The Abbeville press and banner. (Abbeville, S.C.) 1869-1924, February 07, 1912, Image 1
BY W. W. & W. R. BRADLEY. ABBEVILLE, 8. C? WEDNESDAY, FEBRUARY 7, 1912.
ESTABLISHED
LEGAL
An Address Delii
Bar Association
Eugene B. Gar
We will not consume time In under
taking to define the word "ethics," in
a technical sense, as it will subserve
our purpose on this occasion to state,
that it simply Connotes duty, whether
applied to the legal, the medical or
any other profession.
" No code of ethics should be recog
nized, that is not founded upon truth,
fidelity, honesty, and the rest of the
virtues, as no lawyer can be truly
great whose character is not founded
upon morality.
Custom has sanctioned certain
phraseB, until they have become a
part of the Common speech, such as
"legal ethics," "medical ethics," etc.,
which are to be undertsood, as desig
nating the moral principles and codes
of specialized rules, which are for the
guidance of the practloner, in the res
pective professions.
' Upon investigation, however, It will '
be found that many of these rules, are
but special applications of broad prin
ciples, while others are only conven
tional usages of the particular pro
fession. ' This is strikingly Illustrat
ed by those rules, pertaining to the
professional intercourse of praction
ers, and while such rules have a de
cidily ethical "basis, they are, neverthe
less, of that character, to which we
ordinarily apply the term etiquette.
PerhaDS the most marked distinc
tion, between legal ethics and that of
other professions, is, that a violation
of its canons may result in profession
al death to the lawyer, there*- mak
ing it unlawful for him, thereafter, to
exercise the right and privilege guar
anteed to him by the Federal and
State Constitutions, of which he. car
not be deprived, except by due pro
cess of law.
A citizen is kept in bounds, by his
respect for the law and the force of
public opinion, but in the legal pro
fession a summuary jurisdiction is
lodged in the courts, to discipline
those who violate the ethical code,
prescribed for the guidance of the leg
al profession.
To this extent, legal ethics partake
of the nature of law.
The power to punish for a violation
of thos6 canons of the ethical code,
which are generally recognized as be
ing founded upon morality, is inherent
In the very organization of the court,
whether they have been formally pro
mulgated or not, as a code. It is in
the nature of the police power, which
is fundamental and essential to gov
ernment.
Legal ethics demand, not only an
intelligent watchfulness to do right,
but alsb a knowledge of established
customs and traditions of the profes
sion.
Hence good intentions and high
moral ideals, do not always safeguard
the lawyer, against violations of itf
canons.
Codes of ethics, while emphasizing
certain moral principles, of which ev
ery member of the bar should be cog
nizant, do not undertake to specify al!
the canons to be observed by them, a?
this would be impossible. Therefore
it is of the utmost importance, that
legal ethics should form a part of thr
curriculum of every law school, and
no one should be admitted to the
TiroottrA who r.an not oass a satis
factory examination, upon this course
of study. We are glad to see that the
State Board of Law Examiners in this
State, has prescribed such course of
study.
In every age, the lawyer has played
a conspicuous part, in shaping the af
fairs of State: and in certain coun
tries, the legal profession has taker
rank, among the orders of nobility.
The persons at Athens, who corres
ponded most nearly to advocates of
modern times, were not speakers in
courts, but a class of learned men, be
\ longing to a distinguished branch of
society, who composed speeches for
clients to be delivered by the parties
themselves, in their own ca'uses.
In Rome there was no particular
. line of demarkation, drawn between
A the advocate and the statesman. While
f appearing in the cause of his client,
the speaker was, in fact, acquiring
that popularity and influence, which
placed all public honors within his
grasp.
Among their privileges ,the advo
j\ cates were exempt from many bur
dens, imposed upon others. After ceas
ing to exercise their profession, they
were admitted to the order of counts
of the first rank.
