Chapter 5

The non-professional, as well as professional public in England, however, agreed in saying that he would not have been justified in withdrawing from the case: he was still bound to defend the accused upon the evidence; though a knowledge of his guilt, from whatever source derived, might and ought materially to influence the mode of the defence. No right-minded man, professional or otherwise, will contend that it would have been right in him to have lent himself to a defence, which might have ended, had it been successful, in bringing down an unjust suspicion upon an innocent person; or even to stand up and falsely pretend a confidence in the truth and justice of his cause, which he did not feel. But there were those on this side of the Atlantic, who demurred to the conclusion, that an advocate is under a moral obligation to maintain the defence of a man who has admitted to him his guilt. Men have been known, however, under the influence of some delusion, to confess themselves guilty of crimes which they had not committed: and hence, to decline acting as counsel in such a case, is a dangerous refinement in morals.[21] Nothing seems plainer than the proposition, that a person accused of a crime is to be tried and convicted, if convicted at all, _upon evidence_, and _whether guilty or not guilty_, if the evidence is insufficient to convict him, he has _a legal right_ to be acquitted. The tribunal that convicts without sufficient evidence may decide according to the fact; but the next jury, acting on the same principle, may condemn an innocent man. If this be so, is not the prisoner in every case entitled to have the evidence carefully sifted, the weak points of the prosecution exposed, the reasonable doubts presented which should weigh in his favor? And what offence to truth or morality does his advocate commit in discharging that duty to the best of his learning and ability? What apology can he make for throwing up his brief? The truth he cannot disclose; the law seals his lips as to what has thus been communicated to him in confidence by his client. He has no alternative, then, but to perform his duty. It is his duty, however, as an advocate merely, as Baron Parke has well expressed it, to use ALL FAIR ARGUMENTS ARISING ON THE EVIDENCE. Beyond that, he is not bound to go in any case; in a case in which he is satisfied in his own mind of the guilt of the accused, he is not justified in going.

Under all circumstances, the utmost candor should be used towards the client. This is imperatively demanded alike by considerations of duty and interest. It is much better for a man occasionally to lose a good client, than to fail in so plain a matter. It is nothing but selfishness that can operate upon a lawyer when consulted to conceal from the party his candid opinion of the merits, and the probable result. It is fair that he should know it; for he may not choose to employ a man whose views may operate to check his resorting to all lawful means to effect success. Besides, most men, when they consult an attorney, wish a candid opinion; it is what they ask and pay for. It is true, that it is often very hard to persuade a man that he has not the best side of a lawsuit: his interest blinds his judgment: his passion will not allow him to reflect calmly, and give due weight to opposing considerations. There are many persons who will go from lawyer to lawyer with a case, until they find one who is willing to express an opinion which tallies with their own. Such a client the lawyer, who acts firmly upon the principle to which I have adverted, will now and then lose; but even such an one, when finally unsuccessful, as the great probability is that he will be, when he comes to sit down and calculate all that he has lost in time, money, and character, by acting contrary to the advice first given, will revert to the candid and honest opinion he then received, and determine, if ever he gets into another difficulty of the kind, to resort to that attorney, and abide by his advice. Thus may a man build up for himself a character far outweighing, even in pecuniary value, all such paltry particular losses; it is to such men that the best clients resort; they have the most important and interesting lawsuits, and enjoy by far the most lucrative practice.

A very important part of the advocate's duty is to moderate the passions of the party, and where the case is of a character to justify it, to encourage an amicable compromise of the controversy. It happens too often at the close of a protracted litigation that it is discovered, when too late, that the play has not been worth the candle, and that it would have been better, calculating everything, for the successful party never to have embarked in it--to have paid the claim, if defendant, or to have relinquished it, if he was plaintiff. Counsel can very soon discover whether such is likely to be the case, and it cannot be doubted what their plain duty is under such circumstances.

