan. Norwill a re fusal affect his standing at the bar.

1 2 6. But we should regard advocacy as something higher than a mere means of l ivel ihood, and

the advocate as something better than a hiredgladiator who fights only for him that pays the

best . Mercenary and calculating men may have

lowered the level of the bar from the old chivalric

COMPENSATION . 9

standard,but they have not destroyed the standard

itsel f,and the cause of the poor, the helpless and

the oppressed,remains today as it always was .

1 2 7. AGREEMENTS FOR COMPENSAT ION . Beforean attorney undertakes the business Of hi s cl ient he

may properly enter into a contract with him in

regard to the compensation to be paid for the

service, as no confidential relation then exi sts and

the parties deal with each other at arms’ length .

75

The attorney may fix the terms of h is employment

and the manner in which his service shall be ren

der ed, and i f the cl ient assents thereto the contract

i s not distinguishable from other contracts relatingto personal services requiring judgment and skil l .

1 2 8. Where an agreement exists i t must generally be taken as expressing the full measure o f theattorney’s compensation , and he will not be per ~

mitted to raise the amount therein provided duringthe progress o f the suit to the seem ing disadvantageo f the cl ient .76 It is a famil iar dictum that the law

will scrutinize with j ealous care all transactionsbetween parties who stand in confidential relat ions ,and un de r this pr inciple courts on sev eral occasions

have declared that an agreement made by a cl ientwith his counsel

,after the latter had been employed

in a particular business,by which th e original con

75 E lmore v . Johnson , 143 I l l . 513 ; Bingham v . Salen e , 15Oreg . 2 08 .

76 Unite d S tate s v. Coffin, 83 Fed. Rep . 337 ; Ki s l ing v .

Shaw, 33 Cal . 42 5; Ros s v . Payson , 160 111. 349 ; Burnham

v . He se lton , 82 M e . 495.


t ract i s vari ed and a greater compensation i s secured to counsel than may have be en agreed uponwhen he was retained

,i s void .

77

1 2 9 . Where parties enter into an agreement forcompen sation

,prior to the engagement o f counsel ,

i t i s customary to stipulate for a sum to be paid inadvance, known as a retaining fee , and for other

sums to be paid as the work progresses , and thesesums may be collecte d according to the terms ofthe agreement . In the absence of an express stipulation , however, even though there be an agreementfixing the gross sum to be paid, no fees can bedemanded in advance ; the contract i s regarded ass ingle and entire

,and no right o f compensation

accrues until the services are fully performed .

78

130 . E X TENT OF COMPENSATION . Where anattorney has entered into an agreement with hiscl ient in re spect to the characte r of the service to

b e rendered and the compensation to be paid therefor, he is entitled, on performance of the service ,to demand and receive the sum so stipulated andagreed upon .

79 But this sum will constitute the

ful l exte nt of his compensation , i rrespect ive of theactual value to the cl ient of the service rendered .

It i s only in exceptional cases,however, that agree

ments o f this kind are made,for an attorney can

77 Le catt v . Sal le e , 3 Port . (A la . ) 1 15; and se e , E lmore v .

Johnson , 143 I l l . 513 .

78 Bathgate v . Haskin , 59 N . Y . 533.

79 Schamp v . Schenck , 1 1 Vroom (N . J . ) 195.

COMPENSATION .8 1

rarely se e in advance the dire ction and extent o f th el itigation upon which he is entering, and, for thisreason

,i t i s seldom that a fixed sum can be named

that wil l be just and fair for both parties . Th e

general custom,therefore

,i s to defer the ascertain

ment of the amount o f the attorney’s compensation

until the termination of the ligitation or the par

ticular business involved .

13 1 . Where th e amount of compensation is not

fixed by any contract or agreement under whichthe attorney is employed, h e is entitled to demand ,and may recove r

,such reasonable fees

,under an

impl ied contract, as hi s service s may have beenworth, or as have usually be en paid to others for

s imilar se rvices .8 0 What is a reasonable fee in a

given case i s a question of fact,to b e determined ,

in case of dispute , by th e weight o f the evidence .8 1

132 . The general rule Of quan tum me ruit is

based upon a market price,and this

,in the case o f

professional se rvices,i s the price usually charged

for s imilar se rvices . But the rendering of profe ssional service s i s not l ike the sale o f commodities ,where th e pr ice at which an article sold may havea tendency to fix or show th e marke t price, nor canthe amount paid in a particular case be considered

or accepte d as the proper amount to be charged inall l ike cases . There may b e peculiar ci rcumstances

8° E lmore v . Johnson,143 I l l . 513 ; Le catt v . Sal le e , 3 Port.

(A la .) 1 15 ; Eggle ston v . Boardman, 37 Mich . I 4.

8 1 Lamar Ins . CO . v . Penne l l , 19 I l l . App . 2 12 .


or elements that assisted in fixing th e amount paid

in one case,which would not exist in another

,and

hence,while the question of reasonable worth must

be determined from the prices usual ly charged fors imilar services , yet, in such determination, all o fthe attendant facts and circumstances must be conside red .

82

I 33 . The strong tendency of recent decisions i sto disregard many of the ancient rule s which wereformerly resorted to

,and to announce in their place

the better and more sensibl e doctrine , that no regular measure o f value can be fixed for services o fcounsel in trying difficult cases or investigating in

tricate questions of law.

134. The result o f the l itigation , whether suc

c e ssful or otherwise , may have some effe ct upon thequestion of worth

,and influence the fixing of the

price demanded,but an attorney’s right of com

pen sation i s not lost merely because his service shave been of no benefit to his cl ient, i f they havebeen faithfully and intell igently rendered .

8 3 Uponthe same pr inciple

,i f a cl ient prevents his attorney

from completing the service contracted for the

r ight of compensation is not lost, and the attorneymay recover as though he had fully performed it.84

I 35. CONSIDERATIONS AFFECTING TH E E X TENT

OF COMPENSATION . Pursuing the ideas presented

3 2 Eggl e ston v . Boardman , 37 M ich . 14.

8 3 Bil l s v . Polk, 4 Lea (Tenn . ) 494.

84 Ke rsey v . Garton , 77 Mo . 645.



as well as the means of the cl ient , are all elements

to be considered .

8 8

136. IMMODERATE COMPENSATION o v E R

CHARGE . It i s frequently asserted that lawyers

charge and re cover fees vastly in excess Of the realworth of the services rendered therefor. Indeed,this has furnished th e material from which have

been manufactured many cheap jokes and muchalleged satire. The idea had its origin in an inadequate conception of the value Of legal services,induced by the superficial views which the laitygenerally take of the profession . Even though weadmit that grasping and sordid tradesmen

,taking

advantage of th e circumstances and situation ofthe parties, seek to , and do, extort unconscionablefees , yet such occurrences are rare and much of thepopular clamor is wholly unfounded in fact .

1 37. There will probably be no question uponthe proposition that an attorney who conducts l it i

gation for another, in the absence of a special agreement respecting compensation , i s entitled to b e

re asonably remune rated for his time and labor. Butthe reasonableness o f an attorney’s charge for

services,as shown in the last paragraph , must be

dete rmined by many things other than th e meretime and labor actually expended . An attorney isunder an implied duty to use and exercise reasonable skill

,care

,discretion and judgment in th e

conduct and management of his cl ient’s cause ; he8 8 H‘

alaska v . Cotzhause n , 52 Wis . 624.

COMPENSATION . 85

i s subj ect to violent mental strain ; he necessar i ly

assumes a degree o f responsibil ity commensuratewith the magnitude of th e interests involved and the

hazard of the l itigation . In fixing th e amount o f

his fee these matte rs are all proper e lements , and

courts have held that the care, responsibil ity and

mental anxiety,ne ce ssari ly ar i sing in a proceeding

of any importance , are not so imaginative and

shadowy that they should not b e considered in

arriving at a proper sum to be allowed for profe s

sional compensation .

8 9

138. The client, in most cases, looks only at

the time employed in the trial and measures values

by a standard of visible evidences,and, while he

frequently makes allowance s for the pro fessionalstanding of his counsel

,he rarely take s into account

the other factors Of the service . Hence,it will Often

happen that th e attorney’s bil l i s denounced as

extortionate and unconscionable when,in fact, i t i s

below the sum that in j ustice and fairness shouldbe paid .

139 . RETAIN ING COMPENSATION FROM FUNDS

COLLECTED . An attorney may, in a proper case,deduct from funds collected by him

,and in h is

hands, such sum as he may deem adequate for the

service rendered,and

,i f such sum shall seem just

and fair under all the circumstances,he wil l be per

mitted to retain same. But whe re the attorney thus3 9 Halaska v . Cotzhause n , 52 Wis . 624 ; V i las v. Downe r,

2 1 Vt . 419 ; S tanton v . Embre y, 93 U . S . 548.


reimburses himse l f, notwithstanding the cl ient mayhave assente d the reto at the time

,i f the transaction

has even the appearance Of unfai rness it will bevacated upon applicat ion o f the cl ient seasonablymade.

140 . The reason for this i s, that the relation ofattorney and cl ient i s one of great confidence

,and

the attorney, by reason of hi s commanding position ,i s p resumed to exert a strong and controlling influe n ce over the cl ient . It i s said, this influencemay be employed to Obtain undue advantages

,or

even gratuities , and hence, the law will Often declare

transactions between them void, which , between

other persons,would be unobjectionable. This prin

c iple has been held to extend to settlements o f the

amount Of fees, and, i f the cl ient can show that the

sum retained is larger than the services o f the attor

ney were reasonably worth, or larger than agre edupon i f there was an express contract, then the

burden i s cast upon the attorney of showing that

the sum was retained by virtue of his client’s agreement and consent, given under circumstances that

made it fair and conscionable .90

141 . As AFFECTED BY LOCAL RULES ANDSCHEDULES OF CHARGES . Sometimes bar associations prescribe rule s with respect to the compensa

tion to be charged by its members for certain kindsof service and th e conditions under which such

service shall be rendered . As bar associations do9 0 Balsbaugh v . Frase r, 19 Pa . S t. 95.



mination of the suit, and usually, in such e vent, alarger compensation is to be paid than would havebeen charge d had such agreement not been made .

This is known as a con tinge n tfe e , and the increasedsum that i s re covered in the event Of success i s

regarded as a fai r Offset to the risk o f loss thatwould have resulted in the event o f failure. Inmany case s it i s a further element o f the contingentfe e , that the sum so to be recovered in the event o f

success shall be a part or ari se out o f the subjectmatter o f the l itigation .

143 . But the legal sanction for contingent feeswas long withheld

,and n ot afew of the conserva

tive element o f the bar sti ll condemn the practice

as contrary to good morals and the ethics Of the

profession . It would seem that in England contingent fees are held to b e within th e inhibition ofth e statutes of champerty and maintenance, and

such , at one t ime, would seem to have be en the viewentertained in this country .

9 2 The e ar ly cases look

upon the practice as a virtual purchase of a law suit ,and maintain that , as a sworn office r of the court ,an attorney should not be permitted to avail himsel f of the knowledge he acquires in his professional

character,to speculate on sui ts pending there in .

144. The ancien t common-law offenses o fchamperty

,maintenance

,barratry, etc . , are but l ittle

regarded in this country at the present time . As a

rule the ancient statute s have not been re -enacted ,9 3 Arden v. Patte rson , 5 Johns . ch . (N . Y .) 48.

COMPENSATION. 89

although, in some states, champe rty is sti ll punish

able as at common law and contracts tainted with

it are void . Where the commonlaw offenses havebeen abol ished a statutory Offense of maintenancehas generally be en cre ate d, and this, in the main ,consists of an Offic ious inte rmeddling with a suit

or the furnishing of me ans for its prosecution with

a view to promote l itigation .

145. The courts,howeve r, se em to have drawn

a l ine betwe en champe rty and contingent fe e s .Thus

,i f cl ient and attorney ente r into a contract

whereby the latter i s to institute and prose cute su its,at his own expense

,for the recovery of prope rty or

other thing be longing to,or claimed by

,the cl ient

,

for which h is only compensation is to b e a portion

o f the property or thing recovered, then, however

honestly entered into and carrie d out, the contract,it seems

,i s champertous and void .

9 3 On th e othe rhand, i f the agreement simply contemplate s that theattorney shall contribute only his labor and skill ,the cl ient furnishing the money for costs and ex

penses— in othe r words , th e capital— the contract

i s val id,and without taint . It may b e said , and

with much truth,that th e distinction is subtle , but

it i s a distinction neve rthe less which th e courts have

made and which they continue to recognize.

146. The ancient doctrine o f maintenance grew

out of conditions which do not exist and never have9 3 Thompson v . Reynolds, 73 I l l . 1 1 ; Coleman v . Bi l l ings,

89 I l l. 183 .


existed in the United States . Having l ittle or nofoundation in reason it has fallen into disuse

,and

the general rule now i s that any pe rson claiming aright may contract to pay, for legal services ren

dered in vindicating it, a stipulated portion of thething

,or of the value o f the thing, whe n recovered,

the payment to be de pen dent solely upon suchrecovery, instead of paying, or contracting to pay,a sum certain and in any event .9 4 Such an agree

ment does not confl ict with the law as now administe red, nor does it, in any proper sense, contravene

any principle o f public pol icy. Hence, such con

tracts are now generally sustained and about al l that

the law will do in such a case i s to scrutinize the

transaction and se e that it i s fair, and that no im

proper advantage has been taken either o f the n ece ssities or the ignorance of the cl ient.95

147. CONTINUED—ETH ICAL OBJ ECTIONS. It

would seem, therefore , that no question can beraised as to the lawfulness o f this method o f com

pe n sation , and, i f it is lawful to enter into contractsof this character, are they open to ethical Obje ctions ! The answers to this question are as various

as the minds o f men . By some it i s contended that,

even though we admit the legality of the practice ,i t i s yet inconsistent with that high standard of

9 4 Newkirk v. Cone , 18 I l l . 449 ; McDonald v . R. R. Co.

2 9 Iowa, 170 ; Cain v. Warford, 33 Md. 2 3 ; Bal lard v. Carr,48 Cal. 74.

9 5 Che ste r County v . Barbe r, 97 Pa . S t. 455.



150 . On the othe r hand, i t i s contended that i fa person could not se cure counsel by a prom ise oflarge fees in case of succe ss , to be derived from thesubj ect-matte r of th e suit, i t would Often place th e

poor in such a condition as to amount to a practicaldenial o f justice. It not infrequently happens that

persons are injured through the negl igence or wilful misconduct Of othe rs , but who yet, by reason

of poverty, are unable to employ counse l to asserttheir rights . In such event their only means of

redress l ies in gratuitous service,which is rarely

given , or in their abil ity to find some one who willconduct the case for a contingent fe e . That re la

tions Of this kind are Often abuse d by speculative

attorneys or that suits of this character are turned

into a sort o f commercial traffic by the “personal

injury lawyer,does not de stroy th e b e n efic en t idea

last discussed . SO i t wi ll b e se en that much canb e said in favor o f contingent fe e s , viewed solelyfrom an ethical standpoint .

151 . COMPENSATION OF ASSIGNED COUNSEL.

While the rule i s gene ral that an attorney rendering

service to anothe r i s entitled to compensation there

for, i t i s yet subj e ct to an important exception. Itis a famil iar provision Of th e cr im inal codes of allo f th e states that

,whe re a person is charged with

the commission o f a crime,and is unable to employ

counsel to conduct his defense, i t shall be the dutyof the court to assign counsel to such person for

COMPENSATION . 93

this purpose . A counsel so s e le cted is obliged to

serve, and that, too, without compensation .

152 . It hardly seems just that a person thus

conscripted and compelled to serve , should also be

obliged to give h is time and talent as a gratuity,and in many states the inj ustice has so far beenrecognized that a nominal fee

,payable from the

public treasury,has been provided . But, in the

absence o f such provision, an attorney thus appointed i s without remedy and can recover nothingfor his services from the county wherein the trial

was had.

9 7 As the service is compulsory this looks

very much l ike an attempt to appropriate the prope rty and labor o f another without just compen sa

tion , and this theory has o ften been advanced as areason for remune ration by the state.

153 . In answer to the foregoing it is said , thatattorneys rendering services o f this character do

receive a compensation in the privileges con ferredby their l icenses . That while the law confers on

l icen sed attorneys rights and privi leges it al so im

poses duties and obligations , and that these must

be reciprocally enjoyed and performed. The rightto assign counsel to poor prisoners i s inherent in

the court ; the duty of accepting such assignmentsis incident to the advocate’s office , a burden , as itwere, imposed upon it . When an attorney applies

for and receives his l icense he takes i t burdenedwith this duty, and having voluntarily accepted the97 Joh nson v . White s ide County, 1 10 I l l . 2 2 .


privileges he is deemed also to have assumed theattendant Obligations, and must be held to their performan ce . When he defends a criminal , under anassignment of the court, he but per forms an offi cial

duty, and, i f no compensation i s provided for suchservice

,none can be claimed .

9 8

154. While,in practice

,the judicial pre roga

t ive Of assigning counsel i s usually confined to

criminal cases, yet it seems the court has the rightto command the services o f counsel

,for persons

unable to pay,in civil cases as well , and this right

is sti ll occasion ally exercised .

9 9

155. FORFE ITU RE OF RIGHT OF COMPENSATION .

In many respects an attorney , in the conduct of a

l itigation or the management of an estate, resembles

a trustee, and the rules that govern trustees wil l ,in a measure , apply to him,

particularly in the matter o f compensation . He sustains toward the cl ie ntand those interested

,a special relation o f trust and

confiden ce not unlike that o f a trustee. The oldrule allowed no compensation for the performanceof a conscientious duty, and this rule affected both

trustees and counselors . In modern practice theold rule has been reversed and a trustee i s nowallowed

,as a matter o f right, a reasonable and just

sum in payment for his service s, upon the principle

9 8 Se e , Johnson v. White s ide County, 1 10 I l l . 2 2 ; WayneCounty v . Wal le r, 90 Pa. S t . 99 ; Rowe v . Yuba County, 17Cal . 61 .

9 9 House v. White , 5 Baxte r (Tenn.) 690 .



privileges he is deemed also to have assumed theattendant obl igations, and must be held to their performan c e . When he defends a criminal , under an

assignment Of the court, he but performs an official

duty, and, i f no compensation i s provided for suchservice

,none can be claimed .

9 8

154. While, in practice, the judicial pre rogat ive Of assigning counsel i s usually confined to

criminal cases,yet it seems the court has the right

to command the services o f counsel , for persons

unable to pay,in civi l cases as well

,and this right

is sti ll occasion ally exercised .

9 9

155. FORFEITU RE OF RIGHT OF COMPENSATION .

In many respects an attorney , in the conduct of a

l itigation or the management of an estate, resembles

a trustee, and the rules that govern trustees will ,in a measure , apply to him, particularly in the matter of compensation . He sustains toward the cl ientand those interested, a special relation of trust and

confiden ce not unlike that o f a trustee. The oldrule allowed no compensation for the performanceof a conscientious duty, and this rule affected both

trustees and counselors . In modern practice theold rule has been reversed and a trustee is nowallowed

,as a matter o f right, a reasonable and just

sum in payment for his service s , upon th e principle

9 8 Se e , Johnson v . White s ide County, 1 10 I l l. 2 2 ; Wayn eCounty v. Wal le r, 90 Pa . S t. 99 ; Rowe v . Yuba County, 17Cal . 61 .

9 9 House v. White , 5 Baxte r (Tenn .) 690 .

COMPENSATION . 95

that he who renders an honest service i s entitled to

an honest compensation therefor .

156 . It is equally well settled , however, that i f

a trustee has bee n guilty o f fraud, will ful default,or gross negl igence in the administration of the

trust, compensation to which he would otherwise

be entitled , will , as a general rule , be denied to him,

and this rule has always been regarded as just andwholesome.1 Its enforcement tends to secure an

honest and faithful discharge of official duty and

to curb the temptation to abuse the trust . The contract which the law implies from an attorney’s

employment is that he wil l render faithful and hon

est service ; that he wil l be reasonably prudent , careful and dillige n t and that he will bring to the work

in hand a fair measure of skil l and technical learn

ing. I f this contract i s violated he is not entitled

to any compensation for his services,and i f injury

results he may further be held to answer in dam

ages . The basis o i the rule i s good morals and asound public policy

,and

,where the fraud , bad faith ,

negle ct or ignorance Of the attorney i s made to

appear , courts will not hesitate to apply it.2

1 2 Pe rry, Trust s, 9 19 .

2 Se e , Davi s v . Nat . Bank, 78 Minn . 408 .

CHAPTER VI .

GENERAL PRACTICE.

Defin ed—Th e place o f moral ity in pract i ce—Th e duty ofve racity—Th e cl ie nt and h i s cause—Product ion of te stimon y—Exam ination o f witn e sse s—Instruct ing andadvis ing witne s se s— A ttorneys as witne sse s—Addre ssing th e j ury—Tampe r ing with re cords—Abuse o f pro s

ce s s—Duty to th ird p e rsons .