' _ From' the fourteenth century, the
* Bar of France constituted an order of
nobility, known as Noblesse de la
Robe, until the French Revolution in
1789. The Magistrates, who as mem
bers of the parliament of Paris, rep
resented the feudal court and council
of the ancient kings, were selected
from this order. Thereafter In 1804,
Napoleon decreed the re-e9tablist
t ment of the order of advocates, assign
ing as a reason, that it was "one of
the most proper, to maintain the pro
persons came to be admitted to the
practice; under the name of "Counsel
lors at Law." At present the order of
sergeants is extinct. The oath of the
ancient advocate, bound him to serve
both the king and "his people." The
English barrister afterwards, was
made a part of the Court, and it was
his duty to advise the Court, on the
law of the case, and to assist the suit
or, in presenting hig testimony; an
to both, he was required to act with
the utmost good faith. In England,
the advocates were not simply mem
bers of a learned profession, but of a
distinct order of society, established
by civil authority, constituting a fra
ternity, with settled rules and usages,
and known as the order of advocates.
The office of the advocate in Amer
ica combines the powers conferred
upon the attorney at law and the bar
rister in England. His status is thus
defined in ex parte Garland 4 Wall,
333.
"The profession of an attorney and
counseller, is not like an office creat
ed by an Act of Congress, which de
pends for its continuance, its powers
and is emoluments, upon the will of
its creator, and the possession of
which, may be burdened with any
conditions, not prohibited by tho Con
stitution. Attorneys and counsellors
ire not officers of the United States,
hey are not elected or appointed, in
the manner prescribed by the Consti
tution for the election and nppoint
nent of such officers. They are of
ficers of the Court; admitted as such
by its order, upon evidence of tncir
Dossessing enough legal learning nnd
fair private character * Tho
order of admission is the judgment of
he Court, that the parties possess the
requisite qualifications as attorneys
"tnd counsellors, and are entitled to
ippear as such and conduct cases
herein. From its entry the parties
>ecome officers of the Court, and are
-esponsible to it, for professional mis
conduct. They hold their office dur
ng good behavior, and can only be de
prived of it for misconduct, ascert
"lined and declared by the judgment of
he Court, after opportunity to be
ieard has been afforded. Their admis
sion or their exclusion is not the ex
ercise of a mere ministerial power.
It is the exercise of judicial power
ind has been so held In numerous
:ases.' /
De Tocqueville, the first great ob
server of American institutions, was
struck with the fact that we had no
slass, corresponding to that of the
nobility in other countries; but reach
ed the conclusion that the legal pro
fession in America takes the place
of an order of nobility in other coun
tries. Many years ago he said:
"In America there are no nobles or
literary men, and the people are apt
[to mistrust the wealthy;- lawyers,
therefore, form the highest political
class. ... As the lawyers form
the only enlightened class whom the
people do not mistrust, they are nat
urally called upon to occupy most of
the public stations. They fill the leg
islative assemblies, and are at the
head of the administration; they con
sequently exercise a powerful influ
ence upon the formation of the law,
and upon its execution.
In speaking of lawyers' responsibil
ity, Chancellor Kent well said:
"The responsibilities attached to the
profession and practice of the law,
are of the most momentous charac
ter. Its members by their vocation,
ought to be fitted for the great public
duties of life, and they may be said to
be, ox-officio, natural guardians of the
law, and to stand sentinel over the
Constitutions and liberties of the
country."
No very specific enumeration of the
duties of the advocate has ever been
made by statute, either in England or
America. In the main, until recently,
the ethical Code of the profession, was
unwritten. On several occasions,
sporadic attempts have been made to
introduce something of this kind in
the codes of civil procedure. The ba
sis of most of the attempts was the
ancient oath administered to advo
cates by the laws of Geneva, which
was as follows:
ETHIC5.
/ered Before State
by Chief Justice
y, Jan. 25, I9I2.
bity, delicacy, disinterestedness, desire
of conciliation, love of truth and jus
tice, an enlightened' zeal for the weak
and the oppressed, which are the es
sential foundations of their profes
sion."
