THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 

 
 ESSAYS 
 
 IN 
 
 LEGAL ETHICS 
 
 BY 
 
 GEO. W. WARVELLE, LL. D. 
 
 AUTHOR OF A TREATISE ON ABSTRACTS OF TITLE; 
 
 THE LAW OF VENDOR AND PURCHASER; 
 
 PRINCIPLES OF REAL PROPERTY, ETC. 
 
 SECOND EDITION 
 
 CHICAGO 
 
 CALLAGHAN & COMPANY 
 1920
 
 T 
 ti 
 
 1940 
 
 OOFTWOHT 1902 
 
 BY OEO. W. WABVELLB 
 
 COPYRIGHT 1920 
 BY GEO. W. WABVELLB
 
 fO 
 
 u\ 
 
 ^1 
 
 52 
 
 i 
 
 To 
 HON. THOMAS DENT, 
 
 OP CHICAGO, ILL., 
 
 who, in his life and character, has so fully expressed 
 the professional ideal, this book is inscribed by 
 
 THE AUTHOR.
 
 PREFACE 
 
 This little book is a compend of lectures delivered 
 at various times 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 
 confine it within the lines of the regular law course. 
 But little space has been devoted to ethical theory, 
 the design of the work being rather an exposition 
 of ethical precept, and only the practical phases of 
 accepted modern theories have been presented. The 
 legal aspects of practice, and questions arising there- 
 on, have been touched only incidentally and then in 
 briefest terms. 
 
 To a large extent professional conduct, like all 
 other forms of ethical affirmation, is a matter of 
 opinion, yet, in many of its manifestations, we may 
 discern underlying principles that seem to compel 
 the rule. Whenever possible I have endeavored to 
 show this principle in connection with the rule that 
 is founded upon it. In stating a rule or precept I 
 have uniformly presented that which seems to have 
 received the largest amount of adherence and when- 
 ever opportunity offered have reinforced same by a 
 citation of judicial authority. These latter oppor- 
 tunities have necessarily been few. In the main, 
 the ethical code of the legal profession has not been 
 
 v
 
 Tl PREFACE 
 
 the subject of either legislative or judicial action, 
 nor can it ever become such. 
 
 In presenting this revised edition I have made no 
 change in the general plan of the original work. 
 Hut a number of pertinent matters have been 
 brought to my attention, by both students and 
 educators, and these I have endeavored to incorpo- 
 rate in the book. The favor with which the first 
 edition was received emboldens me to hope that this 
 revision may be found equally acceptable. 
 
 I do not offer this book as a treatise on moral 
 duties, nor do I assume the character of a teacher 
 of morals. It purports to be, and is, nothing more 
 than a series of brief suggestions relative to profes- 
 sional conduct, and as such it is submitted to those 
 for whom the subject may possess interest. 
 
 G. W. W. 
 
 Chicago, October 1, 1920.
 
 CONTENTS 
 
 [THE REFERENCES ARE TO THE PAGES.] 
 
 CHAPTER I. 
 
 PRELIMINARY OBSERVATIONS. 
 
 Introduction Primary Conceptions Ethics defined Deri- 
 vation Fundamental notions General ethical theories 
 Opposing schools of ethical thought Law and 
 morals distinguished Morals and ethics distinguished 
 The standard of morals; conscience; public opinion 
 Obedience to law a moral duty Authority of public 
 opinion Legal ethics, defined and distinguished 
 Scope and classification of professional duty 1 
 
 CHAPTER II. 
 THE OFFICE OF THE ADVOCATE. 
 
 Generally considered The essential principle of advocacy 
 and the conditions that support it Origin of advo- 
 cacy and character of early practitioners Early con- 
 cepts of professional duty and their effect on later 
 developments Division of legal labor and its effect 
 on professional ethics General duties of the advocate 
 and immemorial obligations Connection and profes- 
 sional relation of the bench and bar 22 
 
 CHAPTER III. 
 
 THE ADVOCATE AND THE COURTS. 
 
 Generally considered The summary jurisdiction of eourts 
 Methods of summary discipline Nature of dis- 
 
 vii
 
 VI 11 CONTENTS 
 
 rijilinary power Effect of dis.-ij,linc on the- legal 
 rights of tin- citizen (.irounds for discipline Disci- 
 pline for unolli.-ial misconduct Misconduct without 
 discipline .37 
 
 CHAPTER IV. 
 PROMOTION AND PUBLICITY. 
 
 Generally considered How may the lawyer reach the public 
 Personal solicitation Advertising, when and how 
 Professional cards, and how they may be used Signs 
 Newspaper advertising Anonymous announcement* 
 Divorces Bad debts Letters and circulars Self 
 praise 4!> 
 
 CHAPTER V. 
 COMPENSATION. 
 
 Principles governing the right of compensation Theory 
 of compensation in England and America Gratuitous 
 service Special agreements Extent of compensation 
 Considerations affecting the extent of compensation 
 Division of fees Contingent fees Right of com- 
 pensation of assigned counsel of poor person 70 
 
 CHAPTER VI. 
 GENERAL PRACTICE. 
 
 IVflrird The place of morality in practice The duty of 
 veracity The client and his cause Production of 
 testimony Examination of witnesses Instruct inu ami 
 advising witnesses Attorneys as witnesses Address- 
 ing the jury Tampering with records Abuse of 
 process Duty to third persons 98
 
 CONTENTS IX 
 
 CHAPTER VII. 
 CRIMINAL PRACTICE. 
 
 Generally considered The retainer Duty to persons 
 accused Knowledge of prisoner 's guilt General 
 duties in defense The prosecution of criminals Duty 
 of persons officially charged with prosecution Pro- 
 priety of private counsel assisting in prosecutions 
 Dangers of criminal practice 128 
 
 CHAPTER VIII. 
 
 RELATIONS WITH CLIENT. 
 
 General observations The relation of attorney and client 
 Attorney's authority, powers and duties Liabilities 
 and disabilities of the relation Professional opinions 
 and advice Refusal of retainer Conduct of cases 
 Acts in excess of professional duty Representing 
 both sides Privileged communications Adverse em- 
 ployment Withdrawals Inconsistent positions 
 Money lost by attorney or detained by him Right of 
 client to discharge his attorney 146 
 
 CHAPTER IX. 
 RELATIONS WITH COURT. 
 
 Nature of the judicial office Conduct in court Conduct 
 out of court Influencing judges Criticism of 
 judges Deceiving the court Misstating law or facts 
 Counseling disobedience of court orders 185 
 
 CHAPTER X. 
 RELATIONS WITH THE BAR. 
 
 Character of the relation Professional courtesy Respect 
 for age Observance of agreements Services for at-
 
 X CONTENTS 
 
 tornejs Interference Substitution of attorneys 
 Conclusion 199 
 
 APPENDIX. 
 
 A. Defense of Courvoiaier 211 
 
 B. Legal Commercialism 215 
 
 C. Canon* of the American Bar Association 216
 
 ESSAYS IN LEGAL ETHICS 
 
 CHAPTER I 
 PBELIMINABY OBSEEVATIONS 
 
 Introduction Primar7 conceptions Ethics defined Deriva- 
 tion Fundamental notions General ethical theories Op- 
 posing schools of ethical thought Law and morals dis- 
 tinguished Morals and ethics distinguished The standard 
 of morals; conscience; public opinion Obedience to law a 
 moral duty Authority of public opinion Legal ethics, de- 
 fined and distinguished Scope and classification of pro- 
 fessional duty. 
 
 1. Introduction. It has long been customary, for 
 writers of books intended for the use of students 
 of the law, to refer in a vague and general way to 
 a certain abstraction, which, for want of better 
 name, finally came to be called "legal ethics." Not 
 infrequently these writers, by the employment of 
 concrete examples, have endeavored to explain their 
 conceptions of the character of this indefinite quan- 
 tity, and from these examples we find that the term 
 is now employed to connote the ideas that are ordi- 
 narily involved in the word duty. In other words, 
 that it is a compendious expression indicative of 
 what, under given circumstances, should or should 
 not be done, and, by some writers, its meaning seems 
 
 1
 
 2 ESSAYS IN LEGAL ET1 
 
 to be further extended so as to include the reasons 
 which underlie such action or forbearance. 
 
 2. Again, we often hear the actions of prac- 
 t it loners condemned as being "contrary to the 
 ethics of the profession," and occasionally attorneys 
 are suspended from practice, or disbarred, not for 
 the infraction of any law, but for a violation of 
 "professional ethics," and this seems to mean, when 
 translated into the vernacular, "conduct unbecom- 
 ing a lawyer and a gentleman." It would appear, 
 therefore, that two phrases are current in profes- 
 sional circles which indicate the same thing, i. e., 
 conduct; and while the writer's own judgment 
 would have led him. to adopt as a title for this 
 work the term "professional ethics," as more clearly 
 indicative of what is really meant, yet the first men- 
 tioned expression, having become imbedded in court 
 rules and judicial decisions, has been chosen as the 
 one in more popular use. 
 
 3. For many years the importance of this 
 subject, as a special undergraduate study, has been 
 urged by learned and influential lawyers and legal 
 educators, 1 and, as the study of Moral Philosophy 
 obtains a place in the curriculum of every literary 
 college, so, it is contended, the study of Legal Ethics 
 should be given a distinct position in the courses of 
 the law school. The result of this agitation has 
 been that, in many states, legal ethics is now a re- 
 quired study, while it is supposed to receive more 
 or less attention in every state. 
 
 1 8, Rep. Committee on Legal Education to Am. Bar Assn. 
 1895, p. 16.
 
 PRELIMINARY OBSERVATIONS 3 
 
 4. Ethics defined, Before attempting to discuss 
 our special subject it may be well for us to ascer- 
 tain, if possible, just what is meant by the general 
 term "ethics," to which, with doubtful propriety, 
 we have prefixed the qualifying word "legal." This, 
 however, will be a matter of considerable difficulty ; 
 indeed, we shall hardly be able to arrive at a lucid 
 and yet concise definition, as the ideas involved in 
 the term seem to be inseparably connected with 
 both theology and politics, and, while some writers 
 claim to have effected their separation, others con- 
 tend that all three are indissolubly blended. As 
 there is no determinate authority by which the ques- 
 tion can be settled it resolves itself into a matter of 
 individual opinion. 
 
 5. In tracing the derivation of the word we 
 find that it originally meant character, or that 
 which relates to character as distinguished from 
 intellect. 2 This primitive meaning it did not long 
 retain, however, for the works of the early Greek 
 writers, 8 to which the term was first applied, are 
 not concerned with character, considered simply as 
 character, but with its good and bad qualities ; and 
 the antithesis of "good" and "bad," in some form, 
 is involved in all ethical affirmation and constitutes 
 the distinguishing feature which serves to separate 
 ethics from other departments of psychical inquiry. 
 
 6. The fundamental concepts of ethics seem 
 to have reference to the position and relations of 
 man as a free and intelligent being, and the good 
 
 2Sidgwick's Hist. Ethics, 1. 
 
 3 Plato, Aristotle, and the Greek philosophers generally.
 
 4 ESSAYS IN LEGAL ETHICS 
 
 that may be accomplished by, through and for him. 
 Upon this foundation have been erected many theo- 
 ries, systems and schools of thought, but from all 
 of these systems we may fairly draw one broad 
 conclusion, and this we may formulate in the follow- 
 ing definition: Ethics is the sum of the aggregate 
 of the rules of duty,* or right living. This may 
 or may not coincide with the definitions found in 
 some of the technical treatises, but it does quite fully 
 express the notion represented by our term "legal 
 ethics," and hence, it is sufficient for our purpose.' 
 7. General theories of ethics. As previously 
 remarked, the science of ethics, being purely spec- 
 ulative, has produced many varieties and shades of 
 opinion. A favorite theory with many of the phil- 
 osophers is that ethics is an exposition of the moral 
 law as distinguished from the civil law; the former 
 being imposed by the conscience, the latter by the 
 power of the state. Hence, they say, ethics regards 
 mental dispositions, jurisprudence, outward acts. 8 
 From this differentiation they evolve mental con- 
 ditions which they term vice and virtue, and dis- 
 tinguish between them and their legal counterparts. 7 
 
 4 Duties, are actions, or courses of action, considered M 
 being right. Whewell, Elements of Morality, b. i, c. 4. 
 
 If a more concise definition is desired we may say; Ethics 
 is the science of character or conduct. Muirhead, Elements of 
 Ethics, 4. 
 
 The character of actions considered with reference to the 
 internal springs of action from which they proceed, is their 
 moral character. Whewell, El. Morality, b. iii, c. 1. 
 
 7 It has been said, that virtue* are the habits of mind by 
 which we are led to perform duties. The transgression of a
 
 PRELIMINARY OBSERVATIONS 5 
 
 Thus, vice is that which morally a man may not do ; 
 crime is that which legally he may not do. It will 
 be perceived that in this form of ethical theory the 
 jural notion is paramount, but, as the framers of 
 these theories have not usually been lawyers, or, 
 at best, but what are termed "speculative jurists," 
 a number of misleading ideas have been engendered, 
 or, to employ a more euphemistic expression, ideas 
 that are not in accord with the modern analytical 
 school of jurisprudence. 
 
 8. It is said that the first inquiry in moral 
 science is after an ultimate rule, a supreme prin- 
 ciple of life, which shall be of imperative and uni- 
 versal authority, and around which shall be grouped 
 all the motives and maxims of action. 8 This seems 
 to be the essential feature of every ethical system, 
 but the variations of method by which this end shall 
 be attained are very numerous. 
 
 9. In what are known as the objective theories, 
 that is, in the systems which seek the ultimate 
 moral rule outside of the mind, the jural idea is 
 generally present and the authority of the state as 
 well as of divine revelation is recognized. In these 
 systems the old classification of the schoolmen and 
 their successors seems to be retained, and in a series 
 of three ascending degrees, positive law, natural 
 
 duty, considered as a habit, is a vice. Virtues and vices may 
 also be considered as the results of the dispositions of men. 
 Thus, considered as a disposition, vice is depravity, or wick- 
 edness. Whewell's El. Morality, b. i, c. 4. 
 
 See, Am. Cyc. Art. Moral Philosophy ; Sidgwick, Hist. 
 Ethics, 8; Wayland's Moral Science, 33; Whewell'g El. Moral- 
 ity, b. iii, c. 1.
 
 6 ESSAYS IN LEGAL ETHICS 
 
 law, and moral law, is usually embraced the whole 
 science of duty or right conduct.' 
 
 10. In the subjective theories, or those systems 
 which find the ultimate basis of morality within 
 the mind, the prevailing view denies the existence of 
 virtue and vice in the abstract and asserts the exist- 
 ence of a moral sense which approves certain acts 
 and intentions as right and disapproves others as 
 wrong; in other words, an appeal is made to reason, 
 which is taken as of ultimate and conclusive author- 
 ity and the source of all moral truth. 10 In this 
 theory, it will be perceived, the jural element is 
 not apparent, yet, as it involves the general doctrine 
 of free will this notion of freedom, it is claimed, 
 serves to connect ethics with jurisprudence. Thus, 
 it is said, the fundamental aim of jurisprudence is 
 to realize external freedom by removing the hin- 
 drances imposed on each one's free action through 
 the interferences of other's wills; ethics, on the 
 other hand, is concerned with the realization of in- 
 ternal freedom by the resolute pursuit of rational 
 ends in opposition to those of natural inclination. 11 
 
 This represents the doctrines of 8. Thomas Aquinas, and 
 his followers, and is the crowning; result of the great con- 
 structive efforts of medieval philosophy. Its influence has 
 been great and long enduring, not only in theology but in law 
 as well, and conspicuous examples will be found in the writings 
 both of Blackstone and Kent. 
 
 10 This represents the school of Kant, and certain of the 
 nan moralists. It also furnishes the basis upon which many 
 
 of the college text-books have been prepared. See, Champlin ' 
 Principles of Ethics. 
 
 11 Sidgwick, Hist. Ethics, 274.
 
 PRELIMINARY OBSERVATIONS 7 
 
 11. It will, of course, be understood that the 
 foregoing is only the barest outline of the two great 
 branches of ethical thought and that both branches 
 are subject to much modification by the various 
 "schools" which have been founded upon them. 
 With respect to the subjective theory we may pass 
 it, for the present, without further comment, but 
 the objective theory raises a few interesting points 
 that can best be considered in this connection. 
 
 12. Law and morals distinguished. It is not 
 proposed to enter into a discussion of the principles 
 of jurisprudence, but the loose and indiscriminate 
 manner in which the term "law" is constantly em- 
 ployed, particularly by writers on moral philosophy, 
 would seem to render necessary at least a passing 
 allusion to that term in connection with morals. 
 
 13. While we are accustomed to minute classi- 
 fications of scientific knowledge, it must yet be 
 remembered that these classifications are very mod- 
 ern. There was no such separation of sciences 
 known to the ancients, and the world, with all its 
 varied phenomena, mental and physical, was con- 
 sidered and studied as a whole. In time, lines of 
 demarcation were drawn and what are known as 
 the physical and mathematical sciences came to be 
 separated, and formed into distinct classes, but, for 
 many years after this process of differentiation had 
 commenced, such topics as government, politics, 
 legislation, ethics, and other kindred abstractions, 
 continued to be classed together under the general 
 name of philosophy. The word "law" had no defi- 
 nite and specific meaning. It was used to denote
 
 8 ESSAYS IN LEGAL ETHICS 
 
 the observed relations of phenomena, of every kind 
 and nature, as well as to indicate rules for the regu- 
 lation of human actions, irrespective of origin or 
 method of enforcement. This indiscriminate and 
 improper employment of the term has continued to 
 our own day, 1 * and notwithstanding that it is now 
 employed in the physical sciences merely as a 
 metaphor, or figure of speech, it is still 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 sequence. 11 
 
 14. We have seen that in the objective theory 
 of ethics the jural idea is the controlling motive. 
 The theory rests on the notion of law, and con- 
 duct is 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 higher law was always 
 made to supersede the lower whenever they came 
 
 18 One of the resultants of this use is the confusion growing 
 out of the application of the term "natural law." It is ex- 
 tensively used by both physicists and moralists, but with quite 
 different meanings. The former employ it to indicate the order 
 of nature; the latter to indicate moral precepts. With the 
 former we are not now concerned, but the moralist 's conception 
 is very lucidly expressed by Prof. R. J. Holaind, 8. J., in the 
 following definition: "Natural law is a body of moral prin- 
 ciple* which reason itself teaches, and which are binding on all 
 men." See Natural Law and Legal Practice, 48. Some writers, 
 even legist*, have further confounded the term by applying it 
 to that class of animal propensities usually known as instinct 
 
 IS See, Wayland's Moral Science, 25.
 
 PRELIMINARY OBSERVATIONS 9 
 
 in apparent conflict. 14 This view prevailed for many 
 years and finds expression, even in legal treatises, 
 until as late as the middle of the last century. But 
 in modern jurisprudence the word "law" has now 
 come to have a fixed and definite meaning. The old 
 classification of the schoolmen has been rejected, 
 and, instead of an ascending scale of positive, natural 
 and moral law, we now use the term "law," with 
 no qualifying words whatever, as indicative of a 
 rule of human action, referring only to external acts, 
 and enforcible by a sovereign political authority. 15 
 All other rules for the guidance of human action 
 are called laws merely by analogy ; and any proposi- 
 tions that are not rules for human action are called 
 laws by metaphor only. 16 
 
 15. There are, however, a large number of what 
 we may call, principles of conduct, or precepts of 
 morality, which obtain a general recognition in 
 every civilized community, but which are enforced, 
 if at all, only by public opinion or some other equally 
 indeterminate authority. These principles have been 
 developed through a variety of means. Eeligion 
 has been a potent factor, probably the most powerful 
 of all, 17 but many other causes have contributed and 
 
 14 Hooker, Eccl. Pol. b. iii, c. 9 ; Locke, Civ. Govt. n. Black- 
 stone advances the same view; see Black. Com. Intr. p. 43. 
 
 15 Holland, Jur. 37; Markby, EL Law, 3; Pollock, Jur. 21. 
 
 16 Holland, Jur. 37. 
 
 17 Many writers contend there can be no morality with- 
 out religion. For an interesting discussion, see, Malock's, 
 "Is Life Worth! Living;" also, a thoughtful and scholarly 
 monograph by Wm. Poland, 8. J., on "True Pedagogics and 
 False Ethics."
 
 10 ESSAYS IN LEGAL ETHICS 
 
 the principles themselves are constantly being sub- 
 jected to new adaptations to meet the changing 
 conditions of the people and the exigencies of the 
 times. 
 
 16. In many ways these precepts resemble rules 
 of law and not infrequently the two seem to coincide. 
 Thus, the moral precept, "Thou shalt not steal," 
 is, in a general way, the same as the legal rule, but 
 the further moral precept, "Thou shalt not covet" 
 finds no coincident rule in the law. Now, as a mat- 
 ter of fact, the inward covetous desire invariably 
 precedes the outward act of theft, and, from a moral 
 point of view, is far the more reprehensible of the 
 two, and yet, it is not the subject of legal rules. The 
 reason for this is, that law does not aim at perfecting 
 the character of men, but has for its object the reg- 
 ulation of the relations which men, as citizens, sus- 
 tain to each other and to the state. As these relations 
 arise only through words and acts, the province of 
 the law is confined to external manifestations and 
 does not extend to that which lies in the thought and 
 conscience of the individual. 18 All such latter mat- 
 ters fall within the domain of ethics, and, notwith- 
 standing that both law and ethics do, for spine pur- 
 poses, occupy a common ground, and that the rult-s 
 of the latter, in many instances, relate not only to 
 internal acts of the will but to external manifesta- 
 tions as well, yet, because of their imperfect sanc- 
 tion, they are distinguished from law and classified 
 as morals. 
 
 17. Morals and ethics distinguished. While for 
 
 li Pollock, Jur. 44.
 
 PRELIMINARY OBSERVATIONS 11 
 
 most purposes, and by most people, morals and 
 ethics are regarded as convertible terms, 19 there 
 would yet seem to be a perceptible difference be- 
 tween them; and, as the first and constant care of 
 the legal student is to distinguish between things 
 which appear similar and yet are different, so it may 
 be well for us to give at least passing attention to 
 these two words. 
 
 18. Morality, meaning by that term the rules, 
 precepts, communal observances and usages which 
 regulate and govern human conduct without any 
 positive sanction, and which furnish, in a general 
 way, a standard of righteous living, finds an ex- 
 pression among all civilized peoples. But, the pre- 
 vailing morality of a community is a fact, not a 
 theory; neither is it in any way dependent on 
 theories. When or how it became established may 
 not be known, nor is it material that it should be. 
 It is sufficient that it exists. In an age of simple 
 faith and passive obedience no explanation is asked 
 or given as to what duty is, nor why a duty in one 
 case should be different from that in another. 
 General notions are acquired and transmitted, and 
 are observed and followed without question. But 
 in time, as the study of mental phenomena develops, 
 men seek for a rational explanation of these exist- 
 ing facts. Theories are framed and views are ad- 
 vanced, and so the science of ethics comes into being. 
 
 19 Thus, Paley says, ' ' Moral philosophy, morality, ethics, 
 casuistry, natural law, all mean the same thing; namely, that 
 science which teaches men their duty and the reasons of it." 
 Paley, Moral Philosophy, b. i, c. 1.
 
 12 ESSAYS IN LEGAL ETHICS 
 
 19. This may not be in strict accord with the 
 statements of some of the expositors of ethical 
 science, but it certainly is sustained by the history 
 of the subject, 80 and while ethical theory may, and 
 does, have a marked influence on moral practice, 
 the distinction still remains. As has been aptly said 
 by one learned writer, 81 "when man reaches the 
 stage of philosophical questioning, and communes 
 with himself concerning morals as of other things 
 in general, he comes to the task with morality 
 ready-made and in full operation. His real object 
 is not to find speculative principles and deduce 
 morality from them as if morality had to be in- 
 vented for the first time, but to assign principles 
 on which he may account for the morality already 
 familiar to him." It will 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 general 
 notion, yet, they are distinct in this; that morality 
 represents existing facts, while ethics is the scien- 
 tific hypothesis for the explanation of existing 
 facts. 88 
 
 20. By making this distinction we are relieved 
 of much embarrassment. We are not required to 
 discuss the merits of conflicting ethical theories, nor 
 to choose between them, for the law does not 
 
 tO See, Sidgwick, Hist. Ethics, passim. 
 tl Pollock 's Essays, 293. 
 
 tSThe student will find this phase of our subject very ably 
 Mid learnedly discussed in Pollock's Essays,
 
 PRELIMINARY OBSERVATIONS 13 
 
 cern itself with theories of morality but with moral- 
 ity itself, as attested by the prevailing public senti- 
 ment. 
 
 21. The standard of morals. There are in con- 
 stant use, as parts of our common speech, the words 
 "right" and "wrong," to which we all attach a 
 more or less definite meaning. When we shall come 
 to analyze this meaning it will almost invariably 
 be found that our conception is ethical, not jural. 
 In other words, that our sense of right and wrong 
 is measured by some internal standard of our own 
 and not by one which the law has established. As 
 a consequence, no one has yet come forward with a 
 definition of these terms, considered as ethical con- 
 cepts, that is, in all respects, satisfactory. It is said 
 that wrong implies a departure from some assumed 
 standard, and right a conformity to it, but, while 
 this is undoubtedly true, it sheds no light upon the 
 terms themselves, and we are as much in the dark 
 as ever with respect to their essential character. 
 Like the antithesis of "good" and "bad," they 
 represent diametrically opposed ideas in morals, but 
 this is about all that can, with any degree of cer- 
 tainty, be said concerning them. 
 
 22. The internal standard by which we deter- 
 mine right and wrong is the intuitive faculty of 
 moral judgment, with the characteristic feeling that 
 accompanies its exercise, which we call the con- 
 science, and, generally, the prevailing views of a 
 community, with respect to morals, are created by 
 the concurring consciences of all or a majority of
 
 14 ESSAYS IN LEGAL ETHICS 
 
 the people that constitute such a community.* 8 Now, 
 whatever else may be said concerning it, this some- 
 thing which we call conscience is largely a matter 
 of education, association and environment. 84 This 
 is evident from the fact that morality, or at least 
 the popular conception of moral duties, is different 
 among different peoples at the same time and among 
 the same people at different times. And even where 
 we find a substantial conformity to what we may 
 term the customary morality of a community there 
 will yet be classes, who, by reason of their associa- 
 tion and education, seem to have a morality to some 
 extent peculiar to themselves. This is particularly 
 true of the professions, where the abstract principle 
 of right and wrong is applied on specialized lines 
 
 88 As science means knowledge, so conscience etymologically 
 means self-knowledge; and such is its meaning in Latin and 
 French, and of the corresponding word in Greek. But the 
 English word seems to have a more extended signification, 
 implying a moral standard of action in the mind, as well 
 as self-knowledge of our own actions. This distinction was 
 noted by the early Christian moralists, and has since been 
 followed by the commentators, who separate the offices of 
 conscience and assign to each respectively the province of 
 witness, accuser, and judge. Under this arrangement he 
 who is condemned by his own conscience is considered as 
 having offended against the supreme rule, and from this is 
 deduced the conclusion, that, he who acts contrary to the 
 dictates of his conscience is always wrong. The fallacy of 
 the conclusion is apparent without demonstration, yet it con- 
 tinues to find large numbers of adherents. 
 
 84 See, Paley, Moral Philosophy, b. i, c. 5; Locke, Human 
 Understanding, b. ii, 111-12; Whewell, Elements Morality, b. 
 iii, c. 28.
 
 PRELIMINARY OBSERVATIONS 15 
 
 and it is from this specialization that we obtain 
 what is popularly called "legal ethics." 
 
 23. Where the moral convictions of a commu- 
 nity generally coincide it produces a force called 
 public opinion, which, if sufficiently strong and long 
 continued, eventually crystallizes into a law. When 
 this consensus of moral opinion has developed into 
 a law of the state the words "right" and "wrong," 
 as they may represent ethical concepts, are no longer 
 applicable. The law is always right, even though 
 it be iniquitous from the moral point of view of the 
 individual. Any other theory inevitably leads to 
 civil disruption and anarchy. 
 
 24. Obedience to law a moral duty. The ques- 
 tion of moral right and wrong has always been a 
 debatable one and will doubtless ever so continue. 
 Not infrequently we find men who assert that specific 
 provisions of the law are morally wrong, and hence 
 not obligatory on conscience, while some even go 
 so far as to say that when conscience condemns a 
 law it should be resisted. 25 This comes, it would 
 seem, from an undue exaltation of self ; an apparent 
 
 25 This pernicious doctrine may even be found in books 
 prepared for the education of American youth. Thus, one 
 writer says: that, where the laws impose duties which the 
 individual conscience pronounces wrong, such person may 
 "openly refuse obedience, be the consequences what they may. 
 Conscience is higher than law; and, in a clear case of con- 
 flict between them, the law must yield at least, conscience 
 cannot." Champlin, Principles of Ethics, 49. These views 
 are held generally by writers of the subjective theory of morals. 
 The great German philosopher Fichte, makes much the same 
 assertions. See, System der Sittenlehre, 142, 147.
 
 16 ESSAYS IN LEGAL ETHICS 
 
 belief in an inward divinity whose dictates are un- 
 erring and infallible. Now, no person more than 
 the writer reverences this internal mentor we call 
 conscience, but the experience of the ages teaches 
 us that it is a most fallible guide, and history teems 
 with instances of oppression, injustice, and crime, re- 
 sulting from a narrow and darkened conscience. 
 
 25. The moral faculty being thus fallible, it 
 logically follows that in every community there 
 must be, to some extent, a conflict of consciences. 
 Men divide on all the questions of the hour. They 
 have always done so; they will always continue to 
 do so. Both sides are equally honest 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, another 
 arbiter arose. Organized society the state came 
 into being, and a new and controlling element was 
 introduced. This element we call law, but it is 
 practically nothing more than the embodied con- 
 science of the political community. To this para- 
 mount assertion of control and direction each indi- 
 vidual of the community is bound to submit. Obe- 
 dience to law is a moral duty. 
 
 26. Authority of ethical opinion. While the 
 proposition of the last paragraph must be accepted, 
 by every lawyer at least, as final and conclusive, 
 there may, perhaps, be room for question where ft 
 rule is proposed which lacks the legal sanction. It 
 is often contended, that every man in the possession 
 of unimpaired faculties has a right to be the sole 
 judge of his own course of conduct; and that to
 
 PRELIMINARY OBSERVATIONS 17 
 
 compel him to shape such conduct in conformity to 
 the mere opinions of others is virtually to enslave 
 him. The argument is not without force and rests 
 upon a very substantial foundation. But in every 
 organized society there is, and always has been, a 
 series of rules, maxims and precepts, which have 
 never been resolved into laws, but which, notwith- 
 standing, continue to obtain a general recognition 
 and observance. They are the received opinions of 
 the community respecting the matters to which they 
 relate and represent, in many instances, the results 
 of long experience. 
 
 27. The acceptance of these maxims is based 
 mainly upon the facts, that the individual cannot 
 have an experience of all things; that his oppor- 
 tunities for observation are necessarily limited ; and 
 that a consensus of intelligent opinion upon almost 
 any subject is usually superior to that of the indi- 
 vidual. If every man were permitted to exercise 
 his own uncontrolled judgment with respect to his 
 own conduct, even though he conformed to the let- 
 ter of the law, most deplorable consequences must 
 often result, while such a course would directly 
 tend to create a spirit of licentiousness that in the 
 end would subvert the good order of society and 
 overturn the law itself. 
 
 28. Nor does this proposition involve any legal 
 inconsistency. There are many forms of authority 
 outside of the law and we are constantly recogniz- 
 ing them and submitting to them. We defer to the 
 opinions of our legal advisers, physicians, trades- 
 men and artisans, in all matters relating to their
 
 18 ESSAYS IN LEGAL, ETHICS 
 
 respective vocations. We do this for the reason, 
 that their experience and observation in the special 
 matter has been greater than that of our own. In 
 like manner we acknowledge the aggregate opin- 
 ions of community with respect to customary 
 morals and rules of conduct, and such opinions are, 
 in a proper sense, authority. 
 
 29. What is true of society as a whole is also 
 true of many of its component parts, particularly its 
 subsidiary organizations. A craft, or profession, 
 from its experience and observation, establishes cer- 
 tain canons of ethical import and makes rules for 
 the guidance and government of its members. The 
 rules may be express or implied, and it is immate- 
 rial whether they be written or unwritten. It is 
 sufficient that they have received a general assent 
 by substantial observance only. They then become 
 binding on all of the members, and derelictions 
 therefrom constitute breaches of the ethical code. 
 
 30. Legal ethics defined and distinguished. Thus 
 far we have been considering only the general sub- 
 ject of ethics, while our special study is denominated 
 "legal ethics." But this is, to a large extent, a 
 misnomer, for our study has nothing to do wilh 
 law as law, but relates wholly to professional con- 
 duct on the part of those who assume to practice 
 law. For this reason, therefore, we shall more nearly 
 express the idea involved if we call it "professional 
 ethics." Yet even this term is unsatisfactory, for 
 it seems to imply that there may be different stand- 
 ards of righteous living and conduct. Indeed, it 
 suggests the very pertinent inquiry: Do men by
 
 PRELIMINARY OBSERVATIONS 19 
 
 entering a particular profession thereby assume any 
 moral duties on the one hand or acquire any exemp- 
 tion on the other, distinguishable from those which 
 apply to the rest of mankind? The answer must 
 be an unqualified No! Truth, sincerity, honesty, 
 fidelity and the rest of the virtues, are imposed alike 
 upon the humble artisan and eminent advocate, 
 while the rules which prompt to action are the same 
 in either case. 
 
 31. But convenience has invented phrases which 
 custom has sanctioned, until they have become parts 
 of our common speech, and thus have been coined 
 such barbarous terms as "legal ethics," "medical 
 ethics," etc., meaning thereby the moral principles 
 and codes of specialized rules that have been built 
 upon them, which, in theory at least, are to govern 
 the conduct of the practitioner as a practitioner. 
 It will be found upon investigation, however, that 
 while many of these rules are but special applica- 
 tions of broad principles others are strictly con- 
 ventional usages of the particular profession. This 
 is strikingly illustrated by those rules which relate 
 to the professional intercourse of practitioners, and, 
 while such rules have a decidedly ethical basis, they 
 are yet of that character to which we ordinarily 
 apply the term "etiquette." 
 
 32. Legal ethics may also be distinguished from 
 the general subject in that, while a violation of the 
 moral code, as established by the conventions of so- 
 ciety, will usually result in nothing worse than 
 social ostracism, a disregard of the ethics of the bar 
 may result in professional death. In society men
 
 20 ESSAYS IN LEGAL ETHICS 
 
 are kept within bounds by no stronger a force than 
 public opinion, but in the legal profession a sum- 
 mary jurisdiction is lodged in the courts to disci- 
 pline offenders against morals and good conscience. 
 To this extent legal ethics partakes of the nature 
 of law. 
 
 33. But this disciplinary power extends only to 
 the lawyer as a lawyer. It is exercised only with 
 respect to professional duty. As a man and a citi- 
 zen the lawyer is not distinguishable from other 
 men. His obligations to society are the same as 
 those of every other citizen, and for any breaches 
 thereof, amounting to no more than a disregard of 
 conventional usage, he can be arraigned only at the 
 bar of public opinion. 
 
 34. It may be said, and with much truth, that 
 a man called to the honorable position of an advo- 
 cate should exhibit, both in and out of his profes- 
 sion, the sterling qualities that constitute the high- 
 est excellence of righteous living. But this is a 
 duty incumbent on all men, whatever may be their 
 vocation or their position in society. The law 
 does not concern itself with moral duties, however 
 much they may serve to influence legislation, nor 
 does legal ethics properly extend to individual char- 
 acter. It is 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 th- 
 subject within its legitimate channel. The writer 
 does not assume to be a mentor nor to teach morals. 
 
 35. Scope of professional duty. The majority of 
 the writers who have heretofore discussed the sub-
 
 PRELIMINARY OBSERVATIONS 21 
 
 ject of legal ethics have generally divided their 
 work into a number of succinct heads, under each 
 of which they have treated a specific phase of pro- 
 fessional duty. The lawyer is regarded as being 
 charged with a number of distinct professional obli- 
 gations to society and certain of its members, and 
 the enumeration is usually as follows: 
 
 1. To the public the state. 
 
 2. To the suitors the clients. 
 
 3. To the court judges and juries. 
 
 4. To the bar his professional brethren. 
 
 This method of treatment is not without its ad- 
 vantages and serves to sharply define the profes- 
 sional relations which a lawyer sustains. Indeed, 
 every writer, whatever may be the arrangement of 
 his work, must necessarily cover these four formal 
 divisions. In the present work, however, the writer 
 has, to some extent, disregarded the usual conven- 
 tional 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 arbitrary 
 division. While the discussions which follow all 
 relate, directly or indirectly, to the topics above 
 enumerated, they have been considered separately 
 or in conjunction, as seemed most conducive to clear- 
 ness of statement and a better understanding of 
 the general subject. No attempt has been made to 
 present them in the order above shown nor to pre- 
 serve the respective heads.
 
 CHAPTER II 
 THE OFFICE OF THE ADVOCATE 
 
 Generally considered The essential principle of advocacy and 
 the conditions that support it Origin of advocacy and 
 character of early practitioners Early concepts of profes- 
 sional duty and their effect on later developments Divi- 
 sion of legal labor and its effect on professional ethics 
 General duties of the advocate and immemorial obligations 
 Connection and professional relation of the bench and 
 bar. 
 
 36. Generally considered. In an earlier age, 
 when society existed only in its primitive forms, 
 the transactions of the people were simple and easily 
 adjusted. If, perchance, differences arose, which 
 resulted in judicial inquiry, the process was sum- 
 mary and the procedure unartificial, as befitted the 
 rude simplicity of the times. The inquiry might 
 take any form that seemed best suited to the exigen- 
 cies of the particular case and any and all kinds of 
 evidence might be received. But in time, as civili 
 zation advanced, as transactions became more com- 
 plex, and as clearer ideas of rights and duties came 
 to prevail, it was found necessary to establish rulrs 
 for the presentation of causes and the manner in 
 which they should be conducted. Experience dom 
 onstrated that the want of settled methods of pro- 
 cedure produced a confusion and uncertainty which 
 not infrequently resulted in great injustice, and with 
 
 22
 
 THE OFFICE OF THE ADVOCATE 23 
 
 the deepening of this conviction came the first reg- 
 ular forms of legal actions. Later, as the rules be- 
 came more numerous and more nicely distinguished, 
 they became also less easily understood and applied 
 by the great mass of the people, until finally no one 
 who had not given the subject particular attention 
 and study could safely assume to conduct a litiga- 
 tion. From these conditions was evolved a class of 
 men who, by their learning and skill, have rendered 
 themselves competent to discharge the duties inci- 
 dent to the conduct of cases in the courts, and this 
 class we now call the Legal Profession. 
 
 37. With the accumulation of years has come 
 also an increased degree of importance for the mem- 
 bers of the legal profession. Originally employed 
 only as a convenience, their services have now be- 
 come indispensable. No one thinks of applying to 
 the courts save through the medium of the law- 
 yers. "They have become," says one writer, "the 
 organs whereby the complicated wants of mankind 
 reach the ear of Themis," 26 and, as the relations of 
 society continue to grow more varied and complex, 
 so will the lawyer's profession become correspond- 
 ingly more essential in the adjustment of any dif- 
 ferences that may arise. For many years it has 
 been a recognized division of civil society, exerting 
 a powerful and, in some respects, dominating in- 
 fluence. Its character and honor have therefore 
 become matters of public concern, and because of 
 the magnitude of the interests placed in the hands 
 of its members, the responsibilities which they as- 
 
 26Forsyth, Hortensius the Advocate, 388.
 
 I 
 
 24 ESSAYS IN LEGAL ETHICS 
 
 sume, and the confidences with \vhich they are in- 
 trusted, there is demanded of them in the exercise 
 of their duties an exemplification of the highest 
 qualities of moral excellence. Indeed, as has been 
 declared in one case, the purity and efficiency of 
 judicial administration, which under our system 
 is largely government itself, depend as much upon 
 the character, conduct and demeanor of attorneys 
 as upon the fidelity and learning of courts, or the 
 honesty and intelligence of juries. 87 
 
 38. The practice of advocacy. With the growth 
 and development of the practice of advocacy there 
 has also grown and developed a class of detractors 
 who not only attack the lawyers but assail the prin- 
 ciple of advocacy itself, which they are wont to 
 characterize as repugnant to good morals and sound 
 ethical precept. It would seem that this class has 
 always existed, and presumably will continue to 
 exist, so long as advocacy shall continue to be prac- 
 ticed. While we can afford to smile at the malignant 
 spirit which prompts these invectives, as well as 
 pity the narrow-mindedness that can foster such a 
 spirit, we cannot afford to pass the matter without a 
 fair examination of the propositions involved. 
 
 39. The essential principle of advocacy consists 
 in the substitution of persons professing special skill 
 and learning in litigated matters for the actual lit- 
 igants, to do, on their behalf and in their stead, all 
 which they, if possessing sufficient knowledge and 
 ability, might do for themselves with fairness to 
 their opponents. This very tersely, but it is believed 
 
 *T Proceedings Ala. Bar AMU.; in 118 Ala. xziii.
 
 THE OFFICE OP THE ADVOCATE 25 
 
 accurately, describes the full scope of the advocate 's 
 calling. To the proper operation of this principle 
 it is a necessary condition that the advocate shall 
 receive 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 is a 
 further condition that he should be willing, as a 
 rule, to render his services without previously de- 
 ciding upon the merits of the cause for which he is 
 retained. 28 These conditions must exist to sustain 
 the principle, yet it is these that furnish to the as- 
 sailants of the profession the arguments which form 
 the basis of their attacks. 
 
 40. In the discussions of the different phases of 
 professional character and duty that follow we shall 
 have occasion to examine these conditions in con- 
 nection with the principle which they support. It 
 is enough, at this time, to show how utterly im- 
 practicable is the idea, that, in a society like ours, 
 every man involved in litigation should conduct his 
 own cause or present it only through the medium of 
 unpaid and unskilled friendship. For the due ad- 
 ministration of justice we must have men compe- 
 tent to advise both the suitor and the court. Such 
 assistance, as a general proposition, cannot be pro- 
 cured without a proper provision for compensation. 
 And even though we admit that the advocate is 
 ready to undertake either side of a cause for hire, 
 it does not thereby follow that he is venal nor that 
 his attitude contravenes the principles of a sound 
 morality. 
 
 28 U. S. Law Mag. vol. i, p. 3.
 
 26 ESSAYS IN LEGAL ETHICS 
 
 41. In the larger portion of the vituperative at- 
 tacks to which the bar is subjected the writers seem 
 to assume that all litigated causes involve a direct 
 opposition of truth and falsehood, and that counsel 
 engage to support the bad side with full knowledge 
 of its iniquity and do violence to their own convic- 
 tions solely for the sake of pecuniary gain. It is 
 this wholly fallacious assumption that has furnished 
 a favorite theme for declamation, satire and re- 
 proach in every age, and the old threadbare argu- 
 ment continues to find expression in the current 
 works of the pseudo-moralists. Now, as a matter 
 of fact, in the great majority of litigated cases, even 
 after a careful hearing of both sides, it is extremely 
 difficult to say on which side the legal right lies. 
 Yet these self-appointed censors continue to up- 
 braid the lawyers because they refuse to usurp the 
 functions of the judge and decide in advance, upon 
 ex parte testimony, who has the right of the cause. 
 This is not the office of the advocate. His function 
 is not to make decisions but to provide materials 
 from which others may make decisions. He does not 
 even furnish all of the materials out of which such 
 decisions are to be framed. He stands in the shoes 
 of his client and presents only his client's side of 
 the case. Neither in law nor morals is the client 
 required to do more, and the advocate is under no 
 greater an obligation than the person he represents. 
 
 42. Origin of advocacy. The attorney and coun- 
 sellor of the American law courts is a lineal descend- 
 ant of the ancient English barrister, and, by an un- 
 broken chain of pedigree, may trace his genealogy
 
 THE OFFICE OF THE ADVOCATE 27 
 
 back to the first rudimentary forms of our present 
 legal procedure. It is impossible, however, to say 
 at what time or in what manner the practice of ad- 
 vocacy was introduced into England, and while some 
 imaginative legal historians have assigned a date as 
 early as Alfred. the consensus of critical opinion 
 places it at a much later period. 
 
 43. It would seem that under the Saxon kings, 
 and certainly for some time under Norman rule, 
 every litigant spoke for himself, or, in some cases, 
 if laboring under a disability, by his representative. 
 But in the latter case there was no limitation upon 
 the litigant as to whom he should select as his rep- 
 resentative, nor was exclusive audience in the courts 
 reserved for any class of the king's subjects. Thus 
 matters continued until about the time of Henry II, 
 when legal procedure commenced to assume its pres- 
 ent form, and the latter half of the twelfth century 
 was probably the time when advocacy may be said 
 to have made its appearance. It was not until the 
 century following, however, that we may perceive 
 the actual existence of a body of men following the 
 law as a profession, in which is involved the notion 
 of advocacy with its attendant rights and duties. 
 
 44. The early lawyers, in the main, seem to have 
 been ecclesiastics, 29 but about the year 1207, priests, 
 and persons in holy orders generally, were forbidden 
 
 29 The laity, as a rule, were unlettered, and, because of their 
 military habits, unwilling to apply themselves to the study of 
 law. As a consequence its cultivation was almost wholly con- 
 fined to the clergy and chiefly to the monks.
 