157. DEFI NATORY . Th e actual appl ication of the

lawyer’s knowledge and skill to the ordinary affairsof l i fe i s called practic e . This includes not only

the direction and conduct of l itigation, but everyform of legal effort and activity. It involves all Of

the professional relations he may sustain and coverseverything he may do or say in hi s professional

capacity . The Special features of such relations arerese rve d for succeeding chapters

,while the para

graphs immediate ly following will be devoted to

brie f conside rations of a few of the general phases

that our subj e ct may seem to present .

158. MORALITY IN PRACTICE . For many years

th e legal profe ssion has be en the object o f attacks ,by an ill- informed element of th e laity

,on account

o f th e me thods Observe d in practice. We commenceto mee t with these de tractions at a comparatively’

e arly stage of professional development, and the

time-worn argument that the lawyer’s occupation96



their pri stine vigor the principles that made th eprofession o f law a call ing of honor.

160 . But, while we are forced to admit the occasional abuse o f the advocate’s privileges byunworthy men, yet we may strenuously deny th e

general truth o f the statement o f our detractorsabove noted. No lawyer o f stand ing supposes himsel f to be a mere agent of his cl ient, to gain a vic

tory in the particular case in any event and at all

hazards, but, knowing what i s due to himsel f andhis honorable pro fe ssion

,his efforts are qual ified

not only by conside rations affecting his own character as a man of honor and learning, but also by

considerations affecting the wel fare of society andthe general intere sts of justice .4 The men whosenames stand highest on the roll of fame have beenpre-eminent for the se qual ities, and the young advocate, ambitious for advancement, will find that hewil l best conserve hi s own interests by emulatingtheir example.

16 1 . THE DUTY OF VERACITY. It i s said,that

truth i s the foundation of every virtue, and in thepractice o f law its due observance is absolutely

essential to that kind of succe ss which should constitute the lawyer’s highest ambition . But modernsociety has produced many conventions

,and the

practice o f law is not without them . Therefore,

some moral ists have gone so far as to say that,in

the case of advocate s , these conventions may be per4 Hutch in son v. Steph ens , 1 Ke en (Eng.) 668.

GENERAL PRACTICE . 99

mitted to superse de the general rule of truth .

5 In

support o f this i t i s contended that the profess ion

o f advocacy exists as an instrument in the administration of justice ; that it i s a ne cessary maximof the advocate’s profess ion that h e i s to do all thatcan be done for his cl ient ; that th e appl ication ofthe laws is a matter o f great complexity and diffi

culty that thei r appl ication in doubtful cases i s best

provided for i f the arguments on each side be urged

with the utmost force,leaving the judge alone to

decide, and that , for thi s purpose, each advocatemust urge all the arguments he can devise and

with al l the skill he can command . Further, that

thi s duty is not affected by any belief of h is ownupon the subj ect.

162 . But this does not,in al l respects

,represent

the thought of the be tte r e lement of th e bar , ne ithe rdoes i t coincide with th e practice of those who se e

in the conduct o f lawsui ts something more than

mer e forensic battles waged by paid champions

ready to espouse either s ide Of an argument . Wemay there fore turn to anothe r class o f moral i sts,whose views more truly express the fundamental

ideas involved in legal practice . It i s generally

admitted that,to answer the ends o f justice in a

community,the re should exist a pro fe ssion of advo

cates, ready to urge, with ful l force, the argumentson each side in doubtful cases . And i f the advo

cate, in exerci s ing hi s profession , allows it to be5 Se e , Paley, Moral Ph i losophy, b . i i i , c. 15.

I OO ESSAYS IN LEGAL ETH ICS .

understood that this i s al l h e unde rtakes to do,then

i t i s further conceded he does not transgress hisduties, even in pleading for a bad cause ; since evenfor a bad cause the re may b e arguments , and even

good arguments . But i f, in th e conduct of the cause

he asse rts his bel ie f that it is j ust , when he believe s

i t to b e unjust, i f he advances as true, that whichhe knows to he untrue

,he offends against truth ;

j ust as any other man would do who,in l ike man

ner,made the same assertions .6

163 . It i s further contended by this school,that

every man is,in an unofficial sense , by being a

moral agent, a judge o f right and wrong and an

advocate o f what i s right ; and is, so far, bound tobe just in his judgments and sincere in his exhorta

tions . This general character o f a moral agent, i ti s contended, cannot be put off by merely puttingon professional character

,for every man

,when he

advocates a case in which moral ity i s concerned,has

an influence upon those around h im which arises

from the belie f that he shares the moral sentimentso f mankind . This influence of his supposed

moral ity i s on e of his possess ions, which, l ike all

o f his possessions,he is bound to use for moral ends .

I f he mix up h is character as an advocate with hischaracter as a moral agent, using his moral in

fluen ce for the advocate’s purpose, he acts immor

ally. He sel ls to his cl ient, not only his Skill andlearning

,but himse l f, and makes i t the supreme

6 Whewe l l , E lements Of Moral ity, b . i i i, c. 15.



difference of opinion . It i s immaterial that one sidei s right and one side is wrong, or that one attorney

has assumed to represent the wrong side of thecontest. The only moral question involved is

,

whether he has thus assumed to represent iniquity

knowing it to be such . Now it i s a matter o f com

mon observation that two eye—witnesses of an eventnever se e i t exactly alike and, however honest or

impartial they may be, will never, i f left to themselves, describe it in the same terms . Thus

,take

the case o f an affray. The situation of the witnesses, the excitement of the moment , the un conscious bias produced by the state of the feel ings

,al l

tend to affect the i r view, producing even oppositeaspects o f the memory. I f such differences arise

in the recollection of impartial persons , i t cannot

be surp rising that each of the combatants is confiden t that he i s the injure d party, and communicates his case

,in that confidence , to h is counsel .

Sympathy is th e soul of advocacy. Th e result i sthat the statement o f a case i s generally such as toinduce in counse l a strong be l ief in th e justice Of

th e cause,and to enl ist his warme st fe el ings for its

success . This is a plain statement o f th e ordinary

case .166. To one thus preposse ssed in favor o f the

cause , th e animation Of the conte st only deepensand strengthens first impressions ; and as the l ittlechapter of l i fe

,with all its l iving interest, opens

around him ,his cl ient’s case becomes a part Of his

GENERAL PRACTICE.10 3

own being . H i s bel ie f in its justice insensibly but

inseparably blends with his natural des ire to sue

c e ed, and he hears all the arguments and regards al l

th e testimony against it, with the surprise, disl ike,and incredulity o f inveterate Opinion sharpened by

zeal . In this sp irit he conducts the case , and even

though defeated he remains,in many instances,

unconvinced, feel ing that there has been a failure

of justice and vainly regretting the insufficien cy of

his own exertions . Thus it will be seen that anadvocate may honestly engage on either side of a

cause dependen t on disputed facts , notwithstandingthat such case involves a direct opposit ion of truth

and falsehood. The antithesis o f right and wrong,considered as legal concepts

,will be found in all

d isputed cases . But i t does not follow because of

this , that the counsel who supported the losing, and

hence th e wrong,s ide o f the controversy has

thereby offended against morals .167. But right and wrong in legal contests are

very seldom separated by sharply defined l ines . It

does not follow,because one side has lost, that it

was wholly destitute o f th e elements o f right nor

that the prevail ing side may not have shown wrongful features

,for

,in most case s

,the truth is drawn

from both s ides and the ultimate right i s reache d

by the efforts o f the advocates on e ither s ide. Thus,in an action on the case for unl iquidated damage s

,

the counsel who shows the wrong to be compe n

sate d , and h e who suggests the grounds of mitigation , may both b e r i ht . e ach taking his own share


in presenting the truth to the minds o f the j ury .

Unfortunately, the moralists n ever seem to graspthese distinctions

,and it is because of the superficial

views which they generally take that much of the

misconception of the advocate’s office has arisen .

168 . PRODUCTION OF TESTIMONY. The decisionso f courts

,in all disputed matters, are based on the

existence or non-existence of facts . Facts are estab

l ish ed by the evidence produced at th e hearing, ortrial o f the cause. The truth of the matter in dispute i s reached by a consideration of the testimony,or the statements of the witnesses . These statements

,in the case of l iving witnesses— persons , are

de l ivered orally and under the sanction of an oath .

This oath is a promise on the part o f the witnessthat , in the cause then on trial , his testimony shall

b e“ the truth, the whole truth , and nothing but the

truth .

” To speak the truth at all t imes i s a moralduty ; to speak the truth in judicial investigationsi s a legal duty as well .

1 69 . It i s contended by th e moral ists that theconcealment o f any truth which re late s to the matter in dispute i s as much a violation of the oath asa false statement ; that the duty to speak

“ the whole

truth” requires of th e witness a complete and un rese rve d account o i all that h e knows respecting th esubj e ct o f the trial

,whether the que stions proposed

to him reach th e extent of his knowledge or not.8

8 Se e , Paley, Moral Phi losophy, b . i i i , c . 17 ; Champl in ,Pr in ciple s o f Ethics, 1 1 1 ; Wayland, Moral S cience , 304.



i s built upon it, in any way contravene the preceptso f a sound morality

,howeve r much it may confl ict

with th e sel f-erected standards of the morali sts . A

party feel ing himsel f aggrieved, from any cause,appl ies to a court for redress . He states his grievance and, in so doing, makes certain averments .

These averments he must sustain upon the hearingor be non- suited. That i s about all there is to it.He must prove all that he has averred , but no more

than he has ave rre d,and all that i s required of him

,

in the first instance,i s to produce evidence suffi

cient, i f undisputed, to establ ish the truth of thematters alleged .

1 0 I f the allegations are denied thisis a matter Of defense , which plaintiff i s not required to anticipate, and the production of testimony to sustain such defense is left to his adversary.

It is by these methods that courts arrive at thetruth o f the matter in dispute, and the long

'

e xpe

ricuce o f many centuries has demonstrated the wisdom of the procedure . While the witness i s sworn

to te l l the “whole ” truth, this means nothing more

than that he shall not wil fully conceal any matter

concerning which he may be interrogated nor suppre ss the truth of same when it i s cal led for . Thewitness is under no obl igation to volunteer in for

mation, and usually will not be permitted so to do ,n or i s counsel re quired to bring out any fact that

he may deem prejudicial to his case.

172 . E X AM INAT ION OF W ITNESSES . I t i s not1 0 S te arn s v . F ie ld, 90 N_

. Y. 640 .

GENERAL PRACTICE. 107

proposed to present a disquisition on the examina

tion of witnesses,nor to suggest methods by which

this del icate function of the advocate’s occupation

shall be exerci sed,but

,in a work purporting to dis

cuss the ethical side of practice a passing allusion toth e subj ect se ems eminently proper i f not necessary.In no other department o f professional activity does

the astute lawyer display to bette r advantage hi s

legal acumen,and cases are lost and won , in many

instance s , by th e abil ity or non-abil ity o f counsel in

dealing with th e ev idence . The books are reple te

with suggestions re lative to th e manne r in which

examinations Should b e conducte d and the methods

to b e employe d , and to them th e reader i s referred,the only obj e ct o f th e following paragraphs being

to Show,in a very gene ral sort of a way, what

should not be done from an e thical point o f view .

173 . E X AM INATION I N CH IEF . The first great

rule o f direct examination is that a witness must

not be inte rrogated by le ading questions . The rule

i s bo th wise and expedie nt and probably exerts amore be neficial effec t in th e e l icit ing of evidence

than any other. But, while it se ems very e asy ofapp lication ,

it has ye t been found extremely difficul tto be observed in practice

,and

,i f strictly e nforce d,

woul d often prolong trials to an undue and wholly

unnecessary extent . Therefore,it has been nar

rowed somewhat in i ts scope by confining it to such

questions only as relate to the matter in i ssue . Iti s the prope r practice to approach mate rial matte rs


by direct questions,and this practice i s always e n

c ouraged by judges who are not themselve s me relegal martinets, yet there are always some lawye rs

who desire to appear smart, quick, and attentive,and the leading question gene rally Offers an easymark for fustian forensic display . And so ,

when

ever an opportunity offers, and frequently only for

the sake of interruption , they are on their feet withan obj ection . Now, this i s s imply an exhibition of

priggishness ; nothing more . It does not indicateeither learning or skill

,and it is offensive to eve ry

man of l iberal instincts . An Obj ection should

always be made where it would prope rly seem tol ie

,but it is bad form to continually inte rj e ct them

into examinations designed only as prel iminary to

the real matters involved in the issue.174. But while i t i s now permitted to lead a

w itness up to the point at issue, ye t, when th e que s

tionab le matter is re ache d, the rule applie s in all itsstringency. This e very lawyer i s presumed to

kn ow, and no honorable practitioner wil l intention

ally violate the rule . Indeed,there are b ut few

things that more unmistakably stamp the petti fog

ger than a persistent l ine of que stions designed to

assi st the witness or suggest the answers .

175. CROSS-E X AM INATION . Th e r ight of crossexamination is justly regarde d as a valuable privi

lege in th e trial o f contested cases , and the rules of

evidence do not permit the introduction of testi

mony which has not been , or cannot be, subjected



ornation of perjury that it is difficult, from a moralpoint o f view, to distinguish between them .

177. Unfortunately instances o f the foregoingare too common in counsel

,who

,with misdirected

zeal , esteem everything permissible that contributesto the success o f their cl ient’s cause. But

,in time

,

such men invariably lose caste in th e pro fe ssion, are

distrusted by the j udge s and rej ected by juries . Nolawyer can long continue in the practice of confusing the honest, brow-beating the timid

,falsely con

struing the words of a witness, or placing in his

mouth words that were never uttere d , without acquiring the characte r of a trickster . Me n will lookwith suspicion upon everything that he says or does

,

and will finally come to deny to him the credit o f

truthfulness even when he is de al ing honestly with

them .

178 . When counsel has reason to bel ieve thata witness i s lying

,and is so assured in his own

m ind,then he may treat him as a l iar and deal with

him accord ingly . A cross-examination is large ly

under the discretion of the court, and , for the pur

pose Of testing th e credibil ity of a witness , counsel

will usually be pe rmitted to cove r a wide range of

inquiry . But,in such cases , th e inte rrogatorie s

should be directed only to this point . The privilegedoe s not carry with i t th e right to indulge in irre le

vant investigations of the pr ivate l i fe of the witness ,nor to propound que stions intended only to degrade

and humiliate him before the jury. Attacks of this

GENERAL PRACTICE.

kind,under the guise of cross-examination, are not

only unjustifiable in morals , but directly tend to

bring the administration of the law into disrepute ,and to lessen the respect o f the people for courtsof justice . Therefore

,no lawyer who desires to

maintain the high standing Of h is profession wil l

abuse th e privilege of cross-examination , and judge swho appreciate th e true nature of the judicial func

t ion will always correct such abuse where same i sattempted.

179 . OFFERS OF IMPROPER EVIDENCE . As pre

viously remarke d, a lawyer, a l icentiate of the

courts,i s presumed to be conversant with th e rules

of evidence,and

,being so conversant , i s expected

to conform to their requirements in the trial of

causes . The temptation to overstep the bounds i so ften very great

,particular ly with a witness who is

either timid or stupid,and

,in such cases

,courts

are ever incl ined to construe the rules with great

l iberal ity. But while counse l may be pardoned foran in fraction of th e rule s, where h is only object i sto e l icit competent evidence

,no such clemency can

be exte n ded to on e wh o de lib e rate lyan d persistentlyendeavors to submit evidence that i s cle ar ly in com

petent and which, as a lawyer, he i s presumed toknow is incompetent. Yet this i s a common offense

on the part o f many who would resent the imputat ion of unfair practices

,and no l ittle ingenuity i s

Often employed to draw out statements that are

promptly str icken out , yet , having in fact been

1 1 2 ESSAYS IN LEGAL ETH ICS .

heard by the jury are not without influen ce in the

framing of the verdict . This has always been re

garded as highly improper , and he who resorts tosuch methods places himsel f on th e plane of th eshyster and petti fogger .

180 . Another device i s to make an offer ofproof with an argument for its admission

,the argu

ment being intended not for the court but for the

jury. It has been said that the offer o f eviden cewhich counsel knows the court must reject as in

competent, for the mere purpose of the effect whichth e argumen t of its admissibil ity will have upon

the jury, i s an artifice unworthy of a lawyer . Asa general proposition

,this i s true ; and where th e

practice i s persistently followed the offende r should

be subjecte d to discipl ine . It i s hard,however

,to

draw the l ine at all times between the proper andthe improper in the presentation of testimony

,and

while counse l o ften Offe r incompetent testimony ,and strenuously insist that it shall go to the jury,i t is difficult to say

,in many cases

,that the motive

i s not honest .18 1 . COACH ING OF W ITNESSES . A very impor

tant question is raised when we come to inquire intoth e extent to which a counsel may instruct the witn e sses who are to testi fy in a trial . The law guardsth e production of te stimony with jealous care . Itwil l not even permit a leading question, i f relating

to amate rial issue , to be put or answe red . This is

not because the answer may not be true, but because



considered ; i t is th e fact o f in struction only withwhich w e are now concerne d , and this, it se ems, i sa violation of profe ssional ethics . In support of

this position it is contende d,that a court

,b e fore

whom an issue is pending,has a right to the inde

p endent and unwarped te stimony of a witness ; that

whe re th e answe rs are furnishe d by another thecourt obtains ne ither the language n or the memoryo f th e witness

,but only that of h is teacher, and

that when such te stimony has been offere d and re

c e ived a fraud is committed on the court . I f the

perpe trator o f thi s fraud i s th e counse l in the case,then , as an officer o f th e court h e has offende d, hemay be subjected to i ts summary discipl ine, and

punished for a derogation from profe ssional integrity.

185. ADVISING W ITNESSES . There is anotherphase Of the subj e ct discussed in the last paragraphth at may properly claim our attention in connection

with it, and this we may distinguish as advice given

to witnesse s . While counsel may not assume therole o f instructor

,h e may, with propriety, advise

his own witne sse s in respect to their testimony. The

ave rage witness will usually bring forward muchthat i s incompetent , i rrelevant an d immaterial ; i ti s a legitimate function for counsel to si ft this andto in form th e witne ss what i s and what is notwante d . H e may further advise th e witness with

respect to th e characte r and methods Of opposing

counse l on cross—examination,and caution him in

GENERAL PRACTICE. 1 15

regard to same. He may instruct the witness as to

what evidence is and what is not admissible, and

suggest to him his conduct and demeanor while on

th e stand. Indeed,in many cases this would be his

duty. It will rarely happen that men who are

unused to the procedure of courts can take the stand

without some previous advice,and do justice to

either themselves or the parties .186. A careful lawyer wil l always confer with

hi s witnesses in advance. He will ascertain what

they know and the facts to which they can testi fy.

He will endeavor to se e where he is strong as well

as where he i s weak,and wil l take due precautions

to guard hi s vulnerable points . Now, i t may be

that he does not desire al l of the facts within the

knowledge of th e witness , and, while the witness i s

under a duty to tell the truth,it is only the truth so

far as he may b e interrogated . There is no impro

priety in counsel advising h is witness not to speak

of certain matters unless Specifically questioned

with respect to same. This i s not coaching,” in

th e sense in which that term is ordinari ly employed .

Neither i s there anything improper in cautioninga voluble witness against saying too much

,nor in

urging a reticent one to tell al l he knows,even

though in so doing suggestions are required to be

made. Again, the witness must frequently beshown the difference between what he actually

knows and what he merely surmises,and

,to do this,

instruction”

is essential .


187. A favor ite device with many lawyers i s to

commen ce a cross- examination by asking the witness who h e has talked with about the case, or, by

asking him i f he has not discussed h is te stimonvwith opposing counsel . The effect upon the witne ss i s usually embarrassing

,particularly i f he i s

ignorant or simple. He sees in the question only

an imputation that he has been coached for the occa

sion , and, in his anxiety to dispel this ide a, not

in frequently answers in such a manner as to expose

his own veracity to impeachment . Of course, this

was just what the examiner intended when the

question was propounded . Al l this may be avoidedb y cautioning the witne ss in advan c e ,an d by directing him to answe r ful ly and frankly al l questions

that may be put to him respecting the persons withwhom he has talked as well as the times and places

where such conve rsations occurred . Such adviceis not only proper but

,in most cases

,should be

given as a part of the attorney’s duty .

188. BRIB ING WITNESSE S . Approaching a witness for the purpose o f influen cing h is testimony,being an attempt to obstruct the administration of

justice, has ever been considered gross misbehavioron the part o f an attorney. I f the act occurs in th ecourt house it i s punishable as a contempt, but,wherever i t may have happened, i t subj ects theOffender to discipl ine . As this Offense strikes at the

very foundation of judicial determination a wide

di scretion is reposed in courts with respect to the



gent fees agreed to be paid to witnesse s in the eventof the successful termination of the matter in dispute there may, perhaps, be some room for question .

By such a course they become actually interested in

the result of the suit. But this , in itsel f, i s im .

material , as inte re ste d parties may now testi fy thesame as others and interest no longer constitutes a

disqualification . I f the witness i s cal led to tel l thetruth and not to bolster up a falsehood

,then

,not

withstanding he has be en promise d more than thestatutory fe e , i t can , in n o j ust sense, be called

bribery . Its effe ct is not to obstruct th e administration of j ustice

,but rather to facil itate same .

