Chapter 4

There is one more caution to be given under this head. Let him shun most carefully the reputation of a sharp practitioner. Let him be liberal to the slips and oversights of his opponent wherever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal--and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety.

Nothing is more certain than that the practitioner will find, in the long run, the good opinion of his professional brethren of more importance than that of what is commonly called the public. The foundations of the reputation of every truly great lawyer will be discovered to have been laid here. Sooner or later, the real public--the business men of the community, who have important lawsuits, and are valuable clients--indorse the estimate of a man entertained by his associates of the Bar, unless indeed there be some glaring defect of popular qualities. The community know that they are better qualified to judge of legal attainments, that they have the best opportunity of judging, and that they are slow in forming a judgment. The good opinion and confidence of the members of the same profession, like the King's name on the field of battle, is "a tower of strength;" it is the title of legitimacy. The ambition to please the people, to captivate jurors, spectators, and loungers about the court room, may mislead a young man into pertness, flippancy, and impudence, things which often pass current for eloquence and ability with the masses; but the ambition to please the Bar can never mislead him. Their good graces are only to be gained by real learning, by the strictest integrity and honor, by a courteous demeanor, and by attention, accuracy and punctuality in the transaction of business.

The topic of fidelity to the client involves the most difficult questions in the consideration of the duty of a lawyer.

He is legally responsible to his client only for the want of ordinary care and ordinary skill. That constitutes gross negligence. It is extremely difficult to fix upon any rule which shall define what is negligence in a given case. The habits and practice of men are widely different in this regard. It has been laid down that if the ordinary and average degree of diligence and skill could be determined, it would furnish the true rule.[9] Though such be the extent of legal liability, that of moral responsibility is wider. Entire devotion to the interest of the client, warm zeal in the maintenance and defence of his rights, and the exertion of his utmost learning and ability,--these are the higher points, which can only satisfy the truly conscientious practitioner.

But what are the limits of his duty when the legal demands or interests of his client conflict with his own sense of what is just and right? This is a problem by no means of easy solution.

That lawyers are as often the ministers of injustice as of justice is the common accusation in the mouth of gainsayers against the profession. It is said there must be a right and a wrong side to every lawsuit. In the majority of cases it must be apparent to the advocate, on which side is the justice of the cause; yet he will maintain, and often with the appearance of warmth and earnestness, that side which he must know to be unjust, and the success of which will be a wrong to the opposite party. Is he not then a participator in the injustice?

It may be answered in general:--

Every case is to be decided by the tribunal before which it is brought for adjudication upon the evidence, and upon the principles of law applicable to the facts as they appear upon the evidence. No court or jury are invested with any arbitrary discretion to determine a cause according to their mere notions of justice. Such a discretion vested in any body of men would constitute the most appalling of despotisms. Law, and justice according to law--this is the only secure principle upon which the controversies of men can be decided. It is better on the whole that a few particular cases of hardship and injustice, arising from defect of evidence or the unbending character of some strict rule of law, should be endured, than that general insecurity should pervade the community from the arbitrary discretion of the judge. It is this which has blighted the countries of the East as much as cruel laws or despotic executives. Thus the legislature has seen fit in certain cases to assign a limit to the period within which actions shall be brought; in order to urge men to vigilance, and to prevent stale claims from being suddenly revived against men whose vouchers are destroyed or whose witnesses are dead. It is true, _in foro conscientiæ_, a defendant, who knows that he honestly owes the debt sued for and that the delay has been caused by indulgence or confidence on the part of his creditor, ought not to plead the statute. But if he does plead it, the judgment of the court must be in his favor.

Now the lawyer is not merely the agent of the party; he is an officer of the court. The party has a right to have his case decided upon the law and the evidence, and to have every view presented to the minds of his judges, which can legitimately bear upon that question. This is the office which the advocate performs. He is not morally responsible for the act of the party in maintaining an unjust cause, nor for the error of the court, if they fall into error, in deciding it in his favor. The court or jury ought certainly to hear and weigh both sides; and the office of the counsel is to assist them by doing that, which the client in person, from want of learning, experience, and address, is unable to do in a proper manner. The lawyer, who refuses his professional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury.