T? 1 ~ ^ a *\/\nnAvia I
Ill HiLlglCLIlUf LJULC JUL J. 3C JJCiDUUa X U
larly licensed to practice in the King's
courts, were called sergeants, 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 tak
ing oath; had a monopoly of all the
practice, and were directly amenable
to the king, as a part of his judicial
system. For several generations the
sergeants constituted the entire bar,
but about the time Edward II, other
"I solemnly swear before Almighty
God, to be faithful to the republic and
the canton of Geneva; never to de
part from the respect due to tfie tri
bunals and authorities; never to
counsel or maintain a cause, which
does not appear to be just or equita
ble, unless It be the defense of an ac
cused person; never to employ know
ingly, for the purpose of maintain
ing the cause confided to me, any
means contrary to truth, and never
seek to mislead the judges by any ar
tifice or false statement, of fact or
law; to abstain from all offensive
personality, and to advance no fact
contrary to the honor or reputation
of the parties, if it be not indispensa
ble to the cause with which I may be
charged; not to encourage-either the
commencement or continuance of a
suit from any motive of passion or in
terest; not to reject for any consider
ation, personal to myself the cause of
the weak, the stranger, or the op
pressed."
An exceedingly able code of ethics
was recently adopted by the Ameri
can Bar Association, and for the bene
fit of the younger members of the pro
fession we deem this an appropriate
occasion to reproduce certain of its
canons, which are as follows:
"It Id the right of a lawyer to un
dertake the defense of a person accus
ed of crime, regardless of his person
al opinion as to the guilt of the ac
cused; otherwise innopent persons,
victims only of suspicious circumstan
ces, might be denied, proper defense.
"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 advice to those seeking relief,
against unfaithful or neglectful coun
sel, generally after communication
with the lawyer, of whom the com
plaint is made.
"A lawyer should not, in any way,
communicate upon the subject of con-,
troversy with a party represented by
counsel, much less should' he under
take to negotiate or compromise the
matter with him, but should deal only
with his counsel. It is incumbent up
on the lawyer most particularly to
avoid every thing that may tend to
mislead a party not represented by
counsel, and he should not undertake
to advise him as to the law.
"The lawyer should not purchase
any Interest in the subject matter of
the litigation which he is conducting.
"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 proper
ty, or be used by him.
' "Contingent fees, where sanctioned
by law, should .be under the supervis
ion of the Court, In order that clients
may be protected from unjust charg
es.
"Controversies with clients concern
ing compensation are to be avoided
by the lawyer, so far as shall be com
patible with his self-respect, and with
his right to receive reasonable com
pensation, for his services;" and law
suits with clients should be resorted
to only to prevent injustice, imposi
tion or fraud.
"It Is proper for a lawyer to assert
in argument his personal belief in his
client's innocehce, or In justice of his
cause.
"The office of attorney does not per
mit, much less does it demand of him
Pnr nnv nil Ant. violation of law or any
manner of fraud or chicane. He must
obey his o^n conscience^ and not that
of his client. ' , .
"A lawyer should always treat ad
verse witnesses and suitors with fair
ness and due consideration, and he
should never minister to the malevol
ence or prejudice of a client in the
trial or conduct of a case. The client
can not be made the keeper of the
lawyer's conscience in professional
matters. He haa no right to demand
that his counsel shall abuse opposite
party, or indulge in offensive person
alties.
"When a lawyer is a witness for his
client, except as to merely formal
matters, such as the attestation or
nnofndv nf an Instrument or the like.
he should leave the trial of the case
to the other counsel. Except when es
sential to the ends of justice, a law
yer should avoid testifying In Court
in behalf of his client.
"It is unprofessional and dishonor
able to deal other than candidly with
the facts, In taking the statements of
witnesses, in drawing affadivlts and
other documents, and in the presenta
tion of causes.
"As far as possible, important
agreements, affecting the rights of
clients, should be reduced to writing;
but it is dishonorable to avoid perfor
mance of an agreement fairly made,
because it is not reduced to writing,
as required by rules of Court.
