ETH ICS, LEGAL. That branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client.
Perhaps the most comprehensive and satisfactory treatment of the subject is the essay of Judge Sharewood; originally embodied in a series of lec tures to the law school of the University of Penn sylvania, in 1854. The republication of the fifth edition, forty-two years after the issue of the first, attests the interest of the profession in the work. It was republished by the American Bar Associa tion in 1907. From it the following is mainly. ex tracted: The relation of the profession to the public is so intimate and far-reaching, that it "can hardly be over-estimated." This arises from its influence both on legislation and jurisprudence ; the latter of which it controls entirely and 'the former almost entirely." Accordingly there is involved the study of the true ends of society and government and the conservation of life, liberty, and property, and as means to these ends It is the office of the Bar to diffuse sound principles among the people, to aid in forming correct public opinion,' "to maintain the ancient landmarks, to respect authority, and to guard the integrity of the law as a science." The responsibilities, legal and moral, of the law yer, arising from his relations to the court, to his professional brethren, and to his client, are thus treated: "Fidelity to the court, fidelity to the client, fidelity to the claims of truth and honor: these are the matters comprised in the oath of office." "Fidelity to the court requires outward respect in words and actions. The oath, as it has been said, undoubtedly looks to nothing like allegiance to the person of the judge ; unless in those cases where his person is so inseparable from his office, that an insult to the one is an indignity to the other. In matters collateral to official duty, the judge is on a level with the members of the Bar, as he is with his fellow-citizens ; his title to distinction and respect resting on no other foundation than his virtues and qualities as a man." Per Gibson, C. J., in In re Austin, 5 Rawle (Pa.) 204, 28 Am. Dec. 657.
"There are occasions, no doubt, when duty to the interests confided to the charge of the advocate de mands firm and decided opposition to the views ex pressed or the course pursued by the court, nay, even manly and open remonstrance ; but this duty may be faithfully performed, and yet that outward respect be preserved, which is here inculcated. Counsel should ever remember how necessary It is for the dignified and honorable administration of justice, upon which the dignity and honor of their profession entirely depend, that the courts and the members of the courts should be regarded with respect by the suitors and people ; that on all occa sions of difficulty or danger to that department of government, they should have the good opinion and confidence of the public on their side." "Indeed it is highly important that the temper of an advocate should be always equal. He should most carefully aim to repress everything like ex citability or irritability. When passion is allowed to prevail, the judgment is dethroned. Words are spoken, or things done, which the parties afterwards wish could be unsaid or undone. Equanimity and self-possession are qualities of unspeakable value." "Another plain duty of counsel is to present everything in the cause to the court openly in the course of the public discharge of its duties. It is not often, indeed, that gentlemen of the Bar so far forget themselves as to attempt to exert privately an influence upon the judge, to seek private inter views, or take occasional opportunities of accidental or social meetings to make ex parte statements, or to endeavor to impress their views. . . . They know that such conduct is wrong In itself, and has a tendency to impair confidence in the adminis tration of justice, which ought not only to be pure but unsuspected. A judge will do right to avoid social intercourse with those who obtrude such un welcome matters upon his moments of relaxation." "There Is one thing, however, of which gentlemen of the Bar are not sufficiently careful,—to discour age and prohibit their clients from pursuing a simi lar course. The position of the judge in relation to a cause, under such circumstances, ie very embar rassing, especially, as is often thd case, if he hears a good deal about the matter before he discovers the nature of the business and object of the call upon him." "Counsel should aet their faces against all un due influences of the sort ; they are unfaithful to the court if they allow any Improper means of the kind to be resorted to. Judicem nec de obtinendo jure orari oportet nec de injuria exorari. It may be In place to remark here that the counsel in a cause ought to avoid all unnecessary communica tion with the jurors before or during any trial in which he may be concerned. He should enforce the same duty upon his client." "There is another duty to the court, and that is, to support and maintain it in its proper province wherever it comes in conflict with the co-ordinate tribunal—the jury." "It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, imposition, or eva sion—to make no statements of facts which he does not know or believe to be true—to distinguish care fully what lies in his own knowledge from what he has merely derived from his instructions—to pre sent no paper-books intentionally garbled. 'Sir Matthew Hale abhorred,' says his biographer, 'those too common faults of misreciting witnesses, quot ing precedents or books falsely, or asserting any thing confidently ; by which ignorant juries and weak judges are too often wrought upon.'" "The topic of fidelity to the client involves the most difficult questions In the consideration of the duty of a lawyer." "He ie legally responsible to his client only for the want of ordinary care and ordinary skill. That constitutes gross negligence. It Is extremely diffi cult 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 de gree of diligence and skill could be determined, it would furnish the true rule. 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 learn ing and ability,—these are the higher points which can only satisfy the truly conscientious practi tioner." "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 gain sayers 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 he apparent to the ad vocate on which side is the justice of the cause ; yet he will maintain, and often with the appear ance of warmth and earnestness,. that side which he must know to be unjust, and tfie success of which will be a wrong to the opposite party. Is he not then a participator In the injustice? It may he answered in general: Every case is to he decided, by the tribunal before which it is brought for. ad judication, upon the evidence, and upon the prin ciples of law applicable to the facts as they appear upon the evidence." "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 the judges which can legitimately bear upon the 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 le 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 pro fessional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury." "Ae 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 ad vocate, that all causes are to be taken by him indis criminately, and conducted with a view to one sin gle end, success. It is much to be feared, how ever, that the prevailing tone of professional ethics leads practically to this result. He has an un doubted 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, be cannot retire from it without the consent of his client or the ap probation of the court." "Lord Brougham, in his justly celebrated de fence 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 persona, 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 othera. Separat ing 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 un just, 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 Igno rance of the party or their attorney, were so Ill-rep resented 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 re fusing to meddle in causes upon the ill circum stances that appeared in them at first.' " "There is a distinction to be made between the case of prosecution and defence for crimes ; be tween appearing for a plaintiff in pursuit of an un just 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 ac cording 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, with out 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 reason able doubts which may ariae from the evidence as to his guilt, and to see that if he is convicted, it Is according to law." As to contingent fees Judge Sharswood says: "Regard should be had to the general usage of the profession, especially as to the rates of commis sion to be charged for the collection of undefended claims. Except in this class of cases, agreements between counsel and client that the compensation of the former shall depend upon final success in the lawsuit—in other words, contingent fees—however common such agreements may be, are of a very dangerous tendency, and to be declined in all or dinary cases. In making his charge, after the busi ness committed to him has been completed, as an attorney may well take into consideration the gen eral ability of his client to pay, so he may also con sider the pecuniary benefit which may have been derived from his services. For a poor man, who is unable to pay at all, there may be a general under standing that the attorney is to be liberally com pensated in case of success. What is objected to is an agreement to receive a certain part or propor tion of the sum or subject-matter, in the event of a recovery, and nothing otherwise." He considers that the practice should be dis couraged not necessarily on the consideration of unlawfuldess but of morality and its effect on the lawyer.