19 1 . Th e law contemplates that a witness shallbe paid for his time as we l l as reimbursed for hisexpenses

,and no witness can be compelled to tes

t ity in a civil case unless his fee has been paid ortendered . In the case o f expe rts, large fees are nowdemanded and openly paid . In principle there i sno difference between the witness who testifies to

opinions, and th e witness who testifies to facts ; bothare simply aids in the ascertainment o f truth . In

order that every one may have the benefit of witnesses to support their contention th e legal fee hasbeen reduced to a minimum, but there is no rule o flaw that prohibits the payment o f more than th estatutory allowance . The gist of the questionseems to lie in the purpose with which the money

i s paid or promised, rather than in the payment or

prom i se itsel f. I f such purpose i s to corrupt th e

GENERAL PRACTICE. I 19

witness, either by inducing him to testi fy falsely or

not to testi fy to what he knows , then it i s bribery,an d punishable as such .

192 . W ITNESS IN H I S OW N CAUSE . It i s an un

written law of the legal profession that an attorney

may not be a witness in the cause he is conducting.

The rule i s scrupulously observe d by every sel f

respecting lawyer,and yet it seems to rest wholly

on ethical grounds . It i s not contrary to any

statute, nor even to any maxim of the commonlaw, for an attorney to take the stand for his cl ient,and while courts may endeavor to discountenance

the practice they are powe rless to prevent it.1 3 I twould seem that in England it has be en h eld a per

son may not appe ar in the double capacity of witness and advocate

,but in this country the courts

have done no more than to condemn the practice as

indecent and in violation of profess ional propriety .

1 4

193 . An attorney occupying the dual position

o f witness and advocate necessarily subj ects his

testimony to criticism,i f not to suspicion , and , i f

he has any pecuniary interest in the result o f th e

suit , places himself in a strictly unprofessionalattitude 15 If i t be comes ne cessary for him to testify, or i f he voluntarily offers himsel f as a witne ss ,then , in common decency, he should withdraw fromth e case.

1 3 Morgan v . Robe rts, 38 I l l . 65.

1 4 Fre ar v . Dr inke r, 8 Pa . S t. 52 1 .1 5 Ross v . Demos s , 45 I l l . 447.


194. There may,perhaps, be occasions when an

attorney is j ustified in taking the stand, as when thetrial develops some unlooked for phase whichdirectly impl icates or impugns h is professional

integrity,but such occasions wil l be few and far

between .

195. The rule that excludes the attorney from

the stand as a witness to facts should be equallypotent in excluding his unsworn Opinions . I t i sa common practice for lawyers, in discussing th eeviden ce , to assert their own belief in the truth o fthe statements o f witnesses or the justice o f thecause they are advocating. This i s a species o ftestimony, and is so intended by the speaker. Butwhat counsel may bel ieve or disbel ieve, i s whollyimmaterial . H i s province is to induce bel ief in

others . This he accomplishes, i f at all, by the clearness and cogency of his argumen ts . The arguments are based on the facts o f the case

,and th e

occasions will be rare when he is justified in throw

ing the weight of his own private opinion into th escale to favor the s ide he represents . There may

be times when peculiar circumstances seem to callfor such a course, but no lawyer can hope to command respect for opinions of this nature that arefreely volunteered in every and all sorts o f cases .196. ADDRESSING TH E J URY. The subject of

our last paragraph brings us to one of the mostimportant of the lawyer’s functions in practice

the argument to the j ury . The value o f the jury



large them . He may palliate,but not distort them .

He may extenuate,but not misstate . In no field of

legal effort doe s the truly gre at advocate more con

spicuously appear than before the jury ; in no field

i s th e chicane ry and tricke ry of the petti fogger more

clearly displayed .

198. ABUSE OF TH E OPPOSITE SIDE . There wasdeveloped during th e early part of the last centurya class o f advocates that deemed it the higheststroke of pol icy to load with opprobrious epithetsand abuse the counsel

,clients

,and witnesses on the

opposite side . This was practiced not alone at n isi

prius, but in the more dignifie d forum of the appellate court as well

,and so wide spread and deep

seated did this pernicious practice become that rarely i f ever did it call forth a rebuke from the court .

It i s a matter for congratulation that,save in ex

c eptional instances , the practice seems to have diedwith the forensic l ions that inaugurated it, and,notwithstanding the few sporadic mani festations Ofold—time methods occasionally seen , a higher and

manl ier spiri t actuates the bar of the country in thei r

legal disputations and debates than was percep tiblehal f a century ago . Tlie practice originated in mistaken and perverted views of qual ities and effects,and although it wore the semblance o f in trepedityand courage it was, in fact, only an exhibition of

rank cowardice.

199 . The young attorney who thinks he wil l at

tain fame as a trial lawyer by adopting this boorish


and generally discarded practice makes a grave mis

take . He may re ce ive th e plaudits O i th e ignorant

and uncouth,but h e will excite only disgust in th e

minds of those most competent to j udge, and whose

good Opinions it should be h is constant e ffort to ac

quire and retain . Nor do such exhibitions indicate

th e possession of those qual ities that bring success

in modern practice . They are th e devices Of small

and ill- in formed minds ; the arrogant assertions of

presumptuous self ; and are resorted to only by th e

boor, the shyster, the petti fogger and the moral degenerate.2 0 0 . TAMPERING W ITH RECORDS . The Official

records of courts , and the fi l es of judicial proceed

ings , are so far inve sted with an element of sanctitythat the i r integrity may not b e impaire d by an un

authorized act . I f,through any cause or from an y

reason , i t becomes proper that the y should be corre cted, altered, or amended , leave therefore mustfirst be Obtained and th e change produced under thesame safeguards that appl ied when they were originally made. It i s immate rial that th e alterationmay be sl ight or inconse quential , or that its only

effect may be beneficial to all parties concerned,for

no one other than the court may assume to passupon the question .

2 0 1 . I f this be true,then i t fol lows, with much

stronger reason , that an attorney may not tamperwith a record , file

,or document

,in order to make

it express that which before it did not , and thereby


cause it to serve h is own purposes to the detriment

o f his adversary . Such an act clearly evidences awant o f moral sense which r enders him incapable of

appreciating and discharging the duties and Obli

gation s of a lawyer toward the public , the bar, andth e court, and ne ither ignorance nor inexperience

can be urged in extenuation Of such an Offense .1 7

Where such a derel iction of pro fessional duty is

shown , the courts , to protect litigants and maintaintheir own dignity

,may summarily discipl ine the

Offender by striking his name from the roll .2 0 2 . ABUSE OF PROCESS . The law has provid

ed a regular method Of procedure for th e vindication and prote ction of rights . Th e courts are intrusted with the administration Of this procedure ,but its practical application rests largely with thelawyers, who, as the ministers of justice , are presume d to adapt it to the varying wants of suitorsan d the exigencies of particular cases . The processby which legal ends are attaine d has, in large meas

ure , been committ ed to the b ar , to b e by it employed for the legitimate purpose s of l it igation, andnotwithstanding that the details of s ervice

,l evies

,

e tc . , are performe d by the executive officers of thecourt the direction and control Of such work stil l

remains with the attorney who i s conducting the

case.

2 0 3 . But lawful process may be , and often is ,abuse d , and while ostensibly employed in the fur

People v. Moutray, 166 I l l . 630 .



an abuse o f process ; a rank perversion of the machinery of the law, and a degradation o f j udicialfunctions , but while it violates the canons of ethics

i t infracts no legal rule , and th e reme dy thereforli es only in the forum of conscience .2 0 5. DUTY TO TH IRD PERSONS . The duties of

an attorney to his cl ient, his professional brethren ,and the court, i s re se rved for more specific treat

ment in subse quent chapters, and we may close ourObservations Of gene ral practice by a cursory viewo f the duties Of an attorney to third persons con sidered not as constituting the public— society— but asin d ividuals . It may be stated as a general proposition that, in the absence of fraud, falsehood, andcollusion, an attorney is under no professional obl igation or duty to a third person . In some instances distinguished lawyers have contende d that

the rule is absolute and imperative, without ex cept ion or qual ification . Thus

,Lord Brougham1 8 i s

reported to have said :

2 0 6 .

“An advocate, by the sacred duty which h eowes h is cl ient, knows in the discharge of that Office but one person in the world, the cl ient and none

other. TO save that cl ient by all expedient means

to protect that client at al l hazards and cost to al lothe rs , and among others to himsel f— i s th e highe st

an d most unque stione d of his dutie s . He must notregard the alarm

,the suffe ring, the torment , the

destruction which he may bring upon that other.”

1 8 Addre s s on th e tr ia l o f ! ue e n Carol ine .


2 07. But this extreme V iew has never met the

approbation of th e bar, either in England or Amer

ica,and is repudiated by th e great majority of rep

utab le practitioners . Whil e admitting the rul e ,which is in every way just and reasonable , i t must

yet be held to apply only to th e know le dge , skill ,care and dil igence of the attorney with respect to

the particular case in which he is engaged. To the

cl ient he is under certain Obl igations , for the just

fulfil lment of which he i s legally as well as morallybound . But to third persons , where no privityexists and whe re there is no fraud or collusion , he i s

unde r no duty, an d even though injury may result

to them,through his negligence or want o f skil l

they would stil l be without remedy against him .

1 9

1 9 Bank v . Ward, 1 00 U. S . 195; Dunde e Mtg. Co. v.Hughe s, 2 0 Fe d. Rep . 39 .

CHAPTER VI I .

CRIM INAL PRACTICE.

Gene ral ly cons ide re d—Th e re taine r—Duty to pe rsons accusedKnowle dge Of pr i sone r’s gu i l t—Ge ne ral dutie s in defe n se—Th e prose cut ion o f cr iminal s—Duty o f pe rsonsOfficia l ly charge d with prose cut ion—Propr ie ty o f private counse l as s i st ing in prose cutions—Dange rs o fcr imina l practice .

2 0 8. GENERALLY CONSIDERED. Probably notop ic relating to legal ethics i s more frequently al

luded to, or more generally discussed by the public ,than the duty of an attorney in defending a personcharged with crime ; and probab ly, also, there i s no

subj ect upon which the publ ic are more prone to arrive at superficial and erroneous conclusions . Formany years it has furnished a fruitful theme forshallow—brained declaimers and writers Of moral

homil ies , and apparently has lost none o f i ts pri stinevigor and usefulness as an ever ready and available

i l lustration of the perversity of law and lawyers .Let us then examine this question for ourselves andendeavor

,i f possible, to ascertain the true course of

pro fessional duty.

2 0 9 . It i s now a guaranteed right of every person charged with an infamous crime—treason orfelony—to be confronted with hi s accusers and to

be represented by counsel i f he so desires . He has128



question involved,for one Old wr ite r23 advances as

a reason that “our law doth abhor th e defense andmaintenance of a bad cause ,

” and thi s, h e says , i s

one o f th e reasons “why our law doth not allowcounse l unto such as are indicte d Of treason, mur

de r,rape

,or other capital crime s ; so as never any

pro fessor Of the law Of England hath been knownto de fend ( for the matte r of fact ) any traitor, murde rer

,ravisher

,or thie f

,be ing indicted and pros

e cuted at th e su it Of th e king. and

th e re fore it i s an honor unto our law that it doth not

suffe r the professors the re of to dishonor themselves

(as the advocate s in other countries do ) by de

fending such Offende rs . ”

Th e inhere nt viciousness

Of the foregoing is seen in that it assumes to fix th e

question of guilt,not upon the facts to be proved,

but upon the charac ter o f the crime with which th e

accuse d stands charge d. Ye t this, for many years ,may be said to fair ly repre sent the spir it o f the

Engli sh law . From time to time slight innovations

were made upon th e severity of th e rule, but at

tempts to remedy th e e vil by legislation we re longand obstinately resisted

,and it was not unti l 1836

2 4

that the last remnant of this barbarous practice was

finally swept away.

2 1 2 . In the Unite d States, notwithstanding th e

harsh doctrines of th e old law se em to have be en

applied to some extent during the colonial period,a

2 3 Davy’s Reports, Pre face .

2 4 6 and 7 W m. IV ., c. 1 14.

CR IM INAL PRACTICE . 31

more wise and humane pol icy has always prevailed .

From the institution of the present government it

h as always been a cardinal rule, that every mancharge d with cr ime shall b e adjudged only on the

evidence produced . I f the evidence i s weak and in

conclusive,it i s the sworn duty of the jury to acquit .

I f the charge itsel f i s so inartific ially framed that itwill not sustain a conviction, i t i s th e duty Of the

judge to dismiss the suit . This procedure i s bel ievedto be eminently just and wise ; i t i s the result Of

time acting on experience, and represents the slow

outgrowth of preceding ages in ideas Of abstract

justice.2 1 3 . Nor does such procedure in any way mil

itate against a sound moral ity, e ven though its e f

feet,in some cases

,may be to permit a gui lty man

to escape. It i s th e privilege of the accused to point

out deficiencies o f indictment or eviden ce , and, this

being true, there can be no violation of moral dutyon the part o f counsel who assumes to do thi s for

him . The popular clamor, so O ften heard, concern

ing th e loopholes in th e meshes o f the law,whereby

criminals go unpunished,i s but the veri est bosh,

and it i s immaterial that much Of this clamor originate s with me n who assume to be teachers Of

morals . That our criminal law is perfe ct and our

legal machinery without defect,no one asserts ; but

we have made a great advance over the “good Old

days”

when poor and decrepit women were ruth


lessly and brutally sacrifice d on the altar Of j ustice

by pious and God- fe aring men .

25

2 14. TH E RETAINER . Except when duly assigned by order Of court to de fend a poor prisone r ,a lawyer is under no legal duty to accept a crim

inal re taine r,nor will he , by such denial , violate any

e thical canon . It i s h is r ight to so deny , i f h e deemsit th e proper course to pursue. H e i s under no Ob

l igation to pall iate and defend iniquity Of any kind

in a court o f j ustice,or to undertake a cause which

his soul abhors,and h is condition would be that of

an abj e ct and miserable slave i f, as some would con

tend, he were to be at the command of every mis

creant who might choose to employ him .

2 15. But there are times when acceptance seemsa moral duty

,and when to do so may require no

small degree of moral courage. I f th e offensecharged is one that has deeply affected th e commu

n ity, creating against the accused a strong adverse

fe el ing, an attorney assume s a great ri sk in accepting a retainer to defend and

,upon more than on e oc

casion , lawye rs have lost both friends and practice

by e spousing an unpopular cause. In such a case ,i f the lawyer is timid, or, to employ a more euph e

mistic term,conse rvative

,h e will generally decl ine

2 5 Eve n so pe r fe ct a characte r as Sir Matthew Hale wasgu i l ty Of th i s cr ime , and condemne d to de ath two poor andinnocent women , in viol at ion o f th e pla ine st ru le s o f justi ce ,and agains t whom the re was no e vidence that ought to havebe en give n any we ight in th e m ind of a re asonable man ,though h e be l ieve d in witchcra ft.



quittal for his c l ie nt . I f h e be l ieve s him innocent

this , in itsel f, will b e a spur to effort, but eventhough h e may fee l that th e prisoner is guilty

,this

,

in itse l f,should not b e a deterrent .

2 18 . Before trial he should carefully examinethe indictment unde r which the prisoner i s held .

I f it i s defective or insufficient for any reason heshould at once bring his Objection before the court .This i s a clear and posit ive duty

,and counsel as

sumes a fearful re sponsibil ity i f he knowingly failsto make an Obj e ction to the indictment, which , i f

taken , would be fatal to the prosecut ion Of the suit.2 19 . Dur ing th e progress of the trial he should

seize every point th e law allows as aprotection for

his cl ient, for that same law which the prosecutor i s

wie lding as a sword he has a right to employ as ashie ld. He must insist on the due observance Of

e ve ry safeguard that the law has provided, and i fany legitimate aven ue of e scape appears he betrayshis trust i f he fails to avai l himsel f Of it.2 2 0 . KNOWLEDGE OF PRISONER’S GUILT . Notthe least among th e indictments o f th e legal pro i es

sion,found by the se l f- constituted conservators of

publ ic morals,is the assertion that lawyers have no

conscientious scruples against defending a person

charged with an infamous crime,although they may

know him to be guilty . This,in th e minds of many,

i s the depth of professional in famy, and a lawyer

who will so far lower himsel f as to accep t a retainer

under such circumstances,or who will continue in a

CR IM INAL PRACTICE .135

c ase after such knowle dge has been brought home

to him,i s regarde d as utterly deprave d and desti

tute o f moral feel ing. Probably no phase o f our

general subj ect i s so Often adverted to and so gen

e rally condemned as this, and therefore it mer its our

serious and candid consideration.

2 2 1 . Now , i t i s a well-known fact of commone xperience that the profe ss ional moral ist i s usually

a very one- s ide d person with a narrow mental hori

zon, and his disciples, as a rule, tend to develop th e

same character i stics . The lawyer,notwithstanding

his constant practice o f supporting one S ide Of an

argument,has a far wider range of mental vision

and a bette r knowle dge of appl ie d ethics . While he

de als with th e law as it is, he is yet conversant with

what it has be en and what it tends to become,and

his course i s Shape d by the lights Of the past and the

future,no le ss than by those of the present. He has

debated this question long and earnestly . He has

examined it in all its b earings and with eve ry aid

that time and e xperience can furnish . As a result

of this pro found and careful study he has announce dthe doctrine that counse l may, with no violation of

moral duty,undertake th e defense of a man charged

with crime, whom he be l ieves or e ven knows , to beguilty.

2 2 2 . I f counsel has direct knowledge Of the

prisoner’s guilt,as where the accused confe sses

same , he may well pause before assum ing the detense , but h e may, with the utmost propriety, pro


c e ed, and should he refuse so to do it i s within th epower of the court to compel him, as has beenshown in another place.2 2 3 . The law

,l ike charity

,thinketh no evil ;

wherefore it has long been a cherished rule that

every man charged with crime is pre sumed to b einnocent, and this presumption continues unti l th eprose cution, by proof, shal l have establi shed his

gui lt beyond a reasonable doubt . Of this rule th e

advocate i s the intermediate minister,and he is jus

tified, i f not bound, to enforce its appl ication to th e

inconclus iveness o f the evidence adduced ; and hemay do this the more readily because even the jury

themselves are bound to secure to the accused thebenefit of its application.

2 2 4. Before th e law all men are equal , and

guilty men have th e same r ight to be defende d andto b e repre sented by counse l as have th e innocent .This right is extended to all in th e furtherance ofpublic justice

,and is founded upon the principle

that no one shal l be convicte d except on legal and

sufficien t evidence . But this principle also defines

the scope and extent Of the advocate ’s duty in conducting a de fense of this kind. He is mere ly boundto screen hi s cl ient from conviction on incompe tent

and insufficient evidence,and to use all fair argu

ments that may arise from the trial . He may expose th e weak parts Of th e evidence against him

and enlarge on those parts which tend to hi s favor ;he may e ven exhibit, as fully and as forcibly as he



may materially change the method of defense,the

duty itsel f is unaltered .

2 7

2 2 7. The foregoing remarks apply only to thosecases where counsel has positive knowledge that his

client is guilty. Mere suspicion, even where it mayamount to belie f, wil l not justi fy any relaxation o fe ffort to secure an acquittal , for it wil l Often happen

that the most honest case may be destitute of eviden ce to support . i t while al l the known circum

stances point to guilt .” Such cases have occurred

2 7 Thi s phase Of our subj e ct was definite ly se ttle d dur ing th efirst hal f Of th e la st ce ntury, th e pr incipal pre ce dent be ing anEngl ish state tr i a l , now known as th e Courvois ie r Case ,which was he ard in 1840 . Se e Appe ndix.

2 8 Pe rhaps th e most remarkab le case o f e rrone ous conviet ion that e ve r came unde r th e cognizance o f a cour t occurre din our own country dur ing th e l ast century. Th e case i s a sfol lowsTwo brothe r s, by name Boorn , we re arre ste d in Ve rmont,in th e ye ar 1819 , charge d with th e murde r o f on e Rus se l Colv in. The y w e re tr ie d upon an indictme nt for th e Offense , inth e Supreme Court o f that state , at Benn ington . Th e p re

sumption o f gui l t was v iol ent, drawn from many circumstance s prove d by diffe rent witne s se s . They had quarre le dwith Colvin

,and thre atene d h is l i fe . Nay, they we re actual ly

se en in v iol ent pe rsonal conte st with h im, in a fie l d, on th e dayof h is di sapp e arance . H i s d i sappe arance was scarce ly noti ce dat th e t ime , for Colvin was a poor man ; no on e care d for h imal ive , and no on e was inte re ste d to prove h im de ad . Sometime afte r , howeve r , bone s we re discove re d , in a p i t or naturalhol low

,i n th e fie l d whe re th e quarre l had be e n witne s se d,

and ne ar th e ve ry spot o f th e suppose d fatal al te rcation .