 28 ! F.GAI, ETHICS 
 
 to act as advocates in the secular courts, 80 and from 
 thenceforward we find the profession composed en- 
 tirely of a specially trained class of laymen. It is 
 said that when the prohibition above mentioned 
 went into effect those of the clergy who had adopted 
 law as a profession, and were unwilling to be de- 
 prived of this means of livelihood, assumed a coif- 
 fure, or close-fitting head-dress, to hide the clerical 
 tonsure, and this became the distinguishing badge 
 of the legal profession for many years thereafter.* 1 
 To this circumstance is also ascribed that peculiar 
 feature of the modern English barrister the wig. 
 45. The first persons regularly licensed to ap- 
 pear as advocates in the king's courts were called 
 "serjeants," although their full official title seems 
 to have been Servientes Domini Regis ad legum, that 
 is. "Servants at law of our Lord the King." Unlike 
 all prior advocates, they were a part of the court 
 itself; were regularly appointed by royal patent; 
 were admitted only upon taking an oath; had a 
 monopoly of all the practice, and were directly ame- 
 nable to the king as parts of his judicial system. The 
 fundamental ideas involved in the creation of this 
 class have never been abandoned, and, notwith- 
 standing that the class itself by the name "ser- 
 jeants" has ceased to exist, they are still the dis- 
 
 The Episcopal Constitutions, promulgated during the reign 
 of Henry III. 
 
 Si This is the accepted theory but it baa been denied by a 
 late writer who contends that the coif was honorably assumed 
 by the early lawyers as a distinctive badge, which, like the 
 cap of the doctor, carried with it the idea of special author- 
 ity and learning. See, Pulling, Order of the Coif, 24.
 
 THE OFFICE OF THE ADVOCATE 29 
 
 tinguishing characteristics of the bar in all countries 
 where the English common law prevails. 
 
 46. For several generations the Serjeants con- 
 stituted the entire bar, but about the time of Ed- 
 ward II other persons came to be admitted to prac- 
 tice under the name "Counsellors at law," and, until 
 very recent years, a distinction was made in Eng- 
 land between Serjeants and counsellors, the former 
 being the ranking class. At present the order of 
 Serjeants 32 is extinct. 
 
 47. The writer has dwelt at length on this 
 genesis of the legal profession for the reason that 
 much of the customary observance, rules of conduct, 
 and professional morality which at present obtain, 
 arose from and grew out of the character of these 
 early practitioners and the relations they sustained. 
 
 48. Early concepts of professional duty. As 
 stated in the foregoing paragraph, the first advo- 
 cates admitted to practice in the courts were called 
 "Servants at law of our Lord the King," a title, 
 observes one writer, 83 that "has stereotyped the 
 functions of an English barrister at all times. ' ' That 
 is, the bar is an integral part of the judicial sys- 
 tem, an assistant in the administration of justice, 
 and as such it occupies a peculiar and unique posi- 
 tion with reference both to the bench and the pub- 
 lic. The oath of the ancient advocate bound him 
 to serve both the king and "his people," thus pre- 
 scribing, as it were, a divided allegiance, and this 
 
 32 Frequently called the ' ' order of the coif, ' ' in allusion to 
 the head-dress. 
 
 SSInderwick, The King's Peace, 93.
 
 30 ESSAYS IN LEGAL ETHICS 
 
 character, impressed upon the profession at its very 
 inception, has never been changed. 
 
 49. The serjeant, 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 honest 
 advice and his best aid to the suitor. Time has 
 changed the complexion of the bar in many respects, 
 but these fundamental ideas of professional duty 
 remain unaltered. 
 
 50. Division of legal labor. In the United States 
 a licentiate in law is admitted to practice as an 
 "attorney and counsellor," a combination of names 
 and functions unknown to the English law. We 
 have seen that the English barrister was made a 
 part of the court. His office was as distinct and 
 well defined as that of the judge, who, in the com- 
 mon law courts, was always taken from the ranks 
 of the bar. He became an actual sworn assistant 
 in the administration of justice. It was his duly 
 to advise the court upon the law of the case and to 
 advise and assist the suitor in presenting his evi- 
 dence, and to both he was required to act with tin- 
 utmost fairness and good faith. 
 
 51. But to enable him to properly fulfill th> 
 duties involved in his divided allegiance to "t hi- 
 king and his people," and to preserve an independ- 
 ence of judgment and action which, it was con- 
 ( nded, could not be guaranteed if by any means the
 
 THE OFFICE OF THE ADVOCATE 31 
 
 counsel should be pecuniarily interested in the result 
 of the litigation, 84 there grew up a custom of in- 
 tervention between the advocate and the client by a 
 class known as "attorneys and solicitors." The at- 
 torney meets the client, enters his 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 divi- 
 sion of labor has never prevailed to any appreciable 
 extent in the United States. It is a medieval Eng- 
 lish exotic which did not seem to thrive in our soil, 
 and, while traces of the practice are observable 
 during the earlier years of the Republic, particu- 
 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 were 
 in many respects dissimilar, the result of this union 
 of duties has been to produce a code of ethics dif- 
 fering in some particulars from that which obtains 
 at the English bar. 
 
 53. General duties of the advocate. No very 
 specific enumeration of the duties of the advocate 
 has ever been made by statute, either in England 
 or America. In some instances courts have spoken 
 and announced a rule of conduct for the particular 
 case, but, in the main, the ethical code of the pro- 
 fession is unwritten. On several occasions sporadic 
 
 34 In theory the English barrister makes no charge for his 
 services, his emoluments being in the nature of an honorarium.
 
 32 ESSAYS IN LEGAL. ETHICS 
 
 attempts have been made to introduce something of 
 this kind into the codes of civil procedure, 86 appar- 
 ently under the mistaken idea that a moral principle 
 is suspectible of the same method of treatment as 
 the axioms of mathematics. The basis for most of 
 these attempts is the ancient oath administered to 
 advocates by the laws of Geneva, 86 and the pre- 
 scriptions of professional duties have usually been 
 but feeble paraphrases of that instrument. 
 
 54. Fortunately, for the bar and for the public, 
 there are no rules of morality for the lawyers which 
 do not apply with equal force to the laity, and it 
 is well that there should not be. The lawyer is 
 pretty much what the laity makes him. The char- 
 acter of the bar is but a reflex of the character of 
 the community. As has been well said, "An un- 
 scrupulous bar could not exist in a high-minded 
 community ; and if anywhere a corrupt legal profes- 
 sion is to be found it is found in the midst of a cor- 
 
 MSee, Bcport, Com. Code Civ. Pro. N. Y. I 511; Code, Ala. 
 8791. 
 
 MThc oath referred to is as follows: 
 
 "I swear before God, 
 
 To be faithful to the Republic and the canton of Geneva; 
 
 Never to depart from the respect due to the tribunals and 
 authorities; 
 
 Never to counsel or maintain a cause, which does not appear 
 to be just or equitable, unless it be the defense of an accused 
 person; 
 
 Never to employ knowingly, for the purpose of maintaining 
 the causes confided to me, any means contrary to truth, and 
 never to seek to mislead the judges by any artifice or false 
 statement of fact or law; 
 
 To abstain from all offensive personality, and to advance
 
 THE OFFICE OF THE ADVOCATE 33 
 
 rupt and corrupting people." 87 This is the lesson 
 of history and the experience of all the ages. 
 
 55. Neither is it possible to prescribe rules 
 which shall determine an attorney's duty or dictate 
 his action in the varying phases of each particular 
 case, and about all that can be said is, that he 
 should be guided in a general way by recognized 
 usages, the prevailing moral sentiment, and the sug- 
 gestions of his own conscience. 38 And by the latter 
 is not meant the promptings of wayward impulse 
 but the educated, judicial conscience, that carefully 
 distinguishes the relative positions of rights and 
 duties in all their bearings. 
 
 56. The whole duty of the lawyer is tersely 
 summarized in the oath of office now generally ad- 
 ministered in all of the states as well as in the fed- 
 eral courts. This, in general terms, requires him 
 to uphold the law ; to demean himself, as an officer 
 of the court, uprightly; to be faithful to his trust. 
 
 no fact contrary to the honor or reputation of the parties, if 
 it be not indispensable to the cause with which I may be 
 charged ; 
 
 Not to encourage either the commencement or the continu- 
 ance of a suit from any motive of passion or interest; 
 
 Not to reject, for any considerations personal to myself, the 
 cause of the weak, the stranger, or the oppressed." 
 
 37 Commrs. Eeport, N. Y. Code Civ. Pro. 511. 
 
 38 Of late, bar associations, in many of the States, have made 
 prescriptions of moral duties for the guidance of their mem- 
 bers, but these attempts to codify principles do not seem to be 
 very successful. Indeed, "moral duty" is no more susceptible 
 of definition than "fraud" or any of the other terms which 
 the law has refused to define. The code adopted by the Ameri- 
 can Bar Association will be found in the Appendix.
 
 ESSAYS IN LEGAL ETHICS 
 
 Xo more could be required; no less should be de- 
 manded. To attempt to define the infinite variety 
 of aspects and phases that are involved in the fore- 
 going simple enumeration would be an impossible 
 task. Nor is such a definition necessary. 
 
 57. In the pages that follow the writer has en- 
 deavored to discuss, in a necessarily brief and des- 
 ultory manner, a few of the salient features of our 
 subject, and has selected those topics which seem 
 of most importance to the young and inexperienced 
 attorney. Some of the propositions will receive a 
 ready confirmation by his own moral sense of right 
 and wrong. Some may appears trifle finical, par- 
 ticularly those which relate to professional etiquette, 
 but it must be remembered that they represent the 
 old and long-established customs of the most re- 
 spectable and conservative of all the learned pro- 
 fessions. The generation that is laying down the 
 burdens of professional life expects from those who 
 are coming in to take them up, a careful adherence 
 to the old customs and established usages. They 
 were given to us by the fathers aforetime, to be 
 guarded with jealous care and transmitted to oar 
 successors in the same scrupulous purity in which 
 they were received. They are a part of the glorious 
 inheritance of the American bar ; the characteristics 
 which serve to distinguish us; the badges of our 
 respectability. Let no modern spirit of innovation 
 disturb these ancient landmarks. 
 
 58. Relations of the Bench and Bar. We have 
 seen that when advocacy finally became an exclusive 
 calling and the advocates a distinct class with spe-
 
 THE OFFICE OF THE ADVOCATE 35 
 
 cial privileges, it was provided, among other things, 
 that the judges of the king's court should always 
 be selected from their ranks. The education and 
 associations of the judges and lawyers were there- 
 fore the same, and they invariably addressed each 
 other as " brother," both in public and private. 39 
 This intimate relationship has been generally con- 
 tinued, and, as a rule, the bench is still recruited 
 from the legal profession. This is strictly true of 
 the federal courts and generally so of the state 
 courts, although in the latter we occasionally meet 
 with the anomaly of a man presiding over a court 
 in which he has never been admitted to practice. 
 
 59. But, happily, the condition just noted is be- 
 coming every day more rare, and the general rule 
 holds good, that judges must first be lawyers. The 
 very fact, then, that one of the great co-ordinate 
 departments of government is administered by men 
 selected only from one profession gives to that pro- 
 fession a certain pre-eminence which calls for a 
 high standard of morals as well as intellectual at- 
 tainment. The integrity of the judiciary is the 
 safeguard of the nation, but the character of the 
 judges is practically but the character of the law- 
 yers. Like begets like. A degraded bar will in- 
 evitably produce a degraded bench, and just as cer- 
 tainly may we expect to find the highest excellence 
 in a judiciary drawn from the ranks of an enlight- 
 ened, learned, and moral bar. 
 
 60. Not only are the judges, the interpreters of 
 the laws, drawn from the ranks of the lawyers, but 
 
 39 Inderwick, King 's Peace, 94.
 
 f 
 
 I 
 
 < 
 36 ESSAYS IN LEGAL' ETHICS 
 
 that profession, more than all others, contributes to 
 till the halls of legislation and supply the chairs of 
 administrative offices of high position and responsi- 
 bility. Learning, honor, and integrity are alike nec- 
 essary in those who are called to discharge these 
 great trusts; the future stability of the country 
 n-sts, in very large measure, on those who make and 
 execute the laws, and our guarantees for the peace- 
 ful enjoyment of life, liberty and property must be 
 sought in their character and moral qualities.
 
 CHAPTER. Ill 
 
 THE ADVOCATE AND THE COUETS 
 
 Generally considered The summary jurisdiction of courts 
 Methods of summary discipline Nature of disciplinary 
 power Effect of discipline on the legal rights of the citi- 
 zen Grounds for discipline Discipline for unofficial mis- 
 conduct Misconduct without discipline. 
 
 61. Generally considered. The legal profession 
 occupies, in many respects, an unique position 
 among the callings and occupations of men. While 
 its general features bear some similitude to the 
 other learned professions it differs from them in 
 many important particulars. The lawyer, like the 
 physician, serves the public ; the one as an assistant 
 in the protection and preservation of rights, the 
 other in the protection and preservation of health; 
 but here the parallel ends. The lawyer not only 
 serves the public that is, the individuals who com- 
 pose the body politic but he also serves the body 
 politic itself the state, and for this purpose neces- 
 sarily assumes a dual relation, which distinguishes 
 his profession from all others. He not only prac- 
 tices in the courts but is himself an integral part 
 of the judicial machinery, and as such is subject to 
 a disciplinary power from which the members of 
 other professions are exempt. He enjoys certain 
 exclusive privileges and is under certain special ob- 
 
 37
 
 38 ESSAYS IN LEGAL ETHICS 
 
 ligations and subject to certain responsibilities. For 
 an abuse of his privileges, as well as for derelictions 
 of professional duty, he may be compelled to ac- 
 count, not only at the bar of public opinion but also 
 of the court that admitted him to practice. In ad- 
 dition to the punishments inflicted by society he 
 must also bear the marks of sovereign displeasure, 
 and, in this respect, the code of professional ethics 
 resembles a code of law. 
 
 62. Summary jurisdiction of courts. The sum- 
 mary jurisdiction which a court is permitted to 
 exercise over attorneys and counsellors, while to 
 some extent conferred by statute, seems to originate 
 in the inherent disciplinary power which the court 
 possesses over its attorneys as officers of the court. 
 It is, in fact, but a continuation of the old ideas that 
 were involved in the original appointment of the 
 Serjeants, and has always formed a part of the judi- 
 cial scheme of every country where the common law 
 prevails. The attorney of the United States, no less 
 than the barrister of England, still represents the 
 sovereign as well as the people. He is a part of the 
 judicial machinery; an assistant in the administra- 
 tion of justice; and the theory is that as such of- 
 ficer of the court he is responsible to it for profes- 
 sional misconduct. 40 
 
 63. The opinion at one time seems to have been, 
 that the disciplinary jurisdiction extended only to 
 attorneys employed as such in suits depending in 
 
 40 Ex parto Garland, 4 Wall (U. 8.) 333; Ex parte Wall, 
 107 (U. 8.) 265; Ex parte Biggs, 64 N. C. 202; Whitcomb's 
 case, 120 Mass. 118.
 
 THE ADVOCATE AND THE COURTS 39 
 
 court, and that it could be exercised only to hold 
 them to their duty in such suits. But a broader 
 view is now taken, and it would appear to be well 
 settled that such jurisdiction is not confined to mat- 
 ters arising out of litigation but applies to any mat- 
 ter in which an attorney has been employed by rea- 
 son of his professional character, 41 and extends to 
 all cases of professional misconduct, whether in or 
 out of court. 42 
 
 64. The exercise of this summary jurisdiction 
 rests in the sound discretion of the court, but must 
 be employed with caution and moderation. 43 The 
 power is not an arbitrary or despotic one, to be ex- 
 ercised at the mere pleasure of the presiding judge, 
 or from motives of passion, prejudice or personal 
 hostility, for it is quite as necessary for the proper 
 administration of justice that the rights and inde- 
 pendence of the bar should be guarded and main- 
 tained as the rights and dignity of the court itself. 44 
 
 65. Methods of summary discipline. For any 
 flagrant dereliction or disregard of professional duty 
 on the part of the attorney, the license by which he 
 was admitted to practice may be revoked. This is 
 known as disbarment, and the effect of a disbar- 
 ment is the utter extinction of professional char- 
 acter. It is only for grave offenses, however, that 
 
 41 Anderson v. Bosworth, 15 B. I. 443; Ex parte Staats, 4 
 Cow. (N. Y.) 76; Lynde v. Lynde, 64 N. J. Eq. 736. 
 
 42 People v. Green, 7 Colo. 237. 
 
 43 State v. Kirke, 12 Fla. 287; Ex parte Burr, 9 Wheat. 
 (U. 8.) 529. 
 
 44 Ex parte Sereombe, 19 How. (U. S.) 9.
 
 J' 1 ESSAYS IN LEGAL ET) 
 
 this method of discipline is resorted to. Sometimes 
 there is inflicted a qualified disbarment, as that the 
 attorney may not practice in the courts for a speci- 
 fied period. This is known as suspension, and its 
 effect, while it lasts, is the same as disbarment. 
 
 66. By far the more common methods of dis- 
 cipline are reprimands and fines, the latter ofttimes 
 entailing a deprivation of personal liberty until paid 
 or discharged. 
 
 67. For violations of professional etiquette or 
 breaches of decorum, particularly if committed in 
 the presence of the court, the offending attorney 
 may be punished by reprimand, fine or imprison- 
 ment. Where the offense amounts to what is tech- 
 nically known as contempt of court the offender is 
 usually fined, and may be committed until the fine 
 is paid. Where the contempt is of a flagrant char- 
 acter imprisonment is frequently inflicted. These 
 punishments are resorted to for the purpose of vin- 
 dicating the outraged dignity of the court, for un- 
 less the solemn and dignified character of the court 
 is maintained the administration of law and the 
 forms of justice would soon sink into a meaningless 
 travesty. 
 
 68. But the lawyer is not alone a gentleman ; 
 he is a sworn minister of justice. His office im- 
 poses high moral duties and grave responsibilities, 
 and he is held to a strict fulfillment of all that these 
 matters imply. Interests of vast magnitude are in- 
 trusted to him; confidence is reposed in him; life, 
 liberty and property are committed to his care. I It- 
 must be equal to the responsibilities which they
 
 THE ADVOCATE AND THE COURTS 41 
 
 create, and if he betrays his trust, neglects his 
 duties, practices deceit, or panders to vice, then the 
 most severe penalty should be inflicted and his 
 name stricken from the roll. 
 
 69. Nature of disciplinary power. It would seem 
 from the character and consequences of reprimands, 
 fines and temporary suspensions, that they should 
 be regarded as punishments inflicted for violations 
 of professional duty, and the same idea has been 
 extended to disbarment. The better considered 
 opinions, however, distinguish between the first 
 mentioned matters and disbarment, holding that the 
 power to revoke the right to practice rests on dif- 
 ferent grounds from the right to punish. 45 Indeed, 
 the element of punishment, although undoubtedly 
 present, does not seem to be contemplated in disbar- 
 ment proceedings, and the measure is regarded only 
 as an act of protection. That is, that a person who, 
 by practices in derogation of his official oath and 
 by conduct unbecoming an officer of the court, has 
 rendered himself unworthy of his office and whose 
 retention therein will operate to the manifest detri- 
 ment of the profession, should be removed, not as a 
 punishment of the offender but as a protection to 
 the court, the bar and the public. 46 
 
 69a. While the summary proceeding of disbar- 
 ment is civil, not criminal, it yet requires more than 
 a mere preponderance of the evidence. The guilt 
 
 45 Ex parte Robinson, 19 Wall (U. 8.) 505; Jackson v. 
 State, 21 Tex. 668. 
 
 46 Ex parte Wall, 107 U. S. 265; State v. Winton, 11 Oreg. 
 456; Ex parte Biggs, 64 N. C. 202.
 
 42 ESSAYS IN LEGAL ETHICS 
 
 of the attorney must be clearly established* 7 and, 
 usually, a bad or fraudulent motive must be shown, 
 notwithstanding the acts charged against him are 
 proved to have been committed.** Where, however, 
 the act complained of is essentially dishonorable 
 this, in itself, may be taken as sufficient proof of 
 bad motive to authorize a disbarment.* 8 
 
 70. Discipline does not affect legal rights. It 
 will be perceived from the foregoing that the sum- 
 mary power exercised by courts in the punishment 
 or exclusion of offending attorneys rests almost 
 wholly on ethical grounds and applies only to pro- 
 fessional misconduct. If the matter in question is 
 entirely unconnected with the attorney's profes- 
 sional character, or if the misconduct charged re- 
 lates to something outside of the line of professional 
 duty, then, as a rule, the court will have no right 
 to interfere, 50 and, generally, charges that affect the 
 attorney's character only as a man or his integrity 
 as a citizen, will furnish no grounds for disciplinary 
 proceedings. 61 
 
 71. Thus, it may often happen that a client feels 
 aggrieved at the action of his counsel in the with- 
 holding of funds that have been received in the 
 course of his professional employment. In this event 
 he may apply to the court to discipline the attorney, 
 
 47 Re Evans, 22 Utah 366, 53 L. R. A. 952. 
 State v. Finley, 30 Fla. 325, 11 So. 674, 18 L. B. A. 401. 
 People v. Murphy, 119 111. 150. 
 
 60 Matter of Huson, 62 How. Pr. (N. Y.) 358; Peopl* v. 
 Appleton, 105 111. 474. 
 
 1 People v. Allison, 68 111. 151.
 
 THE ADVOCATE AND THE COURTS 43 
 
 and, in a proper case, the court may interfere in 
 a summary manner to compel the performance of 
 a professional duty, for the liability of an attorney , 
 to summary process for the payment of money in 
 his hands belonging to his client has frequently 
 been recognized. 52 But a proceeding of this kind 
 will not be entertained when the case simply pre- 
 sents a difference of opinion as to the amount to 
 be charged and retained for services, for courts 
 cannot thus undertake to adjust accounts between 
 attorney and client. 53 A jury is the proper tribunal 
 to ascertain and determine what is fairly due to par- 
 ties under their contracts, and, unless the charge in- 
 volves a palpable breach of duty and raises a pre- 
 sumption of bad faith, a court will not interfere. 
 
 72. But, as has been shown, an attorney is an 
 officer of the court, and the court which admits 
 him to the privilege of practicing at its bar may, 
 and should, require of him the fulfillment of the 
 obligations that attend the privilege. And, in the 
 furtherance of this right, the 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 summary 
 process in contravention of the right of trial by jury, 
 for when a court undertakes to enforce the plain 
 duty of its officer it is doing that which a jury can- 
 not do. 
 
 73. Grounds for discipline. Upon his admission 
 to the bar an attorney makes a solemn promise that 
 
 62Orr v. Tanner, 12 R. I. 94. 
 M Burns v. Allen, 15 R. I. 32.
 
 44 ESSAYS IN LEGAL ETHICS 
 
 he will demean himself, as an attorney and coun- 
 sellor of the court, uprightly and according to law, 
 and that he will faithfully perform the duties of 
 his office. This promise he seals with an oath. In 
 rrturn for the privileges which his admission con- 
 fers he is held to a strict fulfillment of his promise, 
 and its violation calls for the exercise of the court 's 
 disciplinary powers. He is bound to observe all 
 of the rules of practice, as well as such as relate 
 only to the decorum of the court, whether written 
 or unwritten. Nor is his obligation discharged by 
 merely observing the conventional rules of cour- 
 teous demeanor in open court; he must abstain, 
 out of court, from indulgence of any practice likely 
 to bring discredit upon himself as a practitioner 
 or reflect unfavorably upon the court. If his conduct 
 is such as to show that he is unfitted to practice he 
 may be suspended or disbarred, and it is immaterial 
 for this purpose that such acts neither constitute a 
 criminal offense nor create a civil liability. 84 It is 
 enough that they indicate such an absence of moral 
 character as to render him unworthy of public con- 
 fidence. 6 * The different phases of the subject will 
 be discussed in the succeeding chapters. 
 
 74. Discipline for Unofficial Misconduct. Al ;i 
 general rule a court will not assume jurisdiction 
 in summarily discipline one of its officers for mis- 
 conduct alleged to have been committed in his 
 
 MEx partc Cole, 1 McCrary (C. Ct) 405; Bradley v. 
 Fisher, 13 Wall (U. 8.) 335; People v. Barker, 56 111. 299; 
 Beene T. State, 22 Ark. 157. 
 
 Boone, 83 Fed. Rep. 944.
 
 THE ADVOCATE AND THE COURTS 4") 
 
 private character. In such cases relief can be ob- 
 tained only by a suit regularly instituted in the 
 proper tribunal at the instance of the party who 
 claims to have been injured. 66 So, too, it would 
 seem that where acts charged against an attorney 
 were not done in his official character, notwith- 
 standing they may be of an indictable nature, if they 
 are not confessed, there should be a regular con- 
 viction before a court will strike his name from the 
 roll. 67 
 
 75. But, while the foregoing statements may be 
 taken as expressive of the general rule, and while 
 the rule will, in most cases that come within it, be 
 applied, yet it is not without exceptions. There may 
 be cases where an attorney's misconduct in his pri- 
 vate capacity merely is of so gross a character as 
 to warrant summary judicial intervention. 68 It is 
 an essential condition to admission to practice that 
 the applicant shall be a man of good moral charac- 
 ter. It is not enough that he shall be learned in 
 the law and competent to conduct litigation. He 
 must, in addition, furnish proof that he is fit to be 
 entrusted with the confidences which his office in- 
 vites, and failing in this a court may deny him ad- 
 mission. 59 The primary object of this is to main- 
 tain a high standard of moral excellence in the pro- 
 se People v. Allison, 68 111. 151. 
 
 57 On this point the authorities are not agreed, but the 
 text states the general and better considered rule. 
 88 People v. Appleton, 105 111. 474. 
 
 59 Mill's case, 1 Mich. 392; Secomb's case, 19 How. (U. S.) 
 9; Randall's case, 11 Allen (Mass.) 472.
 
 46 ESSAYS IN LEGAL ETHICS 
 
 fession and conserve the ancient dignity and re- 
 spectability of the bar. This being true, it neces- 
 sarily follows that this essential character should 
 be maintained after admission, and when the con- 
 duct of the licentiate clearly shows, either that the 
 court was deceived at the time of his admission, or 
 that there has been a moral degeneracy since that 
 time, a proper case for discipline may be presented. 80 
 
 76. AVe have seen that legal ethics has to do 
 only with professional character and with mis- 
 conduct in a professional capacity. This is true. 
 But a lawyer is yet a man. We cannot wholly sepa- 
 rate the professional abstraction from the concrete 
 human personality, and while courts in some in- 
 stances have assumed so to do, yet the result has 
 usually been detrimental to the fair fame and high 
 standing of the profession. It is further true, that 
 where a moral delinquency amounts to a violation 
 of legal duty it should form the subject of judicial 
 investigation in the regular courses that the law 
 provides. Indeed, to do otherwise is to deny jus- 
 tice and deprive the citizen of his civil rights. But, 
 where the fact has been established by a competent 
 tribunal ; where it has been clearly demonstrated 
 that a practitioner is a dishonest man, whether he 
 was acting professionally or otherwise should be an 
 immaterial question. If he has become an unworthy 
 member of society he is unfit to represent the noble 
 profession of the law. He has violated the funda- 
 mental condition of his entrance and forfeited his 
 right to professional recognition; hence, he should 
 
 eODavie's CMC, 93 Pa. 8t 121.
 
 THE ADVOCATE AND THE COURTS 47 
 
 no longer be permitted to practice in the courts. 
 This principle is fully recognized, and courts fre- 
 quently strike the names of such persons from the 
 roll, notwithstanding the particular offense was not 
 committed in a professional capacity. 
 
 77. Misconduct without discipline. Not every 
 infraction of ethical precept, however, will warrant 
 the summary intervention of a court or the exer- 
 cise of disciplinary powers, and in many things 
 the offender incurs the liability of no greater pun- 
 ishment than may be inflicted by the force of public 
 opinion. Thus the bar has a rigid form of etiquette 
 with respect to many transactions. A violation of 
 this form is attended only by a loss of professional 
 standing. At first blush this punishment does not 
 seem very severe, and, because its effect is not al- 
 ways immediately apparent, many men are induced 
 to persist in practices that contravene accepted 
 standards of good manners. But, in the end, there 
 is scarcely any form of punishment that can com- 
 pare with it. 
 
 78. There is not a man living, who, in his in- 
 most soul, does not desire to be well thought of by 
 his associates, however much he may affect an in- 
 different exterior. As time flows on this desire 
 deepens and intensifies, and, all too late, he finds 
 that his professional reputation has become estab- 
 lished and that he is regarded as a trickster, a sharp- 
 er, a person to be avoided, or, if met, to be watched 
 and distrusted. And when this reputation has once 
 become established it fastens itself to the individual 
 with a tenacity that frequently cannot be broken,
 
 t* ESSAYS IN LEGAL KTIIIC8 
 
 even by a subsequent life of exemplary conduct. 
 Indeed, so firmly does this reputation become fixed 
 that, in many instances, it survives the individual 
 and remains to taint his memory long after he is 
 dead. 
 
 79. Let no one imagine, then, that because his 
 unprofessional practices are of such a nature as to 
 escape judicial scrutiny they may be followed with 
 impunity. The good opinion of his professional 
 brethren can be created and retained only by a strict 
 observance of those matters which long experience 
 and common consent have sanctioned, and without 
 their good opinion eminence at the bar is impossible, 
 irrespective of whatever attainments he may pos- 
 sess in the way of learning and technical skill.
 
 CHAPTER IV 
 PROMOTION AND PUBLICITY 
 
 Generally considered How may the lawyer reach the public 
 Personal solicitation Solicitation through agents Adver- 
 tising, when and how Professional cards, and how they 
 may be used Signs Newspaper advertising Anonymous 
 announcements Divorces Bad debts Letters and circu- 
 lars Self praise. 
 
 80. Generally considered. To the young at- 
 torney, who has just been admitted to practice, the 
 all-important question is: "What shall I do to ob- 
 tain business?" The merchant, the manufacturer, 
 the artisan, or even the common laborer, finds but 
 little difficulty in solving the general phases of the 
 problem. It is the experience of most persons that, 
 in this life, we generally have to ask for what we 
 get. As a rule, but little comes to us unsought. A 
 man has something to sell, or barter, or which he 
 desires to exchange. To effect his desires he must 
 either go to the persons with whom he would like to 
 trade or, by some means, he must induce them to 
 come to him. There is no escape from this conclu- 
 sion, and its absolute soundness is recognized in 
 every occupation and calling except the professions. 
 
 81. It has often been urged, in criticism of the 
 legal profession, that the lawyer is a creature of prec- 
 edents. To a limited extent this is true. Now, in 
 the early days of advocacy, it was held to be incom- 
 
 49
 
 50 ESSAYS IN LEGAL ETHICS 
 
 patible with professional dignity for a lawyer to ten- 
 der his services or offer to conduct a case in court. 
 His province lay entirely in personal learning and 
 skill, and the stern ethics of that day did not permit 
 him to apply to others to make a trial of his intel- 
 lectual powers. He must be sought. Of course, 
 there were many whose merits were either never 
 discovered or not appreciated, and, as a consequence, 
 "briefless barristers" abounded in profusion in and 
 about Westminster Hall. The barrister might go 
 hungry, but his dignity must still be maintained, 
 and this early notion of dignity has remained in 
 various modified forms until the present day. 
 
 82. It would seem to be a present rule in Eng- 
 land that a counselor shall not in any way, nor 
 under any pretence, ask for practice, and notwith- 
 standing that he plies his calling for hire he may 
 not solicit custom. 81 This anomalous condition 
 seems to be founded on much the same principle as 
 that which forbids him to claim his fee as a debt, 
 and, in theory, treats that as a mere honorary gra- 
 tuity which constitutes in fact his means of liveli- 
 hood. But this rigorous rule has long ceased to 
 obtain more than a nominal observance in England, 
 and never seems to have secured a practical recogni- 
 tion in the United States. 
 
 83. One reason for the non-adoption of the 
 rule in this country grows out of the union of the 
 two branches of the legal profession attorneys and 
 
 OlForsyth, Hortensius the Advocate, 350. This seems also 
 to be one of the cardinal rules of the French bar; see Jones, 
 History of the French Bar, 198.
 
 PROMOTION AND PUBLICITY 51 
 
 counselors. While the counselor was not permitted 
 to solicit no such inhibition seems to have been 
 placed upon the attorney. But the attorney, for 
 many years, was rather looked down upon by his 
 brother at the bar. Indeed, he was not regarded as 
 a lawyer, or, at best, but as a partial lawyer occu- 
 pying a mean and inferior position. Time has rem- 
 edied this matter in England, while in the United 
 States the term "attorney" has come to have a 
 generic significance that embraces all branches of 
 legal practice. 
 
 84. But this old notion of professional dignity 
 has never been wholly eradicated, so far, at least, as 
 respects the solicitation of clients. In a general way 
 it may still be said that solicitation is unprofessional, 
 and notwithstanding that the practitioner is an at- 
 torney he is also a counselor, with all the traditions 
 of his legal ancestry. He may indeed announce his 
 professional character, but only in a modest and 
 decorous way. He may, in a proper manner and 
 upon proper occasions, speak of his profession and 
 even of his own connection therewith, but cannot, 
 without violating the canons of good taste, as well 
 as the ethics of the bar, offer his services for sale 
 nor vaunt his own abilities. The profession of law 
 remains today what it always has been, a high and 
 honorable calling, and no one invested with the pres- 
 tige which it confers should be permitted to degrade 
 it to the level of a mercenary trade. The huckster, 
 or even the "hustler," has mistaken his vocation 
 when he selects advocacy. His talents will show 
 to much better advantage in some other line where
 
 ESSAYS IN LEGAL. ETHICS 
 
 his commercial instincts will not be shackled by 
 ancient conventionalities. 
 
 85. But however much we may theorize we can- 
 not escape the conclusions announced at the opening 
 of this section. The lawyer has no immunity from 
 the common lot of mankind. He must live; and, if 
 he is to live by his profession, he must have clients. 
 These facts are self-evident, and there is no way 
 of evading their irrefutable logic. The question, 
 then, would seem to be: "To what extent may a 
 lawyer solicit custom and what methods may he 
 properly employ?" 
 
 86. Personal solicitation. As stated in the pre- 
 ceding section, it was formerly a rule of general 
 and uniform observance, in all countries where ad- 
 vocacy was practiced as an exclusive calling, that 
 it was beneath the dignity of an advocate to solii-it 
 business, and this rule sems to have been of such 
 imperative obligation that to violate it in any re- 
 spect was to lose standing at the bar. In England 
 it was applied with practically no exception, but on 
 the continent, where the right to demand and re- 
 ceive fees was recognized, it was qualified by the 
 proviso that in case of a defense an advocate might 
 offer his services gratuitpusly to the poor. 68 
 
 87. If we are to regard the profession of law 
 as a legitimate means of livelihood and not as a 
 mere honorary occupation, then it should be gov- 
 erned, in the main, by the same rules and subjert.-d 
 to the same tests that are applied to other honorable 
 callings, and, if this be true, there can be no well- 
 
 iJonw, Hiat French Bar, 198.
 
 PROMOTION AND PUBLICITY 53 
 
 grounded reasons for denying to the lawyer the 
 same opportunities for acquiring practice as are af- 
 forded to men in other walks of life. Nor is there 
 any impropriety in a respectful solicitation of busi- 
 ness from friends and acquaintances, or even from 
 the general public. The manner in which this shall 
 be accomplished is practically the only question to 
 be considered. Indeed, in many cases, the young 
 attorney must resort to his acquaintances and rely, 
 to some extent, on their good offices in his behalf. 
 So long as this solicitation is made in a modest and 
 decorous manner it is difficult to perceive wherein 
 any injury can result to either the solicitor or the 
 profession. On the other hand, a persistent and of- 
 fensive assertion of self will usually create an aver- 
 sion in the minds of those sought to be affected. 
 
 88. This phase of our subject has produced a 
 large amount of sentimental gush and high-flown 
 rhetoric, and students, from time immemorial, have 
 been admonished that law should be pursued for its 
 own sake and not for gain; that the philanthropic 
 idea should alone actuate the advocate and stimulate 
 his endeavors, and that the time-honored rules of 
 the bar must not be infringed. In a way all of this 
 is true, yet the fact remains that law is pursued as 
 a lucrative calling, and much of the real good which 
 the advocate is enabled to accomplish for his client 
 results from this fact. It is a further fact that the 
 ethical idea involved in solicitation is not so much a 
 regard for ancient conventional rules as a proper 
 deference to present public opinion concerning the 
 dignity of the legal profession. When a solicita-
 
 54 VS IN LEGAL ETHICS 
 
 tion can be made without a loss of professional dig- 
 nity or a lowering of professional standing, then it 
 is proper; when it cannot, then there should be no 
 solicitation. This is about all that can be said upon 
 the subject with any degree of certainty, and the 
 circumstances of the particular case must determine 
 the conduct of the attorney. As has been well said, 
 if every kind of solicitation, regardless of the form 
 it may take, is to be condemned, then only in rare 
 instances would there be such a thing as a valid 
 contract of employment between a lawyer and his 
 client. 68 
 
 89. In the foregoing paragraph the subject of 
 solicitation has been considered from the point of 
 view of the respectable practitioner who hesitates 
 between self-interest and professional decorum; 
 who seeks practice but is yet observant of the pro- 
 prieties. There are, however, some very objection 
 able features of solicitation to be seen in the cit 
 where a horde of so-called lawyers find a regular 
 and profitable employment in following accidents 
 and soliciting retainers from the injured. This i> 
 solicitation in its most degrading form, and a vile 
 prostitution of the advocate's calling. Yet the "am- 
 bulance chaser" has become a recognized feature of 
 city life. He haunts the hospitals and visits the 
 homes of the afflicted, officiously intruding his pres- 
 ence and persistently offering his services on the 
 basis of a contingent fee. This is not law practice ; 
 it is simply a form of legalized piracy. No man can 
 adopt such a course and yet retain the respect of his 
 
 W Chrwte v. Louisville By. Co., 167 K
 
 PROMOTION AND PUBLICITY 55 
 
 professional brethren, for while the person so doing 
 violates no rule of law he is guilty of a gross infrac- 
 tion of one of the best-known and longest-estab- 
 lished ethical precepts of the bar. Unfortunately, 
 this is a practice that cannot be stopped by legal 
 methods. The recourse is to the moral sense of the 
 bar ; if this sense is weak no relief may be expected, 
 and, so long as complacent juries shall freely give 
 away other people's money and this class of practi- 
 tioners continues to receive the favorable considera- 
 tion of bench and bar, so long will the practice itself 
 continue. 
 
 89a. Solicitation through agents. There is an- 
 other form of solicitation that courts have invariably 
 condemned as vicious and indefensible. This is, 
 the employment of agents or runners. It is gen- 
 erally conceded that the friends and acquaintances 
 of an attorney have the right to sound his praises 
 and divert to him such clients as they may be able 
 to persuade, in a legitimate way, to engage his serv- 
 ices. But there is a manifest difference between 
 securing business through the influence of friends 
 and securing it through the methods employed by 
 the strictly commercial enterprise of hired agents. 64 
 Such methods have repeatedly been denounced, by 
 both courts and bar associations, as acts of impro- 
 priety utterly inconsistent with the character of 
 the legal profession and incompatible with the faith- 
 ful discharge of its duties. 66 
 
 84Chreste v. Commonwealth, 171 Ky. 186. 
 65Ingersoll v. Coal Co., 117 Tenn. 263; In re Clark, 184 
 N. Y. 222.
 
 56 BB8AYS IN LEGAL ETlil<> 
 
 ). Advertising. In a small community, where 
 the local attorneys are known to all or the larger 
 portion of the people and their respective abilr 
 are matters of common notoriety, there exists no 
 necessity for an attorney to advertise his business 
 through any other than the legitimate medium of 
 ordinary practice. But in large cities and centers 
 of population, where both business and social ac- 
 quaintance is limited, it seems almost a matter of 
 absolute necessity for the young advocate to reach 
 the public through some of the methods that may 
 properly be denominated "advertising." 
 
 91. Now it is well settled that every man has a 
 right to choose his own occupation in life, subject 
 only to the restraint necessary to secure the com- 
 mon welfare. This is one of the privileges of cit- 
 izenship. 86 He not only has a right to choose his 
 occupation, but the further right to pursue and 
 carry on the business of such occupation in any way 
 and by any methods that are lawful and proper. A- 
 has been well said, in these days of commercial en- 
 terprise, advertising is an important factor in busi- 
 ness pursuits, and therefore every man has a right 
 to advertise his business in any legitimate manner 
 so as to attract the attention of the public. 87 
 
 92. But the ethics of the legal profession forbid 
 that an attorney should advertise his talents or his 
 skill as a shopkeeper advertises his wares, 6 * and 
 
 MForcr v. People, 141 HI. 171; Commonwealth v. Perrj, 
 155 Mass. 117; People v. Gillson, 109 N. Y. 389. 
 WRuhstrat v. People, 185 111. 133. 
 6* People v. MacCabe, 18 Colo. 18?.
 
 PROMOTION AND PUBLICITY 57 
 
 public policy is distinctly opposed to any efforts 
 that may tend to invite or encourage litigation. To 
 what extent, then, may an attorney present himself 
 for public consideration, and how far may he pro- 
 ceed without infracting any of the rules which the 
 force of long and well-settled public opinion has es- 
 tablished for the regulation of this branch of pro- 
 fessional conduct? The solution of this question is 
 far from easy. Modern methods of transacting 
 business have materially changed the ancient formu- 
 las of the commercial world, and these changes have 
 not been without effect in legal circles. Much as 
 we may deplore the fact it would yet seem that the 
 leaven of commercial influence is actively at work in 
 the legal profession, and the result has been to 
 create wide departures from former standards, even 
 in the matter of advertising. 
 
 93. Cards. From time immemorial, as we 
 reckon time from the professional standpoint, the 
 only method of announcement sanctioned by our 
 unwritten code of ethics is the modest "card," and 
 this, if we shall consult only the best usage, should 
 bear upon it nothing more than the name, occupa- 
 tion and business address of the individual or firm 
 by whom it is issued, displayed in inconspicuous 
 characters. This slender bit of pasteboard has 
 long been considered fully adequate for all profes- 
 sional needs, and for many years no other or dif- 
 ferent medium has been deemed necessary to enable 
 the attorney to reach the public. If perchance the 
 practitioner has felt the necessity of a wider dis- 
 semination of his name and occupation than was
 
 58 ESSAYS IN LEGAL ETHICS 
 
 afforded by his own efforts, he has been permitted 
 to reproduce his card in the advertising columns of 
 technical magazines and newspapers of high stand- 
 ing. But this was the limit of the advertising meth- 
 ods permitted by the "old school," and, in the opin- 
 ion of the majority of the legal practitioners of 
 today, to transcend this limit is to violate a funda- 
 mental rule of the code. 
 
 94. It certainly must be admitted, thai a plain 
 and modestly lettered card carries with it a certain 
 dignity that is wholly lost whenever an ostentatious 
 display is attempted, and as the object of all adver- 
 tising is to interest the public in the advertiser or his 
 wares, then, as a matter of good business policy, 
 that method should be pursued which is most likely 
 to attain such end. The legal advertiser does not 
 offer a marketable commodity, the merits of which 
 he may with propriety vaunt. He offers himself 
 his talent and his skill. It ill becomes him, then, 
 to sound his own praise, even though it be done in- 
 directly by a recital of the things he is able to ac- 
 complish. 
 
 95. It is enough, therefore, simply to announce 
 the fact of professional character and the place 
 where clients may attend. This latter should always 
 be the attorney's office. There are certain classes 
 of practitioners who also state their place of resi- 
 dence, and, impliedly at least, invite clients to con- 
 sult them there. As a general proposition, however, 
 these classes do not represent the better elements of 
 the profession, and while an attorney may receive his 
 clients at his home the prevailing sentiment of the
 
 PROMOTION AND PUBLICITY 59 
 
 bar is distinctly opposed to such a practice. For 
 this reason the placing of a residence address on a 
 professional card is always regarded as bad form. 
 
 96. Attorneys pursuing a special branch of the 
 law may also announce their specialty, yet such an- 
 nouncement should be made in the same dignified 
 manner. Probably the widest departures from good 
 taste occur in this form of advertising. In these 
 modern days of commercial activity too many at- 
 torneys become impressed with the idea that to suc- 
 ceed at the bar the practitioner must be a "hustler," 
 and it is through the precept and example of this 
 class that law is so frequently degraded from its 
 true character as a learned and liberal profession 
 and made to assume the features of a mean, sordid, 
 and grasping trade. 
 
 96a, Signs. It is a universal custom of the 
 commercial world to announce names and business 
 locations by means of prominently displayed signs. 
 This usage, to some extent, has been followed by 
 the professions, and one of the first acts of the 
 young attorney, after his admission to the bar, is to 
 "hang out his shingle." Of course, this is advertis- 
 ing. In a sense it is solicitation. Indeed, it is so 
 intended but the mere fact of such announcement 
 is not considered unethical. A small, unostentatious 
 gign or neat window lettering, has always been re- 
 garded as a proper form of publicity and from time 
 immemorial has been employed by all classes of 
 the legal profession. But, like professional cards, 
 a sign should be strictly confined to the simple 
 statement of name and vocation. A sign, however,
 
 60 ESSAYS FX LEGAL ETHICS 
 
 if employed, should be displayed only at the at- 
 torney's office or place of business. It is considered 
 bad form to place a sign or any device showing pro- 
 fessional character upon the attorney's residence. 
 
 97. Newspaper advertising. As stated in a pre- 
 ceding section, an attorney may, without violating 
 any of the proprieties, insert his card in periodical 
 publications of standing and repute. The village 
 newspaper is a conspicuous illustration of the man- 
 ner in which this can be done with no diminution of 
 professional dignity. Law journals, and periodicals 
 devoted to legal and financial interests, are now re- 
 garded as proper media whereby to reach the pub- 
 lic. High-class literary magazines occasionally in- 
 sert a column of professional cards, and this form 
 of advertising is probably unobjectionable at the 
 present time. But this practically completes the list. 
 The trade journal, the flashy or sensational weekly, 
 the nondescript purveyor of cheap fiction, and the 
 ephemeral advertising sheet, are all to be avoided. 
 No self-respecting lawyer will ever permit himself 
 to be represented in the columns of this class of 
 journals, and no one can be so represented without 
 losing caste as a practitioner. 
 