"It Is disputable to hunt up defects
in titles, or other causes of action
thereof, in order to be employed to
bring suit, or to breed litigation, by
seeking out thoc w ith claims for per
sonal injuries, in order to secure as
clients, or to employ agents or run
ners for like purposes, or to pay or
reward, directly or indirectly, those
who bring or influence the bringing of
such cases, to his office, or to remun
erate policemen, court or prison offi
cials, physicians, hospital attaches, or
others who may succeed, ilnder the
guise of giving disinterested friendly
advice, in influencing the criminal, the
sick and Injured, the ignorant or oth
ers, to seek his professional services.
A duty to the public and to the pro
fession, devolves upon every member
of the Bar, having knowledge of such
practices, upon the part of any prac
titioner, Immediately to inform there
of, to the end that the offender may i
be disbarred. i
"Lawyers should expose without i
fear or favor, before the proper trl- !
bunals, corrupt or dishonest conduct
in the profession, and-should accept ]
without hesitation, employment 1
aeainst a member of the Bar. who has 1
wronged his client The counsel up- i
on the trial of a case. In which per- i
jury has been committed, onre It to 1
the profession and the public, to bring
the matter to the attention of the pros- <
ecutlng authorities. " i
"His appearance in Court; should 1
be deemed equivalent to an assertion 1
on his honor, that in his opinion, his i
client's case is one proper for Judl- 1
cial determination." <
It concludes with this statement, as i
to the lawyer's duty In the last analy- <
sis: i* .< 1
"No . client, corporate or individual, s
however powerful, nor any cause, civ- 1
li or political, however important, is 1
Entitled to receive, nor should any t
Lawyer render any . service or advice <
invllving disloyalty to the law, or dls- 1
respect -of the judicial office which we l
are bound to uphold, or corruption pf i
any person or persons, exercising a i
public office or private trust, or de- 1
XI V 1 _? 11. l.ll? *
cepuuu ui ueua;ai ui uia yuuiu. - i
But above all, a lawyer will find his
highest honor In a deserved reputa- 1
tlon for fidelity to. private trust and j
to public duty, as an honest man and f
a patriot and loyal* citizen." :t
In the case of Price vs. Moses, 10 1
Rich. 454, It was held, that an attor> t
ney Is not an Incompetent witness for t
his client, because of his Interest In n
the costs, but that it was proper be- f
fore being examined, he should with-* <
draw from the management of the ia
case, have another attorney substitute t
ed in his place, and release his possl* g
ble right to costs.. - j
In that case the Court used this 0
language: "The advocate and the wlt> t
ness, should not be mixed up in the t
same case, and, in all Instances where j
It is known, before the commencement t
of a suit, that an attorney i* to be a g
'witness, he should, decline the posl- 0
tlon of an advocate." This in so far aa (
we are Informed, ia In accord with the
canons of pthics, announced by all the
writers upon this subject
The provisions of the Code of Laws
In this State touching the subject un
der consideration, are the following
Section 2815: "Attorneys, solicitors
and counsellors may be removed or
suspended, and, In aggravated cases,
Imprisoned not exceeding twenty-four
hours, by the several courts In which
they have been admitted to practice, If
In the presence of the Court, they are
guilty of any disorderly conduct, caus
ing an interruption of business, or
-amounting to an open and direct con
tempt of the Court, his authority, or
person; but subject'to such removal,
they shall hold their office for life."
Section 2816: "Any attorney, solic
itor, or counsellor, may be removed
or suspended, who shall be guilty of
any deceit, malpractice, or misde
meanor." t
Section 2817: "If any attorney, sol
icitor, or counsellor, shall enter into
any speculating practices, by purchas
ing or procuring to be purchased, any
note or other demand, for the pur
pose of putting the same in suit, when
r>?Ti'(ao ffio ntrnAr or holder there
"> . O
of, would' not sue the same, such at
torney, solicitor, or counsellor, shall
pay a fine of one hundred dollars, and
shall thereafter be Incapable of prac
ticing as such in any Court, until resr .
tored by the Supreme Court" , ..