Besides this, the advocate is bound in honor, as well as duty, to disclose to the client at the time of the retainer, every circumstance of his own connection with the parties or prior relation to the controversy, which can or may influence his determination in the selection of him for the office. An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. No man can be supposed to be indifferent to the knowledge of facts, which work directly on his interests, or bear on the freedom of his choice of counsel. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements which interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest which may betray his judgment or endanger his fidelity.[22]

It is in some measure the duty of counsel to be the keeper of the conscience of the client; not to suffer him, through the influence of his feelings or interest, to do or say anything wrong in itself, and of which he would himself afterwards repent. This guardianship may be carefully, and at the same time kindly exerted. One particular will be mentioned in which its exercise is frequently called for. The client will be often required, in the course of a cause, to make affidavits of various kinds. There is no part of his business with his client, in which a lawyer should be more cautious, or even punctilious, than this. He should be careful lest he incur the moral guilt of subornation of perjury, if not the legal offence. An attorney may have communications with his client in such a way, in instructing him as to what the law requires him to state under oath or affirmation, in order to accomplish any particular object in view, as to offer an almost irresistible temptation and persuasion to stretch the conscience of the affiant up to the required point. Instead of drawing affidavits, and permitting them to be sworn to as a matter of course, as it is to be feared is too often the case, counsel should on all occasions take care to treat an oath with great solemnity, as a transaction to be very scrupulously watched, because involving great moral peril as well as liability to public disgrace and infamy. It lies especially in the way of the profession to give a high tone to public sentiment upon this all-important subject, the sacredness of an oath. It is always the wisest and best course, to have an interview with the client, and draw from him by questions, whether he knows the facts which you know he is required to state, so that you may judge whether, as a conscientious man, he ought to make such affidavit.

Another particular may be adverted to: the attempt to cover property from the just demands of creditors. It is to be feared that gentlemen of the Bar sometimes shut their eyes and, under the influence of feelings of commiseration for an unfortunate client, feign not to see what is really very palpable to everybody else. Surely they ought never to sanction, directly or indirectly such shams, especially when the machinery of a judicial sale is introduced more securely to accomplish the object. A purchase is made in the name of a friend for the debtor's benefit and with the debtor's money, though it may be hard to make that appear by legal evidence. When advice is asked, as it sometimes is, how such a thing may be safely and legally done, the idea held prominently before the party by his counsel should be, that his estate is the property of his creditors, and that nothing but their consent will justify an appropriation of any part of it to his benefit.

Lawyers too may very materially assist in giving a high tone to public sentiment in the matter of stay and exemption laws. It is not every case in which a man has a legal that he has a moral right to claim the benefit of such laws. When a debtor with ample means to pay only wants to harass and worry his creditor, who has resorted to legal process and obtained a judgment, by keeping him out of his money, as it is often expressed, as long as he can; or where he wishes to take advantage of hard times to make more than legal interest, or with concealed means unknown to the execution plaintiff, claims the exemption: these are cases which counsel ought to hold up in their proper light to those whom they advise, and wash their hands of the responsibility of them. According to the Jewish law, the cloak or outer garment, which was generally used by the poorer classes as a covering during sleep, could not be retained by the creditor to whom it had been given in pledge, and of course was exempt by law from seizure for debt; and our blessed Saviour, in his sermon on the mount, has been supposed to refer to this exemption law, when he said: "And if any man will sue thee at the law and take away thy coat, let him have thy cloak also;" that is, confine not yourself in your transactions with your fellow-men to giving them simply the strict measure of their legal rights: give them all that is honestly theirs as far as you have ability, whether the law affords them a remedy or not. There have been some noble instances of bankrupts who, upon subsequently retrieving their fortunes, have fully discharged all their old debts, principal and interest, though released or barred by the Statute of Limitations; but such instances would be more common if the spirit of the high and pure morality, which breathes through the sermon on the mount, prevailed more extensively.

An important clause in the official oath is "to delay no man's cause for lucre or malice." It refers, no doubt, primarily, to the cause intrusted to the attorney, and prohibits him from resorting to such means for the purpose of procuring more fees, or of indulging any feeling he may have against his client personally. Such conduct would be a clear case of a violation of the oath. But it is a question, also, whether the case generally, in which he is retained, is not comprehended.[23] How far, then, can he safely go in delaying the cause for the benefit of, and in pursuance of the instructions of his client? A man comes to him and says: "I have no defence to this claim; it is just and due, but I have not the means to pay it; I want all the time you can get for me." The best plan in such instances, is, no doubt, at once frankly to address his opponent, and he will generally be willing to grant all the delay which he knows, in the ordinary course can be gained, and perhaps more, as a consideration for his own time and trouble saved. If, however, that be impracticable, it would seem that the suitor has a right to all the delay, which is incident to the ordinary course of justice. The counsel may take all means for this purpose, which do not involve artifice or falsehood in himself or the party. The formal pleas put in are not to be considered as false in this aspect, except such as are required to be sustained by oath. In an ejectment, for example, an appearance need not be entered until the second term, the legislature having seen fit to give that much respite to the unjust possessor of real estate. But to stand by and see a client swear off a case on account of the absence of a material witness, when he knows that no witness can be material; or further to make affidavit that his appeal or writ of error is not intended for delay, when he knows that it is intended for nothing else, no high-minded man will be privy or consent to such actions, much less have any active participation in them.