 98. The daily newspaper of the cities is equally 
 objectionable. The character of the paper itself is 
 immaterial; it is the fact of advertising and the 
 company in which the advertiser is found that is 
 condemned. What shall we think, what can we 
 think, of the attorney who plaintively appeals for 
 public recognition with a medical quack on one side 
 and a humbug clairvoyant on the other? Of the
 
 PROMOTION AND PUBLICITY 61 
 
 three, the seventh son of a seventh son most com- 
 mands our respect, for he, at least, impliedly ad- 
 mits that he is a fraud, while the others attempt to 
 screen themselves under the mantles of the learned 
 professions. 
 
 99. Anonymous announcements. The daily pa- 
 pers of our large cities constantly present anon- 
 ymous announcements in which the undisclosed ad- 
 vertiser offers his services to the public as a legal 
 practitioner either in a general way or, as is more 
 frequently the case, as an expert in some special 
 line. These announcements are sometimes signed 
 with the name of an actual or fictitious corporation, 
 but usually are without signature other than a sim- 
 ple office address. A favorite plan is to invite cor- 
 respondence by prospective litigants directed to a 
 post office box. Now it cannot be denied that a 
 lawyer, in the exercise of his own judgment, may 
 make any of the branches of the law a specialty, and 
 may invite the general public to test his ability in 
 the line he has so chosen. But he must not, in so 
 doing, use undignified means nor resort to low ar- 
 tifices, and, least of all, should not withhold his 
 name from his advertisements. 69 The very fact that 
 such advertisement is without signature indicates 
 that the concealed advertiser feels a sense of shame 
 in its publication, and no honorable practitioner will 
 ever stoop so low as to commit an act that he will 
 feel ashamed to own. 
 
 100. Continued Divorces. By far the larger 
 portion of the species of advertising mentioned in 
 
 68 People v. Goodrich, 79 111. 148.
 
 62 ESSAYS IN LEGAL ETHICS 
 
 the foregoing paragraph have for their object the 
 solicitation of suits for divorce. Now the procuring 
 of divorces is a legitimate branch of legal practic.-. 
 and the law has made special provision for such 
 separations. As before remarked, a lawyer has an 
 undoubted right to pursue any branch of the law as 
 a specialty, and, while we might question the taste 
 of one who selects so unsavory a line for special 
 work, there is no legal and possibly no ethical objec- 
 tion that can be urged against his adopting pro- 
 ceedings for divorce. But for any one to invite or 
 encourage such litigation is most reprehensible, 70 
 and while any advertisement having this end in 
 view is to be condemned, as contrary to the ethics 
 of the bar, it follows, with stronger reason, that one 
 who thus advertises by anonymous announcements 
 has so far lowered the dignity of his calling as to 
 merit the severe animadversion of his professional 
 brethren and an application of the disciplinary 
 powers of the court whose privileges he has abused. 71 
 101. The marriage relation, in law as in morals, 
 has always been considered sacred, and it affects too 
 deeply the happiness of the family, as also the wel- 
 fare of society, and lies too near the foundation of 
 all good government, to be disturbed or sund* 
 for slight or transient causes. Therefore, the law 
 has defined with certainty the only causes for which 
 a judicial separation will be permitted and the metli- 
 
 70 People v. MacCabe, 18 Colo. 186. 
 
 71 In some states advertisements of this character are now 
 made a misdemeanor. Consult local statutes.
 
 PROMOTION AND PUBLICITY 63 
 
 ods that must be pursued to effect same. Neither 
 judges nor lawyers may change this procedure. And 
 yet, it is by no means uncommon to meet with ad- 
 vertisements to the effect that divorces may be ob- 
 tained, through the medium of the advertiser, 
 "quietly," "without publicity," "good every- 
 where," etc., and, to make the matter worse, the 
 identity of such advertiser is frequently concealed 
 behind a fictitious name or a postoffice box. Such 
 an advertisement is not only objectionable from a 
 moral point of view but is distinctly a false repre- 
 sentation of facts and a libel on courts of justice. 
 
 102. It is a matter of common knowledge that 
 divorces cannot be legally obtained anywhere ' ' with- 
 out publicity, ' ' nor even ' ' quietly, ' ' for in every in- 
 stance a public record must be made and a public 
 hearing had before a decree can be entered. All 
 of these public proceedings the statute imperatively 
 requires, and for a lawyer, by an advertisement or 
 otherwise, to indicate that such public proceedings 
 can or will be dispensed with by the courts having 
 jurisdiction of such cases, is a libel on the integrity 
 of the judiciary that courts cannot overlook when 
 same is brought to their notice. 72 
 
 103. A person enjoying the rights and priv- 
 ileges of an attorney must also respect the duties 
 and obligations of his position. His license was 
 granted on the express promise that he would at all 
 times demean himself in a proper manner, and with 
 the implied agreement that even though he should 
 not, by his professional conduct, reflect honor upon 
 
 72 People v. MaeCabe, 18 Colo. 186.
 
 64 ESSAYS IN LEGAL ETHICS 
 
 the court appointing him, he would at least refrain 
 from such practices as could not fail to bring dis- 
 grace upon such court, the bar, and himself. 78 The 
 public and every individual coming in contact with 
 him in his professional capacity, have a right to ex- 
 pect that he will act with the scrupulous propriety 
 that should ever characterize one commissioned to 
 so high and honorable an office, and when it shall 
 appear that he has abused, or perverted to im- 
 proper uses, the license he has received, it is the 
 duty of both the bar and the courts to purge them- 
 selves of the unclean member. 
 
 104. Continued Bad debts. Another form of 
 highly objectionable advertisement is that of the 
 "wages" and "bad debts" collector. This method 
 of solicitation is often made under the guise of a 
 "bureau," "agency," "association," etc., and, to 
 this extent, partakes of the character of anonymous 
 announcements. As a rule, the bait of "no fee un- 
 less successful" is held out to catch the economically 
 disposed public, while not infrequently, where the 
 statute permits the recovery of attorney fees by the 
 prevailing party, the services of the "bureau" are 
 offered free of charge. 
 
 105. This form of advertisement is quite as 
 much to be condemned as the one discussed in the 
 last section, in so far as it tends to lower the dignity 
 and importance of the legal profession. It is open 
 further to the still weightier objection that it is a 
 proposal for litigation that practically amounts to 
 
 19 People v. Goodrich, 79 III 148; People v. Brown, 17 
 Colo. 4.11.
 
 PROMOTION AND PUBLICITY 65 
 
 common barratry. The policy of the law distinctly 
 discourages the inciting or stirring up of quarrels 
 and suits, and it is the vile brood of generators of 
 petty strife and fomeuters of neighborhood quar- 
 rels that has tended to bring the profession of law 
 into disrepute. 
 
 106. It is not contended that the collection of 
 claims, so-called, is not a proper subject for an at- 
 torney's work. Indeed, "collections" are usually 
 resorted to by the young attorney as a stepping- 
 stone to other and more lucrative forms of profes- 
 sional employment. And usually, also, the collec- 
 tions then obtained are of the sort to which the. 
 term "bad" may, with great propriety, be applied. 
 The offense is not the undertaking to collect claims 
 but the proposal for litigation and the indecent man- 
 ner in which such proposal is made. 
 
 107. Newspaper discussions. An attorney has 
 the same right as every other man to air his views 
 upon any subject in the public press. Nor is he 
 confined to matters external to his profession, and 
 it is immaterial that the publication of such views 
 may tend to exalt his professional reputation or 
 bring him clients. This may be, and indeed is, a 
 form of advertising, but it is nevertheless a legit- 
 imate one if properly effected. There was a time in 
 the not far distant past when discussions of legal 
 subjects by lawyers, in other than accredited law 
 journals, was regarded with much disfavor, and it 
 is still regarded as bad form for a lawyer to com- 
 pile a legal work for popular reading. But the po- 
 sition as well as the province of the lawyer has been
 
 66 ESSAYS IN LEGAL ETHICS 
 
 materially broadened in recent years. He has be- 
 come, in many respects, a leader of popular thought ; 
 his views upon all great questions of the hour are 
 eagerly sought and received with deferential re- 
 spect, and he is daily becoming more and more a 
 power in society and civil life. The press is the most 
 effective agency by which the public mind may be 
 reached and influenced, and it has now come to be 
 considered a proper channel through which to trans- 
 mit professional views. 
 
 108. There is, however, a form of newspaper 
 publication that the ethics of the bar sternly forbids, 
 and this is where an attorney seeks to influence the 
 public with respect to pending or anticipated litiga- 
 tion in which he has a direct personal or professional 
 interest. The effect of such publication is to pre- 
 vent a fair trial and otherwise to prejudice the due 
 administration of justice, and the attorney who re- 
 sorts to such methods must inevitably lose standing 
 in the profession. 
 
 109. Letters and circulars. For a great many 
 years it has ben customary for lawyers to give no- 
 tice of changes in the personnel of firms, removals, 
 etc., by a simple announcement of the fact through 
 the mails. While these announcements are 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 pub- 
 lic. This has always been regarded as a legitimate 
 method of attaining publicity, and is fully sanc- 
 tioned by long and unquestioned usage. A printed 
 circular is generally employed for this pun
 
 PROMOTION AND PUBLICITY 67 
 
 The statements should be brief, severely concise, 
 and modestly displayed. To depart from this stand- 
 ard is considered an exhibition of bad taste on the 
 part of the advertiser. 
 
 110. This is about as far as a reputable practi- 
 tioner may proceed in the way of circular advertis- 
 ing, and when an attorney transcends this limit, 
 either by extolling his own abilities, his connections, 
 or his facilities for transacting business, he ap- 
 proaches dangerously near the line that separates 
 the lawyer from the shyster and pettifogger. 74 
 
 111. The unsolicited offer of professional as- 
 
 74 The term ' ' shyster ' ' seems to be an American colloquial- 
 ism of unknown origin. It is defined by Webster as a " trick- 
 ish knave; one who carries on any business, especially the 
 legal business, in a dishonest way. " A ' ' pettifogger ' ' is de- 
 fined by the same authority, as "a lawyer who deals in petty 
 cases; an inferior attorney employed in mean professional 
 business. ' ' 
 
 Mr. E. L. Harmon, addressing the Ala. Bar Assn. in 1897, 
 makes the following distinctions and definitions : ' ' The petti- 
 fogger, as a lawyer, is an unlearned, little, mean character, 
 lacking in ability, sound judgment or good common sense, 
 while the shyster may be possessed of much learning, great 
 ability or an abundance of shrewdness and cunning, but he 
 is a trickster and a dishonest schemer; he is a fomenter of 
 litigation, strife and discord in the community; he is a 
 manufacturer of evidence, a fosterer of perjury and a pro- 
 moter of bribery; he is a cunning thief, who conceals his 
 perfidy and rascality under the cloak of the law; he cun- 
 ningly abuses the noble profession to which he has been ad- 
 mitted as a weapon of offense in deeds of unjust oppression, 
 scheming knavery and the procurement of confidence and the 
 repose of trust, which he basely abuses, when there is oppor- 
 tunity to profit by so doing."
 
 68 ESSAYS IN LEGAL ETI1K * 
 
 Mstance sent to a stranger is distinctly a type of 
 shystering practice. In the cities we often find men, 
 \vho, by reason of laxity in the requirements of ad- 
 mission to the bar, have been permitted to assume 
 the office and enjoy the privileges of advocates with 
 no adequate ideas of the dignity and importance of 
 the legal profession. It is a cardinal rule with these 
 men that a successful lawyer must "hustle for busi- 
 ness," and by this is meant, in effect, a total disre- 
 gard of all conventional rules and observances. The 
 business community is overwhelmed with circulars, 
 letters and other advertising devices ; court records 
 are searched for suits commenced, and defendants 
 are written to with offers of assistance ; prospective 
 litigation is discovered and fomented; impertinent 
 inquiries are directed to individuals as to whether 
 they are satisfied with their present counsel, etc., 
 and invitations are extended to call on the adver- 
 tiser and inspect his wares. This is shystering, pure 
 and simple, and it makes no difference that the ad- 
 vertiser occupies spacious and finely appointed of- 
 fices with a retinue of clerks and assistants. 
 
 112. Self praise. It remains to speak of one 
 other form of advertisement which our ethical 
 canons have long condemned. Notwithstanding the 
 attorney has been observant of the formal proprie- 
 ti'S, he may yet be an offender against good taste 
 by simply talking about himself and his own foren- 
 sic achievements. It is said that no man of fine sen- 
 sibilities will ever stoop to "blow his own horn," 
 l>ut must allow his praises to be sounded by others, 
 to the general truth of this statement,
 
 PROMOTION AND PUBLICITY 69 
 
 there is no room for argument, and while the boaster 
 may at times derive a profit from the recital of his 
 own exploits, particularly with the simple and cred- 
 ulous, yet in the main their effect is only to excite 
 aversion and disgust. 
 
 113. But while it is well to be "advertised by 
 our loving friends," suppose they refuse to perform 
 this office? What then? Now, it is not considered 
 bad taste on the part of a scientist to relate his own 
 discoveries nor to dilate on their value, while every 
 soldier is permitted to fight his battles over again 
 for the benefit of his auditors. Then why may not 
 the lawyer refer to his own experience, his struggles 
 and his triumphs? There is no good reason why 
 one should be permitted and the other prohibited. 
 
 114. The difficulty lies in the manner of the tell- 
 ing rather than in the thing told; 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 of the things he has accomplished, 
 notwithstanding that, in effect, he is advertising 
 himself out of his own mouth. But in this, as in 
 every other form of promotion and publicity, a due 
 regard for the proprieties must ever be observed, for 
 in no other profession does the maxim that "Mod- 
 esty bespeaks merit," so well apply.
 
 CHAPTER V 
 COMPENSATION 
 
 Principles governing the right of compensation Theory of 
 compensation in England and America Gratuitous service 
 Special agreements Extent of compensation Consider- 
 ations affecting the extent of compensation Division of 
 fees Contingent fees Right of compensation of assigned 
 counsel of poor person. 
 
 115. The right of compensation. In one of the 
 oldest and most respected of ethical codes may bo 
 found the precept, "The laborer is worthy of his 
 hire," and this precept never seems to have been se- 
 riously questioned save in the case of certain of the 
 professions. Now, there can be no question with 
 respect to th> ethical truth of the precept. It coin- 
 cides with our ideas of abstract justice. If one man 
 renders valuable service to another, at the reqi; 
 of the latter, the person so serving should be suit- 
 ably compensated. In case such compensation is 
 withheld the servant should have a right to enforce 
 payment by the power of the state. This principle 
 the law fully recognizes, and has recognized from 
 a very early period, yet, strange as it may app 
 the right of an attorney to demand and sue for fees 
 has been questioned in American courts during 
 comparatively recent years. 7 ' 
 
 7ft See, Bentley v. Fidelity & Dep. Co., 75 N. J. Law, 828. 
 70
 
 COMPENSATION 71 
 
 116. The reason for this must be sought in the 
 peculiar character of the advocate's calling. It 
 would seem that from the very earliest times, and 
 in every country where advocacy has been known, 
 it has been the custom to regard the services of the 
 advocate as a gratuity. It is true that he has always 
 been remunerated in some way, but the reward 
 which the client bestowed was viewed in the light of 
 an honorarium a pure gift in token of gratitude 
 and not as the discharge of a legal obligation. It 
 is said that this idea was maintained from a jealous 
 apprehension lest the profession should degenerate 
 into a mere mercenary trade, 76 but in its inception 
 the theory of gratuitous service seems to have been 
 based on higher and more chivalric grounds. 
 
 117. In the earliest forms of advocacy, where 
 one appeared in a court to plead the cause of an- 
 other, it was usually nothing more than a neigh- 
 borly service, and for such intercession on behalf of 
 a friend and neighbor no pecuniary reward was ex- 
 pected. Such service was substantially a help af- 
 forded by the strong to the weak, prompted by sen- 
 timents of pity or affection for one in distress. It 
 would seem also, that the early advocates, in many 
 instances, were clerics priests or persons in holy 
 orders and their services were given without 
 charge as a pious duty. 
 
 118. The English theory. When advocacy first 
 became established as an exclusive profession, it was 
 invested with a dignity which fell but little short 
 of that bestowed upon the judges. The barrister 
 
 76Forsyth, Hortensius the Advocate, Ch. IX passim.
 
 72 ESSAYS IN LEGAL ET1 
 
 became an integral part of the court. He pursued 
 his calling not for gain, but for the honor which it 
 brought. The old custom of gifts to advocates was 
 then in vogue, and while he might not take money 
 as a payment for his services he might accept same 
 as an honorarium, and so the custom continued un- 
 der the new order of things. The practice thus in- 
 augurated was never abandoned, and still obtains 
 at the English bar, although for many years it has 
 been a transparent fiction. In theory the English 
 barrister exacts no fee but does expect his hono- 
 rarium, "being indeed a gift which giveth honor 
 as well to the taker as to the giver." 77 The 
 English attorney, on the other hand, always seems 
 to have charged for his services, and at present 
 there is a graduated scale, fixed by law, for certain 
 kinds of legal employment. 
 
 119. The American theory. While the general 
 principles of advocacy are the same in England 
 and the United States, there are yet some strik- 
 ing minor differences. These differences, to some 
 extent, grow out of the fact that in this country the 
 functions of attorney and counselor are united and 
 the duties of the dual office are performed by the 
 same person. But a more cogent reason may be 
 found in the changed conditions of the American 
 people and the position in which advocacy has 
 thereby been placed. That the trained advocate is 
 a necessity in the administration of justice is now 
 conceded. This trained class cannot be produced 
 unless a proper provision is made for the mainte- 
 John Davy, Preface to Reports.
 
 COMPENSATION 73 
 
 nance of its members. They must be paid, either 
 by the state, as in the case of the judges, or by the 
 litigants who avail themselves of their services. 
 Their contract with the suitor is essentially one of 
 employment, and hence, for whatever service they 
 may render, the law implies a right of compensa- 
 tion. 78 
 
 120. The flimsy pretext of an honorarium has 
 a nominal existence only in England. In this coun- 
 try it is unknown. The attorney, in every ease, 
 may demand and enforce such remuneration as 
 shall compensate him for .the time and labor 
 actually expended and in fixing the amount of such 
 remuneration the preliminary preparation for the 
 assumption of professional duties is a proper factor. 
 Without this, the profession of advocacy could not 
 be maintained in this country. 
 
 121. Nor does this condition in any way mili- 
 tate against high ideals of professional indepen- 
 dence, integrity, or moral excellence. Its general 
 acceptance has not tended to lower the character 
 or impair the dignity of the bar. Advocacy is still 
 an honorable profession, notwithstanding its inci- 
 dental abuses, and it by no means follows that 
 because an advocate is animated by a hope of gain 
 he thereby sacrifices any of the moral principles that 
 prompt to action. 
 
 122. The attorney's right to charge and recover 
 compensation for his professional services is based 
 upon a contract of employment, which, as a rule, is 
 initiated by a formal request on the part of the 
 
 78 Cooper v. Hamilton, 52 111. 119.
 
 74 ESSAYS IN LEGAL ETHICS 
 
 client, technically called a "retainer." But, while 
 this is the usual method of creating the relation of 
 attorney and client, it is not essential to the right 
 of recovery that an express request should be 
 shown. The contract of retainer may be made the 
 same as any other ; that is, it may be either express 
 or implied, and when an attorney renders services 
 under such circumstances as reasonably imply that 
 they were performed with the assent and at the 
 request of a party, 79 or where a party by his acts 
 induces an attorney to suppose that his services are 
 desired, and avails himself of them without objec- 
 tion, 80 the law will raise a promise of payment on 
 which a recovery may be had. 
 
 123. Liability for fees. As a general rule, in 
 the absence of a special agreement, an attorney must 
 look to the person employing him for his compen- 
 sation for services rendered, and cannot recover 
 from one who did not employ him, however valu- 
 able may be the result of his services to such per- 
 son. 81 Thus, if a number are interested in the 
 subject-matter of the employment he can have re- 
 course only against those who actually retained 
 him. 88 So, too, although the employer is a trustee, 
 and the services are rendered for the benefit of the 
 trust estate, yet the attorney will not, in virtue of 
 these facts merely, acquire any claim against the 
 
 7 Cooper v. Hamilton, 52 111. 119. 
 OEctor v. Wiggins, 30 Tex. 55. 
 1 Wailca v. Brown, 27 La. Ann. 411. 
 MCook v. Mackrell, 70 Pa. St. 1'2.
 
 COMPENSATION 75 
 
 estate. 83 And, if an agent, through a false repre- 
 sentation of his authority, secures professional serv- 
 ices in the business of his principal, and it subse- 
 quently appears the agent was without authority, the 
 attorney must rely upon the agent personally for 
 the value of his services. 84 
 
 124. Gratuitous service. Having established 
 the fact, as a legal proposition, that a lawyer may 
 demand and obtain compensation for his efforts as 
 an advocate, it remains to inquire to what extent, 
 if any, he may be expected to render gratuitous 
 service in a worthy cause. We have no authorized 
 scale of charges, as is the case with certain depart- 
 ments of legal practice in England, nor are there 
 even conventional rules for the government and 
 guidance of practitioners. The uniform practice 
 has been to permit counsel to make his own esti- 
 mates of value. One man, in the exercise of this 
 privilege, may deem his services worth more than 
 another, similarly situated, would or might have 
 charged, and generally, unless the case is one of 
 flagrant extortion, no ethical question is raised. 
 The magnitude and importance of the matters in- 
 volved, the time and labor necessarily required, and 
 the circumstances of the parties, are all factors in 
 the fixing of fees, and, except in cases of special 
 assignment by the court, as where counsel is as- 
 signed to defend a criminal, no lawyer is compelled 
 to accept a retainer if the client is unable or unwill- 
 
 SSHallam v. Hallam, 2 Cin. (Ohio) 384. 
 84 Wright v. Baldwin, 51 Mo. 269.
 
 7ei LSSAYS IN LEGAL ETHICS 
 
 ing to pay the amount which he names as the price 
 of his employment. 
 
 125. Yet, the poor we have always with us. 
 They have rights to be established, protected and 
 maintained, and the only persons, as a rule, who 
 are competent for this purpose, are the lawyers. It 
 will often happen that the establishment of a right 
 will bring with it a pecuniary advantage sufficient 
 to remunerate counsel for his services, and, in such 
 case, a contingent fee may be provided for. But 
 often, also, the right is of such a nature that it 
 possesses no pecuniary features and its establish- 
 ment will result in no pecuniary gain. In such event 
 may counsel refuse his aid? It would seem that he 
 may, for, whatever may have been the early char- 
 acteristics of advocacy, he is under no other or 
 greater obligation to society than is the artisan. Nor 
 will a refusal affect his standing at the bar. 
 
 126. But we should regard advocacy as some- 
 thing higher than a mere means of livelihood, and 
 the advocate as something better than a hired 
 gladiator 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 
 standard, but they have not destroyed the standard 
 itself, and the cause of the poor, the helpless and 
 the oppressed, remains today as it always was. 
 
 127. Agreements for compensation. Before an 
 attorney undertakes the business of his client he may 
 properly enter into a contract with him in regard 
 to the compensation to be paid for the service, as 
 nn confidential relation then exists and the parties
 
 COMPENSATION 77 
 
 deal with each other at arms' length. 85 The attorney 
 may fix the terms of his employment and the man- 
 ner in which his service shall be rendered, and if 
 the client assents thereto the contract is not dis- 
 tinguishable from other contracts relating to per- 
 sonal services requiring judgment and skill. 
 
 128. Where an agreement exists it must gener- 
 ally be taken as expressing the full measure of the 
 attorney's compensation, and he will not be per- 
 mitted to raise the amount therein provided during 
 the progress of the suit to the seeming disadvantage 
 of the client. 86 It is a familiar dictum that the law 
 will scrutinize with jealous care all transactions be- 
 tween parties who stand in confidential relations, 
 and under this principle courts on several occasions 
 have declared that an agreement made by a client 
 with his counsel, after the latter had been employed 
 in a particular business, by which the original con- 
 tract is varied and a greater compensation is se- 
 cured to counsel than may have been agreed upon 
 when he was retained, is void. 87 
 
 129. Where parties enter into an agreement for 
 compensation, prior to the engagement of counsel, 
 it is customary to stipulate for a sum to be paid in 
 advance, known as a retaining fee, and for other 
 
 85 Elmore v. Johnson, 143 111. 513 ; Bingham v. Salene, 15 
 Oreg. 208. 
 
 86 United States v. Coffin, 83 Fed. Rep. 337; Kisling v. 
 Shaw, 33 Cal. 425; Boss v. Payson, 160 III 349; Burnham 
 v. Heselton, 82 Me. 495. 
 
 87Lecatt v. Sallee, 3 Port. (Ala.) 115; and see, Elmore v. 
 Johnson, 143 111. 513.
 
 78 ESSAYS IN LEGAL ETHICS 
 
 sums to be paid as the work progresses, and these 
 sums may be collected according to the terms of 
 the agreement. In the absence of an express stipu- 
 lation, however, even though there be an agreement 
 fixing the gross sum to be paid, no fees can be 
 demanded in advance; the contract is regarded as 
 single and entire, and no right of compensation 
 accrues until the services are fully performed. 88 
 
 130. Extent of compensation. "\Vhere an at- 
 torney has entered into an agreement with his client 
 in respect to the character of the service to be ren- 
 dered and the compensation to be paid therefor, 
 he is entitled, on performance of the service, to de- 
 mand and receive the sum so stipulated and agreed 
 upon. 88 But this sum will constitute the full ex- 
 tent of his compensation, irrespective of the actual 
 value to the client of the service rendered. It is 
 only in exceptional cases, however, that agreements 
 of this kind are made, for an attorney can rarely 
 see in advance the direction and extent of the liti- 
 gation upon which he is entering, and, for this rea- 
 son, it is seldom that a fixed sum can be named 
 that will be just and fair for both parties. The 
 general custom, therefore, is to defer the ascertain- 
 iiK-nt of the amount of the attorney's compensation 
 until the termination of the litigation or the par- 
 ticular business involved. 
 
 131. Where the amount of compensation is not 
 fixed by any contract or agreement under which 
 the attorney is employed, he is entitled to demand, 
 
 MBathfjate v. Haskin, 59 N. Y. 533. 
 MSchanij. v. Schenck, 11 Vroom (N. ,T.) 195.
 
 COMPENSATION 79 
 
 and may recover, such reasonable fees, under an 
 implied contract, as his services may have been 
 worth, or as have usually been paid to others for 
 similar services. 90 What is a reasonable fee in a 
 given case is a question of fact, to be determined, 
 in case of dispute, by the weight of the evidence. 91 
 
 132. The general rule of quantum meruit is 
 based upon a market price, and this, in the case of 
 professional services, is the price usually charged 
 for similar services. 92 But the rendering of profes- 
 sional services is not like the sale of commodities, 
 where the price at which an article sold may have 
 a tendency to fix or show the market price, nor can 
 the amount paid in a particular case be considered 
 or accepted as the proper amount to be charged in 
 all like cases. There may be peculiar circumstances 
 or elements that assisted in fixing the 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 usually charged for 
 similar services, yet, in such determination, all of 
 the attendant facts and circumstances must be con- 
 sidered. 98 
 
 133. But for much of the work that is done by 
 lawyers for their clients there is no customary or 
 established charge, and, therefore, for such services 
 
 90Elmore v. Johnson, 143 111. 513; Lecatt v. Sallee, 3 Port. 
 (Ala.) 115; Eggleston v. Boardman, 37 Mich. 14. 
 
 91 Lamar Ins. Co. v. Pennell, 19 111. App. 212. 
 
 92 Eggleston v. Boardman, 37 Mich. 14; Reynolds v. Mc- 
 Millan, 63 111. 46. 
 
 93 Eggleston v. Boardman, 37 Mich. 14.
 
 '0 ESSAYS IN LEGAL. ETHICS 
 
 there can be no market price. And, so, we find that 
 the strong tendency of recent decisions is to disre- 
 gard many of the ancient rules which were formerly 
 resorted to, and to announce in their place the bet- 
 ter and more sensible doctrine, that no regular meas- 
 ure of .value can be fixed for services of counsel in 
 trying difficult cases or investigating intricate ques- 
 tions of law. Where there is no recognized stand- 
 ard by which the value of legal services can be de- 
 termined recourse must necessarily be had to the 
 opinions of members of the bar who, by reason of 
 their experience and practice, have become quali- 
 fied to testify respecting the character of such serv- 
 ices and the reasonable charges to be made there- 
 for." 
 
 134. The result of the litigation, whether suc- 
 cessful or otherwise, may have SOILC effect upon the 
 question of worth, and influence the fixing of the 
 price demanded, but an attorney's Bright of com- 
 pensation is not lost merely because his services 
 have been of no benefit to his client, if they have 
 been faithfully and intelligently rendered. 9 * Upon 
 the same principle, if a client prevents his attorney 
 from completing the service contracted for the 
 right of compensation is not lost, and the attorney 
 may recover as though he had fully performed it.* 8 
 
 135. Considerations affecting the extent of com- 
 pensation. Pursuing the ideas presented in the last 
 
 MAllis v. Day, 14 Minn. 157; Louisville, etc., By. Co. v. 
 Wallace, 136 111. 87. 
 
 M Bills v. Polk, 4 Lea (Tenn.) 494. 
 * Kersey v. Carton, 77 Mo. 645.
 
 COMPENSATION 81 
 
 section it may be said, that while the usual rule of 
 quantum meruit applies as well to services rendered 
 by attorneys as to those of persons engaged in other 
 lines of business, that is, that the attorney may 
 charge and recover whatever his services were rea- 
 sonably worth, yet, in arriving at a standard of 
 value, much difficulty is often experienced, while 
 the measure of compensation is largely affected by 
 circumstances that are wholly lacking in the ordi- 
 nary cases. The value of professional service is 
 necessarily determined by many considerations be- 
 sides the mere time noticeably employed in the con- 
 duct of a suit or other legal proceeding, nor should 
 compensation be limited to services rendered in 
 trials, in the narrowest technical meaning of the 
 word. 97 The importance and results of the case 
 are prime factors in the adjustment of fees, for 
 these, to some extent, afford a measure of the skill, 
 care, responsibility, anxiety and effort demanded of 
 and borne by the attorney, and hence should not be 
 disregarded in determining the question of the value 
 of such services. 98 The amount involved in the suit 
 is material, and has much to do with the value of 
 the service as well as the degree of responsibility 
 which the attorney has assumed, 99 while the learning 
 and ability of counsel as well as the means of the 
 client, are all elements to be considered. 1 
 
 97 Louisville, etc., R. E. Co. v. Reynolds, 118 Ind. 170. 
 
 98 Selover v. Bryant, 54 Minn. 434 ; Eggleston v. Board- 
 man, 37 Mich. 14. 
 
 99 Babbitt v. Bumpus, 73 Mich. 331. 
 IHalaska v. Cotzhausen, 52 Wis. 624.
 
 82 ESSAYS IN LEGAL ETHICS 
 
 136. Immoderate compensation overcharge. It 
 is frequently asserted that lawyers charge and re- 
 cover fees vastly in excess of the real worth of the 
 services rendered therefor. Indeed, this has fur- 
 nished the material from which have been manufac- 
 tured many cheap jokes and much alleged satire. 
 The idea had its origin in an inadequate conception 
 of the value of legal services, induced by the super- 
 ficial views which the laity generally take of the 
 profession. Even though we admit that grasping 
 and sordid tradesmen, taking advantage of the cir- 
 cumstances and situation of the parties, seek to, and 
 do, extort unconscionable fees, yet such occurrences 
 are rare and much of the popular clamor is wholly 
 unfounded in fact. "Where, however, it clearly ap- 
 pears that the amount claimed for fees is unreason- 
 able and extortionate courts will always grant re- 
 lief and an attorney so abusing his trust will be 
 subject to summary discipline. 8 
 
 137. There will probably be no question upon 
 the proposition that an attorney who conducts liti- 
 gation for another, in the absence of a special agree- 
 ment respecting compensation, is entitled to be 
 reasonably remunerated for his time and labor. But 
 the reasonableness of an attorney's charge for 
 services, as shown in the last paragraph, must be 
 determined by many things other than the mere 
 time and labor actually expended. An attorney is 
 under an implied duty to use and exercise reason- 
 able skill, care, discretion and judgment in the con- 
 duct and management of his client's cause; he 
 
 Sec, People v. Bamborongh, 2" 111. 92.
 
 COMPENSATION 83 
 
 is subject to violent mental strain; he necessarily 
 assumes a degree of responsibility commensurate 
 with the magnitude of the interests involved and the 
 hazard of the litigation. In fixing the amount of 
 his fee these matters are all proper elements, and 
 courts have held that the care, responsibility and 
 mental anxiety, necessarily arising in a proceeding 
 of any importance, are not so imaginative and 
 shadowy that they should not be considered in ar- 
 riving at a proper sum to be allowed for profes- 
 sional compensation. 8 
 
 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 allowances for the professional 
 standing of his counsel, he rarely takes into account 
 the other factors of the service. Hence, it will often 
 happen that the attorney's bill is denounced as 
 extortionate and unconscionable when, in fact, it is 
 below the sum that in justice and fairness should 
 be paid. But while an attorney is entitled to a just 
 compensation for his services, and may recover same 
 if withheld, it is highly improper for him to take 
 advantage of his client 's necessities and inexperience 
 either by inducing him to make a contract in ad- 
 vance to pay an exorbitant fee, or by exacting an 
 unreasonable fee after the services have been ren- 
 dered. Such practices have always been severely 
 condemned and the person resorting thereto by such 
 acts demonstrates his unfitness to remain a member 
 
 SHalaska v. Cotzhausen, 52 Wis. 624; Vilas v. Downer, 
 21 Vt. 419; Stanton v. Embrey, 93 U. S. 548.
 
 84 ESSAYS IN LEGAL ETHICS 
 
 of the bar. When such practices have been brought 
 to their attention courts have not hesitated to dis- 
 bar the offender.* 
 
 139. Retaining compensation from funds col- 
 lected. An attorney may, in a proper case, deduct 
 from funds collected by him, and in his hands, such 
 sum as he may deem adequate for the service ren- 
 dered, and, if such sum shall seem just and fair un- 
 der all the circumstances, he will be permitted to 
 retain same. But where the attorney thus reim- 
 burses himself, notwithstanding the client may have 
 assented thereto at the time, if the transaction has 
 even the appearance of unfairness it will be va- 
 cated upon application of the client seasonably 
 made. 
 
 140. The reason for this is, that the relation of 
 attorney and client is one of great confidence, and 
 the attorney, by reason of his commanding position, 
 is presumed to exert a strong and controlling in- 
 fluence over the client. It is said, this influence 
 may 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- 
 ciple has been held to extend to settlements of the 
 amount of fees, and, if the client can show that the 
 sum retained is larger than the services of the attor- 
 ney were reasonably worth, or larger than agreed 
 upon if there was an express contract, then the 
 burden is cast upon the attorney of showing that 
 
 * Re Cohec, 155 N. Y. Supp. 517; People v. Bamborough, 
 -.V, 111. 92.
 
 COMPENSATION 85 
 
 the sum was retained by virtue of his client's agree- 
 ment and consent, given under circumstances that 
 made it fair and conscionable. 5 
 
 141. As affected by local rules and schedules of 
 charges. Sometimes bar associations prescribe rules 
 with respect to the compensation to be charged by 
 its members for certain kinds of service and the 
 conditions under which such service shall be ren- 
 dered. As bar associations do not enjoy the ap- 
 parent immunities of the trade union, it is not un- 
 likely that a combination of this kind would fall 
 within the inhibition of the anti-trust laws of many 
 of the states, and, in such event, legal questions of 
 considerable perplexity would be presented. We 
 will not stop to discuss this phase of the matter, 
 however, nor the right of attorneys to regulate the 
 conduct of the members of their own order. If the 
 rules in fact exist, then the attorney is under a 
 moral obligation to observe same, and is justified 
 in conforming to them in fixing the amount of the 
 charges which the client is to pay. But the obliga- 
 tion of conformity is wholly personal with the at- 
 torney. In the absence of a special agreement, or 
 proof that the client employed the attorney with 
 knowledge of and an implied assent to the rules, he 
 is not bound to pay for the service according to the 
 rates that may have been fixed by the schedule of 
 the bar association, but is liable only for what they 
 are reasonably worth. As between the members 
 of the association the rules would be binding, as 
 they would also be with respect to others who as- 
 
 SBalsbaugh v. Fraser, 19 Pa. St. 95.
 
 86 ESSAYS IN LEGAL. ETHICS 
 
 sent to them, but, in the absence of such assent, the 
 right to recover for services must be determined 
 and the amount of such recovery ascertained, by 
 the general law and not by the rules of the bar. 8 
 141a. Division of fees Commissions. A ques- 
 tion of considerable moment is presented when we 
 come to consider the effect of the practice, now prev- 
 alent in many large cities, of dividing fees or pay- 
 ing commissions. If an attorney, doubtful of his 
 own ability to handle a particular matter, applies 
 to other attorneys more skilled than himself and 
 requests them to conduct the litigation upon a basis 
 of division of fees, no question of propriety can 
 arise. But it will often happen that men who are 
 not attorneys are yet able to influence the placing 
 of legal business, and it is a matter of common 
 knowledge that "commissions" are freely paid for 
 the procurement of clients. Is such a practice con- 
 trary to good morals or in conflict with public pol- 
 icy? If we shall consult only the approved usages 
 of the commercial world we certainly must answer 
 this question in the negative. In this event we find 
 ourselves confronted by the further question: Are 
 the conditions of legal practice so essentially dif- 
 ferent from commercial usages that what would Im- 
 proper in the one case would be improper in the 
 other! There was a time, in the not far distant 
 past, when this question might easily have been an- 
 swered, and to many, at the present time, its solu- 
 tion is a matter of no difficulty. The lawyer is not 
 a tradesman. But legal practice has always ex- 
 
 BBoylan v. Holt, 45 Hiss. .
 
 COMPENSATION 87 
 
 hibited the same tendencies to change that marks 
 every other form of human thought and intellectual 
 effort, and, notwithstanding the conservative feel- 
 ing that so strongly characterizes the bar, it is un- 
 deniable that every year is bringing legal practice 
 closer to the usages of trade and that "business" 
 methods are now employed by many who stand in 
 the forefront of professional ranks. 
 
 The author does not wish to appear hypercritical 
 on this point, yet he cannot refrain from saying; 
 that where a person, not an attorney, enters into 
 an agreement with an attorney to procure such at- 
 torney's employment by a litigant, and in consid- 
 eration of such employment is to have from the at- 
 torney so employed a part of whatever remunera- 
 tion the attorney may receive for his services from 
 the litigant, the transaction, however correct from 
 the commercial point of view, is a degradation of 
 professional functions and a debasement of the hon- 
 orable office of the advocate. This certainly repre- 
 sents the ethical sentiment of the better element of 
 the bar and whenever the legality of such agree- 
 ments has been called in question courts have gen- 
 erally held the contract void as against public 
 policy. 7 
 
 142. Contingent fees. It has now become a com- 
 mon practice to accept retainers under an agree- 
 ment that no fee shall be charged for the service 
 rendered except in the event of a successful deter- 
 mination of the suit, and usually, in such event, a 
 
 fAlpers v. Hunt, 86 Cal. 78; Meguire v. Corwine, 101 U. 
 S. 108.
 
 88 ESSAYS IN LEGAL ETIIK S 
 
 larger compensation is to be paid than would have 
 been charged had such agreement not been made. 
 This is known as a contingent fee, and the increased 
 sum that is recovered in the event of success is 
 regarded as a fair offset to the risk of loss that 
 would have resulted in the event of failure. In 
 many cases it is a further element of the contingent 
 fee, that the sum so to be recovered in the event of 
 success shall be a part or arise out of the subject- 
 matter of the litigation. 
 
 143. But the legal sanction for contingent fees 
 was long withheld, and not a few of the conserva- 
 tive element of the bar still condemn the practice 
 as contrary to good morals and the ethics of the 
 profession. It is further contended, that the effect 
 is to block the calendars with experimental and 
 speculative suits and that lawyers who indulge in 
 the practice are constantly tempted to promote 
 groundless and vexatious litigation. It would seem 
 that in England contingent fees are held to be within 
 the inhibition of the statutes of champerty and main- 
 tenance, and such, at one time, would seem to have 
 been the view entertained in this country. 8 Tin- 
 early cases look upon the practice as a virtual pur- 
 chase of a law suit, and maintain that, as a sworn 
 officer of the court, an attorney should not be per- 
 mitted to avail himself of the knowledge he acquires 
 in his professional character to speculate on suits 
 pending therein. 
 
 144. The ancient common-law offenses of cham- 
 perty, maintenance, barratry, etc., are but little re- 
 
 Arden v. Patterson, 5 Johns, ch. (N. Y.) 48.
 
 COMPENSATION 89 
 
 garded in this country at the present time. As a 
 rule the ancient statutes have not been re-enacted, 
 although, in some states, champerty is still punish- 
 able as at common law and contracts tainted with 
 it are void. Where the common-law offenses have 
 been abolished a statutory offense of maintenance 
 has generally been created, and this, in the main, 
 consists of an officious intermeddling with a suit 
 or the furnishing of means for its prosecution with 
 a view to promote litigation. 
 
 145. The courts, however, seem to have drawn 
 a line between champerty and contingent fees. 
 Thus, if client and attorney enter into a contract 
 whereby the latter is to institute and prosecute suits, 
 at his own expense, for the recovery of property or 
 other thing belonging to, or claimed by, the client, 
 for which his only compensation is to be a portion 
 of the property or thing recovered, then, however 
 honestly entered into and carried out, the contract, 
 it seems, is champertous and void. 9 On the other 
 hand, if the agreement simply contemplates that the 
 attorney shall contribute only his labor and skill, 
 the client furnishing the money for costs and ex- 
 penses in other words, the capital the contract 
 is valid, and without taint. It may be said, and 
 with much truth, that the distinction is subtle, but 
 it is a distinction nevertheless which the courts have 
 made and which they continue to recognize. 
 
 146. The ancient doctrine of maintenance grew 
 out of conditions which do not exist and never have 
 
 9 Thompson v. Beynolds, 73 111. 11 ; Coleman v. Billings, 
 89 111. 183.
 
 90 ESSAYS IN LEGAL ETHICS 
 
 existed in the United States. Having little or no 
 foundation in reason it has fallen into disuse, and 
 the general rule now is that any person claiming a 
 right may contract to pay, for legal services ren- 
 dered in vindicating it, a stipulated portion of the 
 thing, or of the value of the thing, when recovered, 
 the payment to be dependent solely upon such 
 recovery, instead of paying, or contracting to pay, 
 a sum certain and in any event. 10 Such an agree- 
 ment does not conflict with the law as now admin- 
 istered, nor does it, in any proper sense, contravene 
 any principle of public policy. Hence, such con- 
 tracts are now generally sustained and about all that 
 the law will do in such a case is to scrutinize th> 
 transaction and see that it is fair, and that no im- 
 proper advantage has been taken either of the neces- 
 sities or the ignorance of the client. 11 
 
 147. Continued ethical objections. It would 
 seem, therefore, that no question can be raised as 
 to the lawfulness of this method of compensation, 
 and, if it is lawful to enter into contracts of this 
 character, are they open to ethical objections? The 
 answers to this question are as various as the minds 
 of men. By some it is contended that, even though 
 we admit the legality of the practice, it is yet incon- 
 sistent with that high standard of moral excellence 
 which the members of a learned and honorable pro- 
 
 lONewkirk v. Cone, 18 111. 449; McDonald v. R. R. Co., 
 29 Iowa 170; Cain v. Warford, 33 Md. 23; Ballard v. Carr, 
 48 Cal. 74. 
 
 lirhostor C'ounty v. Barber, 07 Pa. St. 455; Dorr v. Cam- 
 den, 55 W. Va. 266.
 
 COMPENSATION 91 
 
 fession should ever propose to themselves; that its 
 effect is to reduce the counsel from his high posi- 
 tion of an officer of the court, to that of a party 
 litigating his own claim, and that, having now a deep 
 personal interest in the event of the controversy, he 
 will cease to consider himself subject to the ordinary 
 rules of professional conduct, and, as a consequence, 
 there must come a lowering of professional char- 
 acter. 18 
 
 148. A better laid objection, perhaps, is found 
 in the fact that it places attorney and client in a 
 new and dangerous relation, that of partners in. a 
 common enterprise. The attorney is no longer an 
 agent, to follow instructions or advise his client, 
 but a principal, with a right to speak and act as 
 such. It must be admitted that this objection is 
 not without much force. 
 
 149. It is also urged, as an ethical objection to 
 contingent fees, that their tendency is to unduly 
 encourage litigation and that many would never 
 think of entering upon a law suit if they knew that 
 whether they should win or lose they would yet 
 have to pay their lawyer. But when an attorney 
 can be found who is willing to assume any kind of 
 a claim, upon a contingent agreement for compensa- 
 tion, it reduces legal practice to a sort of lottery, 
 turns the lawyer into a sordid huckster, lowers pro- 
 fessional character and destroys professional honor. 
 
 150. On the other hand, it is contended that if 
 a person could not secure counsel by a promise of 
 large fees in case of success, to be derived from the 
 
 12Sharswood, Legal Ethics, 160.
 
 ESSAYS IN I.K<i\I, 
 
 -ubject-matter of the suit, it would often place the 
 poor in such a condition as to amount to a practical 
 denial of justice. It not infrequently happens that 
 persons are injured through the negligence or wil- 
 ful misconduct of others, but who yet, by reason 
 of poverty, are unable to employ counsel to assert 
 their rights. In such event their only means of 
 redress lies in gratuitous service, which is rarely 
 given, or in their ability to find some one who will 
 conduct the case for a contingent fee. That rela- 
 tions of this kind are often abused by speculativr 
 attorneys or that suits of this character are turn.Ml 
 into a sort of commercial traffic by the "personal 
 injury" lawyer, does not destroy the beneficent idea 
 last discussed. So it will be seen that much can 
 be said in favor of contingent fees, viewed solely 
 from an ethical standpoint. 18 
 
 151. Compensation of assigned counsel. While 
 the rule is general that an attorney rendering serv- 
 ice to another is entitled to compensation therefor, 
 it is yet subject to an important exception. It is a 
 familiar provision of the criminal codes of all of 
 the states that, where a person is charged with the 
 commission of a crime, and is unable to employ 
 counsel to conduct his defense, it shall be the duty 
 of the court to assign counsel to such person for 
 this purpose. A counsel so selected is obliged to 
 serve, and that, too, without compensation. 
 