As an answer to any sweeping objection made to the profession in general, the view thus presented may be quite satisfactory. It by no means follows, however, as a principle of private action for the advocate, that all causes are to be taken by him indiscriminately and conducted with a view to one single end, _success_. It is much to be feared, however, that the prevailing tone of professional ethics leads practically to this result. He has an undoubted right to refuse a retainer, and decline to be concerned in any cause, at his discretion. It is a discretion to be wisely and justly exercised. When he has once embarked in a case, he cannot retire from it without the consent of his client or the approbation of the court.[10] To come before the court with a revelation of facts, damning to his client's case, as a ground for retiring from it, would be a plain breach of the confidence reposed in him, and the law would seal his lips.[11] How then is he to acquit himself? Lord Brougham, in his justly celebrated defence of the Queen, went to very extravagant lengths upon this subject; no doubt he was led by the excitement of so great an occasion to say what cool reflection and sober reason certainly never can approve. "An advocate," said he, "in the discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences; though it should be his unhappy lot to involve his country in confusion."

On the other hand, and as illustrative of the practical difficulty, which this question presented to a man, with as nice a perception of moral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir Matthew Hale: "If he saw a cause was unjust, he for a great while would not meddle further in it, but to give his advice that _it was so_; if the parties after that would go on, they were to seek another counsellor, for he would assist none in acts of injustice; if he found the cause doubtful or weak in point of law, he always advised his clients to agree their business. Yet afterwards he abated much of the scrupulosity he had about causes that appeared at first unjust, upon this occasion; there were two causes brought him, which by the ignorance of the party or their attorney, were so ill-represented to him that they seemed to be very bad; but he inquiring more narrowly into them, found they were really very good and just; so after this he slackened much of his former strictness of refusing to meddle in causes upon the ill circumstances that appeared in them at first."[12]

It may be delicate and dangerous ground to tread upon to undertake to descend to particulars upon such a subject. Every case must, to a great degree, depend upon its own circumstances, known, peradventure, to the counsel alone; and it will often be hazardous to condemn either client or counsel upon what appears only. A hard plea--a sharp point--may subserve what is at bottom an honest claim, or just defence; though the evidence may not be within the power of the parties, which would make it manifest.

There are a few propositions, however, which appear to me to be sound in themselves, and calculated to solve this problem practically in the majority of cases: at least to assist the mind in coming to a safe conclusion _in foro conscientiæ_, in the discharge of professional duty.

There is a distinction to be made between the case of prosecution and defence for crimes; between appearing for a plaintiff in pursuit of an unjust claim, and for a defendant in resisting what appears to be a just one.

Every man, accused of an offence, has a constitutional right to a trial according to law: even if guilty, he ought not to be convicted and undergo punishment unless upon legal evidence; and with all the forms which have been devised for the security of life and liberty. These are the panoply of innocence when unjustly arraigned; and guilt cannot be deprived of it, without removing it from innocence. He is entitled, therefore, to the benefit of counsel to conduct his defence, to cross-examine the witnesses for the State, to scan, with legal knowledge, the forms of the proceeding against him, to present his defence in an intelligible shape, to suggest all those reasonable doubts which may arise from the evidence as to his guilt, and to see that if he is convicted, it is according to law. A circumstance the celebrated Lord Shaftesbury once so finely turned to his purpose must often happen to a prisoner at his trial. Attempting to speak on the bill for granting counsel to prisoners in cases of high treason, he was confounded, and for some time could not proceed, but recovering himself, he said, "What now happened to him would serve to fortify the arguments for the bill. If he innocent and pleading for others was daunted at the augustness of such an assembly, what must a man be who should plead before them for his life?"[13] The courts are in the habit of assigning counsel to prisoners who are destitute, and who request it; and counsel thus named by the court cannot decline the office.[14] It is not to be termed screening the guilty from punishment, for the advocate to exert all his ability, learning, and ingenuity, in such a defence, even if he should be perfectly assured in his own mind of the actual guilt of the prisoner.[15]