Subject, however, to the qualifications which have been stated, when a cause is undertaken, the great duty which the counsel owes to his client, is an immovable fidelity. Every consideration should induce an honest and honorable man to regard himself, as far as the cause is concerned, as completely identified with his client. The criminal and disgraceful offence of taking fees of two adversaries, of allowing himself to be approached corruptly, whether directly or indirectly, with a view to conciliation, ought, like parricide in the Athenian law, to be passed over in silence in a code of professional ethics.[24] All considerations of self should be sunk by the lawyer in his duty to the cause. The adversary may be a man of station, wealth, and influence; his good will may be highly valuable to him; his enmity may do him great injury. He should not permit such thoughts to arise in his mind. He should do his duty manfully, without fear, favor, or affection.

At the same time, let it be observed, that no man ought to allow himself to be hired to abuse the opposite party. It is not a desirable professional reputation to live and die with, that of a rough tongue, which makes a man to be sought out, and retained to gratify the malevolent feelings of a suitor in hearing the other side well lashed and vilified. An opponent should always be treated with civility and courtesy, and if it be necessary to say severe things of him or his witnesses, let it be done in the language, and with the bearing, of a gentleman. There is no point in which it becomes an advocate to be more cautious, than in his treatment of the witnesses. In general, fierce assaults upon them, unnecessary trifling with their feelings, rough and uncivil behavior towards them in cross-examination, whilst it may sometimes exasperate them to such a pitch, that they will perjure themselves in the drunkenness of their passion, still, most generally tells badly on the jury. They are apt to sympathize with a witness under such circumstances.[25] It is as well unwise as unprofessional, in counsel, to accuse a witness of having forsworn himself, unless some good ground, other than the mere instruction of the client, is present in the evidence to justify it. He may sift most searchingly, and yet with a manner and courtesy which affords no ground for irritation, either in witness or opponent; and in such case, if his questions produce irritation, it is a circumstance which will weigh in his favor.

The practitioner owes to his client, with unshaken fidelity, the exertion of all the industry and application of which he is capable to become perfect master of the questions at issue, to look at them in all their bearings, to place himself in the opposite interest, and to consider and be prepared as far as possible, for all that may be said or done on the contrary part. The duty of full and constant preparation, is too evident to require much elaboration. It is better, whenever it is possible to do so, to make this examination immediately upon the retainer, and not to postpone it to later stages in the proceedings. The opportunity is often lost, of ascertaining facts, and securing evidence, from putting off till too late, the business of understanding thoroughly all that it will be necessary to adduce on the trial. In this way, a lawyer will attain what is very important, that his client may be always prepared, as well as himself, have his attention alive to his case, know what witnesses are important, and keep a watch upon them, so that their testimony may not be lost, and upon the movements of his adversary, lest he should at any time be taken by surprise. It would be an excellent rule for him, at short stated periods, to make an examination of the record of every case which he has under his charge. It always operates disadvantageously to an attorney in the eyes of those who employ him, as well as the public, when he fails in consequence of some neglect or oversight. Frequent applications to the court, to relieve him from the consequences of his inattention, tell badly on his character and business. He may be able to make very plausible excuses; but the public take notice, that some men with large business never have occasion to make such excuses, and that other men with less, are constantly making them. Every instance of the kind helps to make up such a character. A young man should be particularly cautious, and dread such occurrences as highly injurious to his prospects. If he escapes the notice and animadversion of his constituent, and the legal consequences of his neglect, by the intervention of the court, or the indulgence of his opponent, the members of the Bar are lynx-eyed in observing such things.

