Read Ebook: An Essay on Professional Ethics Second Edition by Sharswood George

Font size: 10 px 15 px 20 px 25 px 30 px 35 px

Background color: BlackWhiteGrayLight GrayDark GrayDim Gray

Text color: BlackWhiteGrayLight GrayDark GrayDim Gray

Apply/Save settings

Ebook has 183 lines and 44723 words, and 4 pages

Transcriber's note:

Minor typographical errors have been corrected without note.

The oe ligature has been transcribed as .

A table of contents, though not present in the original, has been provided below:

PROFESSIONAL ETHICS.

AN ESSAY ON PROFESSIONAL ETHICS.

GEORGE SHARSWOOD.

Second Edition.

Entered, according to Act of Congress, in the year 1860, by T. & J. W. Johnson & Co., in the Clerk's Office of the District Court for the Eastern District of Penn'a.

C. Sherman & Son, Printers, S. W. Cor. Seventh and Cherry Streets, Philadelphia.

MY HONORED MASTER,

JOSEPH R. INGERSOLL, LL.D.,

INSCRIBED

AS A

TESTIMONY OF

RESPECT AND GRATITUDE.

PREFACE

The following Essay was originally published under the title of "A Compend of Lectures on the Aims and Duties of the Profession of the Law, delivered before the Law Class of the University of Pennsylvania." A portion of it had been read by the author as an Introductory Lecture at the opening of the Fifth Session of the Law Department of that Institution, October 2d, 1854. The young gentlemen, alumni, and students of the school, who were present on that occasion, requested a copy for publication, in order that each of them might possess a memento of their connection with the Institution. The author preferred to publish the entire Compend than merely a part of it. He hesitated much in doing so, because the questions discussed are difficult, and opinions upon them variant, and he could scarcely hope that he had in every case succeeded in just discrimination. A review of the matter now, when a second edition has been called for, has suggested, however, no important change in the principles advanced, though a few additions have been made, some inaccuracies corrected, and an introduction upon the importance of the profession, in a public point of view, prefixed.

G. S.

INTRODUCTION.

Legislation is indeed a nobler work than even jurisprudence. It is the noblest work in which the intellectual powers of man can be engaged, as it resembles most nearly the work of the Deity. It is employed as well in determining what is right or wrong in itself--the due proportion of injuries and their remedies or punishments--as in enforcing what is useful and expedient. How wide the scope of such a work! The power of society over its individual members, or, in other words, sovereignty, which is practically vested in the legislature, is a type of the Divine power which rules the physical and moral universe. "There is one Lawgiver," says the Apostle James. Not that the Supreme Being is the sole universal lawgiver in the sense of a creator of law, whose will alone determines the boundaries of right and wrong. God is the creator of the beings who are the subjects of law. He is the author of law--the one lawgiver--in the same sense that he, who first discovered a plain figure, may be said to be the author of all theorems, which may be predicated of it. He who first called attention to the curious curve, made by a point in the periphery of a wheel as it turns on the ground, is in a certain sense the discoverer of all the truths, which may be mathematically demonstrated in respect to it.

Law in its true sense is not the work of mere will--not an act of intellectual caprice. It is a severe and necessary deduction from the relations of things. The Divine legislator sees and knows these relations perfectly. He can draw no wrong deduction from them. He can make no mistake. Whatever laws have certainly emanated from Him are certainly right. This is the sense in which it is true that "there is one Lawgiver:" all others but attempt the work; He alone is competent to perform it. There is no mathematical certainty in our reasoning on moral as there is on physical relations. We know that the three angles of a triangle are equal to two right angles with an assurance we can never have in regard to any moral truth whatever. The Divine law is a deduction necessarily and mathematically certain as much so as any truth in geometry. Human law can aim only at such a probable deduction as results from a finite and imperfect knowledge.