We come now to what we regard as
j the most important part of this ad
dress. The subject of legal ethics is
usually discussed under the'following
heads: (1) Those duties which the
lawyer owes to the public or common
wealth; (2) Those which are due from
him to the Court; (3) Those which
are due from' his professional breth
ren, and, (4) Those which are due
from him to his client
Henceforth, we shall only discuss
those duties, which the lawyer owes
to the public or commonwealth.
His duties to the State or body po
litic, arise from the fact that he is an t
officer in the judicial department,
which Is one of the three co-ordinate
branches of the government, and, as
such officer, he Is under the moral ob
ligation, to use his best efforts, to ren
der effectual and successful the ad
ministration of the legislative and the
executive departments, as. the three
branches are so inter-dependent, that
a failure to administer properly the
legislative or executive departments
will necessarily hamper. and render
less effective the judicial branch. That
duty; is thus expressed by Archer in
Section 91 of his work, entitled: "Eth
ical Obligations of the Lawyer:"
"A lawyer Is an officer of the Courts
and, as such owes them various duties.
But the Courts compose one of the co
ol dinate branches of the government.
Hence th,e duties owed to the Courts
are Indirectly owed to the State and
Nation. But there are many other
duties that the lawyer otaes directly
to the 8tate. 'The ordniary citizen is
under certain obligations to the State,
and a failure to keep, or h wilful vio
lation of these obligations, renders the
offender liable to punishment Upon
admission to the bar the duties and
obligation! of the citizen remain, and
the duties and obligations of the law
yer are added to them. The State has;
through one of its agencies, theCourta
conferred upon the lawyer, upon his
admission to the Bar, a new standing
In the commuiity in which he1 lives.
It has granted him hew powers and
privileges. It is proper, therefore,
that it should exact greater- accounta-i
bility from" him, thkh from the ordi
aary citizen." The duty or tne lawyer
it a citizen lir paramount to" that
which he owea to:hls client
Another duty, though generally ov
erlooked, arise* from the fact,' that
the people, by constitutional and stat
utory provisions, have constituted the
legal profession, the sole and eiclu
ilve trustee, to administer justice in
;he judicial department of the gov
ernment, as hd one can either preside'
is a Judge, or practice iff the Courts,
except those who have been duly ad
nitttfd as attorneys.' As we have just
ihown, the fact that a lawyer ;is a
rnstee 'for one d'epartment/'nece'ssrar
ly Imposes upon him the moral'duty
o aid fn the adinihisiratlon of the two,
)ther departments, so as to enable
he Judicial branch to'1 accomplish
a ore successfully the purposes ior
which it was created. This does not
nean that it is* incumbent on him to
ldld'office in' the other department
nerely because he is a Iawy??. \
'Another duty is Imposed upoh'the
awyer, by-reason of the fa&t;!tfeal the
>eople, in the exercise of the Elective
ranchise have entrhfct^d'tho members
>f the legal fraternity1 with the a^miri
stration of the legislative and 'execii-j
ive departments to a far greater ex-(
ent than' they have ' entrusted1 ' the
aembers of all other classes or -prtK
essiohs. - ' >" -? '
The following statement appears fa
. note on pbge;38 of '^Legal tftfitctf"
y Warvilier "It Is 'said' that" iwentji^i
ive out of tifty-ilx''"sfgn'wff0'Ijt''
Jeclaration of" Independence)' fl'ftyoiit
f flfty-flve members bf "^he Cdhven
lon which framed ottf Federkl (Jonsti
utiori, nineteen out of 'twenty-four
'resindents, seventeen but of twenty
hrea vice-Dresidentff iof "the- United
Itates, and two hundredf'and '&ii?tbeia(
nt of two fcutftfred1 alid^tfeir^^fo'tlf
!ablnet officers, were lawyers;' that
aOre than twO third* of "the tJnlfed1
itates Senatotg and afeotit1 one-half of'
iui'''Reprelientit'tlv6s In' Cbngrteafl,' anti
'oovirrft1 and*
he majority of oo> diplomats atid Vep
eaentatlvea in foreign cdtintrifea, have
ieen lawyers."**
The following atatBment is taken;
rom the Green Bag: "The gOverh
o!ent of the Ufalted'&tatesls appar
ntly In the h&iids Of the lasers. Of
he 480 members 'of CongTfeas, both
Senate and rioua6; '$04 ate lawyers.