It is a different thing to engage as private counsel in a prosecution against a man whom he knows or believes to be innocent. Public prosecutions are carried on by a public officer, the Attorney-General, or those who act in his place; and it ought to be a clear case to induce gentlemen to engage on behalf of private interests or feelings, in such a prosecution. It ought never to be done against the counsel's own opinion of its merits. There is no call of professional duty to balance the scale, as there is in the case of a defendant. It is in every case but an act of courtesy in the Attorney-General to allow private counsel to take part for the Commonwealth; such a favor ought not to be asked, unless in a cause believed to be manifestly just. The same remarks apply to mere assistance in preparing such a cause for trial out of court, by getting ready and arranging the evidence and other matters connected with it: as the Commonwealth has its own officers, it may well, in general, be left to them. There is no obligation on an attorney to minister to the bad passions of his client; it is but rarely that a criminal prosecution is pursued for a valuable private end, the restoration of goods, the maintenance of the good name of the prosecutor, or closing the mouth of a man who has perjured himself in a court of justice. The office of Attorney-General is a public trust, which involves in the discharge of it, the exertion of an almost boundless discretion, by an officer who stands as impartial as a judge. "The professional assistant, with the regular deputy, exercises not his own discretion, but that of the Attorney-General, whose _locum tenens_ at sufferance, he is; and he consequently does so under the obligation of the official oath."[16] On the other hand, if it were considered that a lawyer was bound or even had a right to refuse to undertake the defence of a man because he thought him guilty, if the rule were universally adopted, the effect would be to deprive a defendant, in such cases, of the benefit of counsel altogether.

The same course of remark applies to civil causes. A defendant has a legal right to require that the plaintiffs demand against him should be proved and proceeded with according to law. If it were thrown upon the parties themselves, there would he a very great inequality between them, according to their intelligence, education, and experience, respectively. Indeed, it is one of the most striking advantages of having a learned profession, who engage as a business in representing parties in courts of justice, that men are thus brought nearer to a condition of equality, that causes are tried and decided upon their merits, and do not depend upon the personal characters and qualifications of the immediate parties.[17] Thus, too, if a suit be instituted against a man to recover damages for a tort, the defendant has a right to all the ingenuity and eloquence he can command in his defence, that even if he has committed a wrong, the amount of the damages may not exceed what the plaintiff is justly entitled to recover. But the claim of a plaintiff stands upon a somewhat different footing. Counsel have an undoubted right, and are in duty bound, to refuse to be concerned for a plaintiff in the legal pursuit of a demand, which offends his sense of what is just and right. The courts are open to the party in person to prosecute his own claim, and plead his own cause; and although he ought to examine and be well-satisfied before he refuses to a suitor the benefit of his professional skill and learning, yet it would be on his part an immoral act to afford that assistance, when his conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him. "It is a popular but gross mistake," says the late Chief Justice Gibson, "to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself, in his office of attorney, with all fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment, much more so when he presses for the conviction of an innocent man.... The high and honorable office of a counsel would be degraded to that of a mercenary, were he compelled to do the biddings of his client against the dictates of his conscience."[18] The sentiment has been expressed in flowing numbers by our great commentator, Sir William Blackstone:--

"To Virtue and her friends a friend, Still may my voice the weak defend: Ne'er may my prostituted tongue Protect the oppressor in his wrong; Nor wrest the spirit of the laws, To sanctify the villain's cause."

Another proposition which may be advanced upon this subject is, that there may and ought to be a difference made in the mode of conducting a defence against what is believed to be a righteous, and what is believed to be an unrighteous claim. A defence in the former case should be conducted upon the most liberal principles. When he is contending against the claim of one, who is seeking, as he believes, through the forms of law, to do his client an injury, the advocate may justifiably avail himself of every honorable ground to defeat him. He may begin at once by declaring to his opponent or his professional adviser, that he holds him at arm's length, and he may keep him so during the whole contest. He may fall back upon the instructions of his client, and refuse to yield any legal vantage ground, which may have been gained through the ignorance or inadvertence of his opponent. Counsel, however, may and even ought to refuse to act under instructions from a client to defeat what he believes to be an honest and just claim, by insisting upon the slips of the opposite party, by sharp practice, or special pleading--in short, by any other means than a fair trial on the merits in open court. There is no professional duty, no virtual engagement with the client, which compels an advocate to resort to such measures, to secure success in any cause, just or unjust; and when so instructed, if he believes it to be intended to gain an unrighteous object, he ought to throw up the cause, and retire from all connection with it, rather than thus he a participator in other men's sins.