There can be no merely arbitrary laws. It is necessary to bear in mind that we are now considering the province of the legislator, who ought to enact no law without an end. "Civil legislative power," says Rutherforth , "is not in the strict sense of the word an absolute power of restraining or altering the rights of the subjects: it is limited in its own nature to its proper objects, to those rights only in which the common good of the society or of its several parts requires some restraint or alteration. So that whenever we call the civil legislative power, either of society in general or of a particular legislative body within any society, an absolute legislative power, we can only mean that it has no external check upon it in fact; for all civil legislative power is in its own nature under an internal check of right: it is a power of restraining or altering the rights of the subjects for the purpose of advancing or securing the general good, and not of restraining or altering them for any purpose whatever, and much less for no purpose at all." There are, therefore, no arbitrary laws which fulfil the end of law. Doubtless the true objects of society and government may be mistaken by him who sets up to be law-maker, or if those objects are properly appreciated, the means for advancing them may be mistaken. It is not wonderful that in a matter which demands the highest wisdom, many should try and fail.

It becomes important to inquire what are the true ends of society and government? Man is a gregarious animal--a social being. He may exist in solitude, but he cannot enjoy life: he cannot perfect his nature. Those who have watched and studied closely the habits of those irrational animals, who live in communities, as the ant, the bee, and the beaver, have observed not only a settled system and subordination, but the existence of some wonderful faculty, like articulate speech, by which communication takes place from one to another; a power essential to order. Man, the highest social animal in the scale of earthly being, has also the noblest faculty of communication.

The final cause--the reason why man was made a social being--is that society was necessary to the perfection of his physical, intellectual, and moral powers, in order to give the fullest return to the labor of his hands and to secure the greatest advances in knowledge and wisdom. It is for no vain national power or glory, for no experimental abstraction, that governments are instituted among men. It is for man as an individual. It is to promote his development; and in that consists his true happiness. The proposition would be still more accurate were it said, society is constituted that men may be free--free to develop themselves--free to seek their own happiness, following their own instincts or conclusions. Without society--and government, which of course results from it--men would not be free. An individual in a state of isolation might defend himself from savage beasts, and more savage men, as long as his strength lasted, but when sickness or age came on, the product of the labor of his hands, accumulated by a wise foresight to meet such a contingency, would become the prey of the stronger. The comparatively weak-minded and ignorant would be constantly subject to the frauds of the more cunning.

It is enough to look at the effects of the division of employments and the invention of labor-saving machinery, to recognize the invaluable results of society in the development of wealth and power. In a state of isolation a man's entire time and strength would be needed for the supply of his physical wants. As men advance in knowledge and wisdom the standard of their mere physical wants is elevated. They demand more spacious and comfortable dwellings, more delicate viands and finer clothing.

"Allow not nature more than nature needs, Man's life is cheap as beasts'."

What has thus been very cursorily presented will evince that it is the province of legislation, by slow and cautious steps, to amend the laws, to render them more equal in their operation upon all classes, not favoring the rich more than the poor, nor one class of either more than another, providing an easy, cheap, and expeditious administration of justice by tribunals, whose learning and impartiality shall be so secured as to possess the confidence of the community, and by general rules for the regulation of conduct and the distribution of estates most conformed to the analogies of that system, which is familiar to the people in their common law.

Great as is the influence which the profession of the law can and does exercise upon the legislation of a country, the actual administration of law is entirely in their hands. To a large extent by private counsel, by the publication of works of research and learning, by arguments in courts of justice to assist those who are to determine what is the law, and to apply it to the facts, as well as in the actual exercise of judicature, this whole important province of government, which comes home so nearly to every man's fireside, is intrusted necessarily to lawyers.

PROFESSIONAL ETHICS.

There is, perhaps, no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that of the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the line of strict integrity; in which so many delicate and difficult questions of duty are continually arising. There are pitfalls and man-traps at every step, and the mere youth, at the very outset of his career, needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. It is like the spear of the guardian angel of Paradise:

No falsehood can endure Touch of celestial temper, but returns Of force to its own likeness.

The object of this Essay is to arrive at some accurate and intelligible rules by which to guide and govern the conduct of professional life. It would not be a difficult task to declaim in general propositions--to erect a perfect standard and leave the practitioner to make his own application to particular cases. It is a difficult task, however, as it always is in practice, to determine the precise extent of a principle, so as to know when it is encountered and overcome by another--to weigh the respective force of duties which appear to come in conflict. In all the walks of life men have frequently to do this: in none so often as at the Bar.

The responsibilities, legal and moral, of the lawyer, arise from his relations to the court, to his professional brethren and to his client. It is in this order that it is proposed to consider and discuss the various topics which grow out of this subject.