 II So eminent a lawyer as Daniel Webster did not refuse 
 to accept a retainer of this character, as will be Been by a 
 ropy of big agreement with the heirs in the celebrated Oirard 
 Will case, published in 59 Cent. Law Jonr. No. 21.
 
 COMPENSATION 93 
 
 152. It hardly seems just that a person thus 
 conscripted and compelled to serve, should also be 
 obliged to give his time and talent as a gratuity, 
 and in many states the injustice has so far been 
 recognized that a nominal fee, payable from the 
 public treasury, has been provided. But, in the 
 absence of such provision, an attorney thus ap- 
 pointed is without remedy and can recover nothing 
 for his services from the county wherein the trial 
 was had. 14 As the service is compulsory this looks 
 very much like an attempt to appropriate the prop- 
 erty and labor of another without just compensa- 
 tion, and this theory has often been advanced as a 
 reason for remuneration by the state. 
 
 153. In answer to the foregoing it is said, that 
 attorneys rendering services of this character do 
 receive a compensation in the privileges conferred 
 by their licenses. That while the law confers on 
 licensed attorneys rights and privileges it also im- 
 poses duties and obligations, and that these must 
 be reciprocally enjoyed and performed. ,The right 
 to assign counsel to poor prisoners is inherent in 
 the court; the duty of accepting such assignments 
 is incident to the advocate's office, a burden, as it 
 were, imposed upon it. When an attorney applies 
 for and receives his license he ta/kes it burdened 
 with this duty, and having voluntarily accepted the 
 privileges he is deemed also to have assumed the 
 attendant obligations, and must be held to their per- 
 formance. When he defends a criminal, under an 
 assignment of the court, he but performs an official 
 
 14 Johnson v. "Whiteside County, 110 111. 22.
 
 94 ESSAYS IN LEGAL ETHICS 
 
 duty, and, if no compensation is provided for such 
 service, none can be claimed. 16 
 
 154. While, in practice, the judicial preroga- 
 tivi- of assigning counsel is usually confined to crim- 
 inal cases, yet it seems the court has the right to 
 command the services of counsel, for persons unable 
 to pay, in civil cases as well, and this right is still 
 occasionally exercised. 16 
 
 155. Forfeiture of right of compensation. In 
 many respects an attorney, in the conduct of a 
 litigation 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 mat- 
 ter of compensation. He sustains toward the client 
 and those interested, a special relation of trust and 
 confidence not unlike that of a trustee. The old 
 rule allowed no compensation for the performance 
 of a conscientious duty, and this rule affected both 
 trustees and counselors. In modern practice the 
 old rule has been reversed and a trustee is now 
 allowed, as a matter of right, a reasonable and just 
 sum in payment for his services, upon the principle 
 that he who renders an honest service is entitled to 
 an honest compensation therefor. 
 
 156. It is equally well settled, however, that if 
 a trustee has been guilty of fraud, willful default, 
 or gross negligence in the administration of 1 1n- 
 trust, compensation to which ho would otherwise 
 
 l8ee, Johnson v. Whiteside County, 110 111. 22; Wayne 
 County v. Waller, 90 Pa. St. 99; Rowe v. Yuba Count v, 17 
 
 fll. 
 18 House v. White, 5 Baxter (Tenn.) 890.
 
 COMPENSATION 95 
 
 be entitled, will, as a general rule, be denied to him, 
 and this rule has always been regarded as just and 
 wholesome. 17 Its enforcement tends to secure an 
 honest and faithful discharge of official duty and 
 to curb the temptation to abuse the trust. The con- 
 tract which the law implies from an attorney's em- 
 ployment is that he will render faithful and honest 
 service; that he will be reasonably prudent, care- 
 ful and diligent ; and that he will bring to the work 
 in hand a fair measure of skill and technical learn- 
 ing. If this contract is violated he is not entitled 
 to any compensation for his services, and if injury 
 results he may further be held to answer in dam- 
 ages. The basis of the rule is good morals and a 
 sound public policy, and, where the fraud, bad faith, 
 neglect or ignorance of the attorney is made to 
 appear, courts will not hesitate to apply it. 18 
 
 17 Perry, Trusts, 919. 
 
 18 See, Davis v. Nat. Bank, 78 Minn. 408.
 
 CHAPTER VI 
 GENERAL PRACTICE 
 
 Defined The place of morality in practice The duty of ve- 
 racity The client and his cause Production of testimony 
 Examination of witnesses Instructing and advising wit- 
 nesses Tampering with witnesses Attorneys as witnesses 
 Addressing the jury Tampering with records Abuse of 
 process Duty to third persons. 
 
 157. Deftnatory. The actual application of the 
 lawyer's knowledge and skill to the ordinary affairs 
 of life is called practice. This includes not only 
 the direction and conduct of litigation, but every 
 form of legal effort and activity. It involves all of 
 the professional relations he may sustain and covers 
 everything he may do or say in his professional 
 capacity. The special features of such relations are 
 reserved for succeeding chapters, while the para- 
 graphs immediately following will be devoted to 
 brief considerations of a few of the general phases 
 that our subject may seem to present. 
 
 158. Morality in practice. For many years the 
 legal profession has been the object of attacks, by 
 an ill-informed element of the laity, on account 
 of the methods observed in practice. We commence 
 to meet with these detractions at a comparatively 
 early stage of professional development, and the 
 time-worn argument that the lawyer's occupation 
 is to employ all the resources that learning and skill 
 
 96
 
 GENERAL, PRACTICE 97 
 
 can supply in advocating whatever cause he is paid 
 to undertake, and in specious and plausible attempts 
 to make the worse appear the better side, still con- 
 tinues to find expression. 19 
 
 159. That venality exists among certain mem- 
 bers of the bar it would be idle to deny. Unfortu- 
 nately, men have been admitted to the privileges 
 of advocacy who are utterly incapable of under- 
 standing its duties or assuming its responsibilities, 
 and, until a more rigid rule of moral qualification 
 shall be applied, such men will probably continue to 
 be admitted. Through their baneful influence and 
 pernicious example the ancient standing of the pro- 
 fession has been perceptibly lowered, and it devolves 
 upon the younger element now coming in the men 
 for whom these lines are penned to restore to all 
 their prestine vigor the principles that made the 
 profession of law a calling of honor. 
 
 160. But, while we are forced to admit the occa- 
 
 19 A good example is afforded by Swift, who, in the "Voy- 
 age to the Houyhnhnms," makes Gulliver tell his master, the 
 Grey Horse, that " there was a society of men among us, bred 
 from their youth in the art of proving, by words multiplied 
 for the purpose, that black is white, and -white is black, ac- 
 cording as they are paid. To this society all the rest of the 
 people are slaves. It is likewise to be observed, that this 
 society has a peculiar cant and jargon of their own, that no 
 other mortal can understand, and wherein all their laws are 
 written, -which they take special care to multiply; whereby 
 they have wholly confounded the very essence of truth and 
 falsehood, of right and wrong, so that it will take thirty 
 years to decide whether the field left me by my ancestors 
 for six generations belongs to me or to stranger three hun- 
 dred miles off."
 
 98 ESSAYS IN LEGAL ETHICS 
 
 sional abuse of the advocate's privileges by un- 
 worthy men, yet we may strenuously deny the gen- 
 eral truth of the statement of our detractors above 
 noted. No lawyer of standing supposes himself to 
 be a mere agent of his client, to gain a victory in 
 the particular case in any event and at all hazards, 
 but, knowing what is due to himself and his honor- 
 able profession, his efforts are qualified not only by 
 considerations affecting his own character as a man 
 of honor and learning, but also by considerations 
 affecting the welfare of society and the general in- 
 terests of justice. 80 The men whose names stand 
 highest on the roll of fame have been pre-eminent for 
 these qualities, and the young advocate, ambitious 
 for advancement, will find that he will best conserve 
 his own interests by emulating their example. 
 
 161. The" duty of veracity. It is said, that truth 
 is the foundation of every virtue, and in the prac- 
 tice of law its due observance is absolutely essential 
 to that kind of success which should constitute the 
 lawyer's highest ambition. But modern society has 
 produced many conventions, and the practice of 
 law is not without them. Therefore, some moralists 
 have gone so far as to say that, in the case of advo- 
 cates, these conventions may be permitted to super- 
 sede the general rule of truth. 81 In support of this 
 it is contended that the profession of advocacy exists 
 as an instrument in the administration of justice; 
 that it is a necessary maxim of the advocate's pro- 
 fession that he is to do all that can be done for his 
 
 80 Hutf hinaon v. Stephens, 1 Keen (Eng.) 668. 
 21 See, Paley, Moral Philosophy, h. iii, c. 1~.
 
 GENERAL PRACTICE 99 
 
 client; that the application of the laws is a matter 
 of great complexity and difficulty ; that their appli- 
 cation in doubtful cases is best provided for if the 
 arguments on each side be urged with the utmost 
 force, leaving the judge alone to decide, and that, 
 for this purpose, each advocate must urge all the 
 arguments he can devise and with all the skill he 
 can command. Further, that this duty is not af- 
 fected by any belief of his own upon the subject. 
 
 162. But this does not, in all respects, represent 
 the thought of the better element of the bar, neither 
 does it coincide with the practice of those who see 
 in the conduct of lawsuits something more than 
 mere forensic battles waged by paid champions 
 ready to espouse either side of an argument. We 
 may therefore turn to another class of moralists, 
 whose views more truly express the fundamental 
 ideas involved in legal practice. It is generally 
 admitted that, to answer the ends of justice in a 
 community, there should exist a profession of advo- 
 cates, ready to urge, with full force, the arguments 
 on each side in doubtful cases. And if the advo- 
 cate, in exercising his profession, allows it to be un- 
 derstood that this is all he undertakes to do, then 
 it is further conceded he does not transgress his 
 duties, even in pleading for a bad cause ; since even 
 for a bad cause there may be arguments, and even 
 good arguments. But if, in the conduct of the cause 
 he asserts his belief that it is just, when he believes 
 it to be unjust, if he advances as true, that which 
 he knows to be untrue, he offends against truth;
 
 100 ESSAYS IN LEGAL ETHICS 
 
 just as any other man would do who, in like man- 
 ner, made the same assertions. 88 
 
 163. It is further contended by this school, that 
 every man is, in an unofficial sense, by being a 
 moral agent, a judge of right and wrong and an 
 advocate of what is right; and is, so far, bound to 
 be just in his judgments and sincere in his exhorta- 
 tions. This general character of a moral agent, it 
 is contended, cannot be put off by merely putting 
 on professional character, for every man, when he 
 advocates a case in which morality is concerned, has 
 an influence upon those around him which arises 
 from the belief that he shares the moral sentiments 
 of mankind. This influence of his supposed morality 
 is one of his possessions, which, like all of his pos- 
 sessions, he is bound to use for moral ends. If he 
 mix up his character as an advocate with his char- 
 acter as a moral agent, using his moral influence 
 for the advocate's purpose, he acts immorally. He 
 sells to his client, not only his skill and learning, 
 but himself, and makes it the supreme object of his 
 life to be, not a good man, but a successful lawyer. 88 
 
 164. It is further urged by the moralists, that 
 the advocate must look upon his profession, like 
 every other endowment and possession, as an in- 
 strument which he must use for the purposes of 
 morality. That to act uprightly is his proper 
 object; to succeed as a lawyer is a proper object, 
 only so far as it is consistent with the former. Mak- 
 ing all due allowances for the vagaries of the non- 
 
 Whpwpll, Elements of Morality, b. iii, c. 15. 
 SSWhrwell, Ibid.
 
 GENERAL PRACTICE 101 
 
 professional mind we may yet say that the foregoing 
 is in full accord with the precept and practice of 
 the legal profession, and the sentiments above ex- 
 pressed must commend themselves to every thought- 
 ful man. And while it is true that the law has 
 conventions, and that without them the forms of 
 justice could not be successfully administered, yet 
 these conventions are not inconsistent with the gen- 
 eral rule of truth, nor does their employment necessi - 
 tate any insincerity on the part of the advocate. 
 
 165. The client and his cause. The matters dis- 
 cussed in the preceding paragraphs bring us to a 
 consideration of some of the more practical phases 
 of advocacy, and the moral position which the advo- 
 cate sustains in respect to same. To every disputed 
 question of fact there must, of course, be two sides, 
 and in nearly all questions of the application of law 
 there is room for honest contention and difference 
 of opinion. It is immaterial that one side is right 
 and one side is wrong, or that one attorney has 
 assumed to represent the wrong side of the contest. 
 The only moral question involved is, whether he 
 has thus assumed to represent iniquity knowing it 
 to be such. Now it is a matter of common observa- 
 tion that two eye-witnesses of an event never see it 
 exactly alike and, however honest or impartial they 
 may be, will never, if left to themselves, describe it 
 in the same terms. Thus, take the case of an affray. 
 The situation of the witnesses, the excitement of the 
 moment, the unconscious bias produced by the state 
 of the feelings, all tend to affect their view, pro- 
 ducing even opposite aspects of the memory. If
 
 102 ESSAYS IX LEGAL ETHICS 
 
 such differences arise in the recollection of impar- 
 tial persons, it cannot be surprising that each of the 
 combatants is confident that he is the injured party, 
 and communicates his case, in that confidence, to his 
 counsel. Sympathy is the soul of advocacy. The 
 result is that the statement of a case is generally 
 such as to induce in counsel a strong belief in the jus- 
 tice of the cause, and to enlist his warmest feelings 
 for its success. This is a plain statement of the or- 
 dinary case. 
 
 166. To one thus prepossessed in favor of the 
 cause, the animation of the contest only deepens and 
 strengthens first impressions ; and as the little chap- 
 tor of life, with all its living interest, opens around 
 him, his client's case becomes a part of his own 
 being. His belief in its justice insensibly but insep- 
 arably blends with his natural desire to succeed, and 
 he hears all the arguments and regards all the testi- 
 mony against it, with the surprise, dislike, and in- 
 credulity of inveterate opinion sharpened by zeal. 
 In this spirit he conducts the case, and even though 
 defeated he remains, in many instances, uncon- 
 vinced, feeling that there has been a failure of jus- 
 tice and vainly regretting the insufficiency of his 
 own exertions. Thus it will be seen that an advocate 
 may honestly engage on either side of a cause de- 
 pendent on disputed facts, notwithstanding that 
 such case involves a direct opposition of truth and 
 falsehood. The antithesis of right and wrong, con- 
 sidered as a legal concept, will be found in all dis- 
 puted cases. But it does not follow because of this, 
 that the counsel who supported the losing, and hence
 
 GENERAL PRACTICE 103 
 
 the wrong side of the controversy, has thereby of- 
 fended against morals. 
 
 167. But right and wrong in legal contests are 
 very seldom separated by sharply denned lines. It 
 does not follow, because one side has lost, that it 
 was wholly destitute of the elements of right nor 
 that the prevailing side may not have shown wrong- 
 ful features, for, in most cases, the truth is drawn 
 from both sides and the ultimate right is reached 
 by the efforts of the advocates on either side. Thus, 
 in an action on the case for unliquidated damages 
 the counsel who shows the wrong to be compen- 
 sated, and he who suggests the grounds of mitiga- 
 tion, may both be right, each taking his own share 
 in presenting the truth to the minds of the jury. 
 Unfortunately, the moralists never seem to grasp 
 these 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 decisions of 
 courts, in all disputed matters, are based on the 
 existence or non-existence of facts. Facts are estab- 
 lished by the evidence produced at the hearing, or 
 trial of the cause. The truth of the matter in dis- 
 pute is reached by a consideration of the testimony, 
 or the statements of the witnesses. These state- 
 ments, in the case of living witnesses persons, are 
 delivered orally and under the sanction of an oath. 
 This oath is a promise on the part of the witness 
 that, in the cause then on trial, his testimony shall 
 be "the truth, the whole truth, and nothing but the 
 truth." To speak the truth at all times is a moral
 
 104 ESSAYS IN LEGAL 
 
 duty; to speak the truth in judicial investigations 
 is a legal duty as well. 
 
 169. It is contended by the moralists that the 
 concealment of any truth which relates to the mat- 
 ter in dispute is as much a violation of the oath as 
 a false statement ; that the duty to speak "the whole 
 truth" requires of the witness a complete and unre- 
 served account of all that he knows respecting the 
 subject of the trial, whether the questions proposed 
 to him reach the extent of his knowledge or not.* 4 
 If this be true, then a corresponding duty would cer- 
 tainly seem to devolve upon counsel to disclose 
 every fact connected with the case, including those 
 that tend to operate against him as well as those 
 that go to support his contention. 
 
 170. But this view, like many of the visionary 
 and fanciful theories of the moralists, is rejected in 
 legal practice. No person is under obligation, legal 
 or moral, to tell the whole truth, even when inter- 
 rogated thereon, if the answer would tend to crim- 
 inate him, for the law will not compel any man to 
 be a witness against himself. 85 So, too, from motives 
 of public policy, transactions arising in a numbor 
 of relations are not permitted to be disclosed, even 
 though the effect of such rule is to suppress the 
 
 4 See, Paley, Moral Philosophy, b. iii, c. 17; Champlin, 
 Principles of Ethics, 111; Waylaml, Moral Science, 304. 
 
 ** The ancient maxim, nemo tenetur seipsum aocusare, is 
 a recognized rule of evidence in all courts. The fifth amend- 
 ment to the Federal Constitution aso provides; "Nor shall 
 any person be compelled in any criminal case, to be a witness 
 against himself." Similar provisions may be found in the 
 State constitutions.
 
 GENERAL PRACTICE 105 
 
 truth. The law has further provided a certain for- 
 mula for the production of testimony, and one of 
 the delicate arts of the advocate, in the employment 
 of such formula, is to present only those matters 
 which tend to promote his cause and to suppress 
 those which militate against it, and the examination 
 of witnesses is conducted with this end in view. 
 While the duty of counsel, in examining a witness, 
 certainly is to elicit the truth, and nothing but the 
 truth, yet only so much of it as, in his judgment, 
 may be calculated to benefit the cause of his client, 86 
 and the books contain many rules and suggestions 
 based on this theory. 
 
 171. Nor does this theory, and the practice that 
 is built upon it, in any way contravene the precepts 
 of a sound morality, however much it may conflict 
 with the self-erected standards of the moralists. A 
 party feeling himself aggrieved, from any cause, 
 applies to a court for redress. He states his griev- 
 ance and, in so doing, makes certain averments. 
 These averments he must sustain upon the hearing 
 or be non-suited. That is about all there is to it. 
 He must prove all that he has averred, but no more 
 than he has averred, and all that is required of him, 
 in the first instance, is to produce evidence suffi- 
 cient, if undisputed, to establish the truth of the 
 matters alleged. 27 If the allegations are denied this 
 is a matter of defense, which plaintiff is not re- 
 quired to anticipate, and the production of testi- 
 mony to sustain such defense is left to his adversary. 
 
 26 Reynolds, Theory of Evidence. 117. 
 
 27 Stearns v. Field, 90 N. Y. 640.
 
 106 ESSAYS IN LEGAL ETHICS 
 
 It is by these methods that courts arrive at the 
 truth of the matter in dispute, and the long expe- 
 rience of many centuries has demonstrated the wis- 
 dom of the procedure. While the witness is sworn 
 to tell the "whole" truth, this means nothing more 
 than that he shall not wilfully conceal any matter 
 concerning which he may be interrogated nor sup- 
 press the truth of same when it is called for. The 
 witness is under no obligation to volunteer infor- 
 mation, and usually will not be permitted so to do, 
 nor is counsel required to bring out any fact that 
 he may deem prejudicial to his case. 
 
 172. Examination of witnesses. It is not pro- 
 posed to present a disquisition on the examination 
 of witnesses, nor to suggest methods by which this 
 delicate function of the advocate's office shall be 
 exercised, but, in a work purporting to discuss the 
 ethical side of practice a passing allusion to the 
 subject seems eminently proper if not necessary. 
 In no other department of professional activity does 
 the astute lawyer display to better advantage his 
 legal acumen, and cases are lost and won, in many 
 instances, by the ability or non-ability of counsel in 
 dealing with the evidence. The books are replete 
 with suggestions relative to the manner in which 
 examinations should be conducted and the methods 
 to be employed, and to them the reader is referred, 
 the only object of the following paragraphs being 
 to show, in a very general sort of a way, what should 
 not be done from an ethical point of view. 
 
 173. Examination in chief. The first great rule 
 of direct examination is, that a witness must not be
 
 GENERAL PRACTICE 107 
 
 interrogated by leading questions. The rule is both 
 wise and expedient and probably exerts a more 
 beneficial effect in the eliciting of evidence than 
 any other. But, while it seems very easy of appli- 
 cation, it has yet been found extremely difficult to 
 be observed in practice, and, if strictly enforced, 
 would often prolong trials to an undue and wholly 
 unnecessary extent. Therefore, it has been nar- 
 rowed somewhat in its scope by confining it to such 
 questions only as relate to the matter in issue. It is 
 the proper practice to approach material matters 
 by direct questions, and this practice is always en- 
 couraged by judges who are not themselves mere 
 legal martinets, yet there are always some lawyers 
 who desire to appear smart, quick, and attentive, 
 and the leading question generally offers an easy 
 mark for fustian forensic display. And so, when- 
 ever an opportunity offers, and frequently only for 
 the sake of interruption, they are on their feet with 
 an objection. Now, this is simply an exhibition of 
 priggishness ; nothing more. It does not indicate 
 either learning or skill, and it is offensive to every 
 man of liberal instincts. An objection should al- 
 ways be made where it would properly seem to lie, 
 but it is bad form to continually interject them into 
 examinations designed only as preliminary to the 
 real matters involved in the issue. 
 
 174. But while it is now permitted to lead a 
 witness up to the point at issue, yet, when the ques- 
 tionable matter is reached, the rule applies in all its 
 stringency. This every lawyer is presumed to know, 
 and no honorable practitioner will intentionally
 
 108 ESSAYS IN LEGAL ETIII> 
 
 violate the rule. Indeed, there are but few things 
 that more unmistakably stamp the pettifogger than 
 a persistent line of questions designed to assist the 
 witness or suggest the answers. 
 
 175. Cross-examination. The right of cross-ex- 
 amination is justly regarded as a valuable privilege 
 in the trial of contested cases, and the rules of evi- 
 dence do not permit the introduction of testimony 
 which has not been, or cannot be, subjected to this 
 test. But, like every other provision of law, it is 
 intended only to further the course of justice in the 
 ascertainment of truth. Therefore, it is a privilege 
 that should be used only for the end intended and 
 never abused or perverted from sinister motives. 
 
 176. The main objects of cross-examination are : 
 to destroy or weaken the force of the testimony 
 given on the direct examination ; to elicit something 
 in favor of the examiner's side of the case; or, to 
 discredit the witness. These ends counsel is per- 
 mitted to attain, if possible, by all fair means ; but 
 only by fair means. It is his undoubted privilege 
 to correct the mistaken and to confound the liar; 
 but only the liar. He has a right to employ all tho 
 resources of his art to detect mistakes and expose 
 falsehood, but it is mean and contemptible to seek 
 to entrap a witness into a falsehood, or to confuse 
 and perplex him, with a design to discredit him, 
 when counsel does not believe him to be swearing 
 falsely. It is no more permissible for counsel to 
 tamper with the truth in others, or cause them to 
 confound or conceal it, than to be false himself. 
 N'nr should he descend to the more insidious art of
 
 GENERAL PRACTICE 109 
 
 inducing a witness to answer with one meaning and 
 assume his reply to bear another, and thus lead him 
 to give evidence, which, intended to be true, shall 
 have the effect of falsehood. Such conduct is a 
 species of criminal trickery so nearly allied to sub- 
 ornation of perjury that it is difficult, from a moral 
 point of view, to distinguish between them. 
 
 177. Unfortunately, instances of a nature simi- 
 lar to the foregoing are too common in counsel, who, 
 with misdirected zeal, esteem everything permissible 
 that contributes to the success of their client's cause. 
 But, in time, such men invariably lose caste in the 
 profession, are distrusted by the judges and rejected 
 by juries. No lawyer can long continue in the prac- 
 tice of confusing the honest, brow-beating the timid, 
 falsely construing the words of a witness, or placing 
 in his mouth words that were never uttered, with- 
 out acquiring the character of a trickster. Men 
 will look with suspicion upon everything that he 
 says or does, and will finally come to deny to him 
 the credit of truthfulness even when he is dealing 
 honestly with them. 
 
 178. When counsel has reason to believe that 
 a witness is lying, and is so assured in his own 
 mind, then he may treat him as a liar and deal with 
 him accordingly. A cross-examination is largely 
 under the discretion of the court, and, for the pur- 
 pose of testing the credibility of a witness, counsel 
 will usually be permitted to cover a wide range of 
 inquiry. But, in such cases, the interrogatories 
 should be directed only to this point. The privilege 
 does not carry with it the right to indulge in irrele-
 
 110 ESSAYS IN LEGAL ETHICS 
 
 vant investigations of the private life of the witness, 
 nor to propound questions intended only to degrade 
 and humiliate him before the jury. Attacks of this 
 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 of the people for courts 
 (f justice. Therefore, no lawyer who desires to 
 maintain the high standing of his profession will 
 abuse the privilege of cross-examination, and judges 
 who appreciate the true nature of the judicial func- 
 tion will always correct such abuse where same is 
 attempted. 
 
 179. Offers of improper evidence. As previously 
 remarked, a lawyer, a licentiate of the courts, is 
 prvsumed to be conversant with the rules of evi- 
 dence, and, being so conversant, is expected to con- 
 form to their requirements in the trial of causes. 
 The temptation to overstep the bounds is often very 
 great, particularly with a witness who is either timid 
 or stupid, and, in such cases, courts are ever in- 
 clined to construe the rules with great liberality. 
 But while counsel may be pardoned for an infrac- 
 tion of the rules, where his only object is to elicit 
 competent evidence, no such clemency can be ex- 
 tended to one who deliberately and persistently en- 
 deavors to submit evidence that is clearly incom- 
 petent and which, as a lawyer, he is presumed to 
 know is incompetent. Yet this is a common offense 
 on the part of many who would resent the imputa- 
 tion of unfair practices, and not little ingenuity is 
 often employed to draw out statements that are
 
 GENERAL PRACTICE 111 
 
 promptly stricken out, yet, having in fact been 
 heard by the jury are not without influence in the 
 framing of the verdict. This has always been re- 
 garded as highly improper, and he who resorts to 
 such methods places himself on the plane of the 
 shyster and pettifogger. 
 
 180. Another device is to make an offer of 
 proof 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 of evidence 
 which counsel knows the court must reject as in- 
 competent, for the mere purpose of the effect which 
 the argument of its admissibility will have upon 
 the jury, is an artifice unworthy of a lawyer. As 
 a general proposition, this is true; and where the 
 practice is persistently followed the offender should 
 be subjected to discipline. It is hard, however, to 
 draw the line at all times between the proper and 
 the improper in the presentation of testimony, and 
 while counsel often offer incompetent testimony, and 
 strenuously insist that it shall go to the jury, it is 
 difficult to say, in many cases, that the motive is not 
 honest. 
 
 181. Coaching 1 of witnesses. A very important 
 question is raised when we come to inquire into the 
 extent to which a counsel may instruct the wit- 
 nesses who are to testify in a trial. The law guards 
 the production of testimony with jealous care. It 
 will not even permit a leading question, if relating 
 to a material issue, to be put or answered. This is 
 not because the answer may not be true, but because 
 it has been suggested by the manner in which the
 
 112 ESSAYS IN LEGAL ETHICS 
 
 question was framed. In such a case the answer is 
 not regarded as the free act of the witness, but 
 rather as the suggestion of counsel, and because 
 such answer has, to a certain extent, been molded 
 by another, the testimony is rejected as incompetent. 
 
 182. If this is true of leading questions put dur- 
 ing the course of a trial, what shall be said of the 
 suggestions made to witnesses during the prepara- 
 tion for a trial? How far is an attorney justified 
 in suggesting or dictating the answers that may or 
 shall be made to questions that may be put, either 
 by himself or opposing counsel, at the hearing? It 
 must be confessed that the question is one of great 
 difficulty in its proper solution. 
 
 183. It is generally conceded that a discreet and 
 prudent attorney may very properly ascertain from 
 witnesses, in advance of the trial, what they in fact 
 do know, and the extent and limitation of their 
 memory, as a guide to his own exertions, but this. 
 it has been held, is as far as he may go, legally or 
 morally. 8 * His duty, it is contended, is to extract 
 the facts from the witness, not to pour them into 
 him ; and, while he has a right to learn all that the 
 witness does know, he has no right to teach him 
 what he ought to know. 
 
 184. In the foregoing we have only the simple 
 question of the propriety of instructing a witness; 
 the truth or falsity of the answers is not consid- 
 ered; it is the fact of instruction only with which 
 we are now concerned, and this, it seems, is a viola- 
 tion of professional ethics. In support of this posi- 
 
 tl Matter of Eldridge, 82 N. Y. 161.
 
 GENERAL PRACTICE 113 
 
 tion it is contended, that a court, before whom an 
 issue is pending, has a right to the independent and 
 unwarped testimony of a witness ; that where the an- 
 swers are furnished by another the court obtains 
 neither the language nor the memory of the wit- 
 ness, but only that of his teacher, and that when 
 such testimony has been offered and received a 
 fraud is committed on the court. If the perpetrator 
 of this fraud is the counsel in the case, then, as an 
 officer of the court he has offended, he may be sub- 
 jected to its summary discipline, and punished for 
 a derogation from professional integrity. 
 
 185. Advising witnesses. There is another phase 
 of the subject discussed in the last paragraph that 
 may properly claim our attention in connection with 
 it, and this we may distinguish as advice given to 
 witnesses. While counsel may not assume the role 
 of instructor, he may, with propriety, advise his 
 own witnesses in respect to their testimony. The 
 average witness will usually bring forward much 
 that is incompetent, irrelevant and immaterial; it 
 is a legitimate function for counsel to sift this and 
 to inform the witness what is and what is not 
 wanted. He may further advise the witness with 
 respect to the character and methods of opposing 
 counsel on cross-examination, and caution him in 
 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 
 the stand. Indeed, in many cases this would be his 
 duty. It will rarely happen that men who are un- 
 used to the procedure of courts can take the stand
 
 114 ESSAYS IN LEGAL ETHICS 
 
 without some previous advice, and do justice to 
 either themselves or the parties. 
 
 186. A careful lawyer will always confer with 
 his witnesses in advance. He will ascertain what 
 they know and the facts to which they can testify. 
 He will endeavor to see where he is strong as well 
 as where he is weak, and will take due precautions 
 to guard his vulnerable points. Now, it may be 
 that he does not desire all of the facts within the 
 knowledge of the witness, and, while the witness is 
 under a duty to tell the truth, it is only the truth so 
 far as he may be interrogated. There is no impro- 
 priety in counsel advising his witness not to speak 
 of certain matters unless specifically questioned with 
 respect to same. This is not "coaching," in the 
 sense in which that term is ordinarily employed. 
 Neither is there anything improper in cautioning 
 a voluble witness against saying too much, nor in 
 urging a reticent one to tell all he knows, even 
 though in so doing suggestions are required to be 
 made. Again, the witness must frequently be shown 
 the difference between what he actually knows and 
 what he merely surmises, and, to do this, "instruc- 
 tion" is essential. 
 
 187. A favorite device with many lawyers is to 
 commence a cross-examination by asking the wit- 
 ness with whom he has talked about the case, or, by 
 asking him if he has not discussed his testimony 
 with opposing counsel. The effect upon the witness 
 is usually embarrassing, particularly if he is ignor- 
 ant or simple. He sees in the question only an 
 imputation that he has been coached for the occa-
 
 GENERAL PRACTICE 115 
 
 sion, and, in his anxiety to dispel this idea, not 
 infrequently 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. All this may be avoided 
 by cautioning the witness in advance, and by direct- 
 ing him to answer fully and frankly all questions 
 that may be put to him respecting the persons with 
 whom he has talked as well as the times and places 
 where such conversations occurred. Such advice 
 is not only proper but, in most cases, should be 
 given as a part of the attorney's duty. 
 
 188. Bribing- witnesses. Approaching a witness 
 for the purpose of influencing his testimony, being 
 an attempt to obstruct the administration of justice, 
 has ever been considered gross misbehavior on the 
 part of an attorney. If the act occurs in the court 
 house it is punishable as a contempt, but, wherever 
 it may have happened, it subjects the offender to 
 discipline. As this offense strikes at the very foun- 
 dation of judicial determination a wide discretion 
 is reposed in courts with respect to the punishment 
 they may inflict, quite irrespective of the laws that 
 may be enacted to preserve the peace and dignity of 
 the state, and the cases are numerous where the dis- 
 cretion has been exercised. 29 
 
 189. But, it will frequently happen that wit- 
 nesses are reluctant or unwilling to attend and tes- 
 tify, and sometimes will even stand out for a sum 
 of money to be paid them for their testimony. It 
 
 WEx parte Savin, 131 U. S. 267; In re Brule, 71 Fed. Rep. 
 943.
 
 116 ESSAYS IN LEGAL ET1 
 
 is true, a witness within the jurisdiction may always 
 be brought in by subpoena and compelled to testify. 
 Yet, the experience of every lawyer in practice has 
 been that the testimony of an unwilling witness is 
 often very unsatisfactory, and that money, paid or 
 promised, is usually a powerful stimulant for weak 
 memories. Now the question is: Do such pay- 
 ments or promises constitute bribery, or the sem- 
 blance of bribery! 
 
 190. The statutory witness fee is very small. 
 Attendance at court not infrequently entails pecu- 
 niary hardship on the person testifying. The 
 exigencies of his business or the circumstances that 
 surround him may be such that to spend a day or 
 several days in court will seriously embarrass him. 
 Because of these things it has become common to 
 pay or promise to witnessses the actual value of 
 their time consumed in the trial, and it does not 
 seem that such practice is repugnant to any rule of 
 law or precept of morals. With respect to contin- 
 gent fees agreed to be paid to witnesses in the event 
 of the successful termination of the matter in dis- 
 pute 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 itself, is imma- 
 terial, as interested parties may now testify the 
 same as others and interest no longer constitutes a 
 disqualification. If the witness is called to tell the 
 truth and not to bolster up a falsehood, then, not- 
 withstanding he has been promised more than the 
 statutory fee, it can, in no just sense, be called
 
 GENERAL PRACTICE 117 
 
 bribery. Its effect is not to obstruct the administra- 
 tion of justice, but rather to facilitate same. 
 
 191. The law contemplates that a witness shall 
 be paid for his time as well as reimbursed for his 
 expenses, and no witness can be compelled to testify 
 in a civil case unless his fee has been paid or ten- 
 dered. In the case of experts, large fees are now 
 demanded and openly paid. In principle there is 
 no difference between the witness who testifies to 
 opinions, and the witness who testifies to facts ; both 
 are simply aids in the ascertainment of truth. In 
 order that every one may have the benefit of wit- 
 nesses to support his contention the legal fee has 
 been reduced to a minimum, but there is no rule of 
 law that prohibits the payment of more than the 
 statutory allowance. The gist of the question 
 seems to lie in the purpose with which the money 
 is paid or promised, rather than in the payment or 
 promise itself. If such purpose is to corrupt the 
 witness, either by inducing him to testify falsely or 
 not to testify to what he knows, then it is bribery, 
 and punishable as such. It may be said, however, 
 that this is a question upon which there is much 
 diversity of opinion and by some courts it has been 
 held, that the exigencies of any given cause must 
 yield to the larger demands of public good and that 
 it is improper for an attorney to buy testimony, 
 whether true or false. 80 
 
 191a. Tampering with, adverse witness. It has 
 been well said, that a lawyer who consciously under- 
 takes to thwart justice is as much unfit for his posi- 
 
 30 In re O'Keefe, 49 Mont. 369.
 
 118 BBBAYS IN KH<iAL, ETHICS 
 
 tion as a judge who accepts a bribe. And this ap- 
 plies particularly to an attorney who seeks to tam- 
 per with the witnesses on the other side of a case. AH 
 by contriving to get a witness out of the way, so 
 that he cannot testify; or by offering him induce- 
 ments, even indirectly, to swear falsely or to 
 tify favorably for the attorney's client. All matt'-rs 
 of this kind are regarded as most unethical and 
 where the offense is established the offender will 
 always be subject to discipline. 81 
 
 192. Witness in his own cause. It is an unwritten 
 law of the legal profession that an attorney may 
 not be a witness in the cause he is conducting. The 
 rule is scrupulously observed by every self-respect- 
 ing lawyer, and yet it seems to rest wholly on ethical 
 grounds. It is not contrary to any statute, nor even 
 to any maxim of the common law, for an attorney to 
 take the stand for his client, and while courts may 
 endeavor to discountenance the practice they are 
 powerless to prevent it. 88 It would seem that in Eng- 
 land it has been held a person may not appear in 
 tli-- 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 professional propriety. 88 
 
 193. An attorney occupying the dual position 
 
 of witness and advocate necessarily subjects lu.s 
 
 imony to criticism, if not to suspicion, and, if 
 
 SI See, Re Thomas, 36 Fed. Rep. 242; Re Lane, 93 Minn. 
 
 8* Morgan v. Roberts, 38 111. 65. 
 3Frear v. Drinker, 8 Pa. 8t 521.
 
 GENERAL, PRACTICE 119 
 
 he has any pecuniary interest in the result of the 
 suit, places himself in a strictly unprofessional 
 attitude. 34 If it becomes necessary for him to tes- 
 tify, or if he voluntarily offers himself as a witness, 
 then, in common decency, he should withdraw from 
 the case. 
 
 194. There may, perhaps, be occasions when an 
 attorney is justified in taking the stand, as when the 
 trial develops some unlooked for phase which 
 directly implicates or impugns his professional 
 integrity, but such occasions will be few and far 
 between. So, too, it is not considered improper for 
 an attorney to testify to merely formal matters, 
 which do not affect the original merits of the contro- 
 versy. 
 
 195. The rule that excludes the attorney from 
 the stand as a witness to facts should be equally 
 potent in excluding his unsworn opinions. It is 
 neither the duty nor the right of an advocate to ex- 
 press his individual opinions in forensic argument, 
 and yet, it is a common practice with some lawyers, 
 in discussing the evidence, to assert their own be- 
 lief in the truth of the statements of witnesses ; the 
 justice of the cause they are advocating, or the in- 
 nocence of the person they are defending. This is 
 a species of testimony, and is so intended by the 
 speaker. But what counsel may believe or dis- 
 believe, is wholly immaterial. His province is to 
 induce belief in others. This he accomplishes, if at 
 all, by the clearness and cogency of his arguments. 
 The arguments are based on the facts of the case, 
 
 34 Ross v. Demoss, 45 111. 447.
 
 120 ESSAYS IN LEGAL ETHICS 
 
 and the occasions will be rare when he is justified 
 in throwing the weight of his own private opinion 
 into the scale to favor the side he represents. The 
 better element of the bar has long condemned this 
 practice as unethical. There may be times, perhaps, 
 when peculiar circumstances seem to call for such 
 a course, but no lawyer can hope to command ro- 
 spect for opinions of this nature that are freely 
 volunteered in every and all sorts of cases. 
 
 196. Addressing the jury. The subject of our 
 last paragraph brings us to one of the most im- 
 portant of the lawyer's functions in practice the 
 argument to the jury. The value of the jury as a 
 factor in modern trials is an open question, upon 
 which there exists a wide diversity of opinion. But, 
 whatever may be its worth or worthlessness, it is yet 
 an umpire in the determination of many disputed 
 matters of fact, and much of the forensic effort of 
 the advocate lies in attempts to persuade and con- 
 vince this branch of the court. It is the right of 
 counsel to address the jury upon every matter legiti- 
 mately bearing upon the particular case, and about 
 the only inflexible rule that can be applied to his 
 address is: he must keep within the evidence. But 
 the evidence may be examined, analyzed, collated, 
 sifted and generally treated in his own way. What- 
 ever of argument, suggestion, or inference can be 
 constructed or deduced from it in support of his 
 hypothesis, or whatever of doubt, confusion, or un- 
 certainty he may be able to create with respect to 
 that of his opponent, is permissible, and he may 
 his <>\VM vi<-\vs with all the ingenuity, per-
 
 GENERAL PRACTICE 121 
 
 suasion, vehemence, fervor and effectiveness at his 
 command. 86 
 
 197. But it must be remembered that the ver- 
 dict should be impartial and pronounced upon the 
 evidence. It follows, therefore, that the address 
 of counsel must be upon the evidence and accord- 
 ing to the evidence. He must state the facts as 
 they were developed during the trial, and not as he 
 may think they should have been. He may state 
 them as forcibly as possible, but he must not en- 
 large them. He may palliate, but not distort them. 
 He may extenuate, but not misstate. In no field of 
 legal effort does the truly great advocate more con- 
 spicuously appear than before the jury; in no field 
 is the chicanery and trickery of the pettifogger more 
 clearly displayed. 
 
 198. Abuse of the opposite side. There was de- 
 veloped during the early part of the last century a 
 class of advocates that deemed it the highest stroke 
 of policy to load with opprobrious epithets and 
 abuse the counsel, clients, and witnesses on the 
 opposite side. This was practiced not alone at nisi 
 priiis, but in the more dignified forum of the appel- 
 late court as well, and so widespread and deep- 
 seated did this pernicious practice become that 
 rarely if ever did it call forth a rebuke from the 
 court. It is a matter of congratulation that, save 
 in exceptional instances, the practice seems to have 
 died with the forensic lions (?) that inaugurated 
 it, and, notwithstanding the few sporadic manifesta- 
 tions of old-time methods occasionally seen, a higher 
 
 35 People v. Smith, 162 N. Y. 531.
 
 122 ESSAYS IN LEGAL ETHICS 
 
 and manlier spirit actuates the bar of the country 
 in their legal disputations and debates than was per- 
 ceptible half a century ago. The practice originated 
 in mistaken and perverted views of qualities and 
 effects, and although it wore the semblance of in- 
 trepedity and courage it was, in fact, only an exhibi- 
 tion of rank cowardice. 
 
 199. The young attorney who thinks he will at- 
 tain fame as a trial lawyer by adopting this boorish 
 and generally discarded practice makes a grave mis- 
 take. He may receive the plaudits of the ignorant 
 and uncouth, but he will excite only disgust in the 
 minds of those most competent to judge, and whose 
 good opinions it should be his constant effort to ac- 
 quire and retain. Nor do such exhibitions indicate 
 the possession of those qualities that bring success 
 in modern practice. They are the devices of small 
 and ill-informed minds; the arrogant assertions of 
 presumptuous self; and are resorted to only by the 
 boor, the shyster, the pettifogger and the moral de- 
 generate. 
 
 200. Tampering with records. The official rec- 
 ords of courts, and the files of judicial proceedings, 
 M) f..r invested with an element of sanctity that 
 their integrity may not be impaired by an unauthor- 
 ized act. If, through any cause or from any reason, 
 it becomes proper that they should be corrected, 
 altered, or amended, leave therefor must first be 
 obtained and the change produced under the same 
 safeguards that applied ^vhcn they were originally 
 made. It is immaterial that the alteration may be 
 slight or inconsequential, or that its only effect may
 
 GENERAL PRACTICE 123 
 
 be beneficial to all parties concerned, for no one 
 other than the court may assume to pass upon the 
 question. 86 
 
 201. If this be true, then it follows, with much 
 stronger reason, that an attorney may not tamper 
 with a record, file, or document, in order to make 
 it express that which before it did not, and thereby 
 cause it to serve his own purposes to the detriment 
 of his adversary. Such an act clearly evidences a 
 want of moral sense which renders him incapable of 
 appreciating and discharging the duties and obli- 
 gations of a lawyer toward the public, the bar, and 
 the court, and neither ignorance nor inexperience 
 can be urged in extenuation of such an offense. 37 
 "Where such a dereliction of professional duty is 
 shown, the courts, to protect litigants and maintain 
 their own dignity, may summarily discipline the 
 offender by striking his name from the roll. 
 
 202. Abuse of process. The law has provided a 
 regular method of procedure for the vindication and 
 protection of rights. The courts are intrusted with 
 the administration of this procedure, but its prac- 
 tical application rests largely with the lawyers, who, 
 as the ministers of justice, are presumed to adapt it 
 to the varying wants of suitors and the exigencies of 
 particular cases. The process by which legal ends 
 are attained has, in large measure, been committed 
 to the bar, to be by it employed for the legitimate 
 purposes of litigation, and notwithstanding that the 
 details of service, levies, etc., are performed by the 
 
 36 Fowler v. Finley, 30 Fla. 325. 
 87 People v. Moutray, 166 111. 630.
 
 !V \.KC,\L KTIIKS 
 
 executive officers of the court the direction and con- 
 trol of such work still remains with the attorney 
 who is conducting the case. 
 
 203. But lawful process may be, and often is, 
 abused, and while ostensibly employed in the fur- 
 therance of a proper purpose may yet be made the 
 means of working rank iniquity. When the abuso 
 is flagrant the courts will rarely refuse to relieve 
 against it, and in some cases will intervene to punish 
 the offender. Not infrequently, however, while the 
 abuse is conceded, courts are practically power- 
 less to abate the evil or reach the evil-doer. The 
 question then resolves itself into a matter of pure 
 ethics, and public opinion, as in other ethical af- 
 firmations, is about the only force that can affect the 
 parties engaged in the nefarious transactions. Until 
 the moral sense of the bar shall become sufficiently 
 strong to assert a controlling influence so long will 
 the fair fame of the profession suffer from acts of 
 legalized piracy. 
 