It may appear like digressing from our subject, to speak of such qualities as attention, accuracy, and punctuality, but like the minor morals of common life, they are little rills which at times unite and form great rivers. A life of dishonor and obscurity, if not ignominy, has often taken its rise from the fountain of a little habit of inattention and procrastination. System is everything. It can accomplish wonders. By this alone, as by a magic talisman, may time be so economized that business can be attended to and opportunities saved for study, general reading, exercise, recreation, and society. "A man that is young in years," says Lord Bacon, "may be old in hours, if he has lost no time." Hurry and confusion result from the want of system; and the mind can never be clear when a man's papers and business are in disorder. It is recorded of the pensionary De Witt, of the United Provinces, who fell a victim to the fury of the populace in the year 1672, that he did the whole business of the republic, and yet had time left for relaxation and study in the evenings. When he was asked how he could possibly bring this to pass, his answer was, that "nothing was so easy; for that it was only doing one thing at a time, and never putting off anything till to-morrow that could he done to-day." "This steady and undissipated attention to one object," remarks Lord Chesterfield, in relating this anecdote, "is a sure mark of a superior genius." It is of the highest importance, also, that a lawyer should in early professional life, cultivate the habit of accuracy. It is a great advantage over opposing counsel,--a great recommendation in the eyes of intelligent mercantile and business men. A professional note to a merchant carelessly written will often of itself produce an unfavorable impression on his mind; and that impression he may communicate to many others. The importance of a good handwriting cannot be overrated. A plain legible hand every man can write who chooses to take the pains. A good handwriting is a passport to the favor of clients, and to the good graces of judges, when papers come to be submitted to them. It would be a good rule for a young lawyer, though at first perhaps irksome and inconvenient, never to suffer a letter or paper to pass from his hands with an erasure or interlineation. The time and trouble it may cost at the outset will be repaid in the end by the habit he will thereby acquire of transacting his business with care, neatness, and accuracy.

He cannot be faithful to his clients unless he continues to be a hard student of the learning of his profession. Not merely that he should thoroughly investigate the law applicable to every case which may be intrusted to him; though that, besides its paramount necessity to enable him to meet the responsibility he has assumed to that particular client, will be the subsidiary means of important progress in his professional acquisitions. "Let any person," says Mr. Preston, "study one or two heads of the law fully and minutely, and he will have laid the foundation or acquired the aptitude for comprehending other heads of the law."[26] But, besides this, he should pursue the systematic study of his profession upon some well-matured plan. When admitted to the Bar, a young man has but just begun, not finished, his legal education. If he have mastered some of the most general elementary principles, and has acquired a taste for the study, it is as much as can be expected from his clerkship. There are few young men who come to the Bar, who cannot find ample time in the first five or seven years of their novitiate, to devote to a complete acquisition of the science they profess, if they truly feel the need of it, and resolve to attain it. The danger is great that from a faulty preparation,--from not being made to see and appreciate the depth, extent, and variety of the knowledge they are to seek, they will mistake the smattering they have acquired for profound attainments. The anxiety of the young lawyer is a natural one at once to get business--as much business as he can. Throwing aside his books, he resorts to the many means at hand of gaining notoriety and attracting public attention, with a view of bringing clients to his office. Such an one in time never fails to learn much by his mistakes, but at a sad expense of character, feeling, and conscience. He at last finds that in law, as in every branch of knowledge, "a little learning is a dangerous thing;" that what he does not know falsifies often in its actual application that which he supposed he certainly did know; and after the most valuable portion of his life has been frittered away upon objects unworthy of his ambition, he is too apt to conclude that it is now too late to redeem his time; he finds that he has lost all relish for systematic study, and when he is driven to the investigation of particular questions, is confounded and embarrassed--unable to thread his way through the mazes of authorities, to reconcile apparently conflicting cases, or deduce any satisfactory conclusion from them--in short, he has no greater aptitude, accuracy, and discrimination than when he set out in the beginning of his studies. No better advice can be given to a young practitioner, than to confine himself generally to his office and books, even if this should require self-denial and privation, to map out for himself a course of regular studies, more or less extended, according to circumstances, to aim at mastering the works of the great luminaries of the science, Coke, Fearne, Preston, Powell, Sugden, and others, not forgetting the maxim, _melius est petere fontes quam sectari rivulos_, and to investigate for himself the most important and interesting questions, by an examination and research of the original authorities. "He that reacheth deepest seeth the amiable and admirable, secrets of the law,"[27] and thus may the student "proceed in his reading with alacrity, and set upon and know how to work into with delight these rough mines of hidden treasure."[28]