The oath directed by law in this State to be administered upon the admission of an attorney to the bar, "to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause for lucre or malice," presents a comprehensive summary of his duties as a practitioner.

Fidelity to the court, fidelity to the client, fidelity to the claims of truth and honor: these are the matters comprised in the oath of office.

It is an oath of office, and the practitioner, the incumbent of an office--an office in the administration of justice--held by authority from those who represent in her tribunals the majesty of the commonwealth, a majesty truly more august than that of kings or emperors. It is an office, too, clothed with many privileges--privileges, some of which are conceded to no other class or profession. It is, therefore, that the legislature have seen fit to require that there should be added to the solemnity of the responsibility, which every man virtually incurs when he enters upon the practice of his profession, the higher and more impressive sanction of an appeal to the Searcher of all Hearts.

Fidelity to the court, requires outward respect in words and actions. The oath as it has been said, undoubtedly looks to nothing like allegiance to the person of the judge; unless in those cases where his person is so inseparable from his office, that an insult to the one, is an indignity to the other. In matters collateral to official duty, the judge is on a level with the members of the bar, as he is with his fellow-citizens; his title to distinction and respect resting on no other foundation, than his virtues and qualities as a man. There are occasions, no doubt, when duty to the interests confided to the charge of the advocate demands firm and decided opposition to the views expressed or the course pursued by the court, nay, even manly and open remonstrance; but this duty may be faithfully performed, and yet that outward respect be preserved, which is here inculcated. Counsel should ever remember how necessary it is for the dignified and honorable administration of justice, upon which the dignity and honor of their profession entirely depend, that the courts and the members of the courts, should be regarded with respect by the suitors and people; that on all occasions of difficulty or danger to that department of government, they should have the good opinion and confidence of the public on their side. Good men of all parties prefer to live in a country, in which justice according to law is impartially administered. Counsel should bear in mind also the wearisomeness of a judge's office; how much he sees and hears in the course of a long session, to try his temper and patience. Lord Campbell has remarked that it is rather difficult for a judge altogether to escape the imputation of discourtesy if he properly values the public time; for one of his duties is to "render it disagreeable to counsel to talk nonsense." Respectful submission, nay, most frequently, even cheerful acquiescence in a decision, when, as is most generally the case, no good result to his cause can grow from any other course, is the part of true wisdom as well as civility. An exception may be noted to the opinion of the Bench, as easily in an agreeable and polite, as in a contemptuous and insulting manner. The excitement of the trial of a cause caused by the conflict of testimony, making often the probabilities of success to vibrate backwards and forwards with as much apparent uncertainty as the chances in a game of hazard, is no doubt often the reason and apology for apparent disrespect in manner and language; but let it be observed, that petulance in conflicts with the Bench, which renders the trial of causes disagreeable to all concerned, has most generally an injurious effect upon the interests of clients.

Indeed, it is highly important that the temper of an advocate should be always equal. He should most carefully aim to repress everything like excitability or irritability. When passion is allowed to prevail, the judgment is dethroned. Words are spoken, or things done, which the parties afterwards wish could be unsaid or undone. Equanimity and self-possession are qualities of unspeakable value. An anecdote may serve to illustrate this remark. There was a gentleman of the Bar of Philadelphia, many years ago, who possessed these qualities in a very remarkable degree. He allowed nothing that occurred in a cause to disturb or surprise him. On an occasion in one of the neighboring counties, the circuit of which it was his custom to ride, he was trying a cause on a bond, when a witness for defendant was introduced, who testified that the defendant had taken the amount of the bond, which was quite a large sum, from his residence to that of the obligee, a distance of several miles, and paid him in silver in his presence. The evidence was totally unexpected; his clients were orphan children; all their fortune was staked on this case. The witness had not yet committed himself as to how the money was carried. Without any discomposure--without lifting his eyes or pen from paper--he made on the margin of his notes of trial a calculation of what that amount in silver would weigh; and when it came his turn to cross-examine, calmly proceeded to make the witness repeat his testimony step by step,--when, where, how, and how far the money was carried--and then asked him if he knew how much that sum of money weighed, and upon naming the amount, so confounded the witness, party, and counsel engaged for the defendant, that the defence was at once abandoned, and a verdict for the plaintiff rendered on the spot.