The se bone s we re ide ntifie d as “not d i s s imi l ar” to such asm ight have compose d th e body of Colvin . In ‘

th e same p i twe re al so found a kn i fe and on e or more button s, and th e

CR IM INAL PRACTICE .1 39

many times in the past and will occur many times

in the future.2 2 8. PROSECUTION OF CRIM INALS . Thus farwe have been considering our subj ect from the point

Of view of the de fense. Let us glance at the other

s ide. O f course,persons charged with criminal Of

fen se s must be prosecuted as we l l as defende d. In

the Old days this was practically the only side to astate trial

,and the record is not always creditable

either to prosecutors or judges . Al l prosecutions,whe re the charge amounts to a felony, are conduct

ed by a publ ic offic e r— the state’s attorney. With

him there is no option ; he must discharge the dutyhe has sworn to fulfil . But in the performance ofthis duty the man should neve r be extinguished inthe prosecutor . H i s Office demands h is be st effortsin all cases

,but he i s unde r no duty to secure a con

viction in any case,and h e ful ly discharges all Of

th e Obligations Of his Office by a proper and faithfulpre sentat ion Of the facts . H i s duty is pe rformed,and well pe rformed

,when he has done all that l ie s

forme r was identifie d as having be longe d to Colv in ; and th el atte r as having be e n attache d to his garme nts ; and th e pr i sone rs actually c on fe ssed that the y we re gui lty Of th e murde r .

They we re convi cte d and senten ce d to de ath ; b ut, th e an

n als Of our cr imina l j ur i sprudence are not sta ine d with th ecr ime o f j udicia l murde r by th e exe cut ion of that sente nce ;for Russe l Colv in was al l th i s whi le al ive—was d iscove re das a farm l abore r in N ew Je r se y, whithe r h e had wande re da fte r hi s alte rcation with th e Boorn s, which the y re al ly sup

pose d had re su l te d in h i s de ath . H e was brought back inse ason to save th e l ive s o f th e convi cts.


in his power to bring out the truth of th e i ssue in accordan ce with establ i shed rules o f evidence . I f th eevidence tends to incriminate he has a right

,and it

i s his duty , to make all proper arguments thereon

to the jury ; on the other hand, i f the evidence is

weak, or tends to demonstrate innocence , he commits a grave error in urging a conviction .

2 2 9 . Too many prosecutors seem to think thatthei r employmen t demands a conviction

,and the i r

attitude and be aring during the trial shows that theObject i s not simply to bring out the truth Of th e

matter but to con vict . In many counties where thefe e system still obtains th e publ ic prosecutor is al

lowed a certain fe e for conviction,

” and too Often

the prospect o f that fee i s th e one stimulating ihc e n tive that urges h im on . The public prosecutori s an office r o f th e state . The state has said thatno presumptions o f gu i lt shall b e raise d against theaccused and that h e shall b e fair ly and impartially

tr ie d . Therefore,th e state ’s attorney has no r ight

to bring to a state trial any pe rsonal animus againstth e prisoner, nor should h e , any more than any

other citizen , be permitted to regard the accused asothe rwise than innocent until h e has been pron oun ced guilty by th e jury.

2 30 . On the other hand,the me re fact that a

prosecutor may bel ieve an accused person to be innocent gives him no right to sl ight his duty

,for

,

2 9 This i s a l so on e Of th e grave de fe cts o f th e Fede ral system Of cr imina l proce dure .



i t becomes evident that the accused cannot be con

victed. In such a proceeding the guilt or innocen ceo f the prisoner i s immaterial .

2 32 . PRIVATE COUNSEL IN CRIM INAL PROSECU TIONS. It not infrequently happens that privatecounsel are employed to ass ist the state. This i snow generally regarded as an allowable practice

,but

for many years an attorney accep t ing such a re

tain e r, particularly when his fee was paid by pri

vate parties, was considered as having violated ane thical canon of the profession. This was alwaysthe case when the charge involved a capital crime.“Never take blood money,

”

say the Old writers ,3 0

and i f we are to credi t the biographies of th e ancient worthies they never d id . In fact, the old

C iceronian idea se ems at one time to have thoroughly pervaded the bar, and numerous admonitions

have come down to us that where l i fe or de ath i sthe issue

,

“ it is always more honorable to defend

than to prosecute .” But this idea seems to have been

denied effect in later years , and the mere fact of

such employment wil l not,as a rule

,cast unfavor

able imputation upon the character Of the advocate .2 33 . The re i s

,however

,a wide diffe rence b e

tween the functions Of th e public Officer and th e private counselor . The former must, as a part Of hisofficial duty

,duly prosecute all persons who have

been presented by the grand jury or othe rwise held

to await trial on a criminal charge ; the latter i s3° Brown’s, Forum, Vol . 2 , p . 40 .

CR IM INAL PRACTICE .143

under no duty whatever,and i f he appears it i s en - o

tire ly a matter Of his own volition . Therefore,while an attorney may be permitted to assi st in a

prosecution,i t i s yet a privilege that he should ex

e rc ise with the utmost caution and circumspection,and neve r

,under any circumstances

,should he con

sent to aid in the conviction Of one whom he knows

or believes to be innocent . I f he represents privateinterests

,i t has been held in some states, he cannot

be retained to assist in criminal prosecutions grow

ing out o f such inte rests,

3 1 and the rule seems to be

eminently salutary and just.2 34. But

,in any event

,such retainers should

be accepted with reluctance and only in extraordi

nary cases, where peculiar circumstances seem to

justi fy the act. There is something revolting to themoral sense in the spe ctacle of counsel sell ing his

talents to en able an in dividual to satis fy his thirst

for vengeance, and this, in most cases, i s j ust whatcounsel does when he accepts a private retainer to

assist th e prose cuting Office r . In no case can counse l insist on ente ring a state trial on behal f of the

people , an d he is adm i tte d, i f at all , only as an act

o f grace on the part Of the state’s attorney.

2 35. CRIM INAL LAW A S A SPECIALTY. For

many young lawyers the criminal courts seem to

possess an Ove rwhelming fascination . This i s due,in large measure , to the notoriety that usually at

tends criminal trials,the opportunities which such

3 1 Se e , Pe ople v. Hurst, 41 Mich . 32 8.


trials afford for the display of forensic eloquence,

and the prominence into which the attorneys con

ducting same are frequently thrust. Hence i t is,

that many young and ambitious advocates are at

tracted to the criminal courts and after a brief ex

pe rien c e therein conclude to devote themselves tothis branch of the law as a specialty. There i s nolegal obj ection to this course . Criminal practice i s

a legitimate and necessary function of the advocate,

and every man , as before remarked, has a right to

select his occupation in l i fe .2 36. There are, however, many moral obje c

t ions that may be urged . The criminal lawyer par

excellence, th e

“ eminent counsel ” of the newspaper

report,the lawyer of exten sive fame, i s almost in

variably the defender, not the prosecutor, Of criminals. H i s services are sought and secured by hardened guilt as well as haple ss innocen ce, and his ent ire pro fe ssional l i fe i s passed in close contact withmale factors of all kinds . We are assured by a high

authority that “ a man cannot handle pitch and

not be defiled, and we may say, with equal certainty

,that a man cannot continually stand as an

apologist for crime and a de fender Of criminals

without having hi s own moral sensibilities sadlyblunted . There exists no nece ssity in any community for a criminal bar, and the lawyer who volun

tarily devotes his talents and learning to this one

branch Of the law commits a great and ofttimes irreparable mistake .



2 38. TH E RELATION . An attorney is essentially an agent . In fact, this i s what th e word

“attor

n ey” means, and the general pr inciples which con

trol in matters o f agency are all applicable to attorneys . The spe cial undertaking of an attorney is toestabl ish or prote ct th e rights Of his client

,whether

relating to l i fe , l ibe rty, person , reputation or prope rty. This necessari ly cre ates a re lation o f trustan d confidence betwe en them which measures anddefines the extent of th e attorney’s duty.

2 39 . It was formerly held that to e stablish th erelation o f attorney and cl ient a retaining fee must

have be en paid,but th e modern doctrine is that,

while such payment is the most usual and weighty

item to evidence the re lation, it i s by no means in

dispensable. The essential feature Of the professional relation i s the fact of employment to do something in th e cl ient’s behal f. It i s stil l he ld, in some

states,that the re must b e an agre ement, express or

implied,for compensation

, but whe the r payment i s

made in part or in whole by retainer in advance i snot material . Nor is i t necessary that the l iabil ity

for th e compensation should be assumed by the

cl ient,although ordinarily it would b e from the na

ture o f the employment,which

,in the vast majority

o f case s,involves the protection or enforcement o f

the cl ient’s inte re sts against adver se c laimss”3

2 40 . In gene ral , howeve r, th e fact of employ

ment is sufficient to constitute the relation, and3 3 Lawal l v . Groman , 180 Pa . S t. 532 .

RELATIONS W ITH CL IENT .147

when such re lation has once been properly cre ated

it continues unti l dissolved by the express act o f the

parties . During the continuation of the relation the

attorney,for most purposes

, stands in the place of

the cl ient,who will b e bound by whatever th e at

torney may do or say,in the regular course o f prae

tice, in the conduct of the cause.34

2 41 . ATTORNEY’S AUTHORITY,

POWERS,AND

DUTIES . The relation of attorney and cl ient n e c e ssarily impl ies an authority 0 11 the part o f the attor

ney to enforce hi s cl ient’s demands and to bind himas a party l itigant in all matters relating to the suit

or special transaction,and persons deal ing with the

attorney, in respe ct to hi s cl ient’s business

,may

justly infer that he has all the powers impl ied bysuch relation. Thus

,he may employ al l proper

means to recover upon any claim that is placed in

his hands, and i f he obtains a judgment hi s author

ity continues in force until the judgment is satisfied. Therefore

,he may pursue all lawful means to

enforce such satis faction,” as well as to protect thejudgmen t i f assailed in the same proceeding.

” Hei s further authorized to re ceive payment o f a j udg

ment which he has Obtained for his cl ient, and suchpayment will bind the cl ient as a sati sfaction .

37

3 4 B e ck v. Be l lamy, 93 N . C . 12 9.

3 5White v . Johnson , 67 Me . 287 ; Ward v. Roy, 69 N . Y .

3 6 She ldon v. Rie sedorph , 2 3 Minn . 5183 7 Fraz ie r v. Parks, 56 A la. 363 ; White v. Johnson, 67

Me . 287.


2 42 . But, with th e foregoing exceptions , the

gen e ral powe rs of an attorney ce ase with th e entryOf fmal j udgment

,

3 8 and while he may col le ct theamount o f the j udgment whe n the same i s formoney only,3 9 he has no authority to accept in sat

isfaction a less sum than that spe cifically re cov

ere d ;40 nor has h e any authority

,on payment of

th e full sum,to trans fer or assign such judgment

to anothe r .41

2 43 . For any act in excess o f his general powe rs

the attorney must have re ceived a spe cial authorityto j usti fy h is own conduct and to render such act

binding upon th e clien t . Thus, in the absence Of a

spe cial dire ction,he has no authority to compromise

or surrende r any r ight of his ne ithe r can h e

de legate to anothe r any Of his own implie d powe rs .43

Th e authority confe rre d by the ordinary employment o f an attorney doe s not extend to confe ssingo r e ven consenting to a judgment against his

cl ient ,44 nor to compromising the amount o f hi s3 3 Maye r v . Blease , 4 R ich . ( S . C .) 10 ; H i l legass v . B e n

de r , 78 Ind . 2 25.

3 9 Conway County v. Ry . CO. 39 Ark. 50 .

4° Robin son v . Murphy, 69 A la . 543 ; Robe rts v. Ne l son, 2 2MO. App . 2 8.

41 Maye r v . E le ase, 4 R ich . ( S . C.) 10 ; Robinson v. Mur

Ph y , 69 A la . 543 .

42 Wadhams v . Gay, 73 I l l . 415 ; Walden v . Bolton, 55 Mo .

405; Marbourg v . Sm ith , 1 1 Kan . 554.

43 D ickson v . Wr ight, 52 Miss . 585 ; Wadhams v . Gay, 73111. 415 ; Phi l l ips v . Dobbins , 56 Ga . 6 17.

44 Edwards v . Edwards, 2 9 La . Ann . 597 ; Pfiste r v Wade ,69 Cal . 133.



requisite knowledge and skill to properly conductthe matter for which he is engaged, and in his un ‘

de rtaking h e will be he ld to employ a reasonabledegree of both . I f injury results to the cl ient for

want of such degre e of reasonable care and skill the

attorney must respond in damages to the extent ofthe injury sustained .

“

2 46 . It must not be understood,however

,that

an attorney,by accepting a retaine r, thereby im

p liedly promises a perfect legal knowle dge with

re spect to the subject-matte r o f his employment ,nor that he will br ing to it th e highest degree Ofskill . Th e law recognizes th e frailt ie s and imperfe ction s of human nature in lawye rs as we l l as in

others, and therefore exacts no more from them

than from the laity . It re quires that one who as

sumes to practice law shall possess th e ordinarylegal knowle dge and skill common to members o fth e profess ion

,and insi sts that

,in th e discharge of

th e duties involve d,h e will be ordinarily and reason

ably dil igent, care ful , and prudent .51

2 47. But, while this i s the extent of legal responsibi l ity, i t i s ye t contended by some writersthat the field of moral responsibil ity i s wider .52 Ananalysi s Of the i r views

,however, does not seem to

justi fy their conclusions,and it may safe ly b e said

5° S tevens v . Walke r, 55 I l l . 151 .

51 Wharton , Negl igence , 749 ; She ar . Re d i . N egl igence ,2 1 1 ; We l l s , Attorneys , 2 85 ; Gamb e rt v. Har t, 44 Cal . 542 ;Skil le n v . Wal lace , 36 Ind . 3 19 .

52 Sharswood, Legal Eth i cs , 77.

RELATIONS W ITH CL IENT . 51

that counsel discharges h is moral as well as legal

duty when he brings to a case h is best learning, ability an d skil l .53 As a rule

,he is not l iable for errors

of judgment,particularly with respe ct to matters of

doubtful construction,but is presume d to know the

law where it i s cle ar and unequivoc al . It wouldseem that the only ethical question arises out Of the

attorney’s consciousness o f h is own fail ings andShortcomings . I f he knows that his knowledge ofthe spe cial matter i s insufficient, or feel s that he doe s

not posse ss the degree o f skill that may be necessaryto insure success ful results

,he commits a grave

wrong when he undertakes an employment thus b e

yond h is abil ity . Unde r such circumstances he

should have th e moral courage to re quest associate

counsel,or

,i f ne cessary, to decl ine the employment .

2 48. It i s not meant, however, that counse l

should ever stand timid and vacillating, with doubts

o f his own abil ity . It may be that th e spe cial mat

ter presented opens a new and wholly untried field,

and yet he may with proprie ty enter same . I f hehas a confiden ce in himsel f

,in his own powers Of

intel lect and endurance, then , notwithstand ing th eformidable appearance of th e case, he may yet unde rtake i t . I f, on closer inspection , he finds obsta

cles that he feels he cannot surmount, or difficulties

he cannot ove rcome , no false pride Should deter himfrom asking for aid.

2 49 . It is better in all matters of exped iency to53 Gi lbe rt v . Will iams, 8 Mass. 57.


follow the instructions of the cl ient , even thoughthey may not coinc ide with counsel’s own views . I ffailure or loss ensue s it is then e asy to fix the responsibil ity . On th e othe r hand, should the in struct ions of th e c l ient b e disregarde d

,and counse l pro

c e ed to act on his views and according to his ownopinions , notwithstanding h e may be under th e

h onest impre ssion that h e would best promote the

interests o f hi s client by such a course , i f loss occursh e i s both morally and legally l iable the refor. Inall case s counse l should adv ise his cl ient to th e bestO f his judgment

,but i f th e cl ient

,as i s not in fre

quently th e case , re fuse s to follow th e advice, i t i ssafe r for counse l to follow the client’s directions .54

2 50 . SERVICE S OF FIRM . It has been judicial ly

he ld that th e se veral members of a law firm constitute but on e pe rson in law ,

and that th e act of on e ,in the partne rship busine ss, i s th e act Of all .55

Hence i t would se em that whi le a cl ient is entitledto th e pe rsonal service s Of th e attorney he retains ,

ye t, i f h e re tains a firm e ither member can perform

th e service ; or , i f asse nte d to by the cl ient, i t may b e

pe rformed,unde r their direction , by a person in

the i r employ .

56

2 51 . DISAB ILITIES OF TH E RELATION . As w e

have se en , the relation existing be tw e en attorneyand cl ient i s essentially one of confidence and trust.

54 Nave v . Baird , 12 I n d. 318.

55 Gre e n v . Milbank , 3 Abb . N . Cas . (N . Y.) 138.

5° Eggle ston v . Boardman , 37 Mich . 14.



ney from assuming any posit ion toward the cl ientother than that of a disinterested and jud icious adv iser.

2 53. It i s better, therefore, so long as the relation exi sts, that th e attorney refrain from anydealings with the cl ient, and certainly from any

deal ings with respect to the subject-matter of the

l itigation, for while the transaction may be fair andhonorable, and while the cl ient may not, in fact,have been swayed by the relation

, yet, in such cases ,all presumptions are in favor o f the cl ien t andagainst the propriety Of the proceeding.

2 54. It is not contende d that an attorney maynot , under any circumstances , ente r into business

transactions with h is cl ient. But, as a gen eral proposition

, they should be avoided . The rule i s well estab lish ed that whenever a contract betwe en attorneyand cl ient inure s to th e benefit or advantage Of theattorney th e court will not only scrutinize closelybut will actually change the ordinary rules of evi

dence to arrive at a determination . In such cases

a pre sumption of bad faith i s rai sed, which the at

torney is obl iged to overcome, and the burden o fproof is cast upon him to show, by extrinsic evidence

,that all was fair and just ; that the cl ient

acted understandingly and with a full knowledge o fall the facts connected with the transaction and was

properly advised upon the law relating thereto .

59

59 Whipple v. Barton, 63 N. H . 613 ; Tan cre v. Reynolds,35 Minn . 476.

RELATIONS W ITH CL IENT.155

2 55. PROFESSIONAL OPINIONS AND ADVICE . It

goes without saying that when a lawyer is consult

ed, in hi s official capacity, his Opinions should be S incere and his advice honest . Upon this point there

can be no question . It i s the experience o f mostlawye rs , howeve r , that cl ients do not always seek

legal advice with the purest o f motives , and not in

fre quently this is apparent to the attorney even

though it be denied by th e cl ient . Now here there isroom for question

,and a ve ry serious on e . Our

captious critics assert that a lawyer i s always ready

to sell hi s opinion for money . This we must admit ;i t i s for this that we are lawye rs . They furtherassert that it i s immaterial to the lawyer whether

the opinion is to be use d for good or bad purposes .

This also we must admit ; the reasons the refor appearing further on . They go a step farther

,and

say i f hi s fe e is paid the lawyer has no compun c

tions in aiding and advising iniquity. To this wemay enter an unqualified denial .2 56. Let us examine this matter a l ittle moreclosely. A cl ient comes to his attorney for legal

advice in respec t o f something that does not commend itsel f to the moral sense . May the attorney,after inviting the confidence of the cl ient

,re fuse to

advise him ! No ! decidedly, N0 ! He might haverefused to see him in the first instance

,but

,having

admitted him and heard his plaint,his duty compels

a response. He must advise him ; he must advise

him honestly . How shall this be done,and what,


unde r such circumstan ce s, would be honest advice !

2 57. It has be en said that when a lawyer isasked for h is opinion upon a pure ly legal questionh is duty is discharge d by stating th e law as it i s .But frequently the cl ient seeks more. H e desire s

advice not only with re spect to present conditions

but also concerning future conduct. What shouldb e th e attorney’s attitude in such a case ! Has he a

right to sit as a judge of the moral quality of thecl ient’s actions ! Surely

,we must also answer thi s

que stion in th e negative . Therefore,i f the cl ient

de sires to know what course the law require s unde rparticular circumstances

,i t i s the duty of the legal

adviser to explain it . But here his duty ends . He

i s under no obligation to further the unjust schemes

o f the cl ient,and should refuse to bec ome a party to

them . It has been urge d that the attorney, on suchoccasions

,should take advantage of the opportun itv

to del ive r to the cl ient a moral lecture . Th e attorneyshould do nothing of the kind . He was consulte d asa lawyer

,not a morali st . H i s opinion was sought

on a question of law,n ot morals, and the expe

r ien ce o f the writer is that attempts of this kind on

th e part of the lawyer are generally hotly resentedby the client . I f he so desires he may Show th e

cl ient the iniquity Of the scheme as a reason for de

c l in ing to actively assi st him, but this i s enough .

2 58. ADVISING COMM ISSION OF CRIME . Wherecounsel i s appl ied to for advice with respect to any

matter o f legal cognizance he may state the law as



one Of employment. This employment he is at l ibc rty to refuse for any reason, or even for no reason,and there will occasionally be cases presented wherethe dictates o f a sound moral ity will compel suchrefusal .2 60 . On e Of the accusations frequently broughtagainst members o f the bar is their alleged in difference to the moral aspects o f the causes they advocate. O f course, much of this complaint i s buthypocrit ical cant, drawn from the overwroughtimaginations o f the write rs Of distempe red romances

or the super- sensitive souls of pulpiteers,yet i t must

be admitted that individual cases do at times fur

nish a basi s for such attacks . It were vain to denythat many men enter the legal profession with but

faint ideas of its moral obligations, and of the relat ions which the lawyer sustains to society, and whotraffic with th e trust that has been confided to them .