 204. The matter under discussion finds frequent 
 examples in connection with justice courts and other 
 tribunals of limited and inferior jurisdiction. Thus 
 the law gives to justices of the peace a concurrent 
 jurisdiction throughout the county. This fact is frr- 
 liiently taken advantage of by unscrupulous practi- 
 tioners to harrass and annoy persons against whom 
 they may have demands, and process is issued and 
 made returnable at distant parts of the county and 
 at inconvenient hours. It often happens, in such 
 cases, if the defendant answers the summons, that 
 ill- plaintiff fails to appear, and the case is dis-
 
 GENERAL PRACTICE 125 
 
 missed, only to be commenced again in the same 
 manner, and is so continued until finally a "snap" 
 judgment is entered by default. This is distinctly 
 an abuse of process; a rank perversion of the ma- 
 chinery of the law, and a degradation of judicial 
 functions, but while it violates the canons of ethics 
 it infracts no legal rule, and the remedy therefor 
 lies only in the forum of conscience. 
 
 204a. A variation of the foregoing method, 
 which involves deceit at well as sharp practice, is 
 where, after the plaintiff's suit has been dismissed 
 by the justice, and the defendant thereby induced to 
 believe that the case was disposed of, an appeal 
 bond is filed with the justice and the case thereby 
 removed to an upper court, without notice to the 
 defendant. Subsequently a judgment by default 
 is entered and an execution is issued. By direc- 
 tion of the attorney no demand is made on the de- 
 fendant by the sheriff, who, without notice to the 
 defendant, proceeds to levy upon and sell the de- 
 fendant's land. This is only one of the many ways 
 by which legal process may be and sometimes is 
 abused. But where it is shown that an attorney is 
 guilty of such practices it evidences such a degree 
 of moral turpitude on his part as to justify a court 
 in striking his name from the roll. 38 
 
 205. Duty to third persons. The duties of an 
 attorney to his client, his professional brethren, and 
 the court, is reserved for more specific treatment in 
 subsequent chapters, and we may close our observa- 
 tions of general practice by a cursory view of the 
 
 38 People v. Hooper, 218 111. 313.
 
 126 ESSAYS IN LEGAL ETHICS 
 
 duties of an attorney to third persons considered 
 not as constituting the public society but as in- 
 dividuals. It may be stated as a general proposition 
 that, in the absence of fraud, falsehood, and collu- 
 sion, an attorney is under no professional obligation 
 or duty to a third person. In some instances dis- 
 tinguished lawyers have contended that the rule is 
 absolute and imperative, without exception or quali- 
 fication. Thus, Lord Brougham 89 is reported to 
 have said: 
 
 206. "An advocate, by the sacred duty which 
 he owes his client, knows in the discharge of that 
 office but one person in the world, the client and 
 none other. To save that client by all expedient 
 means to protect that client at all hazards and 
 cost to all others, and among others to himself 
 is the highest and most unquestioned of his dutirv 
 He must not regard the alarm, the suffering, th> 
 torment, the destruction which he may bring upon 
 that other." 
 
 207. But this extreme view has never met the 
 approbation of the bar, either in England or Amer- 
 ica, and is repudiated by the great majority of rep- 
 utable practitioners. While admitting the rule, 
 which is in every way just and reasonable, it must 
 yet be held to apply only to the knowledge, skill, 
 care and diligence of the attorney with respect to 
 the particular case in which he is engaged. To the 
 client he is under certain obligations, for the just 
 fulfillment of which he is legally as well as morally 
 
 W Address on the trial of Queen Caroline.
 
 GENERAL PRACTICE 127 
 
 bound. But to third persons, where no privity 
 exists and where there is no fraud or collusion, he is 
 under no duty, and even though injury may result 
 to them, through his negligence or want of skill, 
 they would still be without remedy against him. 40 
 
 40 Bank v. Ward, 100 U. S. 195; Dundee Mtg. Co. v. 
 Hughes, 20 Fed. 39.
 
 CHAPTER VII 
 CRIMINAL PRACTICE 
 
 Generally considered The retainer Duty to persona accused 
 Knowledge of prisoner's guilt General duties in defense 
 The prosecution of criminals Duty of persons officially 
 charged with prosecution Propriety of private counsel 
 assisting in prosecutions Dangers of criminal practice. 
 
 208. Generally considered. Probably no topic 
 relating to legal ethics is more frequently alluded 
 to, or more generally discussed by the public, than 
 the duty of an attorney in defending a person 
 charged with crime ; and probably, also, there is no 
 subject upon which the public are more prone to ar- 
 rive at superficial and erroneous conclusions. For 
 many years it has furnished a fruitful theme for 
 shallow-brained declaimers and writers of moral 
 homilies, and apparently has lost nothing of its 
 pristine vigor and usefulness as an ever ready and 
 available illustration of the perversity of law and 
 lawyers. Let us then examine this question for our- 
 selves and endeavor, if possible, to ascertain the 
 true course of professional duty. 
 
 209. It is now a guaranteed right of every per- 
 son charged with an infamous crime treason or 
 felony to be confronted with his accusers and to 
 be represented by counsel if he so desires. He has 
 a right to a fair trial ; that is, a trial conducted ac- 
 cording to the forms which prudence and experience 
 
 128
 
 CRIMINAL PRACTICE 129 
 
 / 
 
 have devised as conducive to the security of life and 
 liberty. As has been well said: "These are the 
 panoply of innocence, when unjustly arraigned ; and 
 guilt cannot be deprived of it without removing it 
 from innocence." 41 
 
 210. But this was not always so, and when we 
 read the reports of some of the English state trials 
 of former days and see the rank iniquity with which 
 they were conducted, 42 we feel that no language will 
 so well describe their true nature as the harsh term 
 "judicial murder." For many years a prisoner 
 charged with felony was not permitted to call any 
 witnesses in his own behalf, 43 nor was he permitted 
 to have counsel, and when this latter privilege was 
 finally given to him his counsel was not permitted 
 to address the jury nor comment on the evidence, 
 but was strictly confined to advising the court upon 
 the law of the case. Many specious reasons for a 
 practice so revolting to our ideas of justice may be 
 found in the old books, but the chief one seems to 
 have been that the court was counsel for the pris- 
 oner and was supposed to watch over and guard his 
 interests. 
 
 211. It would seem also that there was an 
 ethical question involved, for one old writer 44 ad- 
 vances as a reason that "our law doth abhor the 
 defense and maintenance of a bad cause, ' ' and this, 
 
 41 Sharswood, Legal Ethics, 90. 
 
 42 The bloody assize of Jeffreys is only one of many ex- 
 amples. 
 
 43 4 Black. Com. 359. 
 
 44 Davy's Beports, Preface.
 
 130 ESSAYS IN LEGAL ETHICS 
 
 he says, is one of the reasons "why our law doth 
 not allow counsel unto such as are indicted of trea- 
 son, murder, rape, or other capital crimes; so as 
 never any professor of the law of England hath 
 been known to defend (for the matter of fact) any 
 traitor, murderer, ravisher, or thief, being indicted 
 and prosecuted at the suit of the king. 
 and therefore it is an honor unto our law that it 
 doth not suffer the professors thereof to dishonor 
 themselves (as the advocates in other countries do) 
 by defending such offenders. ' ' The inherent vicious- 
 ness of the foregoing is seen in that it assumes to 
 fix the question of guilt, not upon the facts to be 
 proved, but upon the character of the crime with 
 which the accused stands charged. Yet this, for 
 many years, may be said to fairly represent the 
 spirit of the English law. From time to time slight 
 innovations were made upon the severity of the 
 rule, but attempts to remedy the evil by legislation 
 were long and obstinately resisted, and it was not 
 until the year 1836 that the last remnant of this 
 barbarous practice was finally swept away. 46 
 
 212. In the United States, notwithstanding 
 that the harsh doctrines of the old law seem to have 
 been applied to some extent during the colonial 
 period, a more wise and humane policy has always 
 prevailed. From the institution of the present gov- 
 ernment it has always been a cardinal rule, that 
 every man charged with crime shall be adjudged 
 only on the evidence produced. If the evidence is 
 weak and inconclusive, it is the sworn duty of the 
 
 6 and 7 Wm. IV., c. 114.
 
 CRIMINAL PRACTICE 131 
 
 jury to acquit. If the charge itself is so inartificially 
 framed that it will not sustain a conviction, it is the 
 duty of the judge to dismiss the suit. This proce- 
 dure is believed to be eminently just and wise ; it is 
 the result of time acting on experience, and repre- 
 sents the slow outgrowth of preceding ages in ideas 
 of abstract justice. 
 
 213. Nor does such procedure in any way mil- 
 itate against a sound morality, even though its ef- 
 fect, in some cases, may be to permit a guilty man 
 to escape. It is the privilege of the accused to point 
 out deficiencies of indictment or evidence, and, this 
 being true, there can be no violation of moral duty 
 on the part of counsel who assumes to do this for 
 him. The popular clamor, so often heard, concern- 
 ing the loopholes in the meshes of the law, whereby 
 criminals go unpunished, is but the veriest bosh, 
 and it is immaterial that much of this clamor orig- 
 inates with men who assume to be teachers of 
 morals. That our criminal law is perfect 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 sacrificed on the altar of justice 
 by pious and God-fearing men.* 6 
 
 214. The retainer. Except when duly assigned 
 
 4* Even so perfect a character as Sir Matthew Hale was 
 guilty of this crime, and condemned to death two poor and 
 innocent women, in violation of the plainest rules of justice, 
 and against whom there was no evidence that ought to have 
 been given any weight in the mind of a reasonable man, 
 though he believed in witchcraft.
 
 132 ESSAYS IN LEGAL, ET1 
 
 by order of court to defend a poor prisoner, a law- 
 yer is under no legal duty to accept a criminal re- 
 tainer, nor will he, by such denial, violate any ethi- 
 cal canon. It is his right to so deny, if he deems 
 it the proper course to pursue. He is under no ob- 
 ligation to palliate and defend iniquity of any kind 
 in a court of justice, or to undertake a cause which 
 his soul abhors, and his condition would be that of 
 an abject and miserable slave if, as some would con- 
 tend, he were to be at the command of every mis- 
 creant who might choose to employ him. 
 
 215. But there are times when acceptance seems 
 a moral duty, and when to do so may require no 
 small degree of moral courage. If the offense 
 charged is one that has deeply affected the commu- 
 nity, creating against the accused a strong adverse 
 feeling, an attorney assumes a great risk in accept- 
 ing a retainer to defend and, upon more than one 
 occasion, lawyers have lost both friends and prac- 
 tice by espousing an unpopular cause. In such a 
 case, if the lawyer is timid, or, to employ a more 
 euphemistic term, conservative, he will generally 
 decline the retainer. This he may do with the ut- 
 most propriety. On the other hand, if he is brave, 
 he will accept, and, whatever the laity may think 
 of him, if he is a good man and acting from a chival- 
 rous sense of duty, he must surely rise in the estima- 
 tion of every reputable practitioner. 
 
 216. In the ordinary case, while a lawyer may 
 decline a retainer in the exercise of his own discre- 
 tion, he is equally at liberty to accept, and neither 
 the character of the client nor the nature of the
 
 CRIMINAL PRACTICE 133 
 
 charge should form an objection. The only ques- 
 tion is: whether he is willing to undertake a crim- 
 inal defense. Nor should counsel decline a retainer 
 merely because he may believe the accused to be 
 guilty. As was eloquently said by the great Ers- 
 kine : "If the advocate refuses to defend from what 
 he may think of the charge or the defense, he as- 
 sumes the character of the judge, nay, he assumes 
 it before the hour of judgment; and, in proportion 
 to his rank and reputation, puts the heavy influence 
 of perhaps a mistaken opinion into the scale against 
 the accused, in whose favor the benevolent principle 
 of English law makes all presumptions and com- 
 mands the very judge to be his counsel. ' * 47 
 
 217. Professional duty to persons accused. An 
 attorney employed to defend a person charged with 
 crime is under a duty to use every means, consistent 
 with honesty and fairness, to secure an acquittal 
 for his client. If he believes him innocent this, in 
 itself, will be a spur to effort, but even though he 
 may feel that the prisoner is guilty, this, in itself, 
 should not be a deterrent. 
 
 218. Before trial he should carefully examine 
 the indictment under which the prisoner is held. 
 If it is defective or insufficient for any reason he 
 should at once bring his objection before the court. 
 This is a clear and positive duty, and counsel as- 
 sumes a grave responsibility if he knowingly fails 
 to make an objection to the indictment, which, if 
 taken, would be fatal to the prosecution of the suit. 
 
 219. During the progress of the trial he should 
 
 47 Camp. Lives of the Chancellors, Vol. 6, p. 361.
 
 134 ESSAYS IN LEGAL ETHICS 
 
 srize every point the law allows as a protection for 
 his client, for that same law which the prosecutor is 
 wielding as a sword he has a right to employ as a 
 shield. He must insist on the due observance of 
 every safeguard that the law has provided, and if 
 any legitimate avenue of escape appears he betrays 
 his trust if he fails to avail himself of it. 
 
 220. Knowledge of prisoner's guilt. Not the 
 least among the indictments of the legal profession, 
 found by the self-constituted conservators of public 
 morals, is the assertion that lawyers have no con- 
 scientious scruples against defending a person 
 charged with an infamous crime, although they may 
 know him to be guilty. This, in the minds of many, 
 is the depth of professional infamy, and a lawyer 
 who will so far lower himself as to accept a retainer 
 under such circumstances, or who will continue in a 
 case after such knowledge has been brought home 
 to him, is regarded as utterly depraved and desti- 
 tute of moral feeling. Probably no phase of our 
 general subject is so often adverted to and so gen- 
 erally condemned as this, and therefore it merits our 
 serious and candid consideration. 
 
 221. Now, it is a well-known fact of common 
 experience that the professional moralist is usually 
 a very one-sided person with a narrow mental hori- 
 zon, and his disciples, as a rule, tend to develop the 
 same characteristics. The lawyer, notwithstanding 
 his constant practice of supporting one side of an 
 argument, has a far wider range of mental vision 
 and a better knowledge of applied ethics. While he 
 deals with the law as it is, he is yet conversant with
 
 CRIMINAL PRACTICE 135 
 
 what it has been and what it tends to become, and 
 his course is shaped by the lights of the past and the 
 future, no less than by those of the present. He has 
 debated this question long and earnestly. He has 
 examined it in all its bearings and with every aid 
 that time and experience can furnish. As a result 
 of this profound and careful study he has announced 
 the doctrine that counsel may, with no violation of 
 moral duty, undertake the defense of a man charged 
 with crime, whom he believes, or even knows, to be 
 guilty. 
 
 222. If counsel has direct knowledge of the 
 prisoner's guilt, as where the accused confesses 
 same, he may well pause before assuming the de- 
 fense, but he may, with the utmost propriety, pro- 
 ceed, and should he refuse so to do it is within the 
 power of the court to compel him, as has been 
 shown in another place. 
 
 223. The law, like charity, "thinketh no evil;" 
 wherefore it has long been a cherished rule that 
 every man charged with crime is presumed to be 
 innocent, and this presumption continues until the 
 prosecution, by proof, shall have established his 
 guilt beyond a reasonable doubt. Of this rule the 
 advocate is the intermediate minister, and he is jus- 
 tified, if not bound, to enforce its application to the 
 inconclusiveness of the evidence adduced; and he 
 may do this the more readily because even the jurors 
 themselves are bound to secure to the accused the 
 benefit of its application. 
 
 224. Before the law all men are equal, and 
 guilty men have the same right to be defended and
 
 136 ESSAYS IN LEGAL ETHICS 
 
 to be represented by counsel as have the innocent. 
 This right is extended to all in the furtherance of 
 public justice, and is founded upon the principle 
 that no one shall be convicted except on legal and 
 sufficient evidence. But this principle also defines 
 the scope and extent of the advocate's duty in con- 
 ducting a defense of this kind. He is merely bound 
 to screen his client from conviction on incompetent 
 and insufficient evidence, and to use all fair argu- 
 ments that may arise from the trial. He may ex- 
 pose the weak parts of the evidence against him 
 and enlarge on those parts which tend to his favor ; 
 he may even exhibit, as fully and as forcibly as he 
 can, any hypothesis consistent alike with the evi- 
 dence and the possible innocence of his client. But 
 here the advocate should stop. The law and all its 
 machinery are means, not ends ; the purpose of their 
 creation is justice; and he who in his zeal for the 
 means forgets the ends, betrays his trust and dem- 
 onstrates his own unfitness for his exalted office. 
 
 225. An attorney who assumes to represent the 
 rights of a person charged with crime acts merely 
 in his official capacity. The prisoner may be morally 
 guilty, but the only question submitted to the jury 
 is whether he is legally guilty guilty upon the 
 issue tried. The prisoner has a right to have the 
 evidence against him fully tested before it is relied 
 upon for a conviction. To secure the benefit of this 
 right he must have counsel. This in itself is sound 
 morality, and its denial now would rend the bonds 
 of society.
 
 CRIMINAL PRACTICE 137 
 
 226. It may happen that the knowledge of his 
 client's guilt only comes to counsel after the trial 
 has made considerable progress. It is contended by 
 the pseudo-moralists that in such event the attorney 
 should withdraw from the case. But this would be 
 to break faith with the prisoner, and whatever may 
 be the views of the laity it is now well established 
 by judicial precedent that, where an attorney has 
 taken a retainer to defend a prisoner he is not at 
 liberty to withdraw during the trial merely because 
 he discovers that his client is guilty. The duty of 
 defense remains, and while the knowledge of guilt 
 may materially change the method of defense, the 
 duty itself is unaltered. 48 
 
 227. The foregoing remarks apply only to those 
 cases where counsel has positive knowledge that his 
 client is guilty. Mere suspicion, even where it may 
 amount to belief, will not justify any relaxation of 
 effort to secure an acquittal, for it will often happen 
 that the most honest case may be destitute of evi- 
 dence to support it while all the known circum- 
 stances point to guilt. 49 Such cases have occurred 
 
 48 This phase of our subject was definitely settled during 
 the first half of the last century, the principal precedent be- 
 ing an English state trial, now known as the Courvoisier Case, 
 which was heard in 1840. See Appendix. 
 
 49 Perhaps the most remarkable case of erroneous convic- 
 tion that ever came under the cognizance of a court occurred 
 in our own country during the last century. The case is as 
 follows : 
 
 Two brothers, by name Boom, were arrested in Vermont, 
 in the year 1819, charged with the murder of one Russel Col- 
 vin. They were tried upon an indictment for the offense, in
 
 138 ESSAYS IN LEGAL ETHICS 
 
 many times in the past and will occur many times 
 in the future. 
 
 228. Prosecution of criminals. Thus far we have 
 been considering our subject from the point of view 
 of the defense. Let us glance at the other side. 
 Of course, persons charged with criminal offenses 
 must be prosecuted as well as defended. In the 
 old days this was practically the only side to a 
 state trial, and the record is not always creditable 
 either to prosecutors or judges. All prosecutions, 
 where the charge amounts to a felony, are con- 
 
 the Supreme Court of that state, at Bennington. The pre- 
 sumption of guilt was violent, drawn from many circum- 
 stances proved by different witnesses. They had quarreled 
 with Colvin, and threatened his life. Nay, they were actually 
 seen in violent personal contest with him, in a field, on the 
 day of his disappearance. His disappearance was scarcely 
 noticed at the time, for Colvin was a poor man; no one cared 
 for him alive, and no one was interested to prove him dead. 
 Some time after, however, bones were discovered, in a pit or 
 natural hollow, in the field where the quarrel had been wit- 
 nessed, and near the very spot of the supposed fatal alter- 
 cation. These bones were identified as "not dissimilar" to 
 such as might have composed the body of Colvin. In the 
 same pit were also found a knife and one or more buttons, 
 and the former was identified as having belonged to Colvin ; 
 and the latter as having been attached to his garments; and 
 the prisoners actually confessed that they were guilty of the 
 murder. They were convicted and sentenced to death; but, 
 the annals of our criminal jurisprudence are not stained with 
 the crime of judicial murder by the execution of that sen- 
 tence; for Russel Colvin was all this while alive was dis- 
 covered aa a farm laborer in New Jersey, whither he had 
 wandered after his altercation with the Booms, which they 
 really supposed had resulted in his death. He was brought 
 back in season to save the lives of the convicts.
 
 CRIMINAL PRACTICE 139 
 
 ducted by a public officer the state 's attorney. "With 
 him there is no option; he must discharge the duty 
 he has sworn to fulfil. But in the performance of 
 this duty the man should never be extinguished in 
 the prosecutor. His office demands his best efforts 
 in all cases, but he is under no duty to secure a con- 
 viction in any case, and he fully discharges all of 
 the obligations of his office by a proper and faithful 
 presentation of the facts. His duty is performed, 
 and well performed, when he has done all that lies 
 in his power to bring out the truth of the issue in ac- 
 cordance with established rules of evidence. If the 
 evidence tends to incriminate he has a right, and it 
 is his duty, to make all proper arguments thereon 
 to the jury; on the other hand, if the evidence is 
 weak, or tends to demonstrate innocence, he com- 
 mits a grave error in urging a conviction. 
 
 229. Too many prosecutors seem to think that 
 their employment demands a conviction, and their 
 attitude and bearing during the trial shows that the 
 object is not simply to bring out the truth of the 
 matter but to convict. In many counties where the 
 fee system still obtains the public prosecutor is al- 
 lowed a certain fee for conviction, and too often 
 the prospect of that fee is the one stimulating in- 
 centive that urges him on. This is all wrong. The 
 public prosecutor is an officer of the state. The 
 state has said that no presumptions of guilt shall 
 be raised against the accused and that he shall be 
 fairly and impartially tried. Therefore, the state's 
 attorney has no right to bring to a state trial any 
 personal animus against the prisoner, nor should
 
 140 ESSAYS IN LEGAL ETHICS 
 
 he, any more than any other citizen, be permitted 
 to regard the accused as otherwise than innocent 
 until he has been pronounced guilty by the jury. 
 
 229a. The foregoing raises the oft-mooted ques- 
 tion as to how far a prosecuting officer may be per- 
 mitted to go in his arguments, comments and ap- 
 peals to the jury. It must be conceded that it is 
 his right, as it is also his duty, to present the case 
 of the State with all the force at his command. 
 But he has no right to indulge in intemperate lan- 
 guage, unproved assertion, or inflammatory appeals 
 to passion and prejudice. Should he so do, and a 
 conviction result, it would be the duty of the court 
 to cause the conviction to be set aside, for the law 
 will not leave an accused person, presumed to be 
 innocent until proved to be guilty, bound and help- 
 less in the hands of his accuser. 80 
 
 229b. Language which might be permitted to 
 counsel in summing up a civil action cannot, with 
 propriety, be used by a public prosecutor when it 
 strongly tends to arouse sympathy, create prejudice, 
 or excite resentment in the minds of the jury. 
 The reason for this is, that the prosecutor, in one 
 sense a quasi judicial officer, represents the 
 majesty of the people, and is therefore presumed 
 to act impartially in the interests only of jus- 
 tice. Hence, if he lays aside the impartiality 
 that should characterize his official action to become 
 a heated partisan, and by vituperation of the pris- 
 oner and appeals to prejudice seeks to secure a con- 
 
 OCluett v. RoBenthal, 100 Mich. 103; State v. Warford, 
 106 Mo. 55.
 
 CRIMINAL PRACTICE 141 
 
 viction at all hazards, he ceases to properly repre- 
 sent the public interest, which demands no victim 
 and asks no conviction through the aid of passion, 
 sympathy, or resentment. 61 It may further be said 
 that in an affair of this kind the prosecutor will 
 often weaken his influence with the jury because 
 he betrays his bias, therefore it is always better 
 that he should put himself under proper restraint, 
 and should not, in his remarks, in the hearing of the 
 jury, go beyond the evidence or the bounds of a rea- 
 sonable moderation. 62 
 
 230. On the other hand, the mere fact that a 
 prosecutor may believe an accused person to be in- 
 nocent gives him no right to slight his duty, for, 
 notwithstanding his belief, the prisoner may yet be 
 guilty. "Where a person has been held to answer 
 a criminal charge it devolves upon the state's at- 
 torney to duly prosecute such charge regardless of 
 his personal views. Whatever evidence he may 
 have should be properly presented and whatever of 
 fair argument may arise thereon should be made. It 
 is for the jury to pass upon the question of guilt, 
 not the prosecuting officer. 
 
 231. The same pseudo-moralists that so loudly 
 condemn attorneys for defending persons whom 
 they know or have reason to believe are guilty, 
 are equally emphatic in their denunciation of pros- 
 ecuting officers who insist on "persecuting" those 
 whom they do not believe to be guilty, and it is oft- 
 
 51 People v. Fielding, 158 N. Y. 512. 
 62 People v. Greenwall, 115 N. Y. 520; Bessette v. State, 
 101 Ind. 85; State v. Smith, 75 N. C. 306.
 
 142 ESSAYS IN LEGAL ETI 
 
 en asserted that a state's attorney is under a moral 
 duty to enter a nolle prosequi whenever he has rea- 
 son to believe that a prisoner is innocent of the 
 charge preferred against him. Nothing could be more 
 pernicious or misleading. The prosecutor is under a 
 legal as well as a moral duty to perform the func- 
 tions of his office, and he commits a gross breach of 
 his trust if he assumes to use the opportunities of 
 his office to prevent accused persons from being 
 tried. What his belief may be is wholly immate- 
 rial, and while it is true that he may, under certain 
 circumstances, enter a nolle pros., yet this is done, 
 not because of his belief in the innocence of the ac- 
 cused, but as a measure of public policy and for the 
 purpose of saving the public money, in cases where 
 it becomes evident that the accused cannot be con- 
 victed. In such a proceeding the guilt or innocence 
 of the prisoner is immaterial and is not considered. 
 
 232. Private counsel in criminal prosecutions. 
 It not infrequently happens that private counsel 
 are employed to assist the state. This is now gen- 
 erally regarded as an allowable practice, but for 
 many years an attorney accepting such a retainer, 
 particularly when his fee was paid by private par- 
 ties, was considered as having violated an ethical 
 canon of the profession. This was always the case 
 when the charge involved a capital crime. "Never 
 take blood money," say the old writers,* 8 and if 
 we are to credit the biographies of the ancient wor- 
 thies they never did. In fact, the old Ciceronian 
 idea seems at one time to have thoroughly pervaded 
 
 M Brown \ Forum, Vol. 2, p. 40.
 
 CRIMINAL PRACTICE 143 
 
 the bar, and numerous admonitions have come down 
 to us that where life or death is the 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 
 will not, as a rule, cast unfavorable imputation upon 
 the character of the advocate. 64 
 
 233. There is, however, a wide difference be- 
 tween the functions of the public officer and the pri- 
 vate counselor. The former must, as a part of his 
 official duty, duly prosecute all persons who have 
 been presented by the grand jury or otherwise held 
 to await trial on a criminal charge; the latter is 
 under no duty whatever, and if he appears it is en- 
 tirely a matter of his own volition. Therefore, while 
 an attorney may be permitted to assist in a prose- 
 cution, it is yet a privilege that he should exercise 
 with the utmost caution and circumspection, and 
 never, under any circumstances, should he consent 
 to aid in the conviction of one whom he knows 
 or believes to be innocent. If he represents private 
 interests, it has been held in some states, he cannot 
 be retained to assist in criminal prosecutions grow- 
 
 54 It must be remembered, that there was in Borne no pro- 
 fession of law similar to the modern advocate. There were 
 many persons learned in the law but anyone might assume 
 charge of a legal proceeding or appear for a suitor in the 
 courts, and, for many who aspired to distinction, the bar 
 was a favorite avenue of popular favor. As there were no 
 public prosecutors any person was permitted to make and 
 sustain a criminal charge by appearing before the praetor 
 urbanis and swearing that his action was in good faith and 
 in the interest of the state. See, Cicero, de Officiis, Book II.
 
 144 ESSAYS IN LEGAL, ETHICS 
 
 iug out of such interests, 58 and the rule seems to be 
 eminently salutary and just. 
 
 234. But, in any event, such retainers should 
 be accepted with reluctance and only in extraordi- 
 nary cases, where peculiar circumstances seem to 
 justify the act. There is something revolting to the 
 moral sense in the spectacle of counsel selling his 
 talents to enable an individual to satisfy his thirst 
 for vengeance, and this, in many cases, is just what 
 counsel does when he accepts a private retainer to 
 assist the prosecuting officer. In no case can coun- 
 sel insist on entering a state trial on behalf of the 
 people, and he is admitted, if at all, only as an act 
 of grace on the part of the state's attorney. 
 
 235. Criminal law as a specialty. For many 
 young lawyers the criminal courts seem to possess an 
 overwhelming fascination. This is due, in large 
 measure, to the notoriety that usually attends crim- 
 inal trials, the opportunities which such trials af- 
 ford for the display of forensic eloquence, and the 
 prominence into which the attorneys conducting 
 same are frequently thrust. Hence it is, that many 
 young and ambitious advocates are attracted to the 
 criminal courts and after a brief experience therein 
 conclude to devote themselves to this branch of the 
 law as a specialty. There is no legal objection to 
 this course. Criminal practice is a legitimate and 
 necessary function of the advocate, and every man, 
 as before remarked, has a right to select his occupa- 
 tion in life. 
 
 M8, People v. Hurst, 41 Mich. 328.
 
 CRIMINAL PRACTICE 145 
 
 236. There are, however, many moral objec- 
 tions that may be urged. The criminal lawyer par 
 excellence, the "eminent counsel" of the newspaper 
 report, the lawyer of extensive fame, is almost in- 
 variably the defender, not the prosecutor, of crim- 
 inals. His services are sought and secured by hard- 
 ened guilt as well as ,hapless innocence, and his en- 
 tire professional life is passed in close contact with 
 malefactors 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 cer- 
 tainty, that a man cannot continually stand as an 
 apologist for crime and a defender of criminals 
 without having his own moral sensibilities sadly 
 blunted. There exists no necessity in any com- 
 munity 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 ir- 
 reparable mistake.
 
 CHAPTER VIII 
 RELATIONS WITH CLIENT 
 
 General observations The relation of attorney and client 
 Attorney's authority, powers and duties Liabilities and 
 disabilities of the relation Professional opinions and ad- 
 vice Refusal of retainer Conduct of cases Acta in ex- 
 cess of professional duty Representing both sides 
 Privileged communications Adverse employment With- 
 drawals Inconsistent positions Money lost by attorney 
 or detained by him Right of client to discharge his attor- 
 ney. 
 
 237. General observations. Thus far we have 
 been discussing the general phases of professional 
 conduct and the duties of counsel in practice. In 
 this and the two succeeding chapters it is proposed 
 to examine a few of the salient features of our sub- 
 ject that are presented in the relations sustained 
 by an attorney to the client, the court and the bar. 
 As coming first in order, the present chapter will 
 be devoted to the client, for without the clients 
 there would be little room for courts and none what- 
 ever for the bar. The relation of attorney and client 
 comprehends many legal as well as ethical rules, 
 but these will not be touched except as they are 
 incidentally involved, and then only in a desultory 
 manner. To guard against repetition no effort will 
 be made to go over ground already traversed, and 
 to avoid prolixity the discussions will be confined 
 to general and broadly stated principles. 
 
 146
 
 RELATIONS WITH CLIENT 147 
 
 238. The relation. An attorney is essentially 
 an agent. In fact, this is what the word ''attorney" 
 means, and the general principles which control in 
 matters of agency are all applicable to attorneys. 
 The special undertaking of an attorney is to estab- 
 lish or protect the rights of his client, whether re- 
 lating to life, liberty, person, reputation or prop- 
 erty. This necessarily creats a relation of trust and 
 confidence between them which measures and de- 
 fines the extent of the attorney's duty. It follows, 
 therefore, that in accepting a retainer the attorney 
 should disclose to his client any matter or thing, 
 growing out of prior retainers or otherwise, which 
 might affect the relation or the client's discretion 
 in choosing him as his legal representative and ad- 
 viser. 
 
 239. It was formerly held that to establish the 
 relation of attorney and client a retaining fee must 
 have been paid, but the modern doctrine is that, 
 while such payment is the most usual and weighty 
 item to evidence the relation, it is by no means in- 
 dispensable. The essential feature of the profes- 
 sional relation is the fact of employment to do some- 
 thing in the client's behalf. It is still held, in some 
 states, that there must be an agreement, express or 
 implied, for compensation, but whether payment is 
 made in part or in whole by retainer in advance is 
 not material. Nor is it necessary that the liability 
 for the compensation should be assumed by the 
 client, although ordinarily it would be from the na- 
 ture of the employment, which, in the vast majority
 
 148 ESSAYS IN LEGAL ETHICS 
 
 of cases, involves the protection or enforcement of 
 the client's interests against adverse claims. 68 
 
 240. In general, however, the fact of employ- 
 ment is sufficient to constitute the relation, and 
 when such relation has once been properly created 
 it continues until dissolved by the express act of the 
 parties. During the continuance of the relation the 
 attorney, for most purposes, stands in the place of 
 the client, who will be bound by whatever the at- 
 torney may do or say, in the regular course of prac- 
 tice, in the conduct of the cause. 57 Where a party 
 to an action dies the agency and authority of the 
 attorney terminates. 6 * Thereafter he may do noth- 
 ing in the matter without a re-employment by and 
 authority from the legal representative of the de- 
 ceased. 69 
 
 241. Attorney's authority, powers, and duties. 
 The relation of attorney and client necessarily im- 
 plies an authority on the part of the attorney to 
 enforce his client's demands and to bind him as 
 a party litigant in all matters relating to the suit 
 or special transaction, and persons dealing with the 
 attorney, in respect to his client's business, may 
 justly infer that he has all the powers implied by 
 such relation. Thus, he may employ all proper 
 means to recover upon any claim that is placed in 
 
 M La wall T. Groman, 180 Pa. St. 532. 
 
 7 Beck v. Bellamy, 93 N. C. 129. 
 
 M Kelly T. Biley, 100 Mam. 339; Giles T. Eaton, 84 M 
 186; Turnan T. Tempke, 84 III 280. 
 
 MHolt v. Idleman, 34 Oreg. 114, 84 Pae. 279; Whartenby 
 v. Beay, 92 Cal. 74, 28 Pac. 56.
 
 RELATIONS WITH CLIENT 149 
 
 his hands, and if he obtains a judgment his author- 
 ity continues in force until the judgment is satis- 
 fied. Therefore, he may pursue all lawful means to 
 enforce such satisfaction, 60 as well as to protect the 
 judgment if assailed in the same proceeding. 61 He 
 is further authorized to receive payment of a judg- 
 ment which he has obtained for his client, and such 
 payment will bind the client as a satisfaction. 62 
 
 242. But, with the foregoing exceptions, the 
 general powers of an attorney cease with the entry 
 of final judgment, 63 and while he may collect the 
 amount of the judgment when the same is for 
 money only, 64 he has no authority to accept in sat- 
 isfaction a less sum than that specifically recov- 
 ered ; 65 nor has he any authority, on payment of 
 the full sum, to transfer or assign such judgment 
 to another. 66 
 
 243. For any act in excess of his general powers 
 the attorney must have received a special authority 
 to justify his own conduct and to render such act 
 binding upon the client. Thus, in the absence of a 
 
 60 White v. Johnson, 67 Me. 287; Ward v. Roy, 69 N. Y. 
 96. 
 
 61 Sheldon v. Biesedorph, 23 Minn. 518. 
 
 6Frazier v. Parks, 56 Ala. 363; White v. Johnson, 67 
 Me. 287. 
 
 63 Mayer v. Blease, 4 Rich. (8. C.) 10; Hillegass v. Ben- 
 der, 78 Ind. 225. 
 
 MConway County v. Ry. Co., 39 Ark. 50. 
 
 65 Robinson v. Murphy, 69 Ala. 543; Roberts v. Nelson, 22 
 Mo. App. 28. 
 
 66 Mayer v. Blease, 4 Rich. (8. C.) 10; Robinson v. Mur- 
 phy, 69 Ala. 543.
 
 150 ESSAYS IX LEGAL ETHICS 
 
 special direction, he has no authority to compromise 
 or surrender any right of his client, 67 neither can he 
 delegate to another any of his own implied powers. 81 
 The authority conferred by the ordinary employ- 
 ment of an attorney does not extend to confessing 
 or even consenting to a judgment against his client, 89 
 nor to compromising the amount of his claim, 70 or 
 altering the terms of the contract or demand. 71 Nor 
 will such employment imply authority to receive 
 anything except money in satisfaction of the client's 
 demand, 78 or to release any of defendant's prop- 
 erty from the lien of the judgment which he ob- 
 tains. 78 To the foregoing rules we find, however, 
 an apparent exception. Thus, when confronted with 
 an emergency, and prompt action is necessary to 
 protect the interests of the client, and there is no 
 opportunity for consultation with him, the attorney 
 may take such measures as will secure the greatest 
 benefit for his client. In such a case, it has been 
 held that the necessity creates the authority. 7 * 
 
 67Wadhams v. Gay, 73 111. 415; Walden v. Bolton, 55 Mo. 
 405; Marbourg v. Smith, 11 Kan. 554. 
 
 6SDiekson v. Wright, 52 Miss. 585; Wadhams v. Gay, 73 
 111. 415; Phillips v. Dobbins, 56 Ga. 617. 
 
 69 Edwards v. Edwards, 29 La. Ann. 597; Pfister v. Wade, 
 69 Cal. 133. 
 
 VOWetherbee v. Fitch, 117 111. 67; Maddux v. Bevan, 39 
 Md. 485. 
 
 71Pickett v. Bank, 32 Ark. 346; Mandevillo v. Reynolds, 
 68 N. T. 528; Bigler v. Toy, 68 Iowa 687. 
 
 n Wiley v. Mahood, 10 W. Va. 206; Bigler v. Toy, 68 
 Iowa 687; Kelly v. Wright, 65 Wis. 236. 
 
 7 Phillips T. Dobbins, 56 Ga. 617. 
 
 74 See, Gibson v. Nelson, 111 Minn. 183, 126 N. W. 731.
 
 RELATIONS WITH CLIENT 151 
 
 244. But while an attorney has no general im- 
 plied powers to discharge his client's judgment by 
 receiving a less amount than the recovery, or by 
 taking anything other than money in satisfaction, 
 yet he may do so under a special authorization. 
 Thus, where the claim is desperate and execution 
 has been returned unsatisfied, and the client ex- 
 pressly directs the attorney to take a less sum or 
 gives him a discretion to "do the best he can," as 
 is very often the case, the attorney may settle on 
 any terms that to him may seem advantageous, and 
 the client will be bound by such settlement. 75 
 
 245. Liability for want of skill. It has been 
 judicially determined that when a person adopts 
 the profession of law, and assumes to exercise its 
 duties in behalf of another, for hire and reward, he 
 impliedly represents that he possesses the requisite 
 knowledge and skill to properly conduct the mat- 
 ter for which he is engaged, and in his undertaking 
 he will be held to employ a reasonable degree of 
 both. If injury results to the client for want of 
 such degree of reasonable care and skill the at- 
 torney must respond in damages to the extent of 
 the injury sustained. 76 
 
 246. It must not be understood, however, that 
 an attorney, by accepting a retainer, thereby im- 
 pliedly promises a perfect legal knowledge with 
 respect to the subject-matter of his employment, 
 nor that he will bring to it the highest degree of 
 
 75 See, Vickery v. McClellan, 61 HI. 311. 
 
 76 Stevens v. Walker, 55 111. 151; Coehrane v. Little, 71 
 Md. 323.
 
 i'-J ESSAYS IN LEGAL ETHICS 
 
 skill. The law recognizes the frailties and imper- 
 fections of human nature in lawyers as well as in 
 others, and therefore exacts no more from them 
 than from the laity. It requires that one who as- 
 sumes to practice law shall possess the ordinary 
 legal knowledge and skill common to members of 
 the profession, and insists that, in the discharge of 
 the duties involved, he will be ordinarily and reason- 
 ably diligent, careful, and prudent. 77 
 
 247. But, while this is the extent of legal re- 
 sponsibility, it is yet contended by some writers 
 that the field of moral responsibility is wider. 71 An 
 analysis of their views, however, does not seem to 
 justify their conclusions, and it may safely be said 
 that counsel discharges his moral as well as legal 
 duty when he brings to a case his best learning, abil- 
 ity and skill. 79 As a rule, he is not liable for errors 
 of judgment, particularly with respect to matters of 
 doubtful construction, but is presumed to know the 
 law where it is clear and unequivocal. It would 
 seem that the only ethical question arises out of the 
 attorney's consciousness of his own failings and 
 shortcomings. If he knows that his knowledge of 
 the special matter is insufficient, or feels that he does 
 not possess the degree of skill that may be necessary 
 to insure successful results, he commits a grave 
 error when he undertakes an employment thus be- 
 
 TTWharton, Negligence, 749; Shear, ft Bedf. Negligence, 
 211; Wella, Attorneys, 285; Oambert v. Hart, 44 Cai 542; 
 Skillen v. Wallace, 36 Ind. 319. 
 
 7 Shanrwood, Legal Ethics, 77. 
 
 7 Gilbert T. Williams, 8 Maw. 57.
 
 RELATIONS WITH CLIENT 153 
 
 yond his ability. Under such circumstances he 
 should have the moral courage to request associate 
 counsel, or, if necessary, to decline the employment. 
 
 248. It is not meant, however, that counsel 
 should ever stand timid and vacillating, with doubts 
 of his own ability. It may be that the special mat- 
 ter presented opens a new and wholly untried field, 
 and yet he may with propriety enter therein. If he 
 has a confidence in himself, in his own powers of 
 intellect and endurance, then, notwithstanding the 
 formidable appearance of the case, he may yet un- 
 dertake it. If, on closer inspection, he finds obsta- 
 cles that he feels he cannot surmount, or difficulties 
 he cannot overcome, no false pride should deter him 
 from asking for aid. 
 
 249. It is better in all matters of expediency to 
 follow the instructions of the client, even though 
 they may not coincide with counsel's own views. If 
 failure or loss ensues it is then easy to fix the re- 
 sponsibility. On the other hand, should the instruc- 
 tions of the client be disregarded, and counsel pro- 
 ceed to act on his own views and according to his 
 own opinions, notwithstanding he may be under the 
 honest impression that he would best promote the 
 interests of his client by such a course, if loss occurs 
 he is both morally and legally liable therefor. In 
 all cases counsel should advise his client to the best 
 of his judgment, but if the client, as is not infre- 
 quently the case, refuses to follow the advice, it is 
 safer for counsel to follow the client's directions. 80 
 
 MNave v. Baird, 12 Ind. 318.
 
 154 ESSAYS IN LEGAL ETHICS 
 
 250. Services of firm. It has been judicially 
 held that the several members of a law firm consti- 
 tute but one person in law, and that the act of one, 
 in the partnership business, is the act of all. 11 
 Hence it would seem that while a client is entitled 
 to the personal services of the attorney he retains, 
 yet, if he retains a firm either member can perform 
 the service ; or, if assented to by the client, it may be 
 performed, under their direction, by a person in 
 their employ. 8 * 
 
 251. Disabilities of the relation. As we have 
 seen, the relation existing between attorney and 
 client is essentially one of confidence and trust. To 
 a large extent the interests and rights of the client 
 I>:i>s under the guardianship and control of the at- 
 torney, and, for this reason, he is not only held to 
 the highest degree of good faith in all his trans- 
 itions with the client but is disabled from doing 
 many things that he otherwise might. In a former 
 part of this work** it was shown that, in contem- 
 plation of law, the client is very much under the in- 
 fluence of his attorney, and hence the conduct and 
 acts of the latter are subject to close scrutiny. Thus. 
 if the attorney bargains with the client, while the 
 relation exists, and thereby secures an advantage, 
 the law, in many instances, will attribute this result 
 to the use made of his undue influence and will strip 
 
 tl Green v. Milbank, 3 Abb. N. Cas. (N. Y.) 138. 
 MEggleston v. Boardman, 37 Mich. 14. 
 3 See Sec. 127, ante.
 
 RELATIONS WITH CLIENT 155 
 
 him of the advantage thus gained by setting the 
 transaction aside. 8 * 
 
 252. This is a wide departure from the rules 
 which regulate the ordinary transactions of men in 
 other walks of life. Usually courts will not inquire 
 into contracts for the purpose of ascertaining 
 whether they are beneficial or otherwise, but will 
 permit parties to retain the fruits of their own wis- 
 dom, sagacity, or experience. But in the relation 
 of attorney and client we find a reversal of many 
 of the best settled rules of law with respect to con- 
 tractual freedom and the application of a rule of 
 rigid morality that practically precludes the attor- 
 ney from assuming any position toward the client 
 other than that of a disinterested and judicious ad- 
 viser. 
 
 253. It is better, therefore, so long as the rela- 
 tion exists, that the attorney refrain from any 
 dealings with the client, and certainly from any 
 dealings with respect to the subject-matter of the 
 litigation, for while the transaction may be fair and 
 honorable, and while the client may not, in fact, 
 have been swayed by the relation, yet, in such cases, 
 all presumptions are in favor of the client and 
 against the propriety of the proceeding. 
 
 254. It is not contended that an attorney may 
 not, under any circumstances, enter into business 
 transactions with his. client. But, as a general prop- 
 osition, they should be avoided. The rule is well es- 
 tablished that whenever a contract between attorney 
 
 MZeigler v. Hughes, 55 111. 288; Haight v. Moore, 37 N. 
 Y. Sup. Ct. 161; McMahan v. Smith, 6 Heisk (Tenn.) 167.
 
