The Lawyer's Conscience and Public Service
I
A WRITER in the Atlantic Monthly for January, 1913, contrasted the professional standards of the lawyer and the physician, to the obvious discredit of the former. He expressed surprise that within two professions touching life upon matters of equal importance, — professions of ancient dignity and learning, and inviting to their service men of equal and rare ability, — there should in the same community be so different a spirit.
The inside daily workings of a profession are scarcely of sufficient interest to attract the attention of a magazine reader, or to merit their description in a magazine article, but when the profession is arraigned and attacked, then, after the manner of its system, it may justly be heard to reply. A reply, however, calls for a formulation of the charges, and, still following the fashion of the lawyer, in an endeavor to get, at the substance of the charges, I find they can be summarized as inertia, technicality, faulty criminal procedure, neglect of duty to society, and unjust methods in advocacy.
But before I leave my text to launch out into an endeavor to state what a lawyer really is, and what his ideals not only should be, but are, let me point out that a contrast between physicians and lawyers is not either a sure or a safe way to detect or to correct a lawyer’s faults. If we analyze the praise which in the article in question is meted out to a physician, and contrast it with the depreciation of the lawyer, we shall find that in essence the physician is commended for aiding his patient to escape the penalties imposed by nature, while the lawyer is condemned for aiding his client to escape the penalties imposed by man; nature’s penalties are exact, and repentance and subsequent good works can do little to mitigate them, and the physician can counteract them only by aiding his patient to avoid them through others of nature’s laws. Man’s laws and penalties alike are uncertain, but the lawyer is condemned for aiding his client to escape their rigor by appeals to others of these laws, usually characterized by critics as technicalities.
Physicians utilize their knowledge of the habits of the human body to restore a disordered organism to efficient activity; anything which will do this is available for their use, and all they need to do to push forward their profession is to enlarge the sphere of their knowledge.
But lawyers can push forward their profession only by a more stupendous task, not of discovery, but of influence; having conceived the existing fault, they must first devise a means of correcting it, which will not in practice do more harm than good, and then they must induce the law-making power to accept it.
Lawyers have a much more difficult task as reformers than physicians. A single physician practices upon a single individual, and the success of his effort is the restoration of his patient. If we should apply to the physician the duty measured by his larger obligation to society, conceived in the same spirit as the lawyer’s larger duty of which we have read, we might easily proclaim that it is the physician’s duty to kill his patient under certain circumstances in the interest of mankind. But we readily see the fallacy of this argument , because we can recognize that the physician’s real duty to society is quite consistent with his duty to his patient, for his duty to each is the same. So it may also be with the lawyer in his relation to his client; it is not now, and never was, his social duty to abandon or betray his client; and the lawyer’s duty to society, such as it is, is in nowise inconsistent with his being hired for his client’s needs. Indeed, historically considered, it was the client’s need, and nothing else, which gave rise to the brood of lawyers, and assigned them a recognized place in our judicial system.
If all men would settle their disputes amicably there would be little need of civil courts or judges; and if all men obeyed the laws, no need of criminal tribunals, and little need of lawyers. But before lawyers were, as an actual historical creation, men invaded rights and disobeyed laws; and before lawyers, and above them, were and are laws. And lawyers did not make the laws, but they must obey and observe them, and they must proceed as the laws require.
Laws may be divided into two great classes—those which concern rights, characterized as substantive laws; and those which concern the method of securing those rights, classed as remedial laws; and among remedial laws fall those which regulate the manner of procedure in the courts, and which, more frequently than substantive laws, give rise to what are commonly styled the technicalities of law.
II
It is possible, but not necessarily true, that lawyers could reform the laws of procedure. It is too true that many of them are satisfied with the existing defects of procedure, and merit the description inert, but this is certainly not true of the whole profession. The truth is, the profession alone cannot reform procedure, because it is crystallized in our law, and legislators or people, as the case may be, will not submit to change. For instance, taking pattern by, but improving upon, the English practice of a single court with separate branches appropriate for different sorts of work, and with rules of court, easy of change, to regulate and do away with most of the absurd technicalities of practice, a vigorous effort, inaugurated by lawyers, was made a few years ago in New Jersey to institute a model single court with necessary divisions, and with model and simple rules; but when the necessary changes in the state constitution to effect these results were submitted to the people, the people rejected them, largely because, as I understand, they wanted no changes suggested by lawyers. It is but fair to say, however, that I am also informed that there was no unanimity among the lawyers themselves. Since then the Legislature of New Jersey, acting on the initiative of lawyers, has utilized its power to make a simple and model body of rules which are designed primarily to eliminate much of the truly despicable technicality of practice. But this required legislative action, without which the lawyers were quite powerless to reform the practice.
For the United States courts sitting in equity, Congress enacted in 1842 that the Supreme Court should make the rules of practice; and the result is that there never were more than 94 rules, and these have recently been reduced to 81. Congress has never, however, permitted the Court to make rules for practice at law, but has enacted that the practice at law in the Federal courts shall follow the state practice in the several states, thus giving rise to 48 different systems or sets of rules or practice at law, and of these the New York Code of Civil Procedure alone now contains about 2800 sections. And it has contained 3441 sections. Now a committee of the American Bar Association, composed exclusively of lawyers, is urging Congress to do with the practice at law in the Federal courts what it has been content to do with the practice in equity for a century and a quarter, and let the courts make the rules of practice.
When the Supreme Court recently remodeled and simplified its rules in equity it was to committees of lawyers in each of the nine Federal circuits that it submitted the formulation of suggestions for simplification and improvement; and in New York, by the grace of the Legislature of 1913, a committee of five lawyers is now considering a plan to simplify into a concise system its monstrous Code of Civil Procedure. The lawyers, in fact, instead of being inert, are so far as I know the only persons who are really moving to introduce practical reforms of procedure.
Before we