Tii judicial brancli if,'of couTSe, giv-'
n over entirely to fiVyers.- And ' of
he executive branch, President Tift1
a a lawyer, and'.seven out'of '!rilii^J
nemberg of the Cabinet have had a
egal training." It will thus be Seen,
hat the lawyer is morally re'spOnsi-'
>le to a greater extent thaii all'oth-:
ics for the dud administration of the
aw, In every department of the gov
irnmeht. ' : l
The lawyers are the only;body of
oen set apart from . the study and
iractice of government, ana .tne
ihances are that tiiey will be called
ipon to take an active part In the sev
eral branches thereof. For this rea
on some writers have contended that
here should be a preparatory train
ng In the study of Jurisprudence,
rhose foundation shouid be laid in
in acquaintance with thq masters of
hought on moral and political ques
ions; and that the first books placed
n the hands of the student of law,
ihould be those which treat of the ^
jrinciples of general jurisprudence,
ipart from the peculiarities of any
)?rticular system; that the able and
nstructlve treatises by such writers
is Paley, Montesqueu, Burlamaqui,
Rutherford, Vattel and Wheatoii,
vhich naturally cognate to the course
>f Constitutional law, would instruct
iim as to his moral duties, as well as
prepare him to be a statesman.
Several years ago a banquet was
fiven in honor of Mr. Justice Harlan
n comtnemoration of the twenty-fifth
mniversary of bis tenure or omce as
i Justice of the Supreme Court of
,he United 9ates. Among those "pr^s
uit wa? Mr. Roosevelt, then President
>f the United States. In responding
:o a toast he paid a beautiful and well
leserved tribute to Mr. Justice Harlan
'or the valuable contributions hie had
nade by his able opinions to the gen
jral Jurisprudence of the country, but
included with the statement that
:hose paled Into Insignificance, in
jomparison with his work as a con
ductive statesman, In the settlement
:hat had come before that grand Court
for adjudication, arising out of the
tvar between the States. , ......
jf the great quasi-political questions
It is undoubtedly the case, that no
member of a Supreme Court can ful
011 the highest requirements of that
office, unless he is qualified to deter
mine in a statesmanlike manner, the
quasi-political questions, involving
the very foundations of government.
We do not regard the necessity for
Tedu.cing the canons of legal ethics to
a written code, as near so important
as the attitude of the Bar towards the
enforcement of the rules, whether
written or unwritten. Class legisla
tion will continue, and we need not
expect <a revision of the tariff in the
interest of the people until the Bar of
America awakea to the realization of
its full duty towards the administra
tion of the law in every deparment.
It is not only incumbent on the indi
vidual lawyer! to observe the rules of
ethics,-but' the Bar Association
throughout the country should look
to'.the enforcement of the moral duty
which each' member owes to all the
different branches of the governmen.
Indeed, *iris 4b by far the most impor
tant^ dirty, resting upon the Bar Asso
ciations.-' kv.W .
'The legal profession is now on trial.