 156 ESSAYS IN LEGAL ETHICS 
 
 and client inures to the benefit or advantage of the 
 attorney the court will not only scrutinize closely 
 but will actually change the ordinary rules of evi- 
 dence to arrive at a determination. In such cases 
 a presumption of bad faith is raised, which the at- 
 torney is obliged to overcome, and the burden of 
 proof is cast upon him to show, by extrinsic evi- 
 d'-nce, that all was fair and just; that the client 
 acted understandingly and with a full knowledge of 
 all the facts connected with the transaction and was 
 properly advised upon the law relating thereto.** 
 
 255. Professional opinions and advice. Tt goes 
 without saying that when a lawyer is consulted, 
 in his official capacity, his opinions should be sin 
 cere and his advice honest. Upon this point there 
 can be no question. It is the experience of most 
 lawyers, however, that clients do not always seek 
 legal advice with the purest of motives, and not in- 
 frequently this is apparent to the attorney even 
 though it be denied by the client. Now here there is 
 room for question, and a very serious one. Our 
 captious critics assert that a lawyer is always ready 
 to sell his opinion for money. This we must admit ; 
 it is for this that we are lawyers. They further 
 assert that it is immaterial to the lawyer whether 
 the opinion is to be used for good or bad purposes. 
 This also we must admit ; the reasons therefor ap- 
 pearing further on. They go a step farther, and 
 say if his fee is paid the lawyer has no compunc- 
 
 MWhipple v. Barton, 63 N. H. 613; Tancrc v. Reynolds, 
 35 Minn. 476.
 
 RELATIONS WITH CLIENT 157 
 
 tions in aiding and advising iniquity. To this we 
 may enter an unqualified denial. 
 
 256. Let us examine this matter a little more 
 closely. A client comes to his attorney for legal 
 advice in respect of something that does not com- 
 mend itself to the moral sense. May the attorney, 
 after inviting the confidence of the client, refuse to 
 advise him? No! decidedly, No! He might have 
 refused to see him in the first instance, but, having 
 admitted him and heard his plaint, professional duty 
 compels a response. He must advise him; he must 
 advise him honestly. How shall this be done, and 
 what, under such circumstances, would be honest 
 advice? 
 
 257. It may be said, that when a lawyer is 
 asked for his opinion upon a purely legal question 
 his duty is discharged by stating the law as it is. 
 But frequently the client seeks more. He desires 
 advice not only with respect to present conditions 
 but also concerning future conduct. What should 
 be the attorney 's attitude in such a case ? Has he a 
 right to sit as a judge of the moral quality of the 
 client's actions? Surely, we must also answer this 
 question in the negative. Therefore, if the client 
 desires to know what course the law requires under 
 particular circumstances, it is the duty of the legal 
 adviser to explain it. But here his duty ends. He 
 is under no obligation to further the unjust schemes 
 of the client, and should refuse to become a party to 
 them. It has been urged that the attorney, on such 
 occasions, should take advantage of the opportunity 
 to deliver to the client a moral lecture. The attorney
 
 158 ESSAYS IN LEGAL ETHICS 
 
 should do nothing of the kind. lie was consulted as 
 a lawyer, not a moralist. His opinion was sought 
 on a question of law, not morals, and the expe- 
 rience of the writer is that attempts of this kind on 
 the part of the lawyer are generally hotly resented 
 by the client. If he so desires he may show the 
 client the iniquity of the scheme as a reason for de- 
 clining to actively assist him. but this is enough. 
 
 258. Advising commission of crime. AVh--re 
 counsel is applied to for advice with respect to any 
 matter of legal cognizance he may state the law as 
 it is and the consequences that would follow its in- 
 fraction, and, with respect to the facts of the partic- 
 ular case, may advise as to what may or may not 
 be done. This is strictly within the sphere of pro- 
 fessional duty, and the intent that may have 
 prompted the inquiry on the part of the client is im- 
 material. But no lawyer has the right, in the dis- 
 charge of professional duties, to involve his client 
 by his advice in a violation of law ; and he becomes 
 implicated in his client's guilt, when, by following 
 his advice, a crime against the laws of the state is 
 committed. The fact that he acts in the capacity and 
 under the privileges of counsel does not exonerate 
 him from the well-founded legal principle which 
 renders all persons, who advise or direct the com- 
 mission of crime, guilty of the crime committed by 
 compliance with the advice or in conformity with 
 the direction which may be given. 86 
 
 259. Refusing a retainer. It is asserted by some 
 writers that a lawyer is not at liberty to refuse hi^ 
 
 eOoodenough r. Spencer, 46 How. Pr. (N. Y.) 347.
 
 RELATIONS WITH CLIENT 159 
 
 services to any person who may apply. This is one 
 of the old medieval notions, which grew out of 
 the organization of the early order of advocates. 87 
 But this rule, if indeed it ever was a rule, has long 
 been abrogated, so far, at least, as respects civil 
 causes. Notwithstanding that counsel is an officer 
 of the court, and may in a proper case be compelled 
 to appear for a person arraigned at the bar of such 
 court, yet his relation with the client is generally 
 one of employment. This employment he is at lib- 
 erty to refuse for any reason, or even for no reason, 
 and there will occasionally be cases presented where 
 the dictates of a sound morality will compel such 
 refusal. 
 
 260. One of the accusations frequently brought 
 against members of the bar is their alleged indif- 
 ference to the moral aspects of the causes they advo- 
 cate. Of course, much of this complaint is but 
 hypocritical cant, drawn from the overwrought 
 imaginations of the writers of distempered romances 
 or the super-sensitive souls of pulpiteers, yet it must 
 be admitted that individual cases do at times fur- 
 nish a basis for such attacks. It were vain to deny 
 that many men enter the legal profession with but 
 faint ideas of its moral obligations, and of the rela- 
 tions which the lawyer sustains to society, and who 
 traffic with the trust that has been confided to them. 
 It is these tradesmen who have rendered possible the 
 accusation of moral indifference. Therefore, it is a 
 duty which every honorable practitioner owes to the 
 
 87 It would seem that this rule has, to a large extent, been 
 retained in England with respect to Barristers.
 
 160 ESSAYS IN LEGAL ETHICS 
 
 bar, the court and society, to decline a case which, 
 on its face, is unmistakably tainted with immorality 
 or opposed to the known rules of public policy. 
 Cases will sometimes be presented where counsel's 
 legal discrimination will at once perceive its inher- 
 ent vice. In such event there is but one honorable 
 course to pursue, and that is to advise the client that 
 his cause is unjust and refuse to advocate it. 
 
 261. But while the foregoing emphatically an- 
 nounces a rule for the abstract idea involved in a 
 case presented for a lawyer's consideration, it must 
 also be borne in mind that the lawyer's functions are 
 administrative, not judicial, and it is because of a 
 failure to make this distinction in the lay mind that 
 much of the hostile criticism of the bar has arisen. 
 Without in any way assailing the integrity of the 
 rule just stated it may yet be said that in very rare 
 instances will a lawyer be justified in refusing a 
 retainer on moral grounds only. In nearly all dis- 
 puted questions of fact it is impossible for him to 
 ascertain the truth of the matter before he accepts a 
 retainer. To do this it would be necessary to call 
 all of the witnesses, sift their evidence, and antici- 
 pate every aspect the case might assume upon the 
 hearing. Manifestly, this he cannot do, and not- 
 withstanding that his first view of the case may pre- 
 dispose him against it yet in the end it may turn 
 out to be an honest claim or a just defense. As a 
 general rule, however, an attorney should never ac- 
 cept a retainer when he believes that the law appli- 
 cable to the case is against his client. It is not his 
 <luty, in order to subserve his client's interests, to
 
 RELATIONS WITH CLIENT 161 
 
 mistake the law and the facts, and if he is satisfied 
 that the client cannot recover, except by perversion 
 of the law and the facts, the retainer should be de- 
 clined. 88 
 
 262. Conduct of cases. The attorney, to em- 
 ploy a well-known legal metaphor, stands in the 
 shoes of the client. Whatever the client in fairness 
 might do, if conducting his own case, the attorney 
 may do for him. This seems to be the one great 
 underlying principle that shapes professional con- 
 duct. Now, in the application of this principle, 
 from a strictly ethical point of view, the attorney 
 must at times be a minister of hardship. But we 
 must distinguish between hardship and injustice, for 
 while the law may, and often does, work a hardship, 
 it never works injustice. Let us take the familiar 
 example afforded by the operation of the statute of 
 limitations. A owes B ten dollars. The justness 
 of the debt is not disputed, and, from the moral 
 standpoint, no time can bar such debt and no laches 
 can impair the right to demand its payment. But 
 the law, in the interests of society, has placed a 
 limit on such right and denied a legal remedy to 
 the creditor when that limit has been reached. The 
 moral obligation exerts just as much force the day 
 after the limit expired as it did the day before, and, 
 in foro conscientiae, the debtor should discharge the 
 debt. But if B neglects to sue for payment until 
 after the statute has run, A may interpose the bar 
 of the statute as a defense, and thus virtually cheat 
 B out of the money. There can be but one opinion 
 
 88 Smith v. Ey. Co., 60 Iowa 515.
 
 162 ESSAYS IN LEGAL ETHICS 
 
 in the mind of any honest man with respect to a 
 person who seeks to avoid the payment of a just 
 debt on a plea of this character, but, it is a plea 
 which the law permits; a defense to which all men 
 are entitled as of right; the client is privileged to 
 avail himself of it, and his attorney, "standing in 
 his shoes," is under a duty to urge it in a suit 
 brought to recover the debt, when so directed by 
 the client. 
 
 263. It is the same with a number of other 
 pleas. Thus, C, a young man twenty years of age, 
 borrows from D ten dollars, which he spends in the 
 pursuit of pleasure. Morally, C can never be ab- 
 solved from the obligation of repayment, but as he 
 was an infant at the time the loan was made, and 
 because the money was not procured for necessar 
 the law permits him to repudiate the debt when sued 
 therefor after attaining his majority. This is called 
 the plea of infancy, or, as generally known among 
 the lawyers, the "baby act." The law does not com- 
 pel the debtor to plead infancy ; it is a personal privi- 
 lege, which he may waive, but he has the right to 
 shield himself by this plea. Now, however much 
 the attorney may despise a client who seeks to take 
 advantage of his infancy to defeat an honest debt, 
 it is not for him to advance his own ideas of per- 
 sonal duty. This is a plea which the law all** 
 it may, therefore, in fairness be pleaded by the client, 
 and the attorney, if so directed, is bound to int.T 
 pose it when retained to defend. In all matters of 
 this kind the attorney has no discretion. Any de- 
 fense which the law affords to a party, any shield
 
 RELATIONS WITH CLIENT 163 
 
 which it extends to him, any excuse which it may 
 furnish, should be used by his attorney in his inter- 
 est, and however improper such use may seem to the 
 moralist, if the law sanctions it no blame can rest 
 on the attorney for the results that may flow from it. 
 
 264. It may happen that either before or upon 
 the trial the attorney discovers that his client has 
 no cause of action or ground of defense. In such 
 event the client should be informed of the defect at 
 the earliest opportunity, that he may take steps for 
 a compromise or other termination of the suit. An 
 attorney is guilty of gross unprofessional conduct 
 when he advises or permits a client to pursue lit- 
 igation that can only end in defeat with its attend- 
 ant costs and expenses, and one who designedly 
 adopts such a course, merely for the fee which same 
 may bring, is deserving of the severest censure. If 
 the cause cannot be compromised, or if, with knowl- 
 edge of the facts, the client insists upon a trial, the 
 attorney performs his whole duty, if for the de- 
 fendant, by scrutinizing the plaintiff's proofs and 
 urging their defects, while if 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 dis- 
 cerned it and meet defeat. 
 
 264a. Acts in excess of professional duty. It 
 will sometimes happen that an attorney is asked to 
 institute proceedings^ or directed to prosecute meas- 
 ures, that he knows are without just grounds, and, 
 hence, illegal, and which are inspired by malicious 
 motives. As where an order of ne exeat or arrest is 
 sued out for a party against whom the attorney
 
 164 ESSAYS IN LEGAL. ETHICS 
 
 knows his client has no just claim or cause of ar- 
 rest ; or where a writ is procured for an illegal seiz- 
 ure. If we shall consult only the best traditions 
 of the legal profession a retainer of this character 
 should always be refused. No honorable practitioner 
 will knowingly sell himself to work out the malicious 
 purposes of another. 8 * 
 
 264b. There is another phase of the subject 
 that may briefly be alluded to in this connection 
 Not only is the practice above mentioned unethical 
 but it may subject the offender to pecuniary lia- 
 bility. It has been held in a number of cases, that 
 so long as an attorney acts strictly in the execution 
 of the duties of his profession, making use of the 
 process of the law to enforce his client's demands, 
 if he does not actually participate in the commis- 
 sion of the trespass then however groundless the 
 proceeding may be he will not be liable at the suit 
 of the injured party. 90 But where he steps beyond 
 the strict line of professional duty; where he ac- 
 tively aids his client in the execution of his pur- 
 pose, he is not shielded from responsibility. 91 
 
 265. Representing both sides. There is an im- 
 plied obligation in every employment that the em- 
 ployee shall be faithful to his employer and will do 
 nothing that may militate against his best interests. 
 This obligation is nowhere so sharply accentuated 
 
 W Burnap v. Marsh, 13 111. 535. 
 
 99 Hardy v. Keeler, 56 111. 152; Schalk v. Kingsley, 42 N. 
 J. L. 32. 
 
 n Hunter v. Burtis, 10 Wend. (N. Y.) 358; Ford T. Wil 
 liamf, 13 N. Y. 577.
 
 RELATIONS WITH CLIENT 165 
 
 as in the relation of attorney and client, and because 
 of the peculiar personal quality which characterizes 
 this relation it necessarily follows that the attorney 
 may not assume to represent any person or party 
 whose interests are in any way inimical to those of 
 the client who first retained him. 
 
 266. 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 in 
 the case of suits by or against heirs. Again, he 
 may properly represent a number who are not 
 united in interest, provided they do not occupy an- 
 tagonistic positions with respect to each other. In- 
 deed, the mutual convenience of the parties will 
 often suggest such a course, as in the case of a num- 
 ber of creditors who seek to discover the concealed 
 effects of a bankrupt debtor. But this would seem 
 to be the limit. It is immaterial that parties may all 
 have a common cause against a common adversary 
 if they also claim rights which, if enforced, will 
 militate against each other. In such event the duty 
 of counsel is clear, and if he has accepted a retainer 
 from one, then, in justice to himself as well as his 
 client, he should decline that of the others. This 
 course may at times entail a pecuniary hardship to 
 the attorney, but it seems to be the only one that 
 can be safely followed. 
 
 267. But, while the general integrity of the rule 
 is beyond question it is not without some qualifica- 
 tion in its practical application, and notwithstand-
 
 166 ESSAYS IN LEGAL ETHICS 
 
 ing the interests may be adverse yet if they are to 
 be amicably adjusted there may be no impropriety 
 in having each side represented by the same counsel. 
 The cases in which this may be done, however, are 
 exceptional and never entirely free from conflict- 
 ing duties. Thus, in matters of mortgage or sim- 
 ilar security, it is not uncommon for the same coun- 
 sel to represent both borrower and lender, upon a 
 mutual understanding of the parties to that effect,** 
 and the same may be true in matters connected with 
 the purchase and sale of land or other marketable 
 commodities. 98 A familiar example is also furnished 
 in cases where an attorney employed to collect a 
 note is appointed by the debtor his attorney in fact 
 to confess judgment on the same note. In such a 
 case, notwithstanding the apparent adverse posi- 
 tions, it would seem that the exercise of the power 
 by the attorney is not inconsistent with fair dealing, 
 nor an unprofessional employment of the functions 
 of his office. 94 
 
 268. A still further example may be found 
 where, in litigated cases, the proceedings, though 
 adverse in form, are yet amicable and consistent in 
 fact. This is illustrated where a number of heirs 
 resort to the aid of a court for a judicial partition 
 of lands. In such a case, as there are no adverse 
 interests in fact, there would be no impropriety in 
 having all of the heirs represented by the same coun- 
 
 MLawall v. Groman, 180 Pa. St. 532. 
 Cooper v. Hamilton, 52 III. 119. 
 MWasscl v. Reardon, 11 Ark. 705.
 
 RELATIONS WITH CLIENT 167 
 
 sel. 95 But these are the exceptional cases. In the 
 main the rule holds good, and no self-respecting 
 and conscientious attorney will ever allow his per- 
 sonal interests to overcome his sense of professional 
 honor by taking a fee from both sides of a case. 
 
 269. In a case where both parties are his clients 
 and where the professional relation has induced con- 
 fidential disclosures, it would seem that the only po- 
 sition the attorney can consistently take is that of 
 strict neutrality. He cannot, with propriety, act for 
 either, and should decline to appear in the case. 
 About the only office he may fill in such a juncture 
 is that of mediator, to effect, if possible, a concilia- 
 tion, but even this office should be accepted with 
 the greatest reluctance and abandoned as soon as it 
 is evident such conciliation cannot be effected. 
 Otherwise his conflicting duties will render it im- 
 possible for him to properly represent either, and 
 should he attempt so to do he subjects himself to a 
 withdrawal of the confidence of both. 
 
 270. Privileged communications. It has long 
 been a rule of the common law that matters coming 
 within the ordinary scope of professional employ- 
 ment, and which are known to the attorney only 
 through his official relation, are not subjects of ju- 
 dicial inquiry. These matters are technically known 
 as privileged communications. 
 
 95 In practice there would, of course, be a technical diffi- 
 culty, as no court will permit an attorney to appear of rec- 
 ord for both plaintiff and defendant. The defendants, there- 
 fore, would have to appear by nominal attorneys, or, as is 
 frequently the case, suffer the bill to be taken as confessed.
 
 168 ESSAYS IN LEGAL ET1 
 
 271. This rule was not made on account of any 
 special importance which the law attributes to the 
 business of legal practitioners, nor with a design 
 to afford them protection, but, as it is impossible to 
 properly conduct the business of courts without the 
 aid of men skilled in those matters affecting rights 
 and duties which form the subject of judicial pro- 
 ceedings, if communications made to them were not 
 protected no one would dare to consult a legal ad- 
 viser nor could any one safely come into court if 
 he should have sought such advice. Therefore, as 
 it is of the utmost importance that suitors should 
 be permitted to avail themselves of the skill and 
 learning of those whom the law has designated as 
 its ministers, and as it is necessary to the ascertain- 
 ment and maintenance of their rights that confiden- 
 tial disclosures should be made to the legal adviser 
 to enable him to properly perform the duties of his 
 office, so the law has considered it the wisest policy 
 to encourage and sustain this confidence by requir- 
 ing that as to such facts the mouth of the attorney 
 shall be forever sealed. 96 
 
 272. The rule extends to all communications by 
 a client to his counsel, for purposes of professional 
 advice or assistance, whether such advice or aid re- 
 lates to a suit pending or contemplated, or any other 
 proper matter for professional assistance. When it 
 applies it is perpetual, and the communications may 
 
 WHemenway v. Smith, 28 Vt. 701; Bigler v. Reyher, 43 
 I ml. 112; Barnes v. Harris, 7 Gush. (Mass.) 576; People v. 
 Barker, 56 111. 299. The rule has further been confirmed by 
 statutory enactments in most of the states.
 
 RELATIONS WITH CLIENT 169 
 
 not be revealed at any time, nor in any action or 
 proceeding between other persons, nor after the re- 
 lation of attorney and client has been terminated. 97 
 It is a privilege of the client, and never ceases unless 
 voluntarily waived by him. Not only will courts 
 never compel an attorney to disclose facts commu- 
 nicated to him in his professional capacity but, as 
 a rule, they will not permit him so to do, 98 and it 
 has been held that one who disregards his duty in 
 this particular commits an offense that justifies his 
 exclusion from the bar. 99 
 
 273. It necessarily follows that, where confiden- 
 tial communications are so rigorously guarded that 
 courts will not permit them to be divulged in the 
 interests of justice, the attorney is wholly without 
 legal or moral right to give them a private publica- 
 tion. Indeed, we can hardly imagine a person, 
 clothed with the responsible character of a lawyer, 
 so dead to all sense of honor as to voluntarily dis- 
 close the affairs of his client committed to him under 
 the seal of professional secrecy. In case an attorney 
 should so disregard the proprieties as to wantonly 
 or maliciously betray his client's trust in this re- 
 spect, he must be considered as having forfeited his 
 right to his office and should be promptly and for- 
 ever disbarred. 
 
 274. In the application of the rule courts have 
 usually accorded it a liberal construction with a view 
 
 97 Re Boone, 83 Fed. Rep. 944. 
 People v. Atkinson, 40 Gal. 284. 
 
 W People v. Barker, 56 111. 299; Be Boone, 83 Fed. Rep. 
 944.
 
 170 ESSAYS IN LEGAL ETHICS 
 
 to maintaining its integrity, and it has been held 
 that it is broad enough to embrace a case where the 
 one seeking counsel pays no fee, and where he em- 
 ploys other counsel in the prosecution of the busi- 
 ness, and even where the lawyer consulted is after- 
 ward employed on the other side. It is contended 
 in support of these positions that limitations of the 
 rule, if allowed, might be unknown to laymen ; and 
 if they cannot feel perfect freedom in all cases then, 
 instead of the implicit confidence that should exist, 
 the intercourse might be restrained by fear and 
 marred by dissimulation on the part of the client, 
 and thus the object of the rule be defeated. 
 
 275. To the general rule, as above stated, there 
 are a few exceptions growing out of peculiar cir- 
 cumstances. Thus, where the communications have 
 reference to an unlawful purpose, such as the com- 
 mission of crime, 1 they are not privileged. In such 
 event they are treated as being in the nature of 
 conspiracies, and therefore subject to be inquired 
 into. 8 Again, where an attorney has acted for two 
 clients, it seems his communications with them are 
 not privileged in subsequent suits between them or 
 
 IThus, where a person who was on trial for murder had 
 previously consulted an attorney for the purpose of ascer- 
 taining what the law was if he should kill deceased, from 
 whom he had received great provocation, it was held that the 
 communication between defendant and the attorney was not 
 privileged. Orman v. State, 22 Tex. App. 604, and see, Peo- 
 ple v. Mahon, 1 Utah 205; State v. McCheaney, 16 Mo. App. 
 259. 
 
 People v. Van Alstine, 57 Mich. 69.
 
 RELATIONS WITH CLIENT 171 
 
 their representatives. 3 So, too, where the communi- 
 cations are made in the presence of all the parties 
 to the controversy, they are not privileged, and 
 may be treated in the same manner as any other 
 competent evidence.* It has also been held, that the 
 reason of the rule does not apply to testamentary 
 dispositions. Undoubtedly, while the testator is liv- 
 ing, an attorney drawing his will would not be al- 
 lowed, without the consent of the testator, to tes- 
 tify with respect to the contents of the will; but 
 after the testator's death, and when the will is pre- 
 sented for probate, there would seem to be no rea- 
 son why, as a matter of public policy, the attorney 
 should not be permitted to testify as to directions 
 given to him by the testator for the purpose of fix- 
 ing the legal character of the instrument. 6 But this 
 is practically the full limit of the exceptions, and 
 where the matter in question does not come fairly 
 within them, any acts done, or words spoken by a 
 client in the presence of his attorney and in the 
 scope of his employment are privileged, 6 as are all 
 advice given or opinions stated by the attorney. 7 
 
 276. The rule of privileged communications ex- 
 tends its protecting influence over parties only 
 where the relation of attorney and client exists. 8 
 Hence, where an attorney is consulted merely as 
 
 3 Sherman v. Scott, 27 Hun. (N. Y.) 331; Gulick v. Gulick, 
 39 N. J. Eq. 516; Goodwin's appeal, 117 Pa. St. 514. 
 4Britton v. Lorenz, 45 N. Y. 51. 
 BDoherty v. O'Callaghan, 157 Mass. 90. 
 6Kaut v. Kessler, 114 Pa. St. 603. 
 TLengsfield v. Richardson, 52 Miss. 443. 
 SRomberg v. Hughes, 18 Neb. 579.
 
 172 ESSAYS IN LEGAL ETHICS 
 
 a friend, or in a casual way, and where neither he nor 
 the person consulting him, supposes the relation to 
 exist, the communications are manifestly not en- 
 titled to the sanction of secrecy extended to com- 
 munications received in a professional capacity. 9 
 In such event the attorney may be compelled to 
 tify if called upon, and the matter of privately di- 
 vulging such communications is to be governed by 
 the same considerations that would influence the at- 
 torney to state or withhold any other information 
 he might possess. 
 
 277. Adverse employment. While the rule is 
 imperative that an attorney may not accept an ad- 
 verse retainer during the continuance of a profes- 
 sional relation, nor assume a position hostile to his 
 client and inimical to the interest he has been en- 
 gaged to protect, 10 it follows, on principle, that he 
 may not, after the relation has ceased, seek or ac- 
 cept an employment in opposition to his former 
 client for the purpose of using against him infor- 
 mation confidentially gained while the relation sub- 
 sisted. 11 Such an act involves not only a high de- 
 gree of moral turpitude but is a positive breach of 
 the attorney's oath, as well as a violation of the well- 
 established rule relating to privileged communica- 
 tions. For such a wilful disregard of professional 
 obligations it would be the duty of a court to disbar 
 the offender whenever the matter was brought to its 
 
 tOoltra T. Wolcott, 14 III 89; 1 OreenL Ev. | 244. 
 
 lOFairfiold Bar T. Taylor, 60 Conn. 11; Arrington T. Ar- 
 lington, 116 N. C. 170. 
 
 11 Be Boone, 83 Fed. Rep. 044; Hatch v. Fogarty, 10 Abb. 
 Pr. (N. Y.) 147.
 
 RELATIONS WITH CLIENT 173 
 
 attention and a proper case made out. 18 It will be 
 seen, therefore, that whenever a retainer is offered 
 which would require of the attorney a course of ac- 
 tion that would injuriously affect a former client 
 in any matter in which he had previously appeared 
 or acted for him; or which would call for the ad- 
 verse use of any knowledge or information acquired 
 through such former connection, the retainer should 
 always be declined. 
 
 278. Withdrawal from case. The undertaking 
 of an attorney retained to conduct or defend a suit 
 is usually regarded as an entire and continuing con- 
 tract to remain in the case until its termination. 13 
 There are many reasons why this should be so, and 
 the reasons are obvious. Hence an attorney acts 
 in bad faith if, without justifiable cause, he abandons 
 the suit, and particularly is this true where he with- 
 draws without giving his client ample notice and a 
 full opportunity to procure other counsel. 1 * 
 
 279. But while the law implies the obligation 
 of continuous service, and will impute bad faith in 
 its breach, an attorney may, at any proper stage of 
 the proceeding, demand his fees already earned, and 
 if same are not paid he may, after giving reasonable 
 notice, withdraw from the case. 15 There is no dis- 
 
 12 Be Boone, 83 Fed. Eep. 944; and see, Parker v. Parker, 
 99, Ala. 239; Spinks v. Davis, 32 Miss. 154; Valentine v. 
 Stewart, 15 Cal. 387. 
 
 132 Greenl. Ev. sec. 142; Cairo, etc., R. R. Co. v. Koerner, 
 3 111. App. 248; Davis v. Smith, 48 Vt. 54. 
 
 l*Nichells v. Nichells, 5 N. Dak. 125; Tenney v. Berger, 
 93 N. Y. 524. 
 
 15 Cairo, etc., B. R. Co. v. Koerner, 3 111. App. 248.
 
 174 ESSAYS IN LEGAL ETHICS 
 
 tinction, in principle, between the relation of at tor 
 ney and client and any other form of agency. It is 
 essentially a contract of employment involving the 
 reciprocal obligations of service on the one hand 
 and compensation on the other. In the absence of 
 a special contract there is no good reason, either in 
 law or morals, for deferring such compensation un- 
 til the final determination of the action, and the 
 attorney may, with undoubted propriety, demand 
 such sums as his services already rendered are rea- 
 sonably worth. A non-compliance with such de- 
 mand will constitute a just cause for declining to 
 further serve. So, too, conduct on the part of the 
 client during the progress of the litigation, which 
 would tend to degrade or humiliate the attorney, has 
 been held sufficient cause for withdrawal. 16 
 
 280. The intent of the rule seems to be that an 
 attorney may not capriciously or maliciously with- 
 draw, and notwithstanding that there may be un- 
 paid claims for other services, rendered in other and 
 different matters, or even if they arose during the 
 progress of the suit, but not out of it, this would not 
 furnish a cause for abandonment. 
 
 281. But, while counsel may not summarily 
 withdraw from a case from motives above indicated, 
 there may yet be occasions when it becomes a duty 
 so to do and when to continue would constitute a 
 more flagrant breach of morals than to retire. A 
 lawyer is under no obligation to advocate iniquity. 
 He may know, or at least feel, that he will be suc- 
 
 leOenrow v. Flynn, 166 Mich. 564; Tennej v. Berger, 
 03 N. Y. 524.
 
 RELATIONS WITH CLIENT 175 
 
 cessful in the issue; the circumstances may be such 
 as to inspire confidence in the result; but unless he 
 also believes that the cause is just he does violence 
 to every principle of advocacy by maintaining it. 
 He has a right to take all the advantage his learning 
 and talents afford him in order to sustain a good 
 cause or defeat a bad one, but he has no privilege to 
 substitute his talents or learning for the honesty of 
 a case and thereby render iniquity triumphant. 
 Therefore, if during the progress of a suit it be- 
 comes apparent that it is unsound or dishonest, he 
 is justified in refusing longer to continue in it. 17 
 Yet this is a right that should be exercised with 
 care and prudence. It may be that, without knowl- 
 edge of its inherent vice, he has advanced so far in 
 the cause that he cannot abandon it without seriously 
 compromising the interests of his client. In such 
 event, if professional good faith may seem to demand 
 it, he should remain, but he must do no more than 
 such professional good faith requires. While he is 
 not morally responsible for either the acts or motives 
 of his client in maintaining an unjust cause, he is re- 
 sponsible for his own acts if he adopts its principles, 
 argues from premises that have not been proved, 
 urges presumptions which, although consistent with 
 the evidence submitted, are yet inconsistent with the 
 actual facts, or maintains affirmations which he 
 knows or has reason to believe are false. 
 
 282. An attorney may also be justified in with- 
 drawing from a pending case for reasons which af- 
 
 17 Brown's, Forum, Vol. 2, p. 31.
 
 1/b ESSAYS IN LEGAL ETHICS 
 
 feet only himself. Thus, if his client insists upon 
 associating with him another attorney with whom 
 he objects to have personal or professional relations, 
 or with whom he cannot cordially co-operate, ho 
 may decline to proceed farther with the case and will 
 be entitled to compensation for services rendered 
 up to the time of such withdrawal. 11 
 
 283. Withdrawing appearance or pleadings. If 
 a withdrawal from a case and a refusal to longer 
 represent the client, except for good cause, involves 
 the element of bad faith, then, with stronger reason, 
 may we not say that a withdrawal of appearance 
 amounts to an act of moral turpitude which merits 
 an exercise of the disciplinary power of the court 
 in respect to the offender. An attorney who has 
 entered an appearance for a suitor has a wide range 
 of authority and discretion in respect to all matters 
 relating to the suit, and may, under proper circum- 
 stances and with honest motive, withdraw any paper 
 or pleading that may have been filed, even his own 
 appearance, notwithstanding that the effect may be 
 to place the client in default. 19 In like manner he 
 may dismiss his client's suit without any special 
 authority. 80 But where an appearance has once 
 been properly entered, where pleadings have boon 
 filed, or an issue made up, the attorney may not, 
 from mere caprice or vindictive motives, withdraw 
 
 UTennej v. Berger, 93 N. Y. 524. 
 19 Chicago Building Society v. Haas, 111 111. 176. 
 Davis v. Hall, 90 Mo. 659; Simpson v. Brown, 1 Waah. 
 847.
 
 RELATIONS WITH CLIENT 177 
 
 such pleadings or appearance, and should he do so 
 the act may be regarded as a breach of faith, inde- 
 fensible in morals and illegal in law. 21 
 
 284. The principle of confidence, which lies at 
 the foundation of the relation of attorney and client 
 imperatively forbids the attorney, so long as that 
 relation exists, from doing any act which is inspired 
 by malice or hostility to the client or his cause, the 
 effect of which is necessarily injurious to the matter 
 intrusted to his care. 28 
 
 285. So, too, an attorney, when acting in good 
 faith and without objection from his client, may 
 waive or withdraw a defense and consent to judg- 
 ment, but he has no power fraudulently to barter 
 away any of his client's rights or dispose of any of 
 his interests to the opposite party. 28 Should he at- 
 tempt to do so, then, upon a showing of the fact, it 
 would become the duty of the court to protect the 
 client from the treachery of his attorney and dis- 
 cipline the offender. 24 
 
 286. Inconsistent positions. It is among the 
 charges sometimes brought against the profession, 
 that the lawyer's occupation renders him unstable 
 in matters of opinion, and that, by reason of the 
 inconsistent positions he is frequently called upon 
 to occupy, his statements are not always to be relied 
 
 2lNichells v. Nichells, 5 N. Dak. 125. 
 
 22 Howe v. Lawrence, 22 N. J. L. 99; Ohlquiat v. Farwell, 
 71 Iowa 231; Haverty v. Haverty, 35 Kan. 438; Tenney T. 
 Berger, 93 N. Y. 524. 
 
 28 Chicago Building Society v. Haas, 111 111. 176. 
 
 24 Ee Boone, 83 Fed. Rep. 944.
 
 178 ESSAYS IN LEGAL KT1 
 
 upon. This charge is not wholly without founda- 
 tion, and has been rendered possible by a reckless 
 and uncalled for offering of private opinion, with 
 respect to their clients and the merits of their causes, 
 on the part of many practitioners. There is, per- 
 haps, no more impropriety in the expression of opin- 
 ion by an attorney, with respect to causes pending 
 in the courts, than by the laity. But, in his own 
 causes at least, he is not employed to give voice to 
 his own opinions, nor can his client claim this as a 
 professional duty. lie fully discharges every pro- 
 fessional obligation by presenting his client's case to 
 the best advantage and to the best of his ability. Be- 
 yond this he cannot safely proceed, and should he 
 assume so to do unforeseen circumstances may often 
 place him in embarrassing positions. 28 
 
 287. The mere fact, however, that an attorney 
 at a former time, and while engaged in professional 
 employment, held a different view of the law of the 
 case from that afterwards advocated by him, does 
 
 25 At an illustration of the statement of the text, the fol- 
 lowing excerpt from the N. T. World, is pertinent: 
 
 "As a lawyer, Mr. 8., of Kansas, defended a negro mur- 
 derer, and after his sentence wrote to the Governor a strong 
 indorsement of the negro's application for a pardon. Now, 
 as GOT. 8. of Kansas, he has had to pass upon a new appli- 
 cation for his old client's pardon, and his own letter, writ- 
 ten as a lawyer, has been laid before him. 
 
 "But he refuses to grant the pardon and says that as 
 Governor it is hia right and duty to view the matter 'in an 
 entirely different light.' 
 
 "This raises the very interesting though by no means new 
 question: In the code of legal ethics what does a client's 
 fee buy and what does it leave unboughtf"
 
 RELATIONS WITH CLIENT 179 
 
 not, of itself, disqualify him from accepting a re- 
 tainer or affect his service. It must often happen, 
 in the course of an active practice, that an attorney 
 will be called upon to urge views he has at some 
 time combated. From the very nature of legal ques- 
 tions, which depend upon special combinations of 
 facts for their correct solution, it must be expected 
 that a lawyer will not always apply the same prin- 
 ciples or reasoning and at successive periods he may 
 honestly have different views of the law. Of course, 
 this will be condemned by the pseudo-moralist as 
 being simply an attempt to prove that black is white, 
 or white is black, according as he is paid. But if 
 this were not so, much of the usefulness of the ad- 
 vocate would be eliminated. Besides, a lawyer has 
 the same right as any other person to alter his 
 opinions or change his views. 26 
 
 288. Money lost in hands of attorney. In the 
 course of professional employment a large amount 
 of money, belonging to clients, must necessarily pass 
 through an attorney's hands. Not infrequently, 
 through no fault of his, sums are lost while still in 
 his nominal or actual custody. A question is raised, 
 in such a case, with respect both to the moral and 
 legal liability of the attorney to reimburse his client 
 for the loss. The receipt of money by an attorney, 
 in the prosecution of his employment, does not, as 
 a rule, create the relation of debtor and creditor be- 
 tween him and his client. The money collected be- 
 longs to the client and the attorney is regarded as a 
 trustee. The money, then would be a trust fund, 
 
 26 Smith v. By. Co., 60 Iowa 515.
 
 180 ESSAYS IN LEGAL ETHICS 
 
 and its payment, preservation or loss, would be gov- 
 erned by the same rules that obtain generally in cases 
 of trust. If the attorney exercises the same caution 
 with respect to his client's money that a prudent 
 man would display in respect of his own money, and 
 a loss happens, he will be excused. 87 In such event 
 there is neither a legal nor a moral obligation to in- 
 demnify the client for the loss. 
 
 289. Now in these days of commercial activity 
 but few men, even the most prudent, retain their 
 money in their own custody but commit its care to 
 others, both for the feeling of security which such 
 committal engenders and the facility with which it 
 may be transferred or paid out by means of checks. 
 Whatever else the lawyer's "strong box" may con- 
 tain it rarely is made a receptacle for money. But 
 while a deposit of money in a bank having a good 
 standing is a distinctly prudent act, it must yet be 
 remembered that the client's money is a trust, and 
 hence, while there may be no impropriety in deposit- 
 ing same in the attorney's general account, there is 
 a danger. If the attorney, for his personal conven- 
 ience, or from whatever motive, deposits his client's 
 money in his own name, thereby vesting himself with 
 a legal title thereto, it follows, as a necessary con- 
 ^'quence, when a loss occurs, that he will not be 
 permitted to say, as against his client, that the fact 
 was not as he has voluntarily made it appear. The 
 loss must be borne by himself. 11 On the other hand, 
 
 7 Norwood v. Harness, 98 Ind. 134. 
 
 <;ilb*rt T. Welsch, 75 Ind. 557; William* T. Willunn, 55 
 100: N<.rm x. Hrro. 22 l4. An. 605.
 
 fcELATIONS WITH CLIENT 18] 
 
 if a deposit is made in such a manner as to preserve 
 its trust character on the books of the bank, the loss, 
 if any occurs, falls upon the client. 29 
 
 290. Money retained by attorney. Much of the 
 time, labor, and skill of attorneys, is devoted to the 
 recovery of money belonging to or claimed by their 
 clients. In most cases the money so recovered is 
 collected by the attorney, whose duty it is, after de- 
 ducting his own reasonable charges and expenses, 
 to promptly pay the same over to the client. In a 
 number of states this duty is further emphasized by 
 a mandatory statute, and a refusal or neglect so to 
 pay, after demand made, subjects the attorney to 
 disbarment. 30 
 
 291. In case of willful misappropriation by the 
 attorney no question can arise and he occupies no 
 better position than any other thief. 31 This is not 
 a matter of ethics, but of criminal law, and there- 
 fore we may pass it without further notice. But 
 the attorney may abuse the relation created by his 
 employment in many ways short of felonious with- 
 holding of funds. Mere neglect, inattention, tem- 
 porary use of funds by him, vexatious and unrea- 
 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- 
 
 29 Norwood v. Harness, 98 Ind. 134. Hence, it is well to 
 keep at least two accounts; one as an individual and one as 
 a trustee. 
 
 SO See, Re Treadwell, 67 Cal. 353; Re Temple, 33 Minn. 
 343; People v. Ryalls, 8 Colo. 332. 
 
 81 Cf. People v. Chamberlin, 242 111. 260.
 
 Ib2 Ns IX LEGAL ETHICS 
 
 terize the attorney's transactions with his client. 
 II nice, irrespective of any criminal intent, where it 
 -hown that an attorney has failed to pay over 
 money on demand, and after a tender of his reason- 
 able fees, or where he has postponed the just claims 
 of his client, or by evasions of the demand has 
 forced him to expense and litigation, this may be 
 considered such mal-conduct as would justify a 
 court in striking the name of the offender from the 
 rolls." 
 
 291a. A most perplexing as well as embarrass- 
 ing question is presented where an attorney has col- 
 lected money for his client, to which, in good con- 
 science, he feels that the client has no legal ri^ht. 
 As we have seen, it is the duty of an attorney, who 
 collects money for his client, to pay it over to him 
 without delay and without subjecting the client to 
 unnecessary and vexatious exactions. This duty the 
 attorney must perform whenever he can do it with 
 safety, even though there may be reasonable doubts 
 in his mind as to whether the securities upon which 
 the money was collected did, in fact, belong to tin- 
 client. About all that he has a right to ask in sm-h 
 a case is an indemnity from his client. But, it would 
 a, if the money is claimed by another, that it is 
 not a vexatious exaction to demand that the client 
 give such indemnity before the money is paid over. 
 Where a client, who is wholly irresponsible, refi 
 
 to do, and the claim of the third person is appar- 
 ently well founded, it would further seem that tin- 
 attorney is justified in withholding the money and 
 
 "People v. Palmer, 61 HI. 255.
 
 RELATIONS WITH CLIENT 183 
 
 in filing a bill of interpleader. Yet this is a course 
 that may be resorted to only in extreme and excep- 
 tional cases. To sustain such a bill the attorney 
 must show that he has good reason to believe that 
 the adverse claim is well founded and that there is 
 no possibility of protecting himself by any other 
 means than by the interference of the court, 
 
 292. Right of client to discharge his counsel. 
 While an attorney who has accepted a retainer is not 
 at liberty to sever the relation, except for cause, it 
 would seem the client is not so bound. Upon this 
 point the courts are generally agreed, holding that 
 the contract under which an attorney is employed 
 by a client has peculiar and distinctive features 
 which differentiate it from ordinary contracts of 
 employment. 33 It would further seem, that a client 
 may discharge his attorney at any*time, with or with- 
 out cause, even where the case has been taken on 
 a contingent fee. If the discharge is without cause 
 the attorney may recover for services already per- 
 formed on a quantum meruit, and if no service has 
 been rendered no action will lie. If the discharge 
 is for cause, then, in most cases, the attorney for- 
 feits his fee. 34 
 
 293. While there would certainly seem to be an 
 element of hardship in the rule, it seems to be sus- 
 tained on the ground that the relationship is so 
 peculiarly one of confidence that it would be unjust 
 
 33 Martin v. Camp, 219 N. Y. 170. 
 
 34 See, Moore v. Eobinson, 92 111. 491 ; Duke v. Harper, 8 
 Mo. App. 296; Quint v. Mining Co., 4 Nev. 304; Scobey v. 
 Boss, 5 Ind. 445.
 
 1*4 ESSAYS IN LEGAL ETHICS 
 
 to require a party to continue in his service one 
 whom he distrusts, or on whose skill and ability 
 he no longer relies, or to permit an attorney, under 
 such circumstances, to continue a relationship where 
 the lack of confidence would seriously impair his 
 efficiency and interfere with his ability to serve both 
 client and court in the manner his office requires. 15 
 
 M Henry v. Vance, 63 8. W. Sep. (Ky.) 273.
 
 CHAPTER IX 
 RELATIONS WITH COURT 
 
 Nature of the judicial office Conduct in court Conduct out 
 of court Influencing judges Criticism of judges De- 
 ceiving the court Misstating law or facts Counseling dis- 
 obedience of court orders. 
 
 294. The judicial office. In every controverted 
 question there must be a resort to final authority of 
 some kind if the question is to be closed. In an 
 earlier and ruder age the appeal was to arms, and 
 force was the final arbiter. Happily, the world has 
 passed this stage of development and now the ap- 
 peal is to reason. But opposing minds may not over- 
 come in the same manner as brute force and, there- 
 fore, a third mind is necessary to intervene between 
 them. It is upon this theory that courts have been 
 established and justice is administered. This third 
 mind we call the judge. 
 
 295. A man called to fill the honorable station 
 of a judge should possess unbounded learning with 
 intellectual powers of the highest order. It not in- 
 frequently happens that the judge is both learned 
 and wise, but none, not even the best, can properly 
 and fully discharge the functions of his 1 office with- 
 out the aid of the bar. Occasionally some shallow- 
 brained pretender, by a wave of fortunate chance, 
 is cast upon the bench, and, gazing upon his own 
 distorted image reflected in the pellucid mirror of 
 
 185
 
 186 ESSAYS IN LEGAL ETLIICS 
 
 his mind, fancies he knows it all. But the great 
 lawyer, the profound jurist, eagerly avails himself 
 of the benefits derived from the research and rea- 
 soning of counsel, and gratefully acknowledges the 
 assistance which they afford. 
 
 296. In the hurry and rush of modern life, and 
 in view of the vast volume of litigation passing 
 through the courts, it is essential to the due admin- 
 istration of justice that some persons shall act as 
 aids 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 is 
 the province of counsel, and it is largely through the 
 labors of counsel that judges are enabled to dispatch 
 the business of the courts. 
 
 297. Conduct in court. As previously shown, a 
 lawyer is under obligation to do nothing that shall 
 detract from the dignity of the court, of which he 
 is himself a sworn officer and assistant. He should 
 at all times pay deferential respect to the judge, and 
 scrupulously observe the decorum of the court 
 room. 86 The public takes its cue in this respect from 
 the lawyers, and unless the members of the bar shall 
 ly their own example inspire those feelings of re- 
 spect for courts and for judicial proceedings, which 
 in a country like ours constitutes their greatest 
 safeguard, it were idle to expect the public to be 
 more considerate. 
 
 MIn re Pryor, 18 Ran. 72.
 
 RELATIONS WITH COURT 187 
 
 298. Nor is this merely a matter of good man- 
 ners or formal etiquette. There is a deep underly- 
 ing ethical principle as well. A court is a place 
 wherein justice is judicially administered by the 
 supreme power of the state. In England this power 
 would be the king, and while it is, of course, impos- 
 sible that the king should personally dispense the 
 justice of the realm, yet, in contemplation of law, 
 he is always present in his judges, whose power is 
 only an emanation of the royal prerogative. 87 The 
 judicial machinery of the United States is modeled 
 after that of England, and while our political condi- 
 tions are vastly different from those which prevail 
 in England the theories involved in the administra- 
 tion of justice are the same. The sovereignty of 
 the state is always present in every court established 
 by law, and its visible representative is the judge. 
 Whatever our opinion may be of the man, and how- 
 ever little he may be entitled to our respect for him- 
 self, we must yet respect the majesty of his office. 
 
