In an address of Joseph B. Warner before the American Bar Association (1896) on "The Responsi bilities of the Lawyer," will be found a discussion of this subject. It is said upon the much-discussed question of how an honorable man can advocate what he knows to be a bad cause, that it is im portant to look at the profession from the non professional standpoint, and that the familiar argu ment that every man has the right to have the law fairly applied to his case is a solution, less satisfac tory in theory than in practice, of the problem as it confronts the individual lawyer. This assumes the presentation of a cause by an official spokesman before a competent and impartial tribunal. The theory might fit a mere intermediary in the public function of the administration of justice, but does not answer when, as in modern practice, it concerns the intimate and confidential adviser of the client who is thoroughly Ldentified with the client at the inception and during the preparation for the prog ress of the trial at every stage. "Such being the lawyer's immersion in his client's cause, it is out of the question to consider him merely as a perfunc tory. representative. His responsibility for litiga tion in its inception, its progress, and its results, must be, to some extent at least, commensurate with his identification with the cause. If he wholly adopts the client he must acknowledge the relation ship. This leaves the lawyer's responsibility where he chooses to put it. He may limit it by limiting his relations to these external services which are guardedly professional; he may, on the other hand, enter so far into the case as to tlecome as answer able for it as the client is, or even more. This is, I think, the position which the lawyer must accept. He cannot make a ease his own, and push it as If he were a party, and yet disclaim responsibility for it on the ground that his connection with it is wholly official. He must openly accept the conse quences of whatever he does, and expect no shelter from any theory of the professional relation which does not squarely recognize all the facts." Nor does Mr. Warner consider that the unavoid able influence of powerful counsel on courts is to be disregarded as a disturbing factor in the cause of justice. While the danger . may be slight as to courts, with juries it is by no means so, and "in proportion as the lawyer purposely carries a jury against the facts, or beyond the facts, so far the verdict is his act. To that responsibility he must he held." The shadowy impression of an obligation to undertake any cause is dismissed as untenable and inconsistent with present conditions. The counsel is in a measure responsible for the cause he has chosen to take. It is true be is not required to settle all doubts against his client, and due regard is to be had for the uncertainty of the law and the unquestioned fact that the lawyer must administer it as it is, and not in each case sit in judgment upon its wisdom or policy. The law, therefore, he does not control, but as to facts there is grave respon sibility. No special rule can be formulated to dis tinguish between true and false advocacy, and allowance is to be made for the avowedly partisan attitude of the counsel, but "from a piece of false evidence, or a false statement in argument, every decent lawyer starts back. . . . Certainly nothiog could be worse than to give any sanction whatever to a theory which, though never avowed, may some times be tacitly assumed, that the practice of the law is a game, or a species of warfare, in which there may be a few rules agreed on, but in the main there is but one thing to consider, and that is victory. As in the strange, unethical ethics of war you may not use poisoned bullets, but may use ex plosive shells, and may not poison the Well in the besieged city, but may destroy the provision train on its way thither, so in a court of law, on this monstrous theory, though you may not actually suborn witnesses, you may take advantage of every piece of falsehood which in any other way can pass in, undetected, in evidence or argument. But if law
is a game, it is a game in which the stakes are human happiness and character ; if it is war, it is not a war for plunder, but one for principles, which cannot be set up with glory in the end if they have been first defiled and trampled foot by the victors." The subject is thus fairly summed up: "At last the moralities of the practice of the law must rest on the individual lawyer, and perhaps little more can be said by Way of particular rules for professional conduct than that the lawyer is un der all the obligations which the highest standard, rightly understood; imposes on any man. From these he neither gets, nor claims, an exemption by reason of any convention which would permit false hood, nor by reason of working within a system which, to some extent, settles conduct by general rules of law without regard to the moral aspect of particular cases." Our System is not devised primarily to discover truth, nor is the lawyer chiefly a searcher after truth. If he were, his methods would seem strange, indeed. Our administration of law is made, or rather has grown, by forces which are virtually the great forces of nature, to meet human needs, to control the elemental passions of men, to regulate the affairs of fife. . . . It has the imperfections and the contradictions of all human things. It does not always conform to rules, however unquestion able and right. It touches all of life and takes on both good and evil by the contact. In its critical moments, when it is centred,in a trial in court, .it is the modern phase of all ancient strife, the visible struggle, old as the world, of all the passions of anger, hate, greed, and avarice, less wild than of old, but still full of inherited spirit, and now forced Into an arena which, excepting war Itself, is left as the only battlefield for the irrepressible fighting instincts of the race.
That these contests should not always proceed in irreproachable methods and infallibly end in right results, Is not to be wondered at: that the men who engage in them as trained contestants sometimes fight with indefensible tactics must be laid to traits which yet survive in the human animal. The vigor ous participation In affairs, with a purpose to do right, is the most wholesome moral tonic that our nature can have. This way lies in the practice of the law.. It cannot be said to be free from per plexities. The practitioner will not find himself in a plain way in which the fool cannot err. But he will find himself in the midst of abundant oppor tunities for service to mankind, will see before him ideals among the highest which our minds can reach, and will have the encouragement of exam ples which are not behind the farthest mark that human nature has touched In Its approach to jus tice.
Among numerous works and articles, the follow ing may be referred to: Virginia State Bar Assoc. Reports, 1894; Butler, Lawyer & Client, 1871; Ea ton, Public Relations, etc., of the Legal Profes sion, 1882 ; Hearn, Legal Duties & Rights, 1883 ; Hill, The Bar; Its Ethics, 1881; Hoffman, Legal Studies ; Pollock, Essays in Jurispr. & Ethics, 1882; Sedgwick, Relation & Duty of the Lawyer to the State, 1892 ; Warren, Professional Duties, 1870 ; F. C. Brewster's Address before the Phila. Law Acad emy, 1861; Woolwortb, Duty, etc., of the Profession, Nebraska State Bar Assoc. 1877; Lord Herschell, Rights & Duties of an Advocate, Glasgow Jurid. Sac. 1890 ; The Responsibilities of the Lawyer, by Joseph B. Warner, Amer. Bar. Assoc. 1896; Henry Wade Rogers, 16 Yale L. J. 229.
Canons of legal ethics have been published by several State Bar Associations. As to the civil law, see AnvocArr.