Moreover, no counsel can with propriety and a good conscience express to court or jury his belief in the justice of his client's cause, contrary to the fact. Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scales in favor of the side he has espoused. If that opinion has been formed on a statement of facts not in evidence, it ought not to be heard,--it would be illegal and improper in the tribunal to allow any force whatever to it; if on the evidence only, it is enough to show from that the legal and moral grounds on which such opinion rests. Some very sound and judicious observations have been made by Mr. Whewell in a recent work on the Elements of Moral and Political Science, which deserve to be quoted at length;--

"Some moralists," says he, "have ranked with the cases in which convention supersedes the general rule of truth, an advocate asserting the justice, or his belief in the justice, of his client's cause. Those who contend for such indulgence argue that the profession is an instrument for the administration of justice: he is to do all he can for his client: the application of laws is a matter of great complexity and difficulty: that the right administration of them in doubtful cases is best provided for if the arguments on each side are urged with the utmost force. The advocate is not the judge.

"This may be all well, if the advocate let it be so understood. But if in pleading he assert his belief that his cause is just when he believes it unjust, he offends against truth, as any other man would do who in like manner made a like assertion.

"Every man, when he advocates a case in which morality is concerned, has an influence upon his hearers, which arises from the belief that he shares the moral sentiments of all mankind. This influence of his supposed morality is one of his possessions, which, like all his possessions, he is bound to use for moral ends. If he mix up his character as an advocate with his character as a moral agent, using his moral influence for the advocate's purpose, he acts immorally. He makes the moral rule subordinate to the professional rule. He sells to his client not only his skill and learning, but himself. He makes it the supreme object of his life to be not a good man, but a successful lawyer.

"There belong to him, moreover, moral ends which regard his profession; namely, to make it an institution fitted to promote morality. To raise and purify the character of the profession, so that it may answer the ends of justice without requiring insincerity in the advocate, is a proper end for a good man who is a lawyer; a purpose on which he may well and worthily employ his efforts and influence."[19]

Nothing need be added to enforce what has been so well said. The remark, however, may be permitted, that the expression of private opinion as to the merits of a controversy often puts the counsel at fearful odds. A young man, unknown to the court or the jury, is trying his first case against a veteran of standing and character: what will the asseveration of the former weigh against that of the latter? In proportion, then, to the age, experience, maturity of judgment, and professional character of the man, who falsely endeavors to impress the court and jury with the opinion of his confidence in the justice of his case, in that proportion is there danger that injury will be done and wrong inflicted--in that proportion is there moral delinquency in him who resorts to it.

Much interest was excited some years ago in England, by the circumstances attending the defence of Courvoisier, indicted for the murder of Lord William Russell. The crime was one of great atrocity. It came out after his conviction, that during the trial he had confessed his guilt to his counsel, of whom the eminent barrister Charles Phillips, Esq., was one. Mr. Phillips was accused of having endeavored, notwithstanding this confession, to fasten suspicion on the other servants in the house, to induce the belief that the police had conspired with them to manufacture evidence against the prisoner, and to impress the jury with his own personal belief in the innocence of his client. How far these accusations were just in point of fact was the subject of lively discussion in the newspapers and periodicals of the time.[20]

The language of counsel, on such occasions, during the excitement of the trial, in the fervor of an address to the jury, is not to be calmly and nicely scanned in the printed report. The testimony of such a witness as Baron Parke, at the time and on the spot,--he, too, aware of the exact position of Mr. Phillips--and that confirmed by Chief Justice Tindal, is conclusive. To charge him with _acting falsehood_, that is, with presenting the case as it appeared upon the testimony, earnestly and confidently, means that he did not do that, which would have been worse than retiring from his post.