 299. But, while a becoming respect for all who 
 "sit in judgment" is strictly enjoined, both as a 
 moral and a professional duty, a manly respect only 
 is intended, not a servile obsequiousness. The dig- 
 nity of the bench must be maintained, but so also 
 must the independence of the bar. The judge fills 
 a most exalted office; he should be a most exalted 
 man; but he is only a man in any event and not a 
 being of superior mould. Occasions will sometimes 
 arise when duty to the client and a proper regard for 
 the interests committed to his charge, renders nec- 
 
 37 Black. Com. b. ii, p. 23 (Cooley's Ed.).
 
 188 LYI IN I.I:(,AL 
 
 essary 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 
 done in an open, manly way. The outward forms of 
 respect for the court should be preserved, even 
 though the judge may be unmindful of his own duty 
 of respect to the bar. So too, even though counsel 
 may feel that the judge's rulings are incorrect he 
 should yet observe a proper self-restraint and re- 
 spectfully submit thereto. 
 
 300. Conduct out of court. While it is compara- 
 tively easy to prescribe a line of conduct to be fol- 
 lowed in court, it is correspondingly difficult to lay 
 down rules for general observance by the bar, with 
 respect to its attitude toward the bench, when out 
 of court. Indeed, this is a matter upon which there 
 an hardly be said to be a settled opinion, and many 
 differing views have been presented. If the judge 
 is a gentleman, then in the intercourse of private 
 life he certainly should be accorded the civilities 
 which obtain among gentlemen. Of necessity he 
 must, to some extent, mingle with his brethren of 
 the bar in a social way, and his judicial position 
 usually exerts a decided influence on the manner in 
 \\hich he is received. But while a due courtesy may 
 always be shown to a person occupying judicial sta- 
 tion, it is yet contended that such courtesy has its 
 limitations and that same may be pushed beyond the 
 bounds of sound ethical precept. Thus, it is said, 
 marked attention and unusual hospitality to a judge, 
 when the relations of the parties are such that they 
 would not otherwise have been extended, subject
 
 RELATIONS WITH COURT 189 
 
 both judge and attorney to hostile criticism and pos- 
 sible misconstruction of their acts, and hence, that 
 same should be sedulously avoided. 88 
 
 301. But this, while expressing a true senti- 
 ment, is very vague. The connection between the 
 bench and bar is, and always has been, of the most 
 intimate character. A judge loses none of his social 
 instincts by assuming the ermine, and while his 
 position is changed he is still a lawyer; and even 
 though we admit that a self-respecting independence 
 in the discharge of an attorney 's duties, which at the 
 same time does not withhold the courtesy and respect 
 due the judge's station, is the only just foundation 
 for cordial and official relations between bench and 
 bar, yet it is not always easy to draw the line nor 
 to say how far such cordial relations may extend. 
 A palpable attempt to gain special personal consid- 
 eration and favor of a judge is mean and con- 
 temptible, and the judge who seems to lend himself 
 to such an attempt is deserving of no more respect 
 than the attorney, but to say that an attorney may 
 not extend, and a judge may not accept, the offices 
 of fraternity, social kindness and hospitality is go 
 ing too far. 
 
 302. It must be remembered, however, that a 
 lawyer, like Caesar's wife, must be above suspicion. 
 Not only must he practice no evil but he must as 
 well avoid the appearance of evil, and therefore in 
 his social relations with the judge he must ever be 
 circumspect and guarded. While this is a rule of 
 
 3See, Code Ala. Bar Assn., sec. 3.
 
 190 ESSAYS IN LEGAL ETHICS 
 
 conduct for all occasions it applies with increased 
 force at times when his cases are pending. 
 
 302a. Thus far we have been considering our 
 subject with special reference to the cordial rela- 
 tions that may subsist between bench and bar and 
 the conduct to be observed in such cases. There is, 
 of course, another side, where the relation is that of 
 enmity. As a rule, no question can arise with re- 
 spect to conduct in court, even where the presiding 
 judge may be an object of contempt or hatred. 
 Respect for the judicial office must overcome per- 
 sonal dislike, and a formal courtesy, at least, must 
 be shown. But how about conduct out of court? 
 Certainly no one, lawyer or layman, is compelled to 
 fraternize with those whom he detests. When off 
 the bench the judge, in most things, is not distin- 
 guishable from other men, and an attorney commits 
 no breach of decorum by ignoring him in a social 
 way. But this is about the extent to which he may 
 go. The obligation which an attorney assumes on 
 being admitted to the bar is not discharged by merely 
 observing the rules of courteous demeanor in op<-ii 
 court, but includes abstaining out of court from all 
 overt acts calculated to bring odium or reproach 
 upon the profession or to lower the dignity of the 
 bench. Therefore, while an attorney may refuse to 
 extend social amenities to a judge he must not in- 
 dulge in insulting language or other openly offensive 
 conduct toward him for any of his judicial acts. 39 
 
 89 Thus, a threat of personal chastisement, made by an 
 attorney to a judge out of court for his conduct or rulinps 
 during the trial of a cause pending, is strictly unprofes-
 
 RELATIONS WITH COURT 191 
 
 303. Influencing judges. It is often said, that 
 our present mode of selecting judges by popular 
 election is conducive to bad results in the adminis- 
 tration of justice. We will not discuss this matter, 
 but every lawyer of long practice knows from his 
 own experience that, too often, men who are proof 
 against pecuniary bribes are yet susceptible to "in- 
 fluence." It is the duty of the bar to minimize this 
 evil by its own conduct. It is gross impropriety 
 for counsel to discuss his pending cases with the 
 judge or to privately argue their merits, or to ad- 
 dress to him private communications respecting his 
 causes in court. It is equally reprehensible to per- 
 mit the client so to do, or to secure the good offices 
 of a "mutual friend," with a view to influence 
 favorable action. An attorney who resorts to such 
 indecent measures forfeits his right to be called an 
 honorable practitioner, and a judge who listens to 
 same is unworthy of his high office. 
 
 304. Criticism of judges. It is by no means un- 
 common for lawyers to discuss, criticise and even 
 condemn, the acts and decisions of the courts, and 
 sometimes to unfavorably comment on the personal 
 and official character of the judges. A question, 
 therefore, arises as to whether conduct of this kind 
 will constitute such misbehavior as to violate the 
 spirit, if not the letter, of the attorney's oath of 
 office. As previously remarked, it has become a 
 maxim of legal ethics that an attorney is required 
 to maintain at all times the respect due to courts of 
 
 sional and furnishes grounds for disbarment. Bradley v. 
 Fisher, 13 Wall (U. S.) 335.
 
 198 ESSAYS IX LEGAL ETHICS 
 
 justice and judicial officers. This is not only the re- 
 ceived doctrine of the common law but has also 
 found expression in statutory enactments relating 
 to professional duty, and its observance is enjoined 
 on all who assume to discharge the functions of an 
 advocate. But it must further be remembered that a 
 person does not forfeit his constitutional rights as a 
 citizen by becoming an attorney,* and that free 
 speech is as much secured to a lawyer as to any 
 other member of the community. To what extent, 
 then, may an attorney criticise the private character 
 or official acts of the judges of the courts of which 
 he is a member! 
 
 305. It is conceded that in matters collateral to 
 official duty the judge is on a level with the mem- 
 bers 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. 41 
 It is the right of every citizen to scrutinize the 
 character and conduct of men acting in public ca- 
 pacities. An attorney in this respect is not distin- 
 guishable from other men. Indeed, it would seem 
 that it is not only the right but the duty of a lawyer, 
 to bring to the notice of the people, who elect the 
 judges, every instance of what he believes to be cor- 
 ruption or unfitness for office. "No class of the com- 
 munky," says Sharswood, C. J., "ought to be al- 
 lowed freer scope in the expression of opinion as to 
 the capacity, impartiality or integrity of judges than 
 members of the bar. They have the best opportuni- 
 
 4* Ex parte Stcinman, 95 Pa. St. 220. 
 41 Case of Austin, 5 Rawle (Pa.) 191.
 
 RELATIONS WITH COURT 193 
 
 ties of observing and forming a correct judgment, 
 and so say that an attorney can only act or speak on 
 this subject under liability to be called to account 
 by the very judges whom he may consider it his 
 duty to attack and expose, is a proposition too mon- 
 strous to be entertained for a moment under our 
 present system. " ** In such event it would seem the 
 attorney does not act professionally but as a citizen, 
 and is responsible for what he may say only in that 
 capacity. 
 
 306. There is another form of criticism more 
 frequently indulged in, and usually with entire 
 propriety. This occurs where courts have rendered 
 decisions involving questions of law. It is conceded 
 that attorneys may freely criticise all such opinions, 
 both in and out of court, at the time the decision is 
 rendered and ever afterward, without violating any 
 of our ethical canons or subjecting themselves to 
 discipline. 43 About the only limitation of this right 
 is, that such criticisms should be made in good faith 
 and respectful language, and should not be designed 
 to willfully or maliciously misrepresent the position 
 of the court, or tend to bring it into disrepute, or 
 lessen the respect due its authority. 
 
 307. There is still another form " of "criticism, 
 often resorted to but of questionable propriety. It 
 is said to be an ancient rule of the lex non scripta 
 that every defeated litigant, as well as his counsel, 
 may freely "cuss" the court, and there are few Who 
 
 42 Ex parte Steinman, 95 Pa. St. 220; and see, State v. 
 Anderson, 40 Iowa 207. 
 48 Patterson v. Colorado, 205 U. S. 454.
 
 IH4 ESSAYS IN LEGAL ETIIK S 
 
 fail to avail themselves of this privilege. There may 
 be occasions when criticism of this kind seems ju>ii- 
 fiable, but in many cases it is a mere subterfuge, de- 
 signed to quiet the client and his friends or to cover 
 some neglect, oversight, or inefficiency of the at- 
 torney. Its effect is always bad, and it should be 
 avoided as far as the frailty of poor human nature 
 will admit. 
 
 308. It would seem, then, that a lawyer may 
 criticise both the personal and official character of 
 the judge as well as his acts and decisions, but he 
 has no right to slander either. Notwithstanding the 
 lawyer's civil rights he is still bound to pay proper 
 respect and exhibit a proper deference to the judges 
 both in and out of court,** and even though we ad- 
 mit that judges should assist the bar in this particu- 
 lar, by being themselves respectable, there are yet 
 many acts which fall without the line of professional 
 functions by which professional fidelity may be vio- 
 lated. It must further be remembered that the pro- 
 prieties of the judicial station in great measure 
 disable a judge from defending himself against 
 strictures upon his official conduct, and for this rea- 
 son, and because such criticisms tend to impair pub- 
 lic confidence in the administration of justice, it is 
 said that attorneys should, as a rule, refrain from 
 published criticism of judicial conduct, especial ly 
 in reference to causes in which they have been of 
 counsel, otherwise than in courts of review, or when 
 the conduct of a judge is necessarily involved in 
 
 *4In re Brown, 3 Wyo. 121; Bradley v. Fisher, 13 Wall. 
 (U. 8.) 335.
 
 RELATIONS WITH COURT 195 
 
 determining his removal from or continuance in of- 
 fice. 46 
 
 309. Deceiving the court. It has ever been 
 deemed gross unprofessional conduct on the part of 
 an attorney, to attempt to pollute the administration 
 of justice by a resort to any form of device for the 
 purpose of preventing the decision of a cause upon 
 its merits or of influencing the court to render a 
 decision which it would riot otherwise have made. 
 This will include every species of deception prac- 
 ticed upon the court, either active or passive, 
 whether by statements made by counsel or by others 
 in his presence, or by testimony known to be false or 
 forged. An attorney owes to his client a duty of 
 fidelity but he owes the same duty to the court ; and 
 it is a part of that duty to correctly inform the 
 court upon the law and the facts of the case that it 
 may arrive at correct conclusions and render exact 
 justice. He violates his oath of office when he re- 
 sorts to deception, or permits his client to do so, 
 and by such acts forfeits his rights as an attorney. 46 
 
 310. Misstatements of law or fact. It is one of 
 the ancient duties of counsel to advise the court 
 with respect to the law of the particular case in 
 which he appears. Not only is he presumed to be 
 well informed in the law generally, but with re- 
 spect to such as applies to the particular case to 
 have made a special study. The benefit of this 
 
 45 Code, Ala. Bar Assn. 
 
 48 People v. Seattle, 137 111. 553; In re Henderson, 88 
 Tenn. 531; Baker v. State, 90 Ga. 153; Ex parte Walls, 64 
 Ind. 461; In re Gale, 75 N. Y. 526.
 
 ,s IN I,L<,AL ETHICS 
 
 study he imparts to the court for its guidance in ar- 
 riving 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 fairness 
 and to avoid everything that may savor of deception. 
 He must state the law as it appears, but he has a 
 right to place such construction thereon as shall 1 
 subserve the interests of his client. Indeed, his duty 
 to his client requires this course. He is under no 
 obligation to present, or comment upon, those phases 
 of the law that may seem to militate against his 
 client's cause, and he may combat the application of 
 such adverse law, whether advanced by the court 
 or opposing counsel. These rights are clear and 
 of universal recognition in all courts of justice. 
 
 311. But counsel perpetrates a gross fraud upon 
 the court when he knowingly cites as authority an 
 overruled case, or treats as if still in force a repealed 
 statute. Fortunately instances of this kind are not 
 of frequent occurrence, and generally where such 
 "authorities*' are presented it is due either to ig- 
 norance or carelessness. But ignorance and care- 
 lessness are scarcely less culpable than willful de- 
 ception, and are almost equally reprehensible as pro- 
 fessional traits. 
 
 312. An even more flagrant dereliction is pre- 
 sented when counsel garbles, distorts or knowingly 
 misquotes the language of a statute, decision or 
 text-book, and this offense is by no means uncom- 
 mon. An attorney who stoops to such low arti- 
 fices not only deserves the severest censure but is 
 positively unworthy to mingle with honest men in
 
 RELATIONS WITH COURT 197 
 
 the practice of law. A similar infraction of the 
 ethical code occurs where counsel knowingly mis- 
 quotes the contents of a document, the testimony of 
 a witness or the language or argument of opposing 
 counsel. No honorable attorney will ever be guilty 
 of the foregoing or kindred deceitful practices, and 
 persons resorting thereto should be subjected to dis- 
 cipline. 
 
 312a. Counseling 1 disobedience of court orders. 
 A delicate question arises whenever an attorney is 
 called upon to advise his client as to the validity of 
 an order of court, or of a writ issued under its au- 
 thority, which directly affects the client's interests. 
 It is not only the right but the duty of the attorney to 
 advise his client whether such order or writ is illegal 
 or void, and by his advice and his conduct to secure 
 to the client every legal right, remedy and advan- 
 tage to which he may think him even probably en- 
 titled. If in so doing he acts in good faith, if he 
 demeans himself honestly, it will not render him 
 liable for contempt because of an error of judgment. 
 But this marks the limitation of his right. If he 
 goes beyond it to advise in a matter of law, or if 
 actuated by a spirit of resistance he counsels or 
 conspires with his client or others to disobey an 
 order of court and obstruct its enforcement, then he 
 is guilty of contempt. 
 
 This follows from the dual character which a 
 lawyer sustains as an attorney and a citizen. As an 
 attorney he is an officer of the court, sworn to sup- 
 port the law and its administration. But when a 
 man is admitted to the bar he does not cease to be
 
 198 VS IN I.KOAL ETHICS 
 
 a citizen, and when In- assumes the relation of at 
 torney to a client he is not absolved from his obliga- 
 tions as a man and a citizen. Therefore, an attorney 
 who would corruptly conspire with his client to ob- 
 struct the due administration of the law, and to 
 bring the authority of a court of justice into con- 
 tempt by resisting and obstructing the execution 
 of its orders and decrees, by whatever contrivance, 
 is guilty of an offense against public justice and of 
 contempt of court, and subject to summary punish- 
 ment.* 7 
 
 47 Anderson v. Comptois, 109 Fed. Rep. 971; Wells v. Com- 
 monwealth, 21 Gratt (Va.) 500.
 
 CHAPTER X 
 
 RELATIONS WITH THE BAB 
 
 Character of the relation Professional courtesy Respect for 
 age Observance of agreements Services for attorneys 
 Interference Substitution of attorneys Conclusion. 
 
 313. Character of the relation. In a former part 
 of this book the writer endeavored to show a few 
 of the salient features that marked the inauguration 
 of the order of advocates in England, and to point 
 out some of the distinguishing characteristics of 
 same. From these it will readily be perceived that 
 the advocates were not simply members of a learned 
 profession but of a distinct order of society, estab- 
 lished by civil authority, constituting a fraternity 
 with settled rules and usages. In the flow of time 
 and the changing conditions of society many of the 
 ancient characteristics have been lost, but this essen- 
 tial idea has remained intact and the bar is still 
 known, both among its own members and the public, 
 as the ' ' legal fraternity. ' ' It follows, therefore, that 
 the relations subsisting between the members of the 
 bar are, or should be, those of amity, good will, and 
 mutual esteem. Notwithstanding that they are often 
 arrayed against each other as champions of opposing 
 forces, their intercourse should yet be friendly, and, 
 as partakers in a common enterprise, the honor and 
 reputation of every member should be the cause of 
 all. 
 
 199
 
 200 ESSAYS IN LEGAL ETHICS 
 
 314. Professional courtesy. The professional re- 
 lation which attorneys sustain toward each other in 
 all matters of litigation is distinctly antagonistic. 
 Indeed, it could not well be otherwise save in excep- 
 tional cases. They represent diverse and opposing 
 interests, and their duties to their respective clients 
 require an entire devotion to the cause in which they 
 are retained. To the maintenance of such cause they 
 are expected to contribute every exertion of skill 
 and ability, and nothing, as a rule, can absolve them 
 from the fearless discharge of this duty. 
 
 315. But it does not follow that because of this 
 duty there should be that total disregard of the 
 amenities of life which so often characterizes op- 
 posing forces. It is the clients, not the attorneys, 
 who are the litigants; and whatever may the ill- 
 feeling existing between clients, it is unprofessional 
 for the attorneys to partake of it, or to manifest in 
 their conduct and demeanor to each other or to the 
 suitors on the opposite side, any of the rancor or 
 bitterness of the parties. The ordinary civilities 
 should always be studiously observed, and, in every 
 instance, the utmost courtesy consistent with duty 
 should be extended to an honorable opponent. 
 
 316. Aside from the conventional rules that reg- 
 ulate the conduct of gentlemen between themselves, 
 there are other matters which arise out of the pro- 
 fessional character and are peculiar to the attorney 's 
 office. These we may classify under the general 
 head "professional courtesy." There are no rules, 
 however, by which the majority of these matters can 
 be determined, nor even a settled observance. They
 
 RELATIONS WITH THE BAR 201 
 
 are allowed, in the main, to rest in individual discre- 
 tion, for the exercise of which the attorney is not 
 required to account. This will include all incidental 
 matters pending trial, not affecting the merits of 
 the cause or working substantial prejudice to the 
 rights of the client, such as forcing the opposite at- 
 torney to trial when he is under affliction; forcing 
 trial on a particular day to the serious injury of op- 
 posing counsel, when no harm would result from 
 setting the trial for a different time ; extending the 
 time for pleading, for signing a bill of exceptions, 
 and the like. In all these matters it is customary to 
 grant the favor sought as a professional courtesy, 
 but no ethical obligation requires it, and in the few 
 cases where bar associations have ventured to ex- 
 press an opinion it has generally been left in the 
 discretion of counsel, and of the propriety or im- 
 propriety of the transaction he is allowed to be the 
 sole judge. 
 
 317. It has been said that no client has a right 
 to demand that his attorney be illiberal in such 
 matters, and that an attorney is not required to do 
 anything in respect to same that is repugnant to his 
 own sense of honor and propriety, and if such 
 course is insisted on that counsel should retire from 
 the case. 48 All this we may admit, as well as the 
 further fact, that the authority of counsel in a suit 
 extends generally to all the customary incidents of 
 the litigation and its due and orderly conduct 
 through the courts. 49 But we must also remember, 
 
 48 Code, Ala. Bar Assn., sec. 30. 
 
 48 Christy v. A. T. & S. F. Ry., 233 Fed. 255.
 
 202 ESSAYS IN LEGAL ETHICS 
 
 that it is a client's right to have his cause tried at 
 the time set; to have adverse pleadings filed within 
 the time allowed ; and to insist that his attorney shall 
 take every legal advantage the case may afford, and 
 this duty an attorney may not capriciously avoid 
 nor is he at liberty to withdraw from the case merely 
 because his client insists upon the strict observance 
 of his rights. "Whatever the feelings of counsel may 
 be toward the counsel for the other side, and how- 
 ever much he may desire to accommodate him in 
 matters of practice, he is yet under a paramount 
 duty to follow his client's instructions in all matters 
 pertaining to the legitimate conduct of the litiga- 
 tion. 
 
 318. Respect for age. A true lawyer is always 
 a gentleman. A gentleman always exhibits a proper 
 respect for age, and nothing, perhaps, more surely 
 indicates good breeding. "No young man," says 
 one writer, "can prosper in his profession who is 
 unmindful of due respect to his seniors at the bar. 
 !! that is so breaks down his own safety and dig- 
 nity, should he live to be old ; in respecting them he 
 respects himself. Flippancy, forwardness, exhibited 
 by the youthful toward the aged barrister, is a mark 
 of vulgarity, which must ever disgust those whose 
 good opinion and support are worth preserving. 
 We speak now not of comparative talents but simply 
 of years, or stages in life. ' ' * The foregoing excerpt 
 is commended to the thoughtful consideration of 
 i-y young practitioner. This is an age of ag- 
 gressive self-assertion, and American youth are 
 
 Brown's, Forum, Vol. 2, p. 48.
 
 RELATIONS WITH THE BAR 203 
 
 educated upon these lines. The writer would not for 
 a moment repress a laudable ambition that urges on 
 the young advocate to forensic honors and triumphs, 
 and will heartily join in the applause that greets 
 the victor who, in a fair fight, has met and over- 
 eome his senior. But, it is nauseating in the ex- 
 treme to see a callow youth, blinded by excessive 
 egotism, who so far forgets the common amenities 
 of life as to offer discourtesies to age. Modesty in- 
 variably bespeaks merit. Learning and skill are not 
 in any way handicapped or impeded by a decorous 
 demeanor, and standing at the bar can never be 
 acquired by a supercilious treatment of opposing 
 counsel, be they young or old. 
 
 319. Observance of agreements. In the active 
 practice of law attorneys are necessarily obliged to 
 make many agreements, stipulations and engage- 
 ments. Some of these are made in open court, and, 
 becoming a part of the 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. 
 These latter are based on the mutual respect of the 
 contracting parties for each other and the confi- 
 dence they respectively feel in the other's integrity. 
 To inspire and retain this feeling on the part of his 
 confreres should be a prime object with every prac- 
 titioner, for, as has been well said, "a very great 
 part of a man's comfort, as well as of his success at 
 the bar, depends upon his relations with his profes- 
 sional brethren. ' ' 51 
 
 320. To attain this end it is imperative that 
 
 SISharswood, Legal Ethics, 73.
 
 ESSAYS IN LEGAL, ETHICS 
 
 every engagement be punctually kept, that every 
 agreement be faithfully performed, and that every 
 stipulation be fairly and honestly carried out. The 
 man who thus acquires the reputation of scrupulous 
 exactness in all matters involving professional con- 
 fidence will find that many of the asperities of prac- 
 tice will be softened, that many of its amenities will 
 be voluntarily tendered, and that, in the general 
 good will, esteem, and respect of his fellow prac- 
 titioners, he will experience a sense of pleasure that 
 nothing else can bestow. 
 
 321. It is an easy matter sometimes to repu- 
 diate engagements made "in pais," and to deny 
 promises so given. The momentary advantage may 
 blind the moral vision, and because no summary 
 punishment follows the counsel has no fear. But 
 once let a man's truthfulness be even suspected his 
 path becomes a thorny one, and where his falsehood 
 and duplicity is established he becomes a profes- 
 sional outcast. No one will trust him, even though 
 he is acting honestly, and if he is at all sensitive he 
 is continually chagrined and mortified by the pre- 
 cautions taken by those with whom he is thrown in 
 contact. 
 
 322. Services for attorneys. Lawyers are fre- 
 quently called upon to render services for each other, 
 both in personal matters and suits of clients. Should 
 compensation be demanded for such services or 
 should they be regarded as professional courtesies 
 for which no reward is expected? It would seem 
 that in former days no charge was made for a serv- 
 ice of this kind, and this, to some extent, is the pre-
 
 RELATIONS WITH THE BAR 205 
 
 vailing practice at present. The general sentiment 
 would seem to be that casual and slight services 
 should be rendered by one attorney to another with- 
 out charge, particularly in his personal cause, but 
 when the service goes beyond this an attorney may 
 be charged the same as other clients. 62 It has fur- 
 ther been declared that ordinary advice and services 
 to the family of a deceased attorney should be ren- 
 dered without charge in most instances; and that 
 where the circumstances make it proper to charge, 
 the fees should generally be less than in case of other 
 clients. 53 This is in keeping with the ancient tra- 
 ditions of the bar, and the only consistent course 
 among the members of a class that call itself a fra- 
 ternity and profess for each other a fraternal regard. 
 
 323. Suits against attorneys. A retainer may 
 properly be accepted in a suit against an attor- 
 ney, yet, as a rule, it should be received reluctantly 
 and the matter settled, if possible, in an amicable 
 manner. The principle of professional fraternity, 
 as far as it will apply, should characterize all pro- 
 ceedings of this nature, particularly where no moral 
 turpitude is involved. This has long been the set- 
 tled rule of the ethical code and is still in force, not- 
 withstanding its non-observance by the legal trades- 
 men. 
 
 324. Interference. It is a maxim of trade that 
 every man is at liberty to compete for business in 
 the open market and to secure customers wherever 
 and however he can, without regards to others. 
 
 2Graydon v. Stakes, 24 S. C. 483. 
 W Code, Ala. Bar Assn., sec. 52.
 
 206 IB IN LEGAL ETHICS 
 
 This spirit seems, to some extent, to have entered the 
 legal profession, and the methods of the commercial 
 wrld are frequently employed by men who claim 
 to represent "advanced" ideas in the transaction 
 of legal business. But the lawyer is not a trades- 
 man, neither do the maxims of commerce apply to 
 his profession. He may not resort to many things 
 that the vender of wares may do with impunity, and 
 among these we find the enticement of clients. An 
 attorney who interferes, directly or indirectly, with 
 the professional relations subsisting between other 
 attorneys and their clients commits a gross viola- 
 tion of the long-established etiquette of the bar. 
 Nothing, perhaps, more distinctly stamps the char- 
 acter of the shyster, than offers of service or advice 
 in pending matters then being conducted by other 
 counsel ; and nothing more unmistakably betrays the 
 narrow and unprincipled man, than voluntary criti- 
 cisms of the acts of a party's attorney. Therefore, 
 the honorable and self-respecting practitioner will 
 never voluntarily tender his services nor obtrude his 
 advice in a matter of this kind, and, if appealed to, 
 will be most conservative in his utterances and 
 guarded in his expressions. 
 
 325. Substitution of attorneys. With respect to 
 the substitution of attorneys there has always existed 
 a most punctilious etiquette. As a rule, the client 
 is at liberty to dismiss his attorney, and to procure 
 another in his place, at his mere pleasure. 54 Nor 
 does the second attoniey violate any principle of 
 
 Paschal, 10 Wall (U. 8.) 483; Ogden v. Devlin, 45 
 N. Y. Sup. Ct. 631; and see, Knoz v. Randall, 24 Minn 479.
 
 RELATIONS WITH THE BAR 207 
 
 professional courtesy simply by accepting a retainer 
 under such circumstances. But, if he shall suggest 
 the change, or actively and directly influence the 
 client in making same, except under very extraor- 
 dinary circumstances, he commits an act unworthy 
 of any honorable practitioner. 
 
 326. It will often happen that a client becomes 
 dissatisfied with his legal adviser for no just cause, 
 or though some caprice, or for some fancied neglect 
 or inattention. In such event he applies to other 
 counsel with a recital of his attorney's failings or 
 misdeeds. Under such circumstances the counsel 
 thus applied to should in an honest and manly way 
 inform the client that his fears are unfounded, and 
 that his attorney is faithfully discharging his duty. 
 There is no other course consistent with honorable 
 professional character or fair dealing, and a man 
 who acts otherwise must not only sink in his own 
 estimation but in the estimation of all of his pro- 
 fessional brethren to whom the facts shall become 
 known. 
 
 327. But, as before remarked, it is a privilege 
 of the client to change his counsel in his own dis- 
 cretion, and, if, in the exercise of this privilege, 
 he applies to another and tenders a retainer, such 
 retainer, in a proper case, may be accepted. If, 
 upon such offer, it shall appear that the original 
 attorney has a contingent interest in the case, or 
 if there are unpaid fees, which in justness he should 
 receive, or if there are any other unsettled matters 
 growing out of the relations of the parties that 
 would be prejudiced by such change, then there is
 
 L''i- ESSAYS IN LEGAL ETHICS 
 
 a duty incumbent on the second attorney to see that 
 all of these matters are satisfactorily adjusted bo- 
 fore he assumes charge, and in the event of the 
 client's refusal he should decline the retainer. This 
 has been the uniform practice of all respectable at' 
 torneys from time immemorial, and its strict observ 
 anee is not only in consonance with good morals, 
 but indispensable to the preservation of that feeling 
 of fellowship and fraternity which should always 
 characterize the bar. 
 
 328. Where there has been a palpable misman- 
 agement by the original attorney, involving no 
 moral turpitude, while the circumstances may de- 
 mand an immediate and summary change of coun- 
 sel, yet this should be accomplished in a courteous 
 manner and the unsettled matters between the par- 
 ties may be left for subsequent adjustment. Where 
 the facts disclose unmistakable dishonesty, or gross 
 derelictions, on the part of the attorney, he is en- 
 titled to no considerations of respect and may be 
 treated the same as any other violator of confidence. 
 
 329. Where the client has seen fit to change his 
 counsel, and has discharged his pecuniary and other 
 obligations to his original attorney, such attorney, 
 upon request made, should deliver over to the sec- 
 ond attorney all documents and papers in his pos- 
 session that rightfully pertain to the case, and sign 
 a consent for substitution on the record if the case 
 is then pending in court. lie may properly with- 
 hold such papers as relate only indirectly to the 
 matter, as briefs of authorities, order of proof, etc., 
 or may demand an additional compensation for them
 
 RELATIONS WITH THE BAR 209 
 
 in case they are desired. But in no event would he 
 be justified in withholding information proper to be 
 communicated or necessary to be known by the 
 second attorney. 
 
 330. Conclusion. The foregoing pages but im- 
 perfectly present a few of the many phases of pro- 
 fessional conduct, and the course that should be 
 pursued under given circumstances. As remarked 
 at the beginning, to prescribe minute and detailed 
 specifications of an attorney's duties upon all occa- 
 sions is an impossible task; nor are such specifica- 
 tions necessary. No more has been attempted than 
 the recital of a few broad precepts, a few well-set- 
 tled general rules, and a few confirmed usages. The 
 attorney 's own moral sense must supply the rule for 
 the particular case whenever the necessity for it may 
 arise. 
 
 331. The exercise of the advocate's profession 
 is attended with many temptations and dangers, and 
 none but the morally strong may withstand them. 
 But, to the really good man, its practice brings re- 
 newed strength, courage, prudence, and fortitude. 
 The advocate's profession has ever been considered 
 one of honor, but to be so in fact it must be one of 
 virtue. Fidelity is its great characteristic; truth- 
 fulness is its inseparable incident; sympathy is its 
 underlying principle. Indeed, it has been said that 
 the chief excellence of the advocate is in proportion 
 to the facility with which he can become a party in 
 the most momentous concerns of strangers, and 
 identify his own existence, for the time, with the 
 crises of alien fortunes. The very practice of rep-
 
 210 ESSAYS IN LEGAL ETHICS 
 
 resenting the feelings of others is, at least, one 
 remove from self-love, and, however far from ap- 
 proaching the comprehensiveness of true humanity, 
 breaks the crust of selfishness which courses of 
 wordly success in other occupations too often en- 
 gender. Nor is a pliancy of character thus fostered 
 unfavorable to the maintenance of personal con- 
 sistency, for, to the properly trained mind, the very 
 habit of rapidly passing from one range of sym- 
 pathies to another begets an earnest aspiration after 
 conditions which are stable and enduring, and but 
 fixes the roots of individual principles deeper.
 
 APPENDIX 
 
 In the year 1840 there occurred in England a 
 remarkable criminal trial in which were developed 
 several principles of legal ethics that have ever since 
 continued to secure a recognition by the bar. A 
 man named Courvoisier was arraigned for the mur- 
 der of his master, Lord Russell, He was defended 
 by a Mr. Phillips. During the course of the trial 
 Courvoisier confessed his guilt to his counsel, who, 
 notwithstanding, continued the defense. The con- 
 duct of Mr. Phillips was severely criticised, and the 
 case was the subject of much comment at the time. 
 Several years afterwards the matter was again 
 brought into publicity by a newspaper attack. This 
 led to a published statement by Phillips, of the 
 circumstances attending the trial, from which is 
 extracted the following: 
 
 It was on the second morning of the trial, just before the 
 judges entered, that Courvoisier, standing 1 publicly in front 
 of the dock, solicited an interview with his counsel. My 
 excellent friend and colleague, Mr. Clarkson and myself, im- 
 mediately approached him. I beg of you to mark the pres- 
 ence of Mr. Clarkson, as it will become very material pres- 
 
 211
 
 - 1 - APPENDIX 
 
 ontly. Up to this morning I believed mott firmly in hit inno- 
 cence; and so did many others as well as myself. "I have sent 
 for you, gentlemen," said he, "to tell you I committed the 
 murder! " When I could speak, which was not immediately, I 
 said: "Of course, then, you are going to plead guilty f" 
 ' ' No, sir, ' ' was the reply ; " I expect you to defend me to the 
 utmost." We returned to our seats. My position at this 
 moment was, I believe, without parallel in the annals of the 
 profession. I at once came to the resolution of abandoning 
 the case, and so I told my colleague. He strongly and urgently 
 remonstrated against it, but in vain. At last he suggested our 
 obtaining the opinion of the learned judge who was not trying 
 the cause upon what he considered to be the professional 
 etiquette under circumstances so embarrassing. In this I very 
 willingly acquiesced. We obtained an interview, when Mr. 
 Baron Parke requested to know distinctly whether the prisoner 
 insisted on my defending him; and on bearing that he did, said 
 I was bound to do so, and to \ue an fair argvmentt arising on 
 the evidence. I therefore retained the brief; and I contended 
 for it, that every argument I used was a fair commentary on 
 the evidence, though undoubtedly as strong as could 
 I make them. I believe there is no difference of opinion now 
 in the profession that this course was right. It was not till 
 after eight hours of my public exertion before the jury that 
 the prisoner confessed; and to have abandoned him then would 
 have been virtually surrendering him to death. 
 
 The general sentiment of the profession has fully 
 sustained the counsel in the position he assumed, of 
 retaining the brief, after learning of his client's 
 puilt, and the practice has since been followed, both 
 in England and America. It is contended, in sup- 
 port of this position, that no advocate, who has ac- 
 cepted a retainer to defend a person charged with 
 crime, is at liberty to break his contract because he 
 finds the prisoner to be guilty; that it Ls no part of 
 such contract that the prisoner is innocent; that
 
 APPENDIX 213 
 
 guilty men have the same right to be defended as 
 others, and that this right is only in furtherance of 
 public justice, which demands that no one shall be 
 convicted, except on legal and sufficient evidence. 
 
 The advice given to Mr. Phillips by Baron Parke 
 has also become the standard of professional duty 
 in a case of this kind, and counsel is bound to "use 
 all fair arguments arising on the evidence." But 
 even this rule must be qualified in some respects, 
 for it is possible to keep within it and yet to violate 
 the precepts of righteous conduct. This, it is said 
 by his detractors, is just what Phillips did. It would 
 seem that previously to Courvoisier 's confession, and 
 while the evidence was of a very inconclusive char- 
 acter, he had pursued a line of policy dictated by 
 a belief in his client's innocence. During the whole 
 course of his cross-examination he made the 
 strongest insinuations that the fellow servants of 
 his client were the perpetrators of 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 of blood-stained 
 gloves in his valise, which were not discovered until 
 after he was sent to prison. All of this made it ex- 
 tremely difficult to follow Baron Parke 's advice. 
 To use after the confession * ' all fair arguments aris- 
 ing on the evidence" which was elicited before the 
 confession, was all but impossible. What would have 
 been fair before became unjustifiable afterward. 
 The task of selecting and rejecting, of deciding what 
 might and what might not be used, would have 
 puzzled the best mind even after long and careful
 
 214 APPENDIX 
 
 consideration, and, it would seem, in the excitement 
 of the trial Mr. Phillips failed to discriminate be- 
 tween them. It is asserted that in his argument* 
 lie not only proclaimed his own belief in his client's 
 innocence, but still attempted to impute the crime 
 to the other servants, finally closing by a threat to 
 the jury in the following peroration : 
 
 / gpeaJc to you as a friffnd, at a fellow-Christian, and I 1*11 
 you, that if you do not act in the spirit which I have called 
 upon you to do, that the deed of today uill never die urithin 
 .I/OH. If you should pronounce your decision without that deep 
 ami profound consideration of its awful import, the error which 
 you have fallen into will pursue you with remorse to the latest 
 period of your existence, and stand against you in condemna- 
 tion, before the judgment-seat of your God. So ben-arc whai 
 you do. 
 
 Notwithstanding a vigorous denial by Mr. Phil- 
 lips and his friends of the charges last recited, it 
 would yet seem, from the reports in the public press, 
 that they were substantially true as alleged, and his 
 conduct has furnished a fruitful theme for much sub- 
 sequent condemnatory writing by the moralists. 
 While we must make due allowance for him on ac- 
 count of the positive obligation he was under to 
 pursue the defense and the superlative difficulty 
 under which he labored in so doing, we must yd 
 agree with the critics in their assertion that, a coun- 
 s.'l who so far forgets his office as to support false- 
 hood, or even to distort the evidence, violates not 
 fellows his duty as an advocate. 
 
 The deductions to be drawn from the Courvoisier 
 case mny be summarized as
 
 APPENDIX 215 
 
 An attorney is bound to retain a case and con- 
 tinue the defense, notwithstanding he may ascertain 
 during the course of the trial that his client is guilty. 
 
 It is his duty, even under such circumstances, to 
 screen his client from conviction on insufficient evi- 
 dence, and to employ in his defense all fair argu- 
 ments. 
 
 He has no right, even though the facts may admit 
 of the possibility of guilt in others, to cast suspi- 
 cion on the innocent, nor to damage the character 
 of honest witnesses. 
 
 He is wholly unjustified in asserting his own be- 
 lief in his client's innocence, knowing at the time 
 that he is guilty. 
 
 B 
 
 LEGAL COMMERCIALISM 
 
 In an address before the Section of Legal Edu- 
 cation of the American Bar Association, at its ses- 
 sion held in the year 1894, the illustrious author and 
 jurist, Hon. John F. Dillon, while discussing the 
 features of "The true professional ideal," made the 
 following pertinent remarks: 
 
 There is, I fear, some decadence in the lofty ideals that 
 have characterized the profession in former times. There is 
 in our modern life a tendency I have thought at times very 
 strongly marked to assimilate the practice of the law to the 
 conduct of commercial business. In great law firms with their 
 separate departments and heads and subordinate bureaus and 
 clerks with their staff of assistants there is much resemblance 
 to the business method of the great mercantile and business 
 establishments situate close by. The true lawyer not to say
 
 216 AITLNWX 
 
 the ideal lawyer is one who begrudges no time and toil, how- 
 great, needful to the thorough mastery of his caae in its 
 facts and legal principles; who takes the time and gives the 
 labor necessary to go to its very bottom, and who win not cease 
 Iiis study until every detail stands distinct and luminous in the 
 intellectual light with which he has surrounded it The tempta- 
 tions and exigencies of a large practice make this very difficult, 
 and the result too generally is that the case gets only the atten- 
 tion that is convenient instead of that which it truly requires. 
 The head of a great firm in a metropolitan city, a learned and 
 able man, was associated with another in a case of much com- 
 plexity and moment. He expressed warm admiration of the 
 printed argument of his associate counsel, which had cost the 
 latter two months of laborious work, adding, however, that be 
 could not have given that much time to it because, commercially 
 regarded, it would not have paid him to do so. 
 
 It is unquestionably the duty of the profession to preserve 
 the traditions of the past to maintain its lofty ideals and to 
 this end to guard against what I may perhaps truly describe 
 by calling it the "commercializing" spirit of the age. The 
 utterance of Him who spake with an authority greater than 
 that of any lawyer or judge, ' ' Man lives not by bread alone, ' ' 
 should never be forgotten or unheeded by the lawyer, and will 
 not be by any who comes within the category of what may be 
 termed the "Ideal Lawyer." 
 
 CANONS OP PROFESSIONAL ETHICS OF THE AMER- 
 ICAN BAB ASSOCIATION 
 
 The following code of professional ethics was 
 adopted by the American Bar Association at its an- 
 nual meeting held August 27, 1908. The foundation 
 is the code adopted by the Alabama Bar Association 
 in 1887. The framers of the code admit that no set 
 of rules can be drawn that will particularize the
 
 APPENDIX 217 
 
 duties of the lawyer in all the varying relations of 
 professional life. The code was adopted, therefore, 
 only as a general guide and with the express under- 
 standing, that the enumeration of particular duties 
 should not be construed as a denial of the existence 
 of other duties, equally imperative, although not 
 specifically mentioned. 
 The canons are as follows : 
 
 1. The Duty of the Lawyer to the Courts. It is the duty 
 of the lawyer to maintain towards the Courts a respectful 
 attitude, not for the sake of the temporary incumbent of 
 the judicial office, but for the maintenance of its supreme 
 importance. Judges, not being wholly free to defend them- 
 selves, are peculiarly entitled to receive the support of the 
 Bar against unjust criticism and clamor. Whenever there 
 is proper ground for serious complaint of a judicial officer, 
 it is the right and duty of the lawyer to submit his griev- 
 ances to the proper authorities. In such cases, but not 
 otherwise, such charges should be encouraged and the per- 
 son making them should be protected. 
 
 2. The Selection of Judges. It is the duty of the Bar to 
 endeavor to prevent political consideration from outweigh- 
 ing judicial fitness in the selection of Judges. It should 
 protest earnestly and actively against the appointment or 
 election of those who are unsuitable for the Bench; and it 
 should strive to have elevated thereto only those willing 
 to forego other employments, whether of a business, political 
 or other character, which may embarrass their free and fair 
 consideration of questions before them for decision. The 
 aspiration of lawyers for judicial position should be gov- 
 erned by an impartial estimate of their ability to add honor 
 to the office and not by a desire for the distinction the 
 position may bring to themselves. 
 
 3. Attempts to Exert Personal Influence on the Court. 
 Marked attention and unusual hospitality on the part of a
 
 218 APPENDIX 
 
 lawyer to a Judge, uncalled for by the personal relations 
 of the parties, subject both the Judge and the lawyer to 
 misconstructions of motive and should be avoided. A lawyer 
 should not communicate or argue privately with the Judge 
 as to the merits of a pending cause, and he deserves rebuke 
 end denunciation for any device or attempt to gain from a 
 Judge special personal consideration or favor. A self-re- 
 specting independence in the discharge of professional duty, 
 without denial or diminution of the courtesy and respect 
 due the Judge's station, is the only proper foundation for 
 cordial personal and official relations between Bench and Bar. 
 
 4. When Counsel for an Indigent Prisoner. A lawyer as- 
 signed as counsel for an indigent prisoner ought not to ask 
 to be excused for any trivial reason, and should always exert 
 his best efforts in his behalf. 
 
 5. The Defense or Prosecution of Those Accused of Crime. 
 It is the right of the lawyer to undertake the defense of a 
 person accused of crime, regardless of his personal opinion 
 as to the guilt of the accused; otherwise innocent persons, 
 victims only of suspicious circumstances, might be denied 
 proper defense. Having undertaken such defense, the lawyer 
 is bound by all fair and honorable means, to present every 
 defense that the law of the land permits, to the end that 
 no person may be deprived of life or liberty, but by due 
 process of law. 
 
 The primary duty of a lawyer engaged in public prosecu- 
 tion is not to convict, but to see that justice is done. The 
 suppression of facts or the secreting of witnesses capable 
 of establishing the innocence of the accused is highly repre- 
 hensible. 
 
 6. Adverse Influences and Conflicting Interests. It is the 
 duty of a lawyer at the time of retainer to disclose to the 
 client all the circumstances of his relations to the parties, 
 and any interest in or connection with the controversy, 
 which might influence the client in the selection of counsel. 
 
 It is unprofessional to represent conflicting interests,
 
 APPENDIX 219 
 
 except by express consent of all concerned given after a 
 full disclosure of the facts. Within the meaning of this 
 eanon, a lawyer represents conflicting interests when, in 
 behalf of one client, it is his duty to contend for that which 
 duty to another client requires him to oppose. 
 
 The obligation to represent the client with undivided 
 fidelity and not to divulge his secrets or confidences forbids 
 also the subsequent acceptance of retainers or employment 
 from others in matters adversely affecting any interest of 
 the client with respect to which confidence has been reposed. 
 
 7. Professional Colleagues and Conflicts of Opinion. A 
 client's proffer of assistance of additional counsel should not 
 be regarded as evidence of want of confidence, but the mat- 
 ter should be left to the determination of the client. A 
 lawyer should decline association as colleague if it is ob- 
 jectionable to the original counsel, but if the lawyer first 
 retained is relieved, another may come into the case. 
 
 When lawyers jointly associated in a cause cannot agree 
 as to any matter vital to the interest of the client, the con- 
 flict of opinion should be frankly stated to him for his final 
 determination. His decision should be accepted unless the 
 nature of the difference makes it impracticable for the law- 
 yer whoge judgment has been overruled to co-operate effec- 
 tively. In this event it is his duty to ask the client to re- 
 lieve him. 
 