It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, imposition, or evasion--to make no statements of facts which he does not know or believe to be true--to distinguish carefully what lies in his own knowledge from what he has merely derived from his instructions--to present no paper-books intentionally garbled. "Sir Matthew Hale abhorred," says his biographer, "those too common faults of misrepresenting evidence, quoting precedents or books falsely, or asserting anything confidently by which ignorant juries and weak judges are too often wrought upon." One such false step in a young lawyer will do him an injury in the opinion of the Bench and of his professional brethren, which it will take years to redeem, if indeed it ever can be entirely redeemed.

A very great part of a man's comfort, as well as of his success at the Bar, depends upon his relations with his professional brethren. With them he is in daily necessary intercourse, and he must have their respect and confidence, if he wishes to sail along in smooth waters. He cannot be too particular in keeping faithfully and liberally every promise or engagement he may make to them. One whose perfect truthfulness is even suspected by his brethren at the Bar has always an uneasy time of it. He will be constantly mortified by observing precautions taken with him which are not used with others. It is not only morally wrong but dangerous to mislead an opponent, or put him on a wrong scent in regard to the case. It would be going too far to say that it is ever advisable to expose the weakness of a client's cause to an adversary, who may be unscrupulous in taking advantage of it; but it may be safely said, that he who sits down deliberately to plot a surprise upon his opponent, and which he knows can succeed only by its being a surprise, deserves to fall, and in all probability will fall, into the trap which his own hands have laid. "Whoso diggeth a pit," says the wise man, "shall fall therein, and he that rolleth a stone, it will return upon him." If he should succeed, he will have gained with his success not the admiration and esteem, but the distrust and dislike of one of his associates as long as he lives. He should never unnecessarily have a personal difficulty with a professional brother. He should neither give nor provoke insult. Nowhere more than at the Bar is that advice valuable:

"Beware Of entrance to a quarrel; but being in, Bear it that the opposed may beware of thee."

There is one more caution to be given under this head. Let him shun most carefully the reputation of a sharp practitioner. Let him be liberal to the slips and oversights of his opponent wherever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal--and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety.

Nothing is more certain than that the practitioner will find, in the long run, the good opinion of his professional brethren of more importance than that of what is commonly called the public. The foundations of the reputation of every truly great lawyer will be discovered to have been laid here. Sooner or later, the real public--the business men of the community, who have important lawsuits, and are valuable clients--indorse the estimate of a man entertained by his associates of the Bar, unless indeed there be some glaring defect of popular qualities. The community know that they are better qualified to judge of legal attainments, that they have the best opportunity of judging, and that they are slow in forming a judgment. The good opinion and confidence of the members of the same profession, like the King's name on the field of battle, is "a tower of strength;" it is the title of legitimacy. The ambition to please the people, to captivate jurors, spectators, and loungers about the court room, may mislead a young man into pertness, flippancy, and impudence, things which often pass current for eloquence and ability with the masses; but the ambition to please the Bar can never mislead him. Their good graces are only to be gained by real learning, by the strictest integrity and honor, by a courteous demeanor, and by attention, accuracy and punctuality in the transaction of business.

The topic of fidelity to the client involves the most difficult questions in the consideration of the duty of a lawyer.

He is legally responsible to his client only for the want of ordinary care and ordinary skill. That constitutes gross negligence. It is extremely difficult to fix upon any rule which shall define what is negligence in a given case. The habits and practice of men are widely different in this regard. It has been laid down that if the ordinary and average degree of diligence and skill could be determined, it would furnish the true rule. Though such be the extent of legal liability, that of moral responsibility is wider. Entire devotion to the interest of the client, warm zeal in the maintenance and defence of his rights, and the exertion of his utmost learning and ability,--these are the higher points, which can only satisfy the truly conscientious practitioner.

But what are the limits of his duty when the legal demands or interests of his client conflict with his own sense of what is just and right? This is a problem by no means of easy solution.

That lawyers are as often the ministers of injustice as of justice is the common accusation in the mouth of gainsayers against the profession. It is said there must be a right and a wrong side to every lawsuit. In the majority of cases it must be apparent to the advocate, on which side is the justice of the cause; yet he will maintain, and often with the appearance of warmth and earnestness, that side which he must know to be unjust, and the success of which will be a wrong to the opposite party. Is he not then a participator in the injustice?

It may be answered in general:--

Share on: WhatsApp @Hash Facebook Tweet