It is these trade smen who have rendered possible theaccusation of moral indiffe rence . There fore, i t i s a

duty which every honorable practitioner owes to the

bar,the court and society

,to decl ine a case which,

on its face,i s unmistakably tainted with immoral ity

or opposed to th e known rules o f publ ic pol icy.

Cases will some times be pre sented where counsel’slegal discrimination will at once pe rceive its in

h erent vice . In such event there is but one honorable course to pursue , and that i s to advise th e

cl ient that hi s cause i s unjust and refuse to advo

cate it .

RELATIONS W ITH CL IENT.159

2 6 1 . But while the foregoing emphatically an

n oun c e s a rule for the abstract idea involved in a

case presented for a lawyer’s consideration, i t must

also be borne in mind that the lawyer’s functions are

administrative,not judicial

,and it is because of a

fai lure to make thi s distinction in the lay mind that

much of th e hostile criticism of the bar has arisen .

Without in any way assail ing th e integrity o f the

rule just stated it may ye t be said that in very rareinstances wil l a lawyer b e justified in refusing aretainer on moral grounds only . In nearly all di s

puted questions of fact it i s imposs ible for him to

ascertain th e truth of the matter be fore he accepts a

retainer . To do this it would b e necessary to cal lal l o f the witne sses

,s i ft their e vidence , and antici

pate eve ry aspe ct the case might assume upon thehearing. Mani fe stly

,this h e cannot do, and not

withstanding that his first view of th e case may pre

di spose him against it yet in the end it may turn

out to be an honest claim or a just de fen se .

2 62 . CONDUCT OF CASES . Th e attorney, toemploy a well- known legal metaphor

,stands in the

shoes Of th e cl ient . Whatever the cl ient in fairne ssmight do

,i f conducting his own case

,the attorn e v

may do for him . This seems to b e th e one greatunderlying principle that shape s profe ssional con

duct. Now, in th e application of this pr inciple ,from a str ictly ethical point o f view

,the attorney

must at time s b e a m inister o f hardship . But wemust distingui sh be twe en hardship and injustice , for


while the law may,and O ften doe s

,work a hardship

,

i t never works injustice . Let us take the famil iarexample afforde d by the ope ration Of the statute of

limitations . A owes B te n dollars . The justnessOf the debt i s not dispute d

,and

,from the moral

standpoint, no time can bar such debt and no lachescan impai r th e r ight to demand same . But the law ,

in th e intere sts of socie ty,has placed a l imit on such

right and denied a legal reme dy to th e creditor

when that l im i t has be en reache d . The moral Obli

gation exe rts j ust as much force the day after thel im it expired as it did th e day be fore

,and, in fora

c on scie n tiae,th e debtor should discharge the debt .

But i f B neglects to sue for payment until a fter thestatute has run

,A may inte rpose the bar of the

statute as a de fen se , and thus virtually cheat B outo f th e money . The re can b e but on e opinion in themind Of any honest man with re spect to a personwho se e ks to avoid th e payment of a just debt on aplea o f thi s characte r

,but, it i s a pleawhich the law

pe rmits ; the cl ient has a right to avail himse l f Of

i t,and h is attorney,

standing in his shoes , i s

unde r a duty to urge it in a suit brought to recover

the debt .

2 63 . It i s the same with a number of otherple as . Thus, C,

a young man twenty years o f ageborrows from D te n dollars , which h e spends in thepursuit o f ple asure . Moral ly

,C can never be ab

solved from th e Obligation Of repayment, but as h e

was an infant at the time th e loan was made , and


162 ESSAYS IN LEGAL ETHICS .

may bring, i s deserving of th e severe st censure. I f

the cause cannot be compromised , or i f, with knowledge Of th e facts , th e cl ient insists upon a trial , theattorney performs his whole duty

,i f for the de

fe ndant , by scrutinizing the plaintiff’s proofs and

urging their defects,while i f he appears for the

plaintiff he can in honor do nothing more than pre

sent the case in the true aspect in which he has discerned it and meet defeat .2 65. REPRESENTING BOTH SIDES . There is an

implied Obligation in e very employment that the em

p loye e shall be faithful to h is employer and will don othing that may militate against his best interests .

This obligation is nowhere so sharply accentuatedas in the relat ion of attorney and cl ient, and becauseo f the pe cul iar personal qual ity which characterizesthis relation it ne ce ssari ly follows that the attorneymay not assume to represent any pe rson or partywhose intere sts are in any way inimical to those ofthe cl ient who first retained him .

2 66. It may often happen,where the interests

are the same,that an attorney may with propriety

represent a number of persons,for

,notwithstanding

that their interests are separate,the cause of one

may yet be the cause of all . This is Often seen inth e case o f suits by or against heirs . Again

'

,h e

may prope rly repre sent a numbe r who are not

united in inte re st,provide d they do not occupy an

tagon istic positions with respect to e ach other. In

deed,the mutual convenience of such parties will


Often suggest such a course , as in the case of a num

ber of creditors who seek to discover the concealed

e ffects of a bankrupt debtor . But this would seem

to b e the l imit . It i s immaterial that parties may all

have a common cause against a common adversaryi f they also claim rights which , i f enforced , willmil itate against each other . In such event the dutyo f counsel is clear

,and i f he has accepted a retainer

from one , then, in justice to himsel f as well as his

cl ient , he should de cl ine that o f the others . Thiscourse may at times entail a pecuniary hardship toth e attorney, but it seems to be the only one thatcan be safely followed .

2 67. But, while the general integrity o f the rule

i s beyond question it is not without some qualifica

t ion in its practical appl ication,and n otw ith stan d

ing the intere sts may b e adverse yet i f they are to

be amicably adjusted there may b e no improprietyin having each side represented by the same counsel .The cases in which this may be done

,however

,are

e xceptional and never entirely free from confl icting duties . Thus

,in matters o f mortgage or sim

ilar secur ity, i t i s not uncommon for th e same counse l to represent both borrower and lender, upon a

mutual understanding of the parties to that effect ,61

and the same may be true in matters connected withthe purchase and sale of land or other marketable

commoditie s .6 2 A familiar example is also furnished

6 1 Lawal l v . Groman, 180 Pa . S t. 532 .

6 2 Coope r v . Ham i l ton, 52 I l l . 1 19.


in cases where an attorney employed to collect anote i s appointed by the debtor his attorney in fact

to confess judgment on the same note. In such acase, notwithstanding the apparent adverse posit ions, i t would seem that the exercise of the powerby the attorney is not inconsi stent with fai r de al ing

,

nor an unprofessional employment o f the functionsof h is Offic e .

63

2 68. A stil l furthe r example may be foundwhere, in l itigated cases , the proceedings , thoughadverse in form

,are ye t amicable and consistent in

fact . This i s i l lustrated where a number of heirsre sort to the aid Of a court for a judicial partit ionOf lands . As

,in such a case

,there are no adverse

in terests in fact,there would be no impropriety in

having al l o f the heirs represented by the same

counsel .64 But these are the exceptional cases . Inth e main the rule holds good

,and no sel f- respecting

an d conscientious attorney wil l ever allow his pe r

sonal interests to overcome h is sense o f pro fessionalhonor by taking a fee from both sides o f a case.2 69 . In a case where both parties are his cl ients

and where the professional relation has induced confide n tial disclosures

,i t would se em that the only po

sition the attorney can consistently take is that of

6 3 Wasse l v . Re ardon , 1 1 Ark. 705.

6 4 In practi ce the re woul d , Of course , b e a te chni cal difficul ty, as no cour t wi l l pe rm i t an attorney to appe ar o f re co rd for both p laintiff and de fe ndant . Th e de fendants , the refore , wou l d have to appe ar by nom inal attorneys , o r , as i sfreque ntly th e case , suffe r th e b i l l to b e taken as confe s se d.



b e permitted to avai l themse lve s Of the skill andle arning of those whom the law has designated asits ministers, and as it is necessary to the ascertainment and maintenance of their rights that con fidential disclosures should be made to the legal adviserto enable him to properly perform the duties o f hi soffice, so the law has considere d it the wisest policy

to encourage an d sustain this confidence by requir

ing that as to such facts the mouth of the attorneyshall be forever sealed .

65

2 72 . The rule extends to all communications bya client to his counsel

,for purposes o f professional

advice or ass istance,whether such advice or aid re

lates to a suit pending or contemplate d , or any otherprope r matter for pro fessional assi stance . When it

appl ies i t i s perpetual,and the communications may

not be revealed at any time,nor in any action or

proce eding between other pe rsons , nor after the relation Of attorne y and cl ient has been terminated .

6 6

It i s a privilege of th e cl ient , and neve r ce ase s unlessvoluntarily waived by him . Not only will courts

neve r compel an attorney to disclose facts commu

micated to him in his profe ssional capacity but, asa rule

,they will not permit him SO to do,67 and it

has be en held that one who disregards his duty inG5 Heme nway v . Smi th, 2 8 Vt . 70 1 ; Bigle r v . Reyh e r, 43

Ind . 1 1 2 ; Barn e s v . Harr i s , 7 Cush . (Mass ) 576 ; Pe ople v .

Barke r , 56 I l l . 2 99 . Th e rule has furthe r be e n confirmed bystatutory e nactme nts in most Of th e state s.6 6 Re Boone , 83 Fe d . Rep . 944.

67 Pe ople v . Atkinson , 40 Cal . 2 84.


this particular commits an offense that j ustifies h is

exclusion from the bar.6 8

2 73 .It nece ssarily follows that , where con fiden

t ial communications are so rigorously guarded that

courts will not permit them to be divulged in the

interests o f justice,the attorney i s wholly without

legal or moral right to give them a pr ivate publica

tion . Inde ed , w e can hardly imagine a person ,clothed with the respons ible character o f a lawyer,so dead to all sense Of honor as to voluntarily dis

close the affairs o f his cl ient committed to him underthe seal of profe ssional secrecy . In case an attorney

should so disregard th e propr ieties as to wantonlyor mal iciously betray h is cl ient’s trust in this re

spect, he must be considered as having forfeited hisright to his office and should be promptly and forever disbarred .

2 74. In the application o f the rule courts haveusually accorded it a l iberal construction with a view

to maintaining its integr i ty,and it has been held

that it i s broad enough to embrace a case whe re th e

one seeking counsel pays no fe e , and where h e em

ploys other counsel in the prosecution Of th e busin ess, and even whe re the lawyer consulted is afterward employed on the other S ide. It i s contendedin support o f these posit ions that l imitations o f th erule , i f allowed , might be unknown to laymen ; and

i f they cannot feel perfect freedom in all cases then ,6 8 Pe ople v. Barke r , 56 I l l . 2 99 ; Re Boone , 83 Fe d. Rep .


instead o f the impl icit confidence that should exist,the intercourse might be restrained by fear andmarred by dissimulation on the part of the cl ient

,

and thus the Obj ect of the rule be defeated.

2 75. To the general rule, as above stated, thereare a few exceptions growing out of peculiar cir

cumstan ce s. Thus, where the communications haverefe ren ce to an unlawful purpose, such as the commission Oi crime,

6 9 they are not privileged. Insuch event they are treated as being in the natureo f conspiracies, and therefore subject to be inquiredinto .

70 Again, where an attorney has acted for twocl ients, i t seems h is communications with them arenot privileged in subsequent suits between them orthei r representatives .71 SO, too , where the commun ication s are made in the presen ce of all the partie s to the controversy

,they are not privi leged, and

may be treated in the same manner as any othercompetent evidence.72 But thi s i s practical ly theful l l imit of the exceptions

,and where the matter in

6 9 Thus , whe re a pe rson who was on tr ial for murde r hadprevious ly consul te d an attorney for th e purpose o f asce rtain ing what th e l aw was i f h e shoul d ki l l de ce ase d, fromwhom h e had re ce ive d gre at provocation , i t was he l d that th ecommun ication be twe en de fendant and th e attorne y was notpr iv i lege d . Orman v . State , 2 2 Te x . App . 604, and se e , Pe o

p le v . Mahon , I Utah , 2 05; S tate v . McCh e sn ey, 16 MO. App .

2 59 .

70 Pe opl e v. Van A l st ine , 57 Mich . 69 .

71 She rman v . Scott , 2 7Hun . (N . Y . ) 33 1 Gul i ck v . Gul i ck,39 N . J . Eq. 516 ; Goodwin

’s appe al , 1 17 Pa . S t . 514.

72 Br i tton v . Lorenz , 45 N . Y . 51 .



he may not , after the relation has ceased , seek oraccept an employment in opposition to his formercl ient for the purpose Of using against him in for

mation confidentially gained while th e relation sub

sisted 78 Such an act involves not only a high degree of moral turpitude but i s a positive breach ofthe attorney’s oath, as well as a violation of the wellestablished rule relating to privileged commun ica

t ion . For such a will ful disregard of profe ssionalobligations it would be the duty Of a court to disbar

the Offender whe never the matter was brought to itsattention and a proper case made out.79

2 78 . W ITHDRAWAL FROM CASE . The undertaking Of an attorne y retained to conduct or defenda suit i s usually regarded as an entire and continuing contract to remain in the case until its te rmination .

8 0 There are many reasons why this shouldbe so

“

, and the reasons are Obvious . Hence an at

torney acts in bad faith i f, without justifiable cause,he abandons th e suit, and particularly is this truewhere he withdraws without giving his cl ient ample

notice and a full opportunity to procure other coun

se l .8 1

78 Re Boone , 83 Fed. Rep . 944 ; Hatch v. Fogarty, I o Abb .

Pr . (N . Y .) 147.

79 Re Boone , 83 Fed. Rep . 944 ; and se e , Parke r v . Parke r ,99 , A la . 2 39 ; Spinks v. Davi s, 32 Miss . 154 ; Valentine v .

S tewar t, 15 Cal . 387.

8 0 2 Gre e n l . Ev . se c . 142 ; Ca iro etc . R. R. Co . v. Koe rne r,3 I l l . App . 2 48.

8 1 Nich e l ls v . Nich e l ls, 5 N . Dak. 125; Te nne y v. Be rger,93 N . Y. 524.


2 79 . But while the law impl ies the obl igation

o f continuous service,and will impute bad faith in

its breach,an attorney may, at any proper stage of

the proceeding,demand hi s fees already earned, and

i f same are not paid he may, after giving reasonable

notice,withdraw from the case .8 2 There is no d i s

t inction,in principle

,between the relation of attor

ney and client and any other form of agency . It i s

essentially a contract o f employment involving thereciprocal obligations of se rvice on the on e hand

and compensation on the other . In the absence ofa special contract there i s no good reason , either in

law or morals,for deferring such compensation

until the final determination of th e action, and the

attorney may, with undoubted propriety, demandsuch sums as h is services alre ady rende red are reasonab ly worth . A non-compliance with such demand will constitute a just cause for dec l ining tofurther serve.2 80 . The intent o f the rule seems to be that an

attorney may not capriciously or mal iciously withdraw , and notwithstanding that the re may b e un

paid claims for othe r service s,rende red in other and

diffe rent matters , or even i f they arose during th eprogress o f the suit , but not out of it, this would notfurnish a cause for abandonment.2 8 1 . But

,while counse l may not summarily

withdraw from a case from motive s above indicated,there may yet be occasions when it be comes a duty82 Cairo etc . R . R. Co . v . Koe rne r , 3 I l l . App . 248.


so to do and when to continue would constitute amore flagrant breach of morals than to retire. A

lawyer is under no obligation to advocate iniquity.

H e may know, or at least feel , that he wil l b e succ e ssful in the i ssue ; the circumstances may be suchas to inspire confidence in the result ; but unless healso bel ieves that the cause i s just he doe s violenceto every principle of advocacy by maintaining it .He has a right to take al l the advantage his learning

and talents afford him in order to sustain a goodcause or defe at a bad one, but he has no privilege to

substitute his talents or learning for the hone sty ofa case and thereby render iniquity triumphant .

Therefore,i f during the progre ss of a suit it b e

comes apparent that it is unsound or dishonest , hei s j ustified in refusing longer to continue in it.”

Yet this i s a right that should be exercised withcare and prudence. It may be that , without knowledge of its inherent vice , h e has advance d so far in

the cause that he cannot abandon it without seriously compromising the intere sts Of his cl ient . Insuch event, i f professional good faith may seem to

demand it, he should remain , but he must do nomore than such professional good faith require s .While he is not morally responsible for either the

acts or motives o f hi s cl ient in maintaining an unj ust cause, he is responsible for his own acts i f h eadopts its principle s

,argues from premises that

have not been prove d, urges presumptions which,3 3 Brown’s, Forum, Vol . 2 , p . 3 1 .



In like manne r h e may dism iss his cl ient’s suit without any special authority But whe re an appearance has once be en prope rly entere d

,where

pleadings have be en filed, or an i ssue made up , th eattorney may not, from mere caprice or vindictivemotive s, withdraw such pleadings or appe arance,and should h e do so th e act may b e regarde d as a

breach o f faith, indefensible in morals and illegalin law .

8 7

2 84. Th e principle of confidence,which lies at

the foundation of th e re lation of attorney and client

imperatively forbids th e attorney,so long as that

re lation exists, from doing any act which is inspiredby malice or hosti l ity to th e cl ient or his cause

,th e

e ffe ct o f which is ne ce ssarily injurious to th e matterintrusted to hi s care .

8 8

2 85. SO, too, an attorney, when acting in goodfaith and without Obj e ction from his cl ient

,may

waive or withdraw a de fense and consent to j udgment, but h e has no powe r fraudulently to barte raway any of h is client

’s rights or dispose of any of

his interests to the opposite party .

8 9 Should he

attempt to do so , then , upon a showing of the fact,i t would become the duty of the court to protect

8 3 Davis v. Hal l , 90 Mo . 659 ; S impson v . Brown , 1 Wash .

2 47.

87 Nich e l ls v . Nich e l ls, 5 N . Dak. 12 5.

8 8 Howe v . Lawre nce , 2 2 N . J . L. 99 ; Oh lquist v . Farwe l l, 71Iowa

,2 3 1 ; Have r ty v . Have rty, 35 Kan . 438 ; Tenne y v. Be r

ge r , 93 N . Y . 524.

89 Chicago Bui ld ing Socie ty v . Haas , 1 1 1 I l l . 176.

RELATIONS W ITH CL IENT .I 7S

th e cl ient from th e treachery of h is attorney and

discipl ine the Offender.9 0

2 86 . INCONSISTENT POSITIONS . It i s amongcharges some times brought against the profession ,that the lawyer’s occupation re nders him unstable

in matters of opinion,and that, by reason of th e

inconsistent positions he is frequently called uponto occupy

,his statements are not always to be re l ie d

upon . This charge is not wholly without foun da~

tion,and has been rende red possible by a reckle ss

and uncalle d for offering of pr ivate opinion , withrespect to their clients and th e me rits Of the ir

cause s , on the part Of many practitioners . There

i s , perhaps, no more improprie ty in th e expressiono f opinion by an attorney

,with respect to causes

pending in the courts,than by the laity . But

,in h is

own causes at least,he i s not employed to give

voice to hi s own opinions,nor can h is cl ient claim

this as a professional duty . He fully dischargese very profession al Obligation by presenting hisc l ient

’s case to th e best advantage and to the best

Of hi s abil ity. Beyond this he cannot safe ly proe cod , an d should h e assume SO to do unfore se encircumstance s may often place him in embarrassingpositions .9 1

9 0 Re Boone , 83 Fe d. Rep . 944.

9 1 A s an i l lustration of th e statement Of th e text, th e fo llowing e xce rpt from th e N . Y. W or ld

,i s pe rtinent

“As a lawye r, M r . S . , o f Kan sas , de fende d a n egro murde re r, and a fte r hi s s entence wrote to th e Gove rnor a strongindorsement Of th e negro’s appl ication for a pardon . Now ,


2 87. Th e me re fac t,however , that an attorney

at a forme r t ime,and while engaged in professional

employment, h e ld a diffe rent view of’

the law Of thecase from that a fte rwards advocate d by him

,does

not, o f itsel f, disqual i fy him from accepting a re

tain e r or affect h is se rvice.9 2 It must Often happen,

in th e course of an active practice,that an attorney

will b e called upon to urge views he has at some

time combated. O f course,this will be condemned

by the pseudo-morali st as being simply an attempt

to prove that black is white,or white i s black

,ac

cording as he is paid . But i f this were not so ,much

of th e use fulness of th e advocate would be el im

inated . Be side s, a lawye r has the same right to

alter his opinions as any other person .

2 88. MONEY LOST I N HANDS OF ATTORNEY . Inth e course Of professional employment a large

amount o f money, be longing to clients , mustne cessarily pass through an attorney’s hands . Notinfrequently

,through no fault of his

,sums are lost

while sti ll in his nominal or actual custody. A

question is raised,in such a case, with resp ect both

as Gov . S . o f Kansas , h e has had to pass upon a n ew appli

cation for h is Old cl ient’s pardon , and his own le tte r, wri ttenas a lawye r, has be e n la id be fore h im.