We can not.jBhut ourey-es no the fact
that the people are becoming dissat
isfied with the .manner^ in which it is
discharging its-duty, as sole trustee
of tho Judicial department-of tJie cov
emment It is only necessary to note
the efforts on the part of the people
to takp a mbre active part themselves
in the administration, of justice, by
placing in-theiT constitutions the pow
ec-to-;TecalL the Judges, when in their
opinion tney no not tninK-tn? iruat is
being properly executed. But a-short
time ago President Taft vetoed the
bill to admit Arizona as a State, on
the ground^that the proposed consti
tution 'contained the power to recall
the Judges. Nor can we ignore the
;fact that th? Aratiner in which' the ex
ecutive and legislative departments of
the :government are being, adminis
tered, is not giving satisfaction to the
people'anit that they are seeking re
lief tn various ways. For instance,
several of ' the Stages have already
inferred upph women, the right of
.SiQfferage, in order that life, liberty
ind proper# may. be properly protectj
1 eft. A li > Is, only- recently that Califor
nia had clothed them with such pow
er; and Mother. .Stgt^fl will surely dp
likewise, unleap there is a change for i
tne peuei; m,ui? euaciuieui.. jwuu e*e
." I
* Is it not a' reflection upon our pro-l '
(easlon that, although -the /President 1
Qf the Uhited. Site's 1b, a lawyer, and >
a,vmajority:; Jh both branches of Con-? <
gress are lawyere.va tariff was enact
i edf Whichcauses,?great "suffering <
i among the masses on account of the1 '
'high price of ilvlngr ' ]
r.' May . not the >omen df .the country, i
In self-defense, yet find It'necessary 'i
todemand the right of suffrage in ,1
order' to put;*' 'to' ^taft, special, i
fcriyileges a^d. oppression from the i
'tariff?' im V
: BWofoVcopbludijxg ,our. remarks, we
deem this an appropriate oocasion to <1
Quote the; langau^e.pt'lcertain eminent ' j
ia^eirp, ; uttered; in. a friendly, spirit ]\
and for t^e uplifting of our "prbfes- 1
aiqn.,If/the ; language which we are i
fcbout to quote had originated from 1
the enemies of-our 'profession, we 1
would not have thought of ' reproduc- i
Jng.it.' . ./ ? . V-vr , V
, Mr. Taft, at the tneeting 0! the Con- i
ference on the Reform of Criminal i
t<aw / and ft Procedure, .thus clearly
. &howq that he* floes not think the t le
gal profession has properly discharg
ed -ltd"- trust: "One of the strongest
influence for looseness, ip thd conduct
of criminal''trials in,, my Judgment, J
has been the presence of lawyers in
our legislatures, who have sought to n
abate and limit by statute the power <
ot Judges, and to take; away this .<
source Of respect for their rulings, ;
-which.is so apparent in every Eng- ;<
lish court of justice. What I believe j
>to be an unfounded fear of judicial i
tyranny, and an unreasonable distrust I
of Judges, hav& led to statutory limi- .
.tations upon their power in the con- '
duct'of trials in criminal cases, r? ?.ich i
have made the trial by jury in this 1
country, and elspecially in the Wes- ]
tern States, an entirely different in- i
stitution from what it was understood <
to be at the time of the adoption of our
constitution. In. many States, Judges I
^re not permitted to comment upon 1
the'facts at'air. They are not even
allowed to charge the jury, after the i
arguments of counsel, but they are 1
required to submit written charges i
to the jury, iipdn obtuse questions of i
law*, with no opportunity to apply :he 1
principles. Concretely to the facts of ]
the case, and with the result that the !
questions, both of law and fact, are i
largely left to the untutored and un
I dlscinlined action of the jury, influ- :
enced o^Iy by the contending argu- i
menta of counsel. The restraint that <
the Judges in the course of a trial, 1
imposes upon the manner and conduct 1
of: counsel in an English Court, is 1
thus- wholly wanting, with the result
that there seems to have been a sub
stantial change in the code of profes
sional ethics governing Counsel,and in
the extremes, to which counsel, in the
defense of their clients, seem to think
it is entirely proper for them to go.
Their conduct makes neither for the
dignity of the Court, for the eleva
tion of the ethics of the bar, nor the
expediting of criminal procedure, nor
.for the reasonable punishment of
crime.
These circumstances reduce the po
sitfon of the Judges from the place of
power and usefulness, occupied by the
English Judge, to one in which the
trial is largely conducted by the chief
counsel for the defense, and those
present in Court are zriade to feel that
the question at issue is not so much
whether the defendant violated the
law, as whether the Judge is violate
ingit" .* .