 Efforts, direct or indirect, in any way to encroach upon 
 the business of another lawyer, are unworthy of those who 
 should be brethren at the Bar; but, nevertheless, it is the 
 right of any lawyer, without fear or favor, to give proper 
 advice to those seeking relief against unfaithful or neglect- 
 ful counsel, generally after communication with the lawyer 
 of whom the complaint is made. 
 
 8. Advising Upon the Merits of a Client's Cause. A 
 lawyer should endeavor to obtain full knowledge of his 
 client's cause before advising thereon, and he is bound to 
 give a candid opinion of the merits and probable result of 
 pending or contemplated litigation. The miscarriages to
 
 APPENDIX 
 
 which justice is subject, by reason of surprises and disap- 
 pointments in evidence and witnesses, and through mistakes 
 of juries and errors of Courts, even though only occasional, 
 admonish lawyers to beware of bold and confident assur- 
 .-Hires to clients, especially where the employment may de- 
 l"-ii'l upon such assurance. Whenever the controversy will 
 :i'lmit of fair adjustment, the client should be advised to 
 avoid or to end the litigation. 
 
 9. Negotiations With Opposite Party. A lawyer should 
 not in any way communicate upon the subject of contro- 
 versy with a party represented by counsel; much less should 
 he undertake to negotiate or compromise the matter with 
 him, but should deal only with his counsel It is incum- 
 bent upon the lawyer most particularly to avoid everything 
 that may tend to mislead a party not represented by counsel, 
 and he should not undertake to advise him as to the law. 
 
 10. Acquiring Interest in Litigation. The lawyer should 
 not purchase any interest in the subject matter of the litiga- 
 tion which he is conducting. 
 
 11. Dealing With Trust Property. Money of the client 
 or other trust property coming into the possession of the 
 lawyer should be reported promptly, and except with the 
 client's knowledge and consent should not be commingled 
 with his private property or be used by him. 
 
 12. Fixing the Amount of the Fee. In fixing fees, lawyers 
 should avoid charges which overestimate their advice and 
 services, as well as those which undervalue them. A client 'a 
 ability to pay cannot justify a charge in excess of the value 
 of the service, though his poverty may require a less charge, 
 or even none at all. The reasonable requests of brother 
 lawyers, and of their widows and orphans without ample 
 means, should receive special and kindly consideration. 
 
 In determining the amount of the fee, it is proper to con- 
 sider: (1) the time and labor required, the novelty and 
 difficulty of the questions involved and the skill requisite
 
 APPENDIX 221 
 
 properly to conduct the cause; (2) whether the acceptance 
 of employment in the particular case will preclude the law- 
 ye.i 'a appearance for others in cases likely to arise out of 
 the transaction, and in which there is a reasonable expecta- 
 tion that otherwise he would be employed, or will involve 
 the loss of other business while employed in the particular 
 case or antagonisms with other clients; (3) the customary 
 charges of the Bar for similar services; (4) the amount in- 
 volved in the controversy and the benefits resulting to the 
 client from the services; (5) the contingency or the cer- 
 tainty of the compensation; and (6) the character of the 
 employment, whether casual or for an established and con- 
 stant client. No one of these considerations in itself is 
 controlling. They are mere guides in ascertaining the real 
 value of the service. 
 
 In fixing fees it should never be forgotten that the pro- 
 fession is a branch of the administration of justice and not 
 a mere money-getting trade. 
 
 13. Contingent Fees. Contingent fees, where sanctioned 
 by law, should be under the supervision of the Court, in 
 order that clients may be protected from unjust charges. 
 
 14. Suing a Client for a Fee. Controversies with clients 
 concerning compensation are to be avoided by the lawyer 
 so far as shall be compatible with his self-respect and with 
 his right to receive reasonable recompense for his services; 
 and lawsuits with clients should be resorted to only to 
 prevent injustice, imposition or fraud. 
 
 15. How Far a Lawyer May Go in Supporting a Client's 
 Cause. Nothing operates more certainly to create or to 
 foster popular prejudice against lawyers as a class, and to 
 deprive the profession of that full measure of public es- 
 teem and confidence which belongs to the proper discharge 
 of its duties than does the false claim, often set up by the 
 unscrupulous in defense of questionable transactions, that 
 it is the duty of the lawyer to do whatever may enable 
 him to succeed in winning his client's cause.
 
 222 APPENDIX 
 
 It is improper for a lawyer to assert in argument his per- 
 sonal belief in his client's innocence or in the justice of his 
 
 The lawyer owes "entire devotion to the interest of the 
 client, warm zeal in the maintenance and defense of his 
 rights and the exertion of his utmost learning and ability," 
 to the end that nothing be taken or be withheld from him, 
 save by the rules of law, legally applied. No fear of judi- 
 cial disfavor or public unpopularity should restrain him 
 from the full discharge of his duty. In the judicial forum 
 the client is entitled to the benefit of any and every remedy 
 and defense that is authorized by the law of the land, and 
 he may expect his lawyer to assert every such remedy or 
 defense. But it is steadfastly to be borne in mind that the 
 great trust of the lawyer is to be performed within and not 
 without the bounds of the law. The office of attorney does 
 not permit, much less does it demand of him for any client, 
 violation of law or any manner of fraud or chicane. He 
 must obey his own conscience and not that of his client. 
 
 16. Restraining Clients from Improprieties. A lawyer 
 should use his best efforts to restrain and to prevent his 
 clients from doing those things which the lawyer himself 
 ought not to do, particularly with reference to their con- 
 duct towards Courts, judicial officers, jurors, witnesses and 
 suitors. If a client persists in such wrong-doing the lawyer 
 should terminate their relation. 
 
 17. Ill Feeling and Personalities Between Advocates. 
 Clients, not lawyers, are the litigants. Whatever may be 
 the ill-feeling existing between clients, it should not be 
 allowed to influence counsel in their conduct and demeanor 
 toward each other or toward suitors in the case. All per- 
 sonalities between counsel should be scrupulously avoided. 
 In the trial of a cause it is indecent to allude to the per- 
 sonal history or the personal peculiarities and idiosyncrasies 
 of counsel on the other side. Personal colloquies between 
 counsel which cause delay and promote unseemly wrangling 
 should also be carefully avoided.
 
 APPENDIX 223 
 
 18. Treatment of Witnesses and Litigants. A lawyer 
 should always treat adverse witnesses and suitors with fair- 
 ness and due consideration, and he should never minister 
 to the malevolence or prejudices of a client in the trial or 
 conduct of a cause. The client cannot be made the keeper 
 of the lawyer's conscience in professional matters. He has 
 no right to demand that his counsel shall abuse the opposite 
 party or indulge in offensive personalities. Improper speech 
 is not excusable on the ground that it is what the client 
 would say if speaking in his own behalf. 
 
 19. Appearance of Lawyer as Witness for His Client. 
 When a lawyer is a witness for his client, except as to 
 merely formal matters, such as the attestation or custody 
 of an instrument and the like, he should leave the trial of 
 the case to other counsel. Except when essential to the 
 ends of justice, a lawyer should avoid testifying in Court 
 in behalf of his client. 
 
 20. Newspaper Discussion of Pending Litigation. News- 
 paper publications by a lawyer as to pending or anticipated 
 litigation may interfere with a fair trial in the Courts and 
 otherwise prejudice the due administration of justice. Gen- 
 erally they are to be condemned. If the extreme circum- 
 stances of a particular case justify a statement to the pub- 
 lic, it is unprofessional to make it anonymously. An ex 
 parte reference to the facts should not go beyond quotation 
 from the records and papers on file in the Court; but even 
 in extreme cases it is better to avoid any ex parte state- 
 ment. 
 
 21. Punctuality and Expedition. It is the duty of the 
 lawyer not only to his client, but also to the Courts and 
 to the public to be punctual in attendance, and to be con- 
 cise and direct in the trial and disposition of causes. 
 
 22. Candor and Fairness. The conduct of the lawyer be- 
 fore the Court and with other lawyers should be character 
 ized by candor and fairness.
 
 224 APPENDIX 
 
 It IB not candid or fair for the lawyer knowingly to mis 
 quote the contents of a paper, the testimony of a witness, 
 the language or the argument of opposing counsel, or the 
 language of a decision or a text-book; or with knowledge of 
 its invalidity, to cite as authority a decision that has been 
 overruled, or a statute that has been repealed; or in argu- 
 ment to assert as a fact that which baa not been proved, 
 or in those jurisdictions where a side has the opening and 
 closing arguments to mislead his opponent by concealing or 
 withholding positions in his opening argument upon which 
 his side then intends to rely. 
 
 It is unprofessional and dishonorable to deal other than 
 candidly with the facts in taking the statements of wit- 
 nesses, in drawing affidavits and other documents, and in 
 the presentation of causes. 
 
 A lawyer should not offer evidence, which he knows the 
 Court should reject, in order to get the same before the 
 jury by argument for its admissibility, nor should he ad- 
 dress to the Judge arguments upon any point not properly 
 calling for determination by him. Neither should he intro- 
 duce into an argument, addressed to the Court, remarks or 
 statements intended to influence the jury or bystanders. 
 
 These and all kindred practices are unprofessional and 
 unworthy of an officer of the law charged, as is the lawyer, 
 with the duty of aiding in the administration of justice. 
 
 23. Attitude Toward Jury. All attempts to curry favor 
 with juries by fawning, flattery or pretended solicitude for 
 their personal comfort are unprofessional. Suggestions of 
 counsel, looking to the comfort or convenience of jurors, and 
 propositions to dispense with argument, should be made to 
 the Court out of the jury's hearing. A lawyer must never 
 converse privately with jurors about the case; and both 
 before and during the trial he should avoid communicating 
 with them, even as to matters foreign to the cause. 
 
 24. Right of Lawyer to Control the Incidents of the Trial 
 As to incidental matters pending the trial, not affecting the 
 merits of the cause, or working substantial prejudice to the
 
 APPENDIX 225 
 
 rights of the client, such as forcing the opposite lawyer to 
 trial when he is under affliction or bereavement; forcing the 
 trial on a particular day to the injury of the opposite law- 
 yer when no harm will result from a trial at a different 
 time; agreeing to an extension of time for signing a bill of 
 exceptions, cross interrogatories and the like, the lawyer 
 must be allowed to judge. In such matters no client has a 
 right to demand that his counsel shall be illiberal, or that 
 he do anything therein repugnant to his own sense of honor 
 and propriety. 
 
 25. Taking Technical Advantage of Opposite Counsel; 
 Agreements With Him. A lawyer should not ignore known 
 customs or practice of the Bar or of a particular Court, even 
 when the law permits, without giving timely notice to the 
 opposing counsel. As far as possible, important agreements, 
 affecting the rights of clients, should be reduced to writing; 
 but it is dishonorable to avoid performance of an agree- 
 ment fairly made because it is not reduced to writing, as 
 required by rules of Court. 
 
 26. Professional Advocacy Other Than Before Courts. A 
 lawyer openly, and in his true character may render pro- 
 fessional services before legislative or other bodies, regard- 
 ing proposed legislation and in advocacy of claims before 
 departments of government, upon the same principles of 
 ethics which justify his appearance before the Courts; but 
 it is unprofessional for a lawyer so engaged to conceal his 
 attorneyship, or to employ secret personal solicitations, or 
 to use means other than those addressed to the reason and 
 understanding to influence action. 
 
 27. Advertising, Direct or Indirect. The most worthy 
 and effective advertisement possible, even for a young law- 
 yer, and especially with his brother lawyers, is the estab- 
 lishment of a well-merited reputation for professional 
 capacity and fidelity to trust. This cannot be forced, but 
 must be the outcome of character and conduct. The pub- 
 lication or circulation of ordinary simple business cards,
 
 2 Lib APPENDIX 
 
 being a matter of personal taste or local custom, and some- 
 times of convenience, is not per se improper. But solicita- 
 tion of business by circulars or advertisements, or by per- 
 sonal communications or interviews, not warranted by per- 
 sonal relations, is unprofessional. It is equally unprofes- 
 sional to procure business by indirection through touters of 
 any kind, whether allied real estate firms or trust companies 
 advertising to secure the drawing of deeds or wills or offer- 
 ing retainers in exchange for ezecutorships or trusteeships 
 to be influenced by the lawyer. Indirect advertisement for 
 business by furnishing or inspiring newspaper comments con- 
 cerning causes in which the lawyer has been or is engaged, 
 or concerning the manner of their conduct, the magnitude of 
 the interests involved, the importance of the lawyer's posi- 
 tions, and all other like self-laudation, defy the traditions 
 and lower the tone of our high calling, and are intolerable. 
 
 28. Stirring up Litigation, Directly or Through Agents. 
 It is unprofessional for a lawyer to volunteer advice to 
 bring a lawsuit, except in rare cases where ties of blood, 
 relationship or trust make it his duty to do so. Stirring 
 up strife and litigation is not only unprofessional but it is 
 indictable at common law. It is disreputable to hunt up 
 defects in titles or other causes of action and inform thereof 
 in order to be employed to bring suit, or to breed litigation 
 by seeking out those with claims for personal injuries or 
 those having any other grounds of action in order to secure 
 them as clients, or to employ agents or runners for like pur- 
 poses, or to pay or reward, directly or indirectly, those 
 who bring or influence the bringing of such cases to his office, 
 or to remunerate policemen, court or prison officials, physi- 
 cians, hospital attachct or others who may succeed, under 
 the guise of giving disinterested friendly advice, in influenc- 
 ing the criminal, the sick and the injured, the ignorant or 
 others, to seek his professional services. A duty to the publi<- 
 and to the profession devolves upon every member of the 
 Bar, having knowledge of such practices upon the part of 
 any practitioner, immediately to inform thereof to the end 
 that the offender may be disbarred.
 
 APPENDIX 227 
 
 29. Upholding the Honor of the Profession. Lawyers 
 should expose without fear or favor before the proper tribu- 
 nals corrupt or dishonest conduct in the profession, and 
 should accept without hesitation employment against a mem- 
 ber of the Bar who has wronged his: client. The counsel upon 
 the trial of a cause in which perjury has been committed 
 owe it to the profession and to the public to bring the mat- 
 ter to the knowledge of the prosecuting authorities. The 
 lawyer should aid in guarding the Bar against the admis- 
 sion to the profession of candidates unfit or unqualified be- 
 cause deficient in either moral character or education. He 
 should strive at all times to uphold the honor and to main- 
 tain the dignity of the profession and to improve not only 
 the law but the administration of justice. 
 
 30. Justifiable and Unjustifiable Litigations. The lawyer 
 must decline to conduct a civil cause or to make a defense 
 when convinced that it is intended merely to harass or to 
 injure the opposite party or to work oppression or wrong. 
 But otherwise it is his right, and, having accepted retainer, 
 it becomes his duty to insist upon the judgment of the Court 
 as to the legal merits of his client's claim. His appearance 
 in Court should be deemed equivalent to an assertion on his 
 honor that in his opinion his client's case is one proper for 
 judicial determination. 
 
 31. Responsibility for Litigation. No lawyer is obliged 
 to act either as adviser or advocate for every person who 
 may wish to become his client. He has the right to de- 
 cline employment. Every lawyer upon his own responsibil- 
 ity must decide what business he will accept as counsel, 
 what causes he will bring into Court for plaintiffs, what 
 cases he will contest in Court for defendants. The respon- 
 sibility for advising questionable transactions, for bringing 
 questionable suits, for using questionable defenses, is the 
 lawyer's responsibility. He cannot escape it by using as an 
 excuse that he is only following his client's instructions.
 
 228 APPENDIX 
 
 32. The Lawyer's Duty in Its Last Analysis. No client, 
 corporate or individual, however powerful, nor any cause, 
 civil or political, however important, is entitled to receive, 
 nor should any lawyer render, any service or advice involv- 
 ing disloyalty to the law whose ministers we are, or dis- 
 respect of the judicial office, which we are bound to uphold, 
 or corruption of any person or persons exercising a public 
 office or private trust, or deception or betrayal of the pub- 
 lic. When rendering any such improper service or advice, 
 the lawyer invites and merits stern and just condemnation. 
 Correspondingly, he advances the honor of his profession 
 and the best interests of his client when he renders service 
 or gives advice tending to impress upon the client and his 
 undertaking exact compliance with the strictest principles 
 of moral law. He must also observe and advise his client 
 to observe the statute law, though until a statute shall have 
 been construed and interpreted by competent adjudication, 
 he is free and is entitled to advise as to its validity and 
 as to what he conscientiously believes to be its just meaning 
 and extent. But above all a lawyer will find his highest 
 honor in a deserved reputation for fidelity to private trust 
 and to public duty, as an honest man and as a patriotic 
 and loyal citizen.
 
 TABLE OF CASES 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 
 Allis v. Day, 133. 
 Alpers v. Hunt, 141a. 
 Anderson v. Bosworth, 63. 
 Anderson v. Comptois, 312a. 
 Arden v. Patterson, 143. 
 Arlington v. Arrington, 277. 
 Austin, case of, 305. 
 
 Babbitt v. Bumpus, 135. 
 Baker v. State, 309. 
 Ballard v. Carr, 146. 
 Balsbaugh v. Eraser, 140. 
 Bank v. Ward, 207. 
 Barnes v. Harris, 271. 
 Bathgate v. Haskin, 129. 
 Beck v. Bellamy, 240. 
 Beene v. State, 73. 
 Bentley v. Fidelity Co., 115. 
 Bessette v. State, 229b. 
 Bigler v. Eeyher, 271. 
 Bigeloy v. Toy, 243. 
 Biggs, ex parte, 62, 69. 
 Bills v. Polk, 134. 
 Bingham v. Salene, 127. 
 Boone, in re, 73, 272, 277, 286. 
 Boylan v. Holt, 141. 
 Bradley v. Fisher, 73, 302, 308. 
 Britton v. Lorenz, 275. 
 Brown, in re, 308. 
 Brule, in re, 188. 
 
 Burnap v. Marsh, 264a. 
 Burnham v. Heselton, 128. 
 Burns v. Allen, 71. 
 Burr, ex parte, 64. 
 
 Cain v. Warford, 146. 
 Cairo, etc., E. E. Co. v. Koer- 
 
 ner, 278, 279. 
 
 Chester County v. Barber, 146. 
 Chicago Building Society v. 
 
 Haas, 283, 285. 
 Clarke, in re, 89a. 
 Cluett v. Eosenthal, 229a. 
 Chreste v. Louisville Ey. Co., 
 
 88. 
 
 Chreste v. Commonwealth, 89a. 
 Cochrane v. Little, 245. 
 Cohen, re, 138. 
 Cole, ex parte, 73. 
 Coleman v. Billings, 145. 
 Commonwealth v. Perry, 91. 
 Conway County v. Ey. Co., 
 
 242. 
 
 Cook v. Mackrell, 123. 
 Cooper v. Hamilton, 119, 122, 
 
 267. 
 
 Davie's Case, 75. 
 Davis v. Nat. Bank, 156. 
 Davis v. Smith, 278. 
 
 229
 
 230 
 
 TABLE OF CASES 
 
 [THE REFERENCES ABE TO THE SECTIONS.] 
 
 Davis v. Hall, 283. 
 Diekaon v. Wright, J43. 
 Doherty v. O'Callaghan. 275. 
 Dorr v. Cam den, 140. 
 Duke v. Harper, 292. 
 Dundee Mfg. Co. v. Hughes, 
 207. 
 
 Ector v. Wiggins, 122. 
 Edwards v. Edwards, 243. 
 Eggleston v. Boardman, 131, 
 
 132, 135, 250. 
 Eldridge, matter of, 183. 
 Elmore v. Johnson, 127, 128, 
 
 131. 
 Evans, in re, 69. 
 
 Fairfield Bar v. Taylor, 277. 
 Ford v. Williams, 264b. 
 Forer v. People, 91. 
 Fowler v. Finley, 200. 
 Frazier v. Parks, 241. 
 Frear v. Drinker, 192. 
 
 Gale, in re, 309. 
 Gambert v. Hart, 246. 
 Garland, ex parte, 62. 
 Genrow v. Flynn, 279. 
 (iilison v. Nelson, 243. 
 Gilt>ert v. Williams, 247. 
 Gilbert v. Welsch, 289. 
 Giles v. Eattn, I' 11. 
 Goltra v. Wolcott, 2TB. 
 Goodenough v. Spencer, 258. 
 Goodwin's Appeal, 275. 
 Graydon v. Stokes, 322. 
 Green v. Milbank, 250. 
 Gulir v. Oulic, 275. 
 
 Haight v. Moore, 251. 
 Halaska v. CoUhausen, 
 
 137. 
 
 Hallam v. Hallam, 1_ ;. 
 Harday v. Keeler, 264b. 
 Hatch v. Fogarty, 277. 
 Haverty v. Haverty, 284. 
 Hemenway v. Smith, 271. 
 Henderson, in re, 309. 
 Henry v. Vance, 293. 
 Hillegass v. Bender, 
 Holt v. Idleman, 241. 
 House v. White, 154. 
 Howe v. Lawrence, 284. 
 Hunter v. Burtis, 264b. 
 Huson, matter of, 70. 
 Hutchinson v. Stephens, 160. 
 
 Ingersol v. Coal Co., 89a. 
 
 Jackson v. State, 69. 
 Johnson v. Whiteside County, 
 152, 153. 
 
 Kaut v. Kessler, 275. 
 Kelly v. Wright, 243. 
 Kelly v. Riley, 241. 
 Kersey v. Garton, 134. 
 Kisling v. Shaw, 128. 
 Knox v. Randall, 3 IT-. 
 
 Lamar Ins. Co. v. Pennrll, l.'U. 
 Lane, re, 19 la. 
 Lawall v. Groman, 239, 267. 
 Lecatt v. Sallee, 128, 131. 
 Lengsfleld v. Richardwn,
 
 TABLE OF CASES 
 
 231 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 
 Louisville, etc., E. E. Co. v. 
 
 Eeynolds, 135. 
 Louisville Ey. Co. v. Wallace, 
 
 133. 
 Lynde v. Lynde, 63. 
 
 Maddux v. Sevan, 243. 
 Mandeville v. Eeynolds, 243. 
 Marbourg v. Smith, 243. 
 Martin v. Camp, 292. 
 Mayer v. Blease, 242. 
 McDonald v. B. E. Co., 146. 
 McMahon v. Smith, 251. 
 Meguire v. Corwine, 141a. 
 Mills Case, 75. 
 Moore v. Eobinson, 292. 
 Morgan v. Eoberts, 192. 
 
 Nave v. Baird, 249. 
 Newkirk v. Cone, 146. 
 Nichells v. Nichells, 278, 283. 
 Norwood v. Harness, 288, 289. 
 
 O'Keefe, re, 191. 
 Ogden v. Devlin, 325. 
 Ohlquist v. Farwell, 284. 
 Orman v. State, 275. 
 Orr v. Tanner, 71. 
 
 Parker v. Parker, 277. 
 Paschal, in re, 325. 
 Patterson v. Colorado, 306. 
 Pfister v. Wade, 243. 
 Phillips v. Dobbins, 243. 
 Pickett v. Bank, 243. 
 People v. Green, 64. 
 People v. Allison, 70, 74. 
 
 People v. Appleton, 70, 75. 
 People v. Barker, 73, 271, 272. 
 People v. Bamborough, 136, 
 
 138. 
 
 People v. Gillson, 91. 
 People v. Chamberlain, 291. 
 People v. MacCabe, 92, 100, 
 
 102. 
 
 People v. Goodrich, 99, 303. 
 People v. Brown, IOC. 
 People v. Smith, 196. 
 People v. Moutray, 201. 
 People v. Murphy, 69. 
 People v. Hurst, 233. 
 People v. Hooper, 204a. 
 People v. Atkinson, 272. 
 People v. Mahon, 275. 
 People v. VanAlstine, 275. 
 People v. Fielding, 229b. 
 People v. Greenwall, 229b. 
 People v. Eyalls, 290. 
 People v. Palmer, 291. 
 People v. Beattie, 309. 
 Pryor, in re, 297. 
 
 Quint v. Mining Co., 292. 
 
 Eandall's Case, 75. 
 Eeynolds v. McMillan, 132. 
 Eoberts v. Nelson, 242. 
 Eobinson, ex parte, 69. 
 Eobinson v. Murphy, 242. 
 Eomberg v. Hughes, 276. 
 Boss v. Payson, 128. 
 Eoss v. Demoss, 193. 
 Eowe v. Yuba County, 153. 
 Euhstrat v. People, 92.
 
 
 TM-.l.i: OP CASES 
 
 [THE RKTRENCE8 ARE TO THE SECTIONS.] 
 
 Savin, ex parte, 188. 
 s.-halk v. Kingsley, 2r-lb. 
 Schamp v. Si-henk, 130. 
 Scobey v. ROBS, 292. 
 Selover v. Bryant, 135. 
 Sercombe, ex parte, 64, 73. 
 Simpson v. Brown, 283. 
 Sheldon v. Biescdorph, 241. 
 Sherman v. Scott, 275. 
 Skillcn v. Wallace, 246. 
 Smith v. By. Co., 261, 287. 
 Spinka v. Davis, 277. 
 Staats, ex parte, 63. 
 Stanton v. Enxbrey, 137. 
 State v. Finley, 69. 
 State v. Kirke, 64. 
 State v. Winton, 69. 
 State v. McCheaney, 275. 
 State v. Anderson, 305. 
 State v. Warford, 229a. 
 State v. Smith, 229b. 
 Stearns v. Field, 171. 
 Steinman, ex parte, 304, 305. 
 Stevens v. Walker, 245. 
 
 Tancre v. Reynolds, 254. 
 Temple, in re, 290. 
 Tenney v. Berger, 278, 282, 
 284. 
 
 Thomas, re, 191a. 
 Thompson v. Reynolds, 145. 
 Treadwell, in re, 290. 
 Turnan v. Tempke, 241. 
 
 United States v. Coffin, 128. 
 
 Valentine v. Stewart, 277. 
 Vickery v. McClellan, 244. 
 Vilas v. Downer, 137. 
 
 Wadhams v. Gay, 243. 
 Wailes v. Brown, 123. 
 Walden v. Bolton, L 
 Wall, ex parte, 62, 69, 309. 
 Ward v. Boy, 241. 
 Wassel v. Beardon, 267. 
 Wayne County v. Waller, 153. 
 Wells v. Commonwealth, 212a. 
 Wetherbee v. Fitch, 243. 
 Whartenby v. Beay, 241. 
 Whipple v. Barton, 254. 
 Whitcpmb's Case, 62. 
 White v. Johnson, 241. 
 Wiley v. Mahood, 243. 
 Williams v. Williams, 289. 
 Wright v. Baldwin, 123. 
 
 Zeigler v. Hughes, 251.
 
 INDEX 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 ABUSE, 
 
 of legal process unprofessional, 202. 
 of opposite side in arguments, 198. 
 
 ADVERTISING, 
 
 ethical rules respecting, 92. 
 
 by professional cards, 93. 
 
 by signs, 96a. 
 
 through the newspapers, 97. 
 
 by anonymous announcements, 99. 
 
 by discussions in the press, 107. 
 
 by letters and circulars, 109. 
 
 by word of mouth, 112. 
 
 ADVERSE EMPLOYMENT, 
 may not be accepted, 277. 
 
 ADVICE, 
 
 to witnesses, may be given when, 183, 185. 
 to clients, rules with respect to, 255. 
 resulting in commissions of crime, 258. 
 
 ADVOCACY, 
 
 a necessary calling, 36. 
 the practice of, objections to, 38. 
 origin and early history of, 42. 
 chivalric spirit of, in France, Ap. 
 character of early forms of, 117. 
 
 233
 
 234 INDEX 
 
 [THE RErCRKNOES ARK TO THE SECTION'S.] 
 
 ADVOCACY Continued. 
 
 compensation may be taken for, 121. 
 essential morality of practice of, 158. 
 something more than means of livelihood, 128. 
 effect and characteristics of, 331. 
 
 ADVOCATE, 
 
 general duties of, 53. 
 
 summary jurisdiction of courts over, 62. 
 
 AGREEMENTS, 
 
 by attorneys, necessity for observance of, 319. 
 
 for compensation, effect of, 127. 
 
 implied, by acceptance of retainer, 245, 246. 
 
 ANONYMOUS, 
 
 announcements, are unprofessional, 99. 
 
 ATTORNEY, 
 
 distinguished from counsellor, 50. 
 duties and obligations of, 53, 56. 
 may reach the public, how, 80. 
 personal solicitation of business by, 86. 
 compensation of, 119. 
 may not be witness in his own case, 192. 
 should not volunteer opinions, 195. 
 duty of, to third persons, 205. 
 
 Brougham's definition of, 206. 
 authority and powers of, 241. 
 liability of, for want of skill, 245. 
 relation of, to client, 239. 
 may decline retainer, 214, 259. 
 duty of to accused persons, 217. 
 
 may accept retainer with knowledge of prisoner's guilt, 220. 
 duty of in criminal prosecutions, 228. 
 retained to assist in state trials, 232.
 
 INDEX 235 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 
 ATTORNEY Continued, 
 disabilities of, 251. 
 opinions and advice by, 255. 
 conduct of cases by, 262. 
 may not represent both sides, 265. 
 may not divulge privileged communications, 270. 
 may not accept adverse employment, 277. 
 may not withdraw from case, 278. 
 should not assume inconsistent positions, 286. 
 money of client lost by, 288. 
 money of client retained by, 290. 
 right of client to discharge, 292, 325. 
 relations of, with court, 294. 
 conduct of, in court, 297. 
 conduct of, out of court, 300. 
 may critise court, when, 304. 
 must not deceive court, 309. 
 relations of, with bar, 313. 
 
 professional courtesy should be extended by, 314. 
 must show respect for age, 318. 
 must observe hia agreements, 319. 
 may render services to brother attorneys, 322. 
 may institute suits against attorneys, 323. 
 must not interfere with other attorneys' business, 324. 
 duty of in cases of substitution, 325. 
 
 BAD DEBTS, 
 
 advertisements of collection of, unprofessional, 104. 
 
 BAR SCHEDULES, 
 
 will affect attorneys' fees, how, 141. 
 
 BENCH AND BAR, 
 
 relations subsisting between, 5P, 294. 
 
 BLOOD MONEY, 
 
 what the old lawyers say concerning, 232.
 
 236 INDEX 
 
 [THE RXraBENCES ARI TO THE SECTIONS.] 
 
 BOOBN, 
 
 brothers, the case of, 227, n. 
 
 BRIBERY, 
 
 of witnesses, what is, 188. 
 
 CARDS, 
 
 how displayed and used, 93. 
 
 CASES, 
 
 conduct of by attorneys, 262. 
 withdrawal from not permitted, 278. 
 
 CHAMPERTY, 
 
 distinguished from contingent fee, 145. 
 ancient doctrine of, 144, 146. 
 
 CIRCULARS, 
 
 by attorneys, when allowed, 109. 
 
 CLIENT, 
 
 relation of attorney to, 238. 
 
 is bound by attorney's action, 241. 
 
 liability of attorney to, 245. 
 
 attorney may not bargain with, 251. 
 
 opinions given to, 255, 258. 
 
 communications of are privileged, 270. 
 
 money of, lost by attorney, 288. 
 
 money of, retained by attorney, 290. 
 
 right of, to discharge counsel, 292, 325. 
 
 may compel counsel to follow instructions, 317. 
 
 enticement of by attorneys, 324. 
 
 COACHING, 
 
 of witnesses, impropriety of, 181. 
 
 COMMERCIALISM, 
 
 in law, the spirit of, 84, 92, 324. 
 Mr. Dillon's remarks upon, Ap. B.
 
 INDEX 237 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 COMMISSIONS, 
 
 paid for business, 141a. 
 
 COMPENSATION, 
 
 principles governing the right of, 115. 
 
 the English theory of, 118. 
 
 the American theory of, 119. 
 
 liability for devolves on whom, 123. 
 
 service may be refused for lack of, 124. 
 
 agreements for, how construed, 127. 
 
 extent of, and considerations affecting same, 130, 135. 
 
 immoderate, effect of, 136. 
 
 retaining, from funds in hand, 139. 
 
 as affected by local rules, 141. 
 
 dependent on success, 142. 
 
 of assigned counsel, 151. 
 
 forfeiture of the right of, 155. 
 
 CONDUCT, 
 
 professional, legal ethics is, 2. 
 in eliciting testimony, 169. 
 in examination of witnesses, 172. 
 of cases, duty of attorney in, 262. 
 in dealings with clients, 251. 
 in criminal trials, 217, 220. 
 toward judge, in court, 297. 
 toward judge, out of court, 300. 
 toward fellow practitioners, 313, 314. 
 toward the aged, 318. 
 
 CONSCIENCE, 
 
 how far a standard of right, 22. 
 
 CONTEMPT, 
 
 of court, punishment for, 67.
 
 238 INDEX 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 CONTINUKNT F! 
 
 doctrine of, 142, 11.;. 
 nut unlawful, 14o, 146. 
 amount to champerty, when, 145. 
 ethical objections to, 147. 
 ethical reasons in favor of, 150. 
 
 COURTESY, 
 
 professional, of what consisting, 314. 
 
 demands respect for age, 318. 
 
 to bench must always be shown, 297. 
 
 COURTS, 
 
 ethical theory in regard to, 298. 
 
 relation of the bar to, 61, 296. 
 
 summary jurisdiction of, 62. 
 
 discipline exercised by, 65. 
 
 conduct of attorneys towards, 297. 
 
 attorneys must not bring discredit upon, 103. 
 
 production of testimony in, 168. 
 
 tampering with records of, 200. 
 
 abuse of process of, 202. 
 
 actions of may be criticised, 304. 
 
 deception of merits punishment, 309. 
 
 counseling disobedience of orders of, 312, 
 
 COURVOISIER, 
 
 defense of, comments on, Ap. A. 
 
 CRIME, 
 
 effect of advising commission of, 258. 
 communications respecting commission of, not privileged, 
 275. 
 
 CRIMINALS, 
 
 defense of, generally considered, 208. 
 retainer by, may be declined, 214.
 
 INDEX 239 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 CRIMINALS Continued. 
 
 retainer by, may be accepted, 215. 
 
 ancient rules with respect to, 211. 
 
 defense of, no violation of morals, 213. 
 
 professional duty to, 217, 218. 
 
 prosecution of, duty in, 228. 
 
 prosecution of, by private counsel, 232. 
 
 association with, lowers professional standing, 235. 
 
 CRIMINAL LAW, 
 
 as a specialty, objections to, 235. 
 
 CRITICISM, 
 
 of courts, when allowed, 304. 
 
 DECEIT, 
 
 of court by attorneys, 184, 309. 
 
 DEFINITION, 
 
 of ethics generally, 4, 6, 17, 19. 
 
 of legal ethics, 2, 29, 30, 48. 
 
 of law, 14. 
 
 of morals, 16, 18, 19. 
 
 of ethical concepts, 7, 9, 10, 14, 21, 23. 
 
 of conscience, 22. 
 
 of public opinion, 23. 
 
 of advocacy, 39, 41, 56. 
 
 of courts, 298. 
 
 of disbarment, 65. 
 
 of suspension, 65. 
 
 of contempts, 67. 
 
 of retainer, 122, 239. 
 
 of contingent fee, 142. 
 
 of practice, 157. 
 
 of privileged communications, 270. 
 
 of professional courtesy, 316.
 
 240 INDEX 
 
 (THE REFERENCES AKE TO THE SECTIONS.] 
 DISABILITIES, 
 
 created by the relation of attorney and '-lii-nt, ~. r >l. 
 of the judicial station in resenting attacks, 308. 
 
 DISBARMENT, 
 
 consists of what, 6". 
 may be inflicted, when, 65, 68, 73, 74. 
 regarded as an act of protection, 69. 
 nature of evidence required for, 69. 
 
 DISCHAEGE, 
 
 of counsel, client's right of, 292, 325. 
 
 DISCIPLINE, 
 
 exercised by courts over attorneys, 62. 
 
 method of exercise of, 65. 
 
 nature of power of, 69. 
 
 does not affect legal rights, 70. 
 
 grounds for exercise of, 73, 102, 184, 277. 
 
 for unofficial misconduct, 74. 
 
 misconduct not reached by, 77. 
 
 for unprofessional advertising, 102, 103. 
 
 for retaining money of client, 71, 140, 290. 
 
 for fraud or negligence, 155, 156, 251. 
 
 for coaching witnesses, 184. 
 
 for bribing witnesses, 188. 
 
 for conduct out of court, 30 la. 
 
 for tampering with records, 200. 
 
 for withdrawing papers from files, 283. 
 
 for advising commission of crime, 258. 
 
 for accepting adverse employment, 277. 
 
 for disclosing privileged communications, 272. 
 
 DISCUSSION, 
 
 of legal topics in the public press, 107.
 
 INDEX 241 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 DIVORCES, 
 
 procuring of, proper legal work, 100. 
 advertising to procure, unprofessional, 100, 101. 
 
 DUTY, 
 
 the foundation of ethics, 1. 
 
 of what consisting, 4n. 
 
 professional, scope of, 35. 
 
 to third persons, 205. 
 
 to persons accused of crime, 217. 
 
 acts in excess of, 264a. 
 
 to clients, 241. 
 
 to courts, 297. 
 
 to the bar, 314. 
 
 ETHICS, 
 
 derivation of the term, 5. 
 
 definition of, 6. 
 
 general theories relating to, 7. 
 
 legal, defined and distinguished, 30. 
 
 a requirement of legal education, Ap. 
 
 ETHICAL SYSTEMS, 
 
 are founded upon what, 6, 7. 
 objective, of what consisting, 9. 
 subjective, of what consisting, 10. 
 
 EVIDENCE, 
 
 ethical theories with respect to, 168. 
 improper, offer of an offense, 179. 
 
 EXAMINATION, 
 
 of witnesses, object of, 171, 172. 
 in chief, how conducted, 173. 
 cross, objects and method of, 175.
 
 INDEX 
 
 [THE REFERENCES ARK TO THE SECTIONS.] 
 FEES, 
 
 of counsel, theories respecting, 116, 118, 119. 
 
 may be recovered as of right, ! 
 
 liability for, 123. 
 
 agreements respecting, may be made when, 127. 
 
 extent of, 130. 
 
 considerations affecting the fixing of, 135. 
 
 immoderate, views in regard to, 136. 
 
 may be retained from funds in hand, 139. 
 
 affected by local rules, how, 141. 
 
 division of commissions, 141a. 
 
 contingent, when allowed, 142. 
 
 counsel for pauper prisoner may not claim, 151. 
 
 forfeiture of right to, 155. 
 
 FIXES, 
 
 may be imposed, when, 66, 67. 
 
 FIBM, 
 
 services of, may be rendered how, 250. 
 
 GBATTJITY, 
 
 services rendered as, 124. 
 
 GUILT, 
 
 of prisoner, knowledge of, 220. 
 
 GULLIVER, 
 
 story told by, to grey horse, 158n. 
 
 HALE, SIR MATTHEW, 
 
 conduct with respect to witches, 213n. 
 
 HONORARIUM, 
 
 taken by English barristers, 118. 
 is unknown in America, 120.
 
 INDEX 243 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 INCONSISTENT POSITIONS, 
 
 attorney should not assume, 286. 
 
 with respect to law, allowable, when, 287. 
 
 INTEEFEEENCE, 
 
 by attorneys with others' clients, 324. 
 
 JUDGE, 
 
 position of in judicial system, 294. 
 attorneys should pay respect to, 297, 300. 
 criticism of by lawyers, 304. 
 attempts to influence, unprofessional, 303. 
 
 JUDICIAL OFFICE, 
 
 nature and importance of, 294, 298. 
 
 JUEISDICTION, 
 
 of courts over attorneys, 62. 
 
 JUBISPEUDENCE, 
 
 the relation of, to ethics, 7. 
 
 JUEY, 
 
 arguments before, how conducted, 196. 
 
 LAW, 
 
 general definition of, 14. 
 distinguished from morals, 12. 
 obedience to, a moral duty, 24. 
 
 LEGAL ETHICS, 
 
 definition of, 1, 2, 31. 
 
 distinguished from ethics generally, 30. 
 
 LEGAL LABOR, 
 
 divisions of, in England, 50. 
 
 LEGAL FEATEENITY, 
 
 the lawyers an order called, 313.
 
 244 INDEX 
 
 [THE REFERENCES ARE TO THi SECTIONS.] 
 
 LIABILITY, 
 
 for fees, attaches to whom, 123, 239. 
 
 for want of skill by attorney, 245. 
 
 for acts in excess of professional duty, 264*. 
 
 MISCONDUCT, 
 
 official, court may punish for, 62. 
 unofficial, when ground for discipline, 74. 
 without summary discipline, 77. 
 
 MI8STATEMENT8, 
 
 by counsel unprofessional, 310. 
 
 MONEY, 
 
 lost in hands of attorney, 288. 
 duty in safe keeping of, 289. 
 retained by attorney, 139, 290. 
 
 MORALITY, 
 
 in practice, methods to be observed, 158. 
 defense of criminals no offense against, 213. 
 
 MORALS, 
 
 distinguished from law, 12. 
 distinguished from ethics, 17. 
 the standard of, 21. 
 
 MORAL SCIENCE, 
 first inquiry in, 8. 
 various theories of, 9. 
 distinguished from jurisprudence, 12. 
 distinguished from morality, 17. 
 
 NEWSPAPERS, 
 
 advertising in, unprofessional, 97. 
 discussions in, when allowed, 107. 
 
 NOLLE PROSEQUI, 
 
 should be entered, when, ~
 
 INDEX 245 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 OVERCHAEOE, 
 
 by attorneys, views respecting, 136. 
 
 POWEES, 
 
 of attorney over client's matters, 241. 
 acts in excess of, 243. 
 
 PRACTICE, y 
 
 definition of, 157. 
 
 of advocacy, essential principle of, 38. 
 morality an essential ingredient of, 158. 
 in criminal cases, 208. 
 
 PRIVILEGED COMMUNICATIONS, 
 effect and extent of, 270. 
 
 PROCESS, 
 
 abuse of, is unprofessional, 202. 
 
 PROFESSIONAL OPINIONS, 
 when and how given, 255. 
 not privileged when, 275. 
 
 PROFESSIONAL DUTY, 
 
 scope and nature of, 38, 53. 
 
 early concepts with respect to, 48. 
 
 largely undefined, 53, 55. 
 
 prescribed for the advocates of Geneva, 53n. 
 
 prescribed by oath of office, 56. 
 
 courts may enforce, 62. 
 
 discipline for derelictions from, 65. 
 
 to third persons, 205. 
 
 to persons accused of crime, 217. 
 
 to judges and officers of courts, 103, 207. 
 
 to members of the bar, 314. 
 
 acts in excess of, 264a.
 
 24 C INDEX 
 
 [TOE RZTESENCES ARE TO THE SECTIONS.] 
 
 PROSECUTION, 
 
 of criminals, how conducted, 228. 
 what arguments may be used in, 229*. 
 private counsel assisting in, 232. 
 
 PUBLICITY, 
 
 of calling, how effected, 80. 
 
 PUBLIC OPINION, 
 definition of, 23. 
 may be considered as authority, 26. 
 
 QUANTUM MERUIT, 
 
 compensation may be recovered on, 133, 134. 
 
 RECORDS, 
 
 tampering with, an offense, 200. 
 
 RELATION, 
 
 of attorney and client, 237. 
 
 disabilities imposed by, 2.~1. 
 
 duties involved in, 238, 24/5. 
 
 how established, 239. 
 of bench and bar, 58, 294. 
 
 amenities involved in, 297, 300. 
 of members of the bar, 313, 314. 
 
 RETAINER, 
 
 in criminal cases, 214. 
 
 in civil cases, when refused, 259. 
 
 may not be taken from both sides, 265. 
 
 how establish -'39. 
 
 SELF PRAISE, 
 
 may be indulged in when, 112. 
 
 SERJEANTS, 
 
 origin of order of, 45. 
 rights and duties of, 48.
 
 INDEX 247 
 
 [THE REFERENCES ARE TO THE SECTIONS.] 
 
 SERVICES, 
 
 attorney may demand compensation for, 120, 122. 
 rendered to attorneys, rules respecting, 322. 
 rendered on contingent fee allowable when, 146. 
 liability for, rests only with party employing, 123. 
 should be rendered gratuitously, when, 124. 
 agreements for compensation for, 127. 
 ingredients that enter into, 135. 
 
 SIGNS, 
 
 where and how displayed, 96a. 
 
 SOLICITATION, 
 
 of clients, rule in England, 82. 
 
 rule in America, 84. 
 by personal application, 86. 
 through agents, 89a. 
 by advertising, 90, 97. 
 by cards, 93. 
 
 by anonymous announcements, 99. 
 by letters and circulars, 109. 
 of clients of other attorneys, 324. 
 
 SUBSTITUTION, 
 
 of attorneys, rules respecting, 325. 
 
 SUITS, 
 
 against attorneys, when and how brought, 323. 
 
 SUSPENSION, 
 
 of what consisting, 65. 
 
 TESTIMONY, 
 
 production of, how accomplished, 168. 
 offers of improper, how regarded, 179. 
 
 THIRD PERSONS, 
 
 duty of attorney with respect to, 205. 
 
 doctrine of Lord Brougham respecting duty to, 206.
 
 248 INDEX 
 
 [THE &KTK&&NCE8 ARE TO TUX SECTIONS.] 
 
 TRANSACTIONS, 
 
 between attorney and client, 251. 
 
 VERACITY, 
 
 duty of attorneys with respect to, 181. 
 
 WITNESSES, 
 
 duty of, with respect to truth, 170. 
 
 examination of, how conducted, 173. 
 
 coaching of, not permitted, 181. 
 
 may be advised to what extent, 185. 
 
 payment of, constitutes bribery when, 188, 
 
 tapering with adverse, 191a. 
 
 attorneys may not be, in their own cases, 193. 
 
 WITHDRAWAL, 
 
 of attorney from case, 278. 
 
 of appearance or pleadings, 283.
 
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