But h e re fuse s to grant th e pardon and says that as Govcruor i t i s h is r ight and duty to v iew th e matte r ‘ in an entirely diffe re nt l ight.

’

“Thi s rai se s th e ve ry inte re sting though by no me ans n ewque st ion : In th e code o f l egal e th ics what doe s a cl ient’s fe ebuy and what doe s i t le ave unbought ! ”9 2 Smith v. Ry. CO. 60 Iowa, 515.



account,there i s a danger. I f th e attorney

,for hi s

personal convenience , or from whatever motive,deposits his cl ient’s money in his own name

,thereby

vesting himsel f with a legal title to same,i t fol

lows , as a ne cessary consequence , when a lossoccurs , that h e will not b e pe rmitted to say, asagainst h is cl ient, that th e fact was not as h e has

voluntarily made i t appe ar . Th e loss must be borne

by himse l f.9 4 On th e othe r hand , i f a deposit i smade in such a manne r as to prese rve i ts trust

characte r on the books of th e bank, th e loss, i f anyoccurs , falls upon th e cl ient .95

2 90 . MONEY RETAINED BY ATTORNEY. Muchof th e time , labor, and skill o f attorneys, i s devote d

to the re covery of money be longing to or claimed

by the i r clients . In most cases the money so re

covere d is colle cte d by th e attorney, whose duty itis, afte r de ductin g his own reason able charges andexpense s

,to promptly pay the same ove r to th e

cl ient . In a numbe r of state s this duty is further

emphasized by a mandatory statute , and a refusal

or neglect so to pay, after demand made, subj ects

the attorney to disbarment.9 6

2 9 1 . In case of wil l ful m i sappropriation by the

9 4 G i lbe rt v . We l sch , 75 Ind . 557 ; Will iams v . Wil l iams , 55Wis . 30 0 ; Norr i s v . He ro, 2 2 La . An . 605.

9 5 Norwood v . Harne s s , 98 Ind . 134. He nce , it i s we l l toke e p at le ast two accounts ; on e a s an indiv idual and on e asa truste e .

9 6 Se e , Re Tre adwe l l , 67 Cal . 353 ; Re Temple , 33 Minn.343 ; Pe op le v . Ryal ls, 8 Colo . 332 .


attorney no question can arise and he occupies no

better position than any other thief. This i s nota matter Of ethics

,but of criminal law, and there

fore we may pass i t without further notice. Butthe attorney may abuse th e relation created by his

employment in many ways short o f fe lonious with

holding Oi funds . Mere neglect, inattention, tem

porary use o f funds by him ,vexatious and un rea

sonable demands with respect to same,may all tend

to disclose conditions that can not exist with that

good faith,integrity and honor that Should charac

te rize th e attorney’s transactions with his cl ient .

Hence,i rrespective of any crim inal intent

,where it

i s shown that an attorne y has faile d to pay over

money on demand, and after a ten de r o f his reasonable fees , or where he has postpone d the just claimsof his cl ient, or by evasions o f the demand has

forced him to expense and l it igation , this may b e

considere d such mal—conduct as would justi fy a

court in striking the name of the offender from therolls .97

2 92 . RIGHT OF CLIENT TO DISCHARGE H I S

COUNSEL. While an attorney who has accepted a

retainer i s not at l iberty to seve r the relation, except for cause

,i t would seem the cl ient i s not so

bound . Upon this point the courts are generally

agre ed . It would further seem,that a cl ient may

discharge his attorney at any time , with or withoutcause, e ven where the case has been taken on9 7 Pe ople v . Palme r, 61 I l l . 2 55.


a contingent fe e . I f th e discharge is without causeth e attorney may recover for services already pe rformed on a quan tum me ruit, and i f no service hasbe en rendered no action will l ie . I f the dischargei s for cause

,then

,in most cases

,the attorney for

fe its his fee .

”

2 93 . While there would certainly seem to be anelement o f hardship in the rule

,it seems to be sus

tain ed on the ground that the relationship is so

peculiarly one of confidence that it would be unjust

to require a party to continue in his service one

whom he distrusts,or on whose skill and abil ity

he no longe r re l ies,or to permit an attorney, under

such circumstances,to continue a relationship where

the lack of confidence would seriously impair hi s

efficiency and interfe re with his abil ity to serve both

cl ient and court in the manner h is Office requires .9 9

9 8 Se e , Moore v . Rob in son , 92 111. 49 1 ; Duke v . Harpe r, 8Mo . App . 2 96 ; ! uint v . Mining Co. 4 Nev . 304 ; Scobey v .

Ross , 5 Ind . 445.

9 9 Henry v . Vance , 63 S . W. Rep . (Ky.) 2 73.


182 ESSAY S IN LEGAL ETH ICS .

distorte d image reflected in the pellucid mirror o f

his mind,fancies he knows it al l . But the great

lawyer,the profound jurist, eagerly avail s himse l f

o f the benefits derived from the research and reasoning of counsel , and gratefully acknowledges theassistance which they afford .

2 96. In the hurry and rush o f modern l i fe,and

in view of the vast volume of l itigation passing

through the courts, i t i s essential to the due administration Of j ustice that some persons shall act as

a ids and advisers to the court,presenting in turn

each aspect Of the case ; investigating and applying

the principles that should govern it ; collating and

explaining the authorities which bear upon it,and

suggesting the distinctions and analogies which

must be regarded in arriving at a decision . This i sthe province of counsel , and it i s largely through the

labors of counsel that judges are enabled to dispatch

the business of the courts .2 97. CONDUCT I N COURT. As previouslyshown

,a lawyer is under obligation to do nothing

that shall detract from the dignity Of the court, of

which he is himsel f a sworn Officer and assistant .

He should at all t imes pay deferential respect to thejudge

,and scrupulously Observe the decorum of the

court room .

2 The public takes its cue in this re spectfrom the lawye rs

,and unless the membe rs of the

bar Shall by their own example inspire those fe el

ings of respect for courts and for judicial proceed

In re Pryor, I 8 Kan . 72 .

RELATIONS W ITH COURT.183

ings,which in a country l ike ours constitutes their

greatest sa feguard,i t were idle to expect the public

to be more considerate .

2 98. Nor is this merely a matter o f good man

ne rs or formal etiquette . There is a deep underlying ethical principle as well . A court i s a place

wherein justice i s j udicially administered by thesupreme power o f the state . In England this powerwould be the king, and while it is, of course, impos

sible that the king should personally dispense the

justice o f the realm,yet

,in contemplation of law,

he i s always present in hi s judges , whose power i s

only an emanation Of the royal prerogative .3 Thejudicial machinery Of the United S tates i s modeled

after that o f England,and while our political condi

tions are vastly differen t from those which prevail

England the theor ies involved in the administra

tion o f j ustice are the same . The sovereignty of

the state i s always present in every court establishedby law, and its visible representative i s the j udge .

Whatever our opinion may be of the man, and however l ittle he may b e entitled to our respect for him

sel f, we must yet respect th e majesty of his office .2 99 . But, while a becom ing respect for all who

sit in j udgment ” i s strictly enj oined, both as amoral and a professional duty, a manly respect only

is intended, not a servi le obsequiousness . The dign ity Of the bench must be maintained, but so alsomust the independence o f the bar. The j udge fil ls3 B lack. Com. b. 11, p . 2 3 (Cooley

’s Ed.)


a most exalted Office ; he should be a most exaltedman ; but he is only a man in any event and not a

be ing of superior mould . Occasions will ari se whenduty to the cl ient and a proper regard for the inte re sts committed to h is charge

,renders necessary a

firm and decided opposition , on the part of the advocate, to the views expressed or the course pursued by the court. But this may and should be donein an open, manly way. The outward forms of respect for the court should be preserved

,even though

the judge may be unmindful of h is own duty of respec t to the bar.

30 0 . CONDUCT OU T OF COURT. While it i scomparatively easy to prescribe a l ine of conduct tob e followed in court, i t i s correspondingly difficult

to lay down rules for general observance by the bar,with respect to its attitude toward the bench, whenout o f court . Indeed, this i s a matter upon whichthere can hardly be said to b e a settled opinion , and

many differing views have been presented . I f thejudge is a gentleman , then in the intercourse of pri

vate l i fe he certainly should be accorded the civilities which Obtain among gentlemen . Of necessity

h e must, to some extent , mingle with his brethren of

th e bar in a social way, and h is judicial position us

ually exerts a decided influence on th e manner in

which he is received . But while a due courtesy mayalways be shown to a person occupying judicial sta

tion, it i s yet contende d that such courtesy has its

l imitations and that same may be pushed beyond the



Not only must he practice no evi l but he must as

wel l avoid the appearance of evi l, and therefore inhis social relations with the j udge he must ever becircumspect and guarded . While thi s is a rule o fconduct for all occasions it appl ies with increasedforce at time s when his cases are pending.

3oza. Thus far we have been considering oursubject with special reference to the cordial relations that may subsist between bench and bar and

the course o f conduct to be pursued in such cases .

There is , of course, another side, where the relationis that o f enmity. As a rule, no question can arise

with respect to conduct in court, even where thepresiding judge may be an obj ect of contempt or

hatred. Respect for the j udicial Office must overcome personal disl ike

,and a formal courtesy, at

least, must be shown . But how about conduct out

Of court ! Certainly no one, lawyer or layman , i scompelle d to frate rnize with those whom he detests .When off the bench the judge, in most things , i s notdistinguishable from other men , and an attorneycommits no breach of decorum by ignoring him in asocial way. But thi s i s about the extent to whichhe may go . The obl igation which an attorney assume s on being admitted to the bar i s not discharged by merely Obse rving the rules o f courteousdemeanor in open court, but includes abstaining outof court from all overt acts calculated to bring

Odium or reproach upon the profession or to lowerthe dignity of the bench . Therefore , while an at

RELATIONS W ITH COURT.187

torney may refuse to extend social amenities to a

judge he must not indulge in insulting language orother openly Offensive conduct toward him for any

of his judicial acts .5

30 3 . INFLUENCING J UDGES . It i s Often Said,that our present mode of selecting judges by popular election i s conducive to bad results in the ad

ministration o f j ustice . We will not discuss this

matter,but every lawyer o f long practice knows

from his own experience that,too often, men who

are proof against pe cuniary bribes are yet susc epti

ble to “ influence . It i s the duty of the bar to min

imize this evil by its own conduct . It i s gross

impropriety for counsel to discuss his pending caseswith the j udge or to privately argue their merits , or

to address to him private communications respect

ing his causes in court . It is equally reprehensible

to permit th e cl ient so to do, or to se cure the goodOffices o f a mutual friend, with a view to influencefavorable action . An attorney who resorts to such

indecent me asures forfeits hi s right to be calle d anhonorable practitione r, and a judge who l istens tosame is unworthy of his high office.

304. CRITICISM OF J UDGES . It i s by no means

uncommon for lawyers to discuss,criticise and even

condemn, the acts and de cis ions o f the courts , and

-5 Thus, a thre at o f p e rsonal chasti seme nt, made by an attorne y to a j udge out Of court for h i s conduct or rul ingsdur ing th e tr ia l o f a cause pe nding, i s str ictly unprofe ss ionaland furni she s grounds for d i sbarment. Brad ley v . F i she r, 13Wall (U. S . ) 335.


sometimes to unfavorably comment on the personaland Official character o f the judges . A question

,

therefore, arises as to whether conduct o f this kindwill constitute such misbehavior as to violate th espirit

,i f not the letter, of the attorney

’s oath of

Office. As previously remarked, i t has become a

maxim of legal ethics that an attorney is requiredto maintain at al l t imes the respect due to courts Of

j ustice and j udicial Officers . This is not only the re

c e ived doctrine of the common law but has alsofound expression in statutory enactments relating

to professional duty, and its observance is en j oinedon all who assume to discharge the functions o f anadvocate. But it must further be remembered that aperson does not forfeit his constitutional rights as a

freeman by becoming an attorney ,6 and that freespeech i s as much secured to a lawyer as to anyothe r membe r of the community . To what extent,then , may an attorney criticise the private characte r

or Official acts of the j udges of the courts Of which

he is a member !

30 5. It is conceded that in matters collateral toofficial duty the judge is on a level with the members o f the bar as he is with his fellow citizens, hist itle to distinction and respect resting on no otherfoundation than hi s virtues and qualities as a man f"

It i s the right o f every citizen to scrutinize th e

character and conduct of men acting in public ca6 Ex parte S te inman , 95 Pa . S t. 2 2 0 .

7 Case o f Austin, 5 Rawle (Pa. ) 191.



of our ethical canons or subjecting themselves todiscipl ine .

307. There i s stil l another form of criticism,

often resorted to but Of questionable propriety. It

i s said to be an ancient rule of the ! ex n on scriptathat every defeated l itigant, as well as his counsel ,may freely “ cuss ” the court

,and there are few who

fail to avail themselves Of this privilege . There maybe occasions when criticism of this kind seems justifiab le , but in many cases it i s a mere subterfuge, de

signed to quiet the cl ient and his friends or to coversome neglect, oversight, or inefficiency of the attorney. Its e ffect i s always bad, and it should be

avoided as far as the frailty of poor human naturewill admit .

30 8. It would seem , then , that a lawyer maycrit icise both th e personal and Official character o fthe j udge as we l l as h is acts and de cis ions , but hehas no right to slander either . Notwithstanding thelawyer’s civil rights he is stil l bound to pay properrespect and exhibit a proper defe rence to the judges

both in and out of court ,9 and even though we admit

that judges should assist the bar in this particular,

by being themselves respe ctable , there are yet manyacts which fall without th e l ine o f professional func

tions by which profess ional fidel ity may be violated .

It must further be remembered that th e proprietiesof the judicial station in great measure disable a

9 In re Brown , 3 W yo . 12 1 ; Brad ley v . F i she r, 13 Wal l . (U .

S .) 335

RELATIONS W ITH COU RT.19 1

j udge from defending himsel f against strictures

upon his official conduct, and for this reason, and

because such crit icisms tend to impair publ ic con

fiden ce in the administration Of j ustice, i t i s saidthat attorneys should

,as a rul e

,refrain from pub

lish ed criticism of j udicial conduct, especially in

re ference to causes in which they have been of

counsel,otherwise than in courts o f review, or

when the conduct of a judge i s necessari ly involved

in determining his removal from or continuance in

office .

1 0

309 . DECEIVING TH E COURT . It has ever beendeemed gross unprofessional conduct on the part of

an attorney,to attempt to pollute the administration

of j ustice by a resort to any form Of device for th e

purpose o f pre venting the deci sion of a cause upon

its merits or o f influencing the court to render a

decision which it would not otherwise have made .

This will include every species Of deception praet iced upon the court

,either active or pass ive

, wh eth

er by statements made by counse l or by others in his

presence, or by testimony known to b e false orforge d . An attorney owe s to his cl ient a duty of

fidelity but he owes the same duty to the court ; andit i s a part o f that duty to correctly inform the

court upon th e law and th e facts o f the case that it

may arrive at corre ct conclusions and rende r exact

justice . He violates hi s oath Of Office when h e re

sorts to deception , or permits his cl ient to do so,

1 ° Code , A la . Bar Assn .


and by such acts forfeits his rights as an attorney .

3 1 0 . M ISSTATEMENTS OF LAw OR FACT . It i s

one o f the ancient duties o f counsel to advise thecourt with respect to the law Of the particular case

in which he appears . Not only i s he presumed to b ewell informed in the law generally

,but with re

spect to such as appl ies to the particular case tohave made a special study. The benefit o f this

study he imparts to the court for its guidance in arriving at a proper determination of the issues in

volved . In the discharge Of this duty counsel is re

quired to exercise the utmost candor and fairnessand to avoid everything that may savor of decep tion .

He must state the law as it appears, but he has aright to place such construction thereon as shall

best subserve the interests of his cl ient . Indeed, hisduty to hi s cl ient requires this course . He i s underno Obligation to present, or comment upon , thosephases of the law that may seem to mil itate against

his cl ient’s cause,and he may combat the appl ica

tion of such adve rse law, whethe r advanced by thecourt or Opposing counsel . These rights are clear

and o f universal recognition in all courts Of justice.

3 1 1 . But counsel perpetrates a gross fraud upon

the court when he knowingly cites as authority anoverrule d case , or treats as i f sti l l in force a repealedstatute. Fortunately instances of this kind are not

1 1 Pe opl e v . Be attie , 137 I l l . 553 ; In re H ende rson, 88 Tenn .

531 Bake r v . S tate , 90 Ga . 153 ; Ex parte Wal ls, 64 Ind. 461

In re Gale , 75 N . Y . 52 6.


CHAPTER X .

RELATIONS W ITH THE BAR.

Characte r of th e re l at ion—Profe s s ional courte sy—Re spe ctfor age—Obse rvance o f agre ements—Se rvice s for at

torn eys Inte r fe rence Substitut ion Of attorneysConclus ion .

3 13 . CHARACTER OF TH E RELATION . In aformer part Of this book the writer endeavored toShow a few of the sal ient features that marked the

inauguration of the order o f advocate s in England,

and to point out some of the distinguishing characte ristics of same . From these it will readily be perc e ived that th e advocate s were not s imply membersof a learne d profe ssion but o f a distinct order o f soc iety, establ ishe d by civil authority, constituting afraternity with se ttle d rule s and usages . In theflow of time and the changing conditions o f society

many of the ancient characteri st ics have been lost,

but this essential ide a has remained intact and thebar is stil l known

,both among its own members and

the publ ic,as th e “ legal fraternity .

” It follows,therefore

,that th e relations subsisting between the

members o f the bar are , or should be, those of amity ,good will

,and mutual esteem . Notwithstanding

that they are Often arrayed against each other aschampions of opposing forces, thei r intercourse

194

RELATIONS W ITH THE BAR .195

should ye t be friendly, and, as partakers in a com

mon enterpri se, the honor and reputation of every

member should be the cause of all .

3 14. PROFESSIONAL COURTESY . The profe s

s ioual relation which attorneys sustain toward eachother in all matters Of l itigation is distinctly an tagon istic . Inde ed

,it could not well be othe rwise save

in exceptional cases . They represent diverse andopposing interests

,and the i r duties to their respect

ive cl ients require an entire devotion to the cause in

which they are retained. To the maintenance ofsuch cause they are expe cte d to contribute every ex

e rtion of skill and abil ity, and nothing, as a rule ,can absolve them from the fearless discharge of this

duty .

3 15. But it does not follow that because of thisduty the re should b e that total disregard of theamenities of li fe which so Often characterizes Opposing forces . It is the cl ients

,not the attorneys,

who are th e l i tigants ; and whatever may the il l

feel ing existing be tween clients , i t i s unpro fessionalfor th e attorneys to partake of it , o r to mani fest inthe i r conduct and demeanor to each other or to thesuitors on the opposite s ide

,any of the rancor or

bitterness o f the parties . The ordinary civil it iesshould always b e studiously ob sew e d, and , in everyinstance, the utmost courtesy consistent with dutyshould be extended to an honorable Opponent .

3 16. Aside from the conventional rules that regulate the conduct o f gentlemen between themselves

,


there are othe r matte rs which arise out of the profe ssional character and are pe culiar to the attorney’s

Office. These we may classi fy under the gene ral

head profe ss ional courtesy .

” There are no rules,

however , by which th e majority o f these matters can

b e determined , nor even a settled observance . They

are allowed, in the main , to re st in individual di seretion, for the exercise of which the attorney is not

required to account . This wil l include all incidentalmatters pending trial

,not affecting the merits of

the cause or working substantial prejudice to therights of the cl ient, such as forcing the opposite at

torney to trial when he is under afflict ion ; forcing

trial on a particular day to the serious injury of opposing counsel

,when no harm would re sult from

setting the trial for a different time ; extending th e

t ime for pleading,for signing a bill of exceptions ,

and the like . In all the se matters it i s customary togrant the favor sought as a profe ssional courtesy ,but no ethical obligation requires it, and in the fewcase s where bar associations have ventured to express an Opinion it has generally been left in th e

discretion Of counsel, and of the propriety or im~

propriety of the transaction he is al lowed to be the

sole judge.

3 17. It has been said that no cl ient has a right

to demand that his attorney be i ll iberal in suchmatters

,and that an attorney is not required to do

anything in respect to same that i s repugnant to his

own sense of honor and propriety,and i f such



ing. We spe ak now not o f comparative talents butsimply of years

,or stages in l i fe .

” 1 3 The foregoing

excerpt i s commended to the thoughtful considera

tion of every young practit ioner. This i s an ageof aggre ssive sel f-assertion , and American youthare educated upon these l ines . I would not for a

moment repre ss a laudable ambition that urge s on

th e young advocate to forensic honors and triumphs ,and will hearti ly j oin in the applause that gre ets

the victor who, in a fair fight, has met and over

come his senior . But, i t i s nauseating in the ex

treme to se e a callow youth , blinded by excessive

egotism , who so far forgets the common amenitieso f. l i fe as to offe r discourtesies to age . Modesty in

variably be spe aks merit . Learning and skill are not

in any way handicappe d or impe ded by a de corousdeme anor, and standing at th e bar can neve r be

acquired by a supercilious tre atment of Oppos ingcounsel , b e they young or old .