Mr. Williams in his work entitled
"Legal Ethics," pages 216-2)7, thought
it necessary to use this language: '
"Some criminal lawyers set themsel
ves deliberately to work up' a defense
when there is none in fact They be
come what Judge Qibson calls the
-'mercenaries' of the thieves and rob- '
bers who employ them. They procure
men to dog the footsteps of witnesses
whose testimony is supposed to be
most unfavorable to their clients, and
win thorn over, if possible, into sym
pathy for the prisoner, if this cannot
be done, they then ply them with
questions, ior tne purpose 01 entangl
ing them, in a web of petty contra
dictions. They provide the friends
of the defendant with a copy of the
jury ,11st, well knowing their purpose
to corrupt some of the jurors, if pos
sible, so as to secure a disagreement.
If they can not secure an acquittal.
They put witnesses upon the stand to
establish an alibi, or some fact im
porant'to the defense, whose testi
mony they are morally satisfied is un
true; and, in the argument, they press
upon the jury, as unworthy of belief,
evidence which they do not believe,
and treat as creditable witnesses
those whom they know to be perjur- -
ed. * * * * Their object U not
to aid in the just administration of
the law, but to defeat it; .and the re
sult to them by a certain class of un
scrupulous practloners, who infest
AAlivfa A# fVia rlHwK hfift
driven the ablest and most upright
lawyers wholly out of th'.i depart
ment of the practice. /V' ^ ^
When a community that has been
recently shocked by the commission of
some great crime in its midst, sees >
the criminal, about whose guilt they
have no doubt, acquitted* of the of
fense, and turned loose once more up
on society, as the result of Uie mala
droit practices of his lawyer, It aught -
not to be wondered at if the unreason
ing men and women of that communi
ty loose faith In the Integrity of the
bar, and come to regard its members
eiis the foes of good order, and the
iomplices. of felons." .
Mr. Archer saw fit to make these
observation a in his book entitled
'Ethical Obligations of the. Lawyer,", .1
page 196: "It is a dishonorable act to %
issist a client to secretly violate ex
isting laws. It W scarcely less dis- "A
honorable to assist him to circumvent yj
the spirit cf the law, while obeying it
to the letterL vjs
Many wise and just laws have been
rendered nugatory by some crafty
lawyer finding a way whereby ,a weal
thy client might still carry on .with
Impunity.the, veiy business that the
Btatute was aimed, ,to remeoy. ouvu
things cast-tire profession' of the law
Into disrepute, and foster a . public
distrust of all laws and judicial instl*
tutions.
\ This contest between law-makers
and law-breakers is much the same
as that waged between safe-nlakers
and safe-breakers."
On the ninth of June, 1910, Hon.
Pliny L Sexton delivered an address
on legal ethics, before the Albany
Law School in which he said: "While
the great majority of the members of
the bar are high-toned, honorable
men?none more so, there are those
on the roster-roll of attorneys, who
discredit the profession, and. whose .
misdeeds have made its members gen
erally, objects of suspicion in the
minds of the people. Demonstration
or explanation of snch well known
facts, can not be needful. *
And too often, indeed, have lawyers
who would scorn to do evil for them
selves, lent the aid of their powers,
for the furthering of reprehensible
purposes of unworthy clients, and in
shielding them from the consequen
:es 01 misaoiugB.
There has been so much departing
from the paths of propriety by mem
bers of the bar, that it has cast a re
proach upon the whole profession,
and It Is high time for the legal fra
ternity to purge its conscience, and
Jrive from its ranks those who, at
once discredit their manhood and
their calling. The profession must
purify iteslf, and should be relentless
In so doing, both for self-defense and
the good of society.
, Much has been done of late years
In the way of raising intellectual
Btandards for admission to the learn
ed professions; a broader, general
mental culture and technical knowl
edge are requisite, and now should
come marked progress and regenera
tion.
It is well, as has been done, to for
mulate codes of ethics, to prescribe
rules of proper conduct; but here
again, as with laws in general, to be
useful they must De ooeyea. - -
The writers of creeds, seldom state
any new doctrines; they simply cor
relate definitions of recognized prin
ciples; and it is helpful so to do. Our
mentioned code of ethics, (Code of
Ethics of the American Bar Associa
tion) tells the members of our pro
fession little, or nothing, which they
Continued on last page.