3 19 . OBSERVANCE OF AGREEMENTS . In the active practice o f law attorneys are ne cessari ly obl iged

to make many agre ements,stipulations and engage

ments . Some of the se are made in open court, and,be coming a part o f th e record, are enforcible in any

event . But many are made out of court,and in

such a manner as to be binding only in conscience.The se latter are based on th e mutual re spect o f thecontracting partie s for each other and th e con fi

dence they respect ive ly fee l in the other’s integrity.

1 ° Brown’s , Forum, Vol . 2 , p . 48.

RELATIONS W ITH THE BAR .199

To inspire and retain thi s feel ing on the part of his

confreres should b e a prime Obj ect with every prae

tition e r, for , as has been well said,“ a very great

part o f a man’s comfort,as well as of his success at

the bar, depends upon his relations with his profe ssional brethren .

” 4

32 0 . To attain this end i t i s imperative thatevery engagement b e punctually kept , that every

agreement be faithfully performed,and that e very

st ipulation b e fairly and honestly carried out . The

man who thus acquires the reputation of scrupulous

exactness in all matters involving profe ssional con

fide n ce will find that many of the aspe ritie s of prae

tice wil l be so ftened, that many of its amenitie s will

be voluntari ly tendered,and that, in the gene ral

good will,esteem

,and respect of his fellow prae

tition e rs, h e will experience a sense o f pleasure that

nothing else can create .

32 1 . It i s an easy matter sometimes to repu

diate engagements made “

in pais,

” and to denypromise s so given . Th e momentary advantage mayblind the moral vision

,and because no summary

punishment follows th e counsel has no fe ar . But

once let a man’s truthfulne ss be eve n suspected his

path become s a thorny on e , and whe re his falsehood

and dupl icity i s established h e become s a pro iessional outcast . NO on e will trust him

, e ven thoughhe is acting honestly, and i f h e is at all sensitive he

i s continually chagrined and mortified by the pre1 4 Sharswood, Legal Ethics, 73.


cautions take n by those who are thrown in contact

with h im .

32 2 . SERVICES FOR ATTORNEYS . Lawyers arefrequently calle d upon to rende r service s for eachother

,both in personal matte rs and su its o f cl ients .

Should compensation be demande d for such services o r should they be regarde d as profe ssionalcourte sies for which no reward is expe cte d ! It

would seem that in'

former days no charge was

made for a service o f this kind,and this

,to some

exte nt, i s the prevail ing practice at present . Th e

general sentiment would seem to be that casual and

sl ight services should be rendered by one attorneyto another without charge

,particularly in his per

sonal cause,but when th e service goes beyond this

an attorney may be charged the same as othe r

cl ients .1 5 It has further be en declared that ordinaryadvice and services to the family of a de ce asedattorne y should be rendered without charge in most

instances ; and that where the circumstances make

it prope r to charge,the fees should generally be less

than in case of other cl ients .1 6 This i s in keeping

with the ancient traditions o f th e bar, and th e only

consistent course among th e members o f a class thatcalls itse l f a frate rnity and professes for each othera frate rnal regard .

32 3 . SU ITS AGAINST ATTORNEYS . A retaine r

may properly b e accepte d in a suit against an attor1 5 Graydon v . S take s , 2 4 S . C. 483.

1 ° Code , A la . Bar Assn . se c . 52 .



narrow and unprincipled man, than voluntary eriti

c isms of the acts o f a party’s attorney . Therefore,

the honorable an d sel f-respecting practitioner will

never voluntari ly tender his services nor obtrude his

advice in a matter of this kind,an d

,i f appealed to ,

will be most conservative in his utterances andguarded in his expressions .

32 5. SUBSTITUTION OF ATTORNEYS . With re

spect to the substitution of attorneys there hasalways exi sted a most puncti l ious etiquette. As a

rule, the cl ient i s at l iberty to dismiss his attorney,and to procure another in his place, at his merepleasure .1 7 Nor does the second attorney violateany principle o f profess ional courtesy simply by

accepting a retainer under such circumstances . But,i f he shall suggest the change

,or actively and

dire ctly influen ce the client in making same, except

unde r very extraordinary circumstances , he com

mits an act unworthy of any honorable practitioner.

32 6. It wil l o ften happen that a cl ient becomesdi ssatisfied with his legal adviser for no just cause ,or through some caprice

,or for some fancied negle ct

or inattention . In such event he applies to other

counse l with a recital of his attorney’s fail ings or

misdeeds . Under such circumstances the counselthus appl ied to should in an hone st and manly way

inform the cl ient that his fears are unfounded, and

1 7 Re Paschal , 10 Wall (U. S .) 483 ; Ogde n v . Devl in , 45N. Y . Sup . Ct . 63 1 ; and se e , Knox v . Randal l , 2 4 Minn . 479.

RELATIONS W ITH THE BAR .2 0 3

that his attorney is faithfully discharging h is duty .

There i s no other course consistent with honorable

professional character or fair dealing, and a man

who acts otherwise must not only sink in h is own

estimation but in the estimation of all o f his profe ssional brethren to whom the facts shall become

known .

327. But,as before remarked, i t i s a privi lege

Of the cl ient to change h is counsel in his own dis

cretion,and

,i f, in the exercise o f this privilege,

he appl ies to another and tenders a retainer, suchretainer, in a proper case, may be accepted. I f,upon such offer, i t shall appear that the originalattorney has a contingent interest in the case, or

i f there are unpaid fees,which in j ustness he should

rece ive, or i f there are any other unsettled matters

growing out o f the relations o f the parties that

would be prej udiced by such change,then there i s

a duty incumbent on the second attorney to se e thatall o f these matters are satis factorily adjusted b efore he assumes charge

,and in the event o f the

cl ient’s re fusal he should decl ine the retainer. Thishas been the uni form practice o f al l respectable at

torn eys from time immemorial , and its strict ob se rvance is not only in consonance with good morals

,

but indispensable to the preservation of that feel ing

of fellowship and fraternity which should alwayscharacterize the bar.

32 8. Where there has been a palpable misman


agemen t by the original attorney, involving no

moral turpitude, while the circumstances may de

mand an immediate and summary change of counse l, yet this should be accompli shed in a courteous

manner and the unsettled matters be tween the part ies may be left for subsequent adjustment. Where

the facts disclose unmistakable dishonesty,or gross

derel ictions, on the part o f the attorney ,he is en

titled to no considerations o f respect and may betreated the same as any othe r violator o f confidence .

32 9 . Where the clien t has seen fit to change hiscounsel, and has discharged his pecuniary and othe r

obligations to his original attorney,such attorney,

upon request made,should de l iver over to the se c

ond attorney all documents and papers in his possess ion that rightfully pertain to the case, and signa consent for substitution on th e re cord i f the casei s then pending in court . He may prope rly withhold such papers as re late only indirectly to th e

matter, as briefs of authorities , order o f proof, etc . ,or may demand an additional compensation for

them in case they are desired . But in no event

would he be justified in withholding informationprope r to be communicated or necessary to be known

by th e second attorney.

330 . CONCLUSION . The foregoing pages but

imperfectly pre sent a few of the many phases of

professional conduct,and the course th at should b e

pursued under given circumstances . As remarked



gender. Nor i s a pl iancy of character thus fosteredunfavorable to the maintenance Of personal cons istency, for, to the properly trained mind , the veryhabit of rapidly passing from one range of sym

pathics to another begets an earnest aspiration after

conditions which are stable and enduring,and but

fixes the roots of individual principles deeper.

APPENDIX .

SI R MATTHEW HALE’s RULES .

In the year 1660 ,S i r Matthew Hale was ap

pointed Chief Baron of th e Exchequer, on which

occasion he laid down a se rie s o f rules for the gov

e rnme n t of his conduct, that, Lord Campbell said,“Ought to be inscribed in letters of gold on thewalls o f Westminste r Hall , as a lesson to thoseentruste d with th e administration of j ustice .”

While they refer to the judicial Office they have yet

a significance for the bar,an d writers upon legal

ethics have, in many instance s, incorporated them

in their works . Th e rule s are as fol lows :

“Th ings n e ce ssary to b e c on tin ual ly had in r emembran ce .

1 . That in th e admin i stration o f Justi ce , I am intruste dfor God, th e king, and country ; and, the re fore ,

“2 . That it b e done , I , upr ightly ; 2 , de l ibe rate ly ; 3 , re so

lute ly .

“

3 . That I re st not upon my own unde r stand ing or

strength , b ut implore and re st U pon th e d ire ct ion andstrength o f God .

“

4. That in th e exe cution o f just ice I care ful ly l ay as ide2 07

2 0 8 APPEND I X .

my own passions, and n ot give way to them, howeve r p rovoke d .

“

5. That I b e whol ly intent upon th e bus ine s s I am about ,remi tt ing al l othe r care s and thoughts a s unse asonable , andinte rruptions .

“6. That I suffe r not myse l f to b e preposse s se d with any

j udgment at al l , t i l l th e whole bus in e s s and both part ie s b ehe ard.

“

7. That I n eve r engage myse l f in th e beginn ing o f anycause , b ut re se rve myse l f unpre judice d ti l l th e whole b e he ard .

“8. That in bus ine ss cap ital, though my nature prompt

me to p ity, ye t to con s ide r the re i s a p ity al so due to th ecountry.

“

9 . That I b e not too r igid in matte rs pure ly conscientious,whe re al l th e harm i s d ive rs ity o f j udgment.

“10 . That I b e not bi asse d with compass ion to th e poor ,

o r favor to th e r ich,in point of j ustice .

1 1 . That popu lar or court applause , or distaste,have no

influence in anything I do. in point o f di str ibution o f justi ce .

1 2 . Not to b e sol ic itous what me n wil l say or think,so

long as I ke ep myse l f e xactly according to th e ru le o f j ust i ce .

“13 . I f in cr iminal s i t b e a me asur ing cast, to incl ine to

me rcy and acqui ttal .“14. I n cr im inal s that con s i st me re ly in words, whe re n o

more harm ensue s, mode ration i s no injustice .

“15. In cr im inal s o f blood, i f th e fact b e evide nt, seve r ity

i s j ust ice .

“16. To abhor al l pr ivate sol i citations , o f what kind so

e ve r, and by whomsoeve r , in matte rs depending .

“T0 charge my se rvants—1, Not to inte rpose in any mat

te r whatsoe ve r ; 2 , Not to take more than the ir known fe e s ;3 , Not to give any undue pre ce dence to cause s ; 4, Not tor e commend counse l .

“18. To b e short and spar ing at me al s, that I may b e th e

fitte r for bus ine ss .”

In 1671 , Hale was appointed Lord Chief Justiceo f the Court of K ings Bench . After he had occu


2 10 APPEND I X .

CH IVALRY OF ADVOCACY.

Mr. Forsyth, in his inte resting history of advo

cacy,has shown the chival ri c sentiment that pe r

me ated the old French Bar. This , howeve r, seems

in some measure to have be en the result of posit iveregulations , for the French advocate , unlike hi s

brother in England, was not le ft entirely to his owndiscretion in matters of professional morality. The

practice was regulated by frequent royal edicts,and

conformity thereto was enforced under pain of

being disbarred . In time these matters assumedthe Shape of a code

,which remaine d in force until

the revolution in 1790 , when the order of advocates ,along with other institutions

,was aboli shed.

Among the prohibitions and re straints to which theOld French lawyer was subjected we find the following :

1 . He was not to unde rtake j ust and unj ust cause s a l ike ,without d istinction ; n or main tain such as h e unde rtook withtr icke ry, fal lacie s , and m i squotat ions o f author i t ie s .

“2 . He was not in h i s p le adings to indulge in abuse o f th e

oppos i te party or hi s counse l .“

3 . He was not to compromi se th e inte re sts o f h is cl ients,by abse nce from court when th e cause in wh ich h e was retain e d was ca l le d on .

“

4. H e was not to v iolate th e re spe ct due to th e Court,by e i the r imprope r e xpre s s ion s or unbe coming ge sture s .5. H e was not to exh ibit a sordid avid ity o f gain , by

putting too high a pr i ce upon hi s se rvi ce s.

APPEND I X . 2 1 1

6. He was not to make any bargain with hi s cl ie nt for ashare in th e fru it s o f th e j udgment h e might re cove r.

“

7. He was not to le ad a d iss ipate d l i fe , or on e contraryto th e mode sty and gravity of h i s cal l ing.

“8. H e was not, unde r pain o f be ing d i sbarred, to re fuse

h is se rvice s to th e ind igent and oppre s se d

Commenting upon the foregoing Mr. Forsyth

says :

“Throughout the se rule s w e se e that th e analogy o f kn ighthood i s pre se rve d, and th e last bre athe s th e ve ry spir i t o fchivalry. Pur i ty o f l i fe , and di s inte re ste d ze al in th e causeo f th e poor and fr ie ndle ss, we re e nj oine d upon th e caval ie rand advocate al ike ; and doubt le s s th e re semblance be twe enth e two profe s s ion s , Of which th e latte r was thus reminde d ,had a powe r ful e ffe ct in producing a tone of high-minde dfe e l ing, whi ch ought e ve r to b e th e characte ri st ic Of th e Bar .

But some t ime s th i s re semblance was carr ie d furthe r than wase i the r sa fe or agre e able , and th e advocate had to pe r form awarl ike Offi ce , not in a figurative , but a l i te ra l se nse . I a l ludeto th e appe al or wage r o f batt le , whe reby th e sword wasmade th e arb i te r Of di spute s , and sangu inary due l s we resolemn ly san ct ione d by Courts o f law.

”

DEFENSE OF COURVOISIER.

In th e year 1840 there occurred in England aremarkable criminal trial in which were developedseveral principles o f legal ethics that have ever

since con tinued to secure a rec ognition by thebar. A man named Courvois ier was arraignedfor the murder of his master

,Lord Russel l .

2 12 APPEND IX .

He was defended by a Mr . Phill ips . During th e

course o f the trial Courvoisier confessed hi s guilt tohis counsel

,who

,notwithstanding, continued the

defen se. The conduct of Mr . Phill ips was severelycritici sed

,and the case was the subj ect o f much

comment at the time . Several years afterwards thematter was again brought into publ icity by a news

paper attack . This led to a publ ished statement byPhill ips , of the circumstances attending the trial ,from which i s extracte d the following

I t was on th e se cond morn ing o f th e tr i a l, just be fore th ejudge s e nte re d, that Courvois ie r, standing publ ic ly in fronto f th e dock, sol i cite d an inte rview with hi s counse l . Mye xce l lent fr iend and col le ague , Mr . C l arkson and myse l f, imme diate ly approache d h im. I b eg of you to mark th e pre se nce of Mr . C larkson , as i t wi l l be come ve ry mate r ia l p re se ntly. Up to th is morn in g I b e lieve d most firmly in h is

in n oc e n c e ; and so did many othe rs as we l l a s myse l f. ‘ Ihave sent for you, gentlemen ,

’ said h e , ‘to te l l you I com

m itte d th e murde r !’ When I cou l d spe ak, which was notimme diate ly, I said : ‘

Of course , the n, you are going topl e ad gui l ty ! ’ ‘No, sir,

’ was th e reply ; ‘ I e xp e ct you to defend me to th e utmost.’ W e re turne d to our se at s . Myposition at thi s moment was, I be l ieve , without paral le l inth e annal s o f th e profe s s ion . I at once came to th e re solut iono f abandon ing th e case , and so I told my col le ague . He

strongly and urgently remon strate d again st i t, but in vain .

A t l ast h e sugge ste d our obtain ing th e opin ion of th e l e arne dj udge who was not trying th e cause upon what h e cons ide re dto b e th e pro fe ss ional e tique tte unde r circums tance s so em

barrassin g. In th i s I ve ry wil l ingly acquie sced . W e obtaine dan inte rview , whe n Mr. Baron Parke reque ste d to know di stin ctly whe the r th e pr i sone r ins i ste d on my de fe nding h im ;and, on he ar ing that h e did, sa id I was bound to do so, an dto use all fair argume n ts ar ising on th e evide n c e . I the re fore


2 14 APPEND IX .

while the evidence was of a very inconclus ive char

acter, he had pursued a l ine of policy dictated bya bel ief in his cl ient’s innocence . During the wholecourse o f his cross-examinations he made thestrongest insinuations that the fellow servants o f

his cl ient were the perpetrators o f the murder,and

that the policemen were participators with them in

a subsequent conspiracy to throw suspicion on the

prisoner, chiefly by placing a pair o f blood- stained

gloves in his valise,which wer e not d iscovered until

a fter he was sent to prison . Al l o f this made itextremely difficult to follow Baron Parke’s advice .To use after the confession

“all fair arguments ari s

ing on the eviden ce” which was el icited b efore theconfession

,was all but impossible. What would

have be en fai r before be came unjustifiabl e afterward . Th e task of selecting and rej e cting

,of dec id

ing what might and what might n ot be used, would

have puzzled the best mind even after long and care

ful consideration,and

,i t would seem, in the excite

ment o f th e trial Mr . Phill ips failed to di scriminatebetween them . It i s asserted that in his argumentshe not only proclaimed hi s own bel ief in his cl ient

’s

innocence,but st ill attempted to impute the crime

to the other servants,

finally clos ing by a threat to

the jury in the following peroration

“I speak to you as afrie n d, as afe l low-Ch ristian , and I te l l

you, that i f you do not act in th e sp ir i t which I have cal le dupon you to do, that th e de ed of to-day w i ll n eve r die w ith in

you. I f you shoul d pronounce your de cis ion without that

APPEND IX .2 15

de ep and pro found cons ide ration o f i ts aw ful import, th e

e rror which you have fal len into wi l l pursue you w ith r e

morse to th e latest pe riod of your ex iste n c e , an d stan d again st

you in con demnation b efore th e judgme n t-seat of your God.

So beware what you do.

”

Notwithstand ing a vigorous denial by Mr . Phil

l ips and his friends of the charges last recited, i twould yet seem

,from the reports in the public press ,

that they were substantially true as alleged, and hisconduct has furnished a fruit ful theme for muchsubsequent condemnatory writing by the morali sts .

While we must make due allowance for him on account of the posit ive obl igat ion he was under topursue the defense an d the superlative difficultyunder which he labored in so doing, we must yet

agree with the critics in their assertion that, a counse l who so far forgets his offi ce as to support false

hood, or even to d i stort the evidence, violates—notfollows— his duty as an advocate .

The deductions to be drawn from the Courvo i s iercase may be summarized as fol lowsAn attorney is bound to retain a case and con

tinue the defense, notwithstanding he may ascertain

during the course of the trial that h is cl ient i s guilty .

It i s h is duty, even under such circumstances , toscreen his cl ient from conviction on insufficient evi

dence, and to employ in h is defense all fair argumen ts .

He has no right,even though the facts may admit

o f the possib i l ity of guilt in others, to cast suspi

2 16 APPEND IX.

cion on th e innoc en t, n or to damage the charactero f honest witnesses .

He i s wholly unjustified in asserting h is ownbelief in his cl ient’s innocence

,knowing at the time

that he is guilty.

LEGAL COMMERCIALI SM .

In an address before the Section of Legal Education of the American Bar Association

,at its ses

sion held in the year 1894, the illustrious author andj urist, Hon . John F . D i llon , while discussing the

features o f The true profess ional ideal ,” made the

following pertinent remarks :

Th e re i s , I fe ar, s ome de cade nce i n th e lofty ide al s thathave characte riz e d th e profe s s ion in forme r t ime s . Th e re i sin our mode rn l ife a te nde ncy—I have th ought at t ime sve ry stronglymarke d—to ass im i late th e pract ice of th e l aw toth e conduct of comme rc ia l bus in e s s . I n gre at l aw firms withthe ir se parate de partme nts and he ads and subord inate b ur eaus and cle rks with th e ir staff of assi stants , th e re i s muchr e semb lance to th e bus ine s s me thods of th e gre at me rcanti leand bus in e s s e stabl ishme nts s i tuate close by . Th e true lawye r

—not to say th e ide al l awye r—i s o n e who be grudge s not ime and to i l , howeve r gre at , n e e dful t o th e thorough maste ry of h is ca se in i t s facts and l e gal pri nc ip le s ; who take s th et ime and give s th e l abor ne ce s sary to go to i t s v e ry bottom ,

and who wi l l not ce ase h is s tudy unti l eve ry d e ta i l s tandsd i s t inct and luminous in th e i nte l le ctual l i ght with which h ehas surrounde d it . Th e t emptations and ex igencie s o f al arge pract ice make th i s ve ry difficul t , and th e re su lt tooge ne ral ly i s that th e case ge t s only th e atte ntion that is


2 18 APPEND IX .

l awye r are de r ive d pr imar i ly from i ndiv idual d i sposit ion andcharacte r, from home training , from th e s tandard of ri gh tand wrong that pr evail s in th e bar and th e community inwh ich h e l ive s ; b ut of such paramount importance i s it, notonly to lawye rs thems e lve s

,b ut to th e S ta te and t o socie ty,

that a h igh s tandard of profe s s i onal conduct and characte rshould b e ma inta ine d

,that I be l i eve that e ve ry law course

woul d b e improve d that should i nclud e a br ie f s e r ie s ofl e cture s from those whose own l ive s and characte r e ntitl eth em t o sp e ak with author i ty, th e obj e ct o f which should b et o impre s s upon th e young me n e nte r ing th e profe s s i on thatth e h igh e st re quireme nt o f a l e gal e ducat ion i s to make apracti t ione r whos e word i s as sacre d a s an oath

,and who

would no more s e e k to impo se upon a Court, to br ing aque st ionab le su i t , o r to s e e k succe s s by re sort t o oth e r influe n c e s than e v ide nce and argume nt , than h e would e nte rth e court room t o p ly th e trade of a p i ckpocke t . I f in e ve rycol le ge the re i s a chair of moral ph ilos ophy , I can se e nor e a son why th e re should not i n e ve ry law s chool b e a chairof l e gal e th i cs .”

The suggestion was received with much favor bythe association and at th e meeting, he ld th e ye ar following

,the Committee on Legal Education , through

its chairman , Dr. Austin Abbott , presented a report

in which,among other things, may be found the

following

Th e Comm i tt e e would re comme nd, in accordance witha sugge st ion made i n a pap e r re ad be fore th e S e ction ofLe gal Education at i t s l ast me e t ing, that a cour se upon Le galE th ic s b e i ntroduce d in th e law schoo l curr i culum. I t i sremarkable that th i s has be e n alre ady done in s o few

school s ; and i t i s unne ce s sary to argue th e ne e d o f aknowle dge o f l e gal e th ics by th e bar, or th e propr i e ty ofinstruct ion on th is subj e ct in our l aw school s in orde r thatthe ir graduate s may e nte r th e pro fe s s i on with corre ct ideas

APPEND IX .2 19

o f th e dut ie s and re spons ib i l i t ie s o f pract iti one r s to on e an

othe r, to the ir cl ie nts , t o th e courts , and to th e publi c. Suchinstruct ion from those whom th ey had l e arne d to re sp e ctand re ve re could not b ut have a last ing influe nce wh e nre ce ive d by young me n at a t ime whe n th e ir m ind s wouldb e pe cul iar ly impre ss ionab l e , and m ight save th em froms e r i ous e rrors due to want of knowl e dge and exp e r i e nce .

”

“ I t may b e said that th e re i s no ne e d o f sp e c ial instruct ionon le gal e th i cs as a d i s t inct par t of a cours e of le gal study ;that th e propr ie ti e s o f profe s s ional conduct can b e dwe l t onincide ntal ly dur ing th e study of e qui ty , e vide nce , cr im inall aw, and oth e r top ics ; that th e who le l aw cour se should b ep e rvade d, as i t we re , with th e i ncul cat i on of what const itute s th e true profe s s iona l ide al—th e highe s t standards oftruth , and honor , and moral ity ; that th i s i s th e be st m e thodof te aching profe s s ional e th ics , and re nde r s any fur the rinstruct ion unne ce s sary. W e agre e that th e true t e ache rwi l l l o se no occas i on t o point out to h i s pup il s th e pr incip le swhich should gu ide th em am id th e p e rple x it ie s and embarrassme n ts of profe s s ional l ife ; b ut i t cou l d not b ut b e us e fuln e ar th e c l ose of th e ir care e r a s s tude nts to br ing toge the rth e d i s conne cte d thre ads , and in a br ie f cours e of l e cture s(for h e re p robab ly al l wi l l agre e , in struct ion by case s or byte xt-books wi l l not al one accompl i sh th e obj e ct , n or wil lfe ar of e xam inations b e th e be st s t imulus to atte nt ion) warnthem of th e p i tfal l s wh ich wi l l be se t th e ir way , and, withge nuine s o l i ci tude and sympathy

,make plai n to th em th e

path of duty , of honor , and of safe ty.

”I

“ Such a cour s e woul d give to th e stude nt a more c l e arand de finite conce p tion o f th e funct ion of th e l awye r, asbe ing in i t s h igh e st a sp e ct th e pursui t o f truth wh e th e r inque st ions of fact or of law . I t would show h im th e nobles cop e for a jus t parti sanship for h i s cl i e nt with in th e honorab le l im i t s of h i s duty to th e court, to th e pub l i c, and t oth e State . I t would e nhance th e whol e some i nflue nce uponh im of a s e nse of re sp ons ib i l i ty a s an offie r of th e court ,and woul d e nlarge h is appre ciation of th e publ i c i nflue ncewhich honorable s e rvice at th e bar always br ings .”

“ I s i t not p la in tha t without sp e cific atte nt ion to th i s

2 2 0 APPEND IX .

subj e ct a cours e i n law , howe ve r e xte nde d and te chnical,

wil l le ave many stude nts on a l ow grade ! I t i s not a branchwh ich re qu ire s t im e in proporti on to i t s importance , and onth is v e ry account p e rhap s has be e n too much ne gl e cte d .

I n some s chool s i t may b e th ought be st t o tre at th e subj e ctby touch ing upon i t at var ious po int s in th e cours e of othe rsubj e ct s wh ich sugge st i t ; i n o the r s i t may b e th ought be stt o de vote a short p e r i od to i t s d is tinct ive d i s cus s ion, b uti n whate ve r way i t i s done w e b e l ie ve that some cl e ar andde finite cl a ss work upon th e r ights , th e dut i e s and th e t e

sp on sib ilitie s of membe rs of th e bar would b e found an immed iate advantage i n l e gal e ducat ion.”


2 2 2 INDEX .

! THE REFERENCES ARE TO THE SECTIONSJ

AGREEMENTS ,by attorne ys , ne ce s si ty fo r obs e rvance o f, 3 19.for compe nsat ion , e ffe ct of, 127.

impl i e d , by acce p tance of re tain e r, 245, 246.

ANONYMOUS,announceme nts , are unprofe s s ional, 99.

ATTORNEY,

d i s t ingui she d from couns e l lor, 50 .

dut ie s and ob l igat ions of, 53 , 56.

may re ach th e pub l i c, how, 80 .

pe rsonal s o l i c itati on o f bus ine s s by, 86.compe nsati on of, 1 19 .

may no t b e witne s s in h i s own case , 192 .

shoul d not volunte e r Opinions, 195.duty of, t o th ird pe rs ons , 2 05.

B rougham’s de finition of,2 06,

author i ty and powe rs o f, 241 .l iabi l ity of, for want o f ski l l, 245.re l ati on o f

,t o cl ie nt, 2 39 .

may de cl ine re ta ine r , 2 14, 259 .

duty of to accuse d p e rsons , 2 17.may acce pt r e ta ine r with knowle dge o f prison e r’sgui l t

, 2 2 0 .

duty o f i n cr im inal prose cut i ons , 2 28.

re ta ine d t o a ss i st i n state tr ia l s , 2 32 .

di sab i l i t ie s o f, 251 .

opin i ons and advice by, 2 55.conduct of case s by, 2 62 .

may not re pre se nt both s ide s , 265.

may no t d ivul ge pr iv i le ge d communicati ons, 270 .

may not acce pt adve rse employme nt, 277.may not withdraw from cas e , 2 78.

shoul d not a ssume i nconsi s te nt pos iti ons, 2 86.mone y of cl ie nt los t by, 2 88.

mone y of c l ie nt re ta ine d by,290 .

ri ght of cl ie nt to di scharge , 2 92 , 325.

re lat ions of,with cour t

,2 94.

INDEX . 2 2 3

! THE REFERENCES ARE TO THE SECTIONSJ

ATTORNEY—Cont inue d.

conduct of,in cour t

,2 97.

conduct of, out of court, 300 .

may cr i t i c i se court , wh e n , 304.

must not de ce ive cour t, 309 .

re l a ti ons of, with bar , 313 .

profe s s i onal cour te sy shoul d b e e xte nde d by, 3 14.

must show re spe ct for age , 3 18.

mus t obs e rve h i s agre eme nts , 319.

may re nde r se rv ice s to broth e r attorne ys, 32 2 .

may in sti tute su its again s t at torne ys , 32 3 .

must not inte rfe re with o th e r attorneys’bus in e s s, 324.

duty of in case s of subst i tut ion , 325.

BAD DEBTS ,adve rt i seme nts of col le ction of, unpro fe s s ional , 104.

BAR SCHEDULES,

wil l affe ct attorne ys’ fe e s , how, 141.

BENCH AND BAR,

r e lati ons subs i sting be twe e n , 58, 2 94.

BLOOD MONEY ,

what th e old lawye r s say conce rning, 2 32 .

BOORN,

broth e rs , th e case of, 2 27, n .

BR I BERY ,

of witne s se s , what i s , 188.

CARDS,

how d i sp laye d and use d, 93.

CASES ,conduct of by attorne ys

,262 .

withdrawal from not pe rmitte d , 278.

CHAMPERTY ,

d is t ingu i she d from cont inge nt fe e , 145.

ancie nt doctr ine o f, 144, 146.

C IRCULARS,

by attorn e ys,wh e n al l owe d

,10 9.

2 24 INDEX .

! THE REFERENCES ARE TO THE SECTIONS.]CL IENT,

re lat i on o f attorney to , 2 38.

i s bound by attorney’s act i on,241 .

l iabi l i ty of attorney to,2 45.

attorne y may not bargain with , 251 .

Op inions give n to,2 55, 2 58.

communicat ions of are pr iv i le ge d,2 70 .

mone y of, lo st by attorney , 2 88 .

money of,re ta ine d by attorney

,2 90 .

r i gh t of, to di s charge counse l , 2 92 , 325.

may compe l counse l t o fol l ow ins tructi ons, 317.e nt i ceme nt of by attorne ys

, 324.

COACH ING,

of witne s se s , improp rie ty of, 181 .

COMMERC IAL ISM,

in l aw, th e sp ir i t of, 84, 92 , 324.

Mr. D i l l on’s remarks upon,Ap .

COMPENSAT ION ,

pr inc ip le s gove rn ing th e r i gh t o f,1 15.

th e Engl ish the ory of, 1 18.

th e Ame r i can th e ory Of, 1 19 .

l i ab il i ty fo r de volve s on whom,12 3.

se rvice may b e r e fus e d for lack of, 124.

agre eme nts for,how construe d , 1 27.

e x te nt of,and cons ide rations aff e ct ing same , 130 ,

immode rate , e ff e ct Of, 136.

re tain ing , from funds in hand, 139.

a s affe cte d by local rule s , 141 .de pe nde nt on succe s s , 142 .

of ass igne d counse l , 151 .

forfe i ture Of th e r igh t o f, 155.

CONDUCT,

profe ss ional,l e gal e th ics i s , 2 .

i n e l i c i t ing te st imony , 169 .

i n e xam inat ion of witne s se s, 172 .

of case s,duty of attorne y in, 2 62 .


2 2 6 INDEX .

! THE REFERENCES ARE To THE SECTIONS ]CRIME,

e ffe ct of advis ing commi s sion o f, 258.

communicat ions re spe ct ing commi s s i on o f, n ot

i l e ge d, 275.

CR IMINALS,

de fe nse of, ge ne ral ly cons ide re d , 208.

r e ta ine r by,may b e de cl ine d , 2 14.

re taine r by,may b e acce pte d , 2 15.

ancie nt rule s wi th r e sp e ct t o , 2 1 1 .

de fe nse of, no v iolat i on of moral s , 2 13.

profe s s ional duty to,2 17, 2 18.

prose cuti o n of,duty in

,2 2 8.

prose cuti on of, by p r ivate couns e l , 2 32 .

as sociat ion with , l owe r s profe s s ional s tand ing, 235.

CR IMINAL LAW,

a s a spe c ialty, obj e ct ions to, 2 35.

CR ITIC ISM ,

of court s , whe n al l owe d, 304.

DECE IT,

of court by attorneys,184, 309.

DEF IN ITION ,

of e thi cs ge ne ral ly, 4, 6, 17, 19.

o f l e gal e th i cs,2,2 9 , 30 , 48.

o f l aw,14.

of moral s,16

,18, 19.

of e th ica l conce pts, 7, 9, 10 , I 4, 2 1, 23.

o f conscie nce , 2 2 .

of publ ic op in ion , 2 3.

of advocacy, 39, 41 , 56.

o f court s,2 98.

of di sbarme nt, 65.

o f suspe ns ion,65.

o f contempts , 67.

of r e taine r, 1 2 2,2 39 .

of cont ing e nt fe e , 142 .

of p ract ice,157.

INDEX . 2 27

! THE REFERENCES ARE To THE SECTIONS ]DEF IN ITION—Cont inue d .

of pr iv i le ge d communicati ons,270 .

o f profe ss ional courte sy, 3 16.

D ISAB IL ITIES,

cre ate d by th e re l a ti on of attorne y and cli e nt,2 51.

of th e jud i c ia l s tat ion in re se nting attacks, 308.

D ISBARMENT,

cons i st s of what,65.

may b e i nfl i cte d , wh e n, 65, 68, 73 , 74.

re garde d as an act of prote ct ion, 69 .

D ISCHARGE,

of.

counse l,cl i e nt’s r igh t of

,2 92 , 325.

D ISC IPL INE,

e xe rc i s e d by courts ove r attorne ys , 62 .

me thod of e xe rc i se of, 65.

nature of powe r of, 69 .

do e s not affe ct l e gal r ight s, 70 .

grounds for e xe rc i se of, 73 , 1 0 2 , 184, 277.

for unoffici a l mi s conduct , 74.

m i s conduct not r e ach e d by, 77.

for unprofe ss ional adve rt i s ing, 10 2 , 103.

fo r re taining mon e y of cl i e nt, 71 , 140 , 2 90 .

for fraud o r ne gl ige nce,155, 156, 2 51 .

fo r coach ing witne s se s,184.

fo r br ib ing witne s s e s , 188.

for conduct out of court, 30 1a.

for tampe r ing wi th re cords , 2 00 .

for withdrawing pap e r s from fi le s , 2 83 .

for advi s ing comm i s s ion of cr ime , 2 58.

for acce pting adve r se empl oyme nt,277.

for di scl o s ing pr iv i le ge d commun icat ions , 272 .

D ISCUSS ION ,

of le gal top ics in th e pub l i c p re s s , 107.

D IVORCES ,procur i ng of

,prop e r l e gal work , 10 0 .

adve rti s ing to procure , unprofe s s ional , 10 0,10 1 .

2 2 8 INDEX .

! THE REFERENCES ARE To THE SECTIONS ]DUTY

,

th e foundation of e th ics , 1 .

of what cons i s ting, 4n .

profe s s ional,s cope of

, 35.

to th ird p e rsons,2 05.

to pe rsons accus e d of cr ime,2 17.

to cl i e nts,2 41 .

to cour t s,2 97.

to th e bar , 3 14.

ETH ICS,

de r ivati on of th e te rm, 5.

de finit ion of, 6.

ge ne ral th e or i e s re lati ng to, 7.

le gal , de fine d and dis tingui sh e d , 30 .

a re qu ireme nt of le gal e ducat ion,Ap .

ETH I CAL SYSTEMS,

ar e found e d upon what, 6, 7.

Obj e ct ive , of what cons i st ing , 9 .

subj e ct ive,of what con s is ting

, 10 .

EV IDENCE,

e thical the or ie s wi th re sp e ct to , 168.

improp e r, offe r of an offe nse , 179 .

EXAMINATION,

of wi tne s se s , obj e ct of, 171 , 172 .

i n ch ie f, how conduct e d , 173 .

cross , Obj e ct s and me thod of,175.

FEES,

of couns e l,th e or ie s re spe cting, 1 16, 1 18, 1 19.

may b e r e cove re d as of r ight , 1 2 2 .

l iab i l ity for , 12 3.

agre eme nts r e sp e ct ing,may b e made wh e n , 127.

e xte nt of,130 .

cons ide rations affe ct ing th e fix ing of,135.

immode rate , v iews in re gard to,136.

may b e re taine d from funds in hand , 139.

affe cte d by l ocal rule s,how

,141 .


2 30 INDEX .

! THE REFERENCES ARE To THE SECT10 NS ]

JUR ISPRUDENCE,

th e re lati on of, to e th ic s, 7.

JURY ,

argume nts be fore , how conducte d, 196.

LAW,

ge ne ral de finit ion of,14.

dist ingui sh e d from moral s, 12 .

obe die nc e to , a moral duty, 24.

LEGAL ETH ICS ,de finit ion of

,1,2, 3 1 .

d i st ingui sh e d from e th ics , 30 .

LEGAL LABOR,

divi s ions of,i n England , 50 .

LEGAL FRATERN ITY ,

th e lawye rs an orde r o r, 3 13 .

L IAB IL ITY,

fo r fe e s , attach e s to whom,12 3 , 2 39.

for want of ski l l by attorney,245.

M ISCONDUCT,

offic ial,cour t may puni sh fo r, 62 .

unofficial , wh e n ground fo r di s c ipl ine , 74.

without summary dis cip l ine , 77.

M ISSTATEMENTS ,by couns e l unprofe ss ional , 3 10 .

MONEY ,

l os t in hands of attorne y , 2 88.

duty in safe ke e p ing of, 2 89 .

r e tai ne d by attorne y, 139, 2 90 .

MORAL ITY,

in pract i ce , me thods to b e obse rve d , 158.

de fe nse of cr im inal s no offe nse against, 2 13.

MORALS ,di st ingu i sh e d from l aw,

1 2 .

dist ingui sh e d from e th ics ,“

17.

th e standard of, 2 1 .

INDEX ; 2 3 1

! THE REFERENCES ARE TO THE SECTIONS ]MORAL SC IENCE,

fir s t inqu iry in,8.

var ious th e ori e s o f, 9 .

di st ingu i sh e d from jur i sp rude nce,12 .

di st ingui sh e d from moral ity,I7.

NEWSPAPERS ,adve rt i s ing in

,unprofe s s i onal

, 97.

d i s cus s ion s in, wh e n al l owe d, 107.

NOLLE PRO SE ! U I ,sh ould b e e nte re d , wh e n , 2 3 1 .

OVERCHARGE ,

by attorne ys,vi ews re sp e cting

,136.

POWERS ,of attorne y ove r c l ie nt’s matte rs , 2 41 .

acts in e xce s s of, 243.

PRACTICE,

de fini ti on of,157.

of advocacy, e s se ntial p r i nc iple of, 38.

moral ity an e s se ntial ingre die nt of, 158.

in cr im inal cas e s , 2 08.

PR IV ILEGED COMMUN ICATIONS ,e ffe ct and e xte nt of, 2 70 .

PROCESS ,abuse of, i s unprofe ss i onal , 2 0 2 .

PROFESS IONAL O P IN IONS ,whe n and how give n , 2 55.

not pr iv i le ge d wh e n , 2 75.

PROFESS IONAL DUTY ,

s cop e and nature of, 38, 53 .

e arly conce pts with r e spe ct to, 48.

large ly unde fine d , 53 , 55.

pre s cr ibe d for th e advocate s of Ge ne va , 53n .

pre scr ibe d by oath of office , 56.

court s may e nforce , 62 .

d i sc ip l i ne fo r d e re l i ct i ons from,65.

2 32 INDE X .

! THE REFERENCES ARE To THE SECTIONS ]PROFESS IONAL DUTY—Continue d.to third p e r sons , 2 05.

to pe r s ons accus e d of cr ime , 2 17.to judge s and office rs of court s, 103, 207.to membe rs of th e bar, 3 14.

PROSECUTION ,

of cr im inal s,how conducte d

,2 2 8.

private couns e l a s s i s t ing in , 2 32 .

PUBL IC ITY .

of cal l ing,how e ffe cte d , 80 .

PUBL IC OP IN ION ,

de finit i on of,2 3 .

may b e cons ide re d as authority, 2 6.

! UANTUM MERU IT,

comp e nsat i on may b e re cove re d on , 132 , 134.

RECORDS ,tamp e r ing with

,an offe nse , 2 00 .

RELATION ,

of attorne y and cl ie nt, 2 37.

d isabi l it ie s impos e d by , 2 51 .

duti e s i nvolve d in , 2 38, 2 45.

how e stabl ishe d,2 39 .

of be nch and bar, 58, 2 94.

ame nit ie s involve d in,2 97, 300 .

of memb e r s of th e bar , 3 13 , 3 14.

RETA INER,

in cr im ina l case s , 2 14.

i n c ivi l cas e s , wh e n r e fuse d , 2 59 .

may not b e take n from both s ide s , 2 65.how e stabl i sh e d , 1 2 2

,2 39 .

SELF PRA ISE,

may b e indul ge d i n wh e n , 1 12 .

SERJEANTS ,or i gin of o rde r of

, 45.

r igh ts and . dutie s of, 48.


2 34 INDEX .

! TH E REFERENCES ARE TO TH E SECTIONS-lWITNESSES

,

duty of,with re spe ct to truth

,170 .

e xam inat ion of, how conducte d , 173 .

coaching of,not p e rm i tt e d

,181 .

may b e advise d to what e x te nt , 185.

payme nt of,cons t itute s br ibe ry wh e n

,188.

attorne ys may not b e , in the ir own case s, 192 .

WITHDRAW AL ,

of attorney from case , 278.

of app e arance or pl e ad ings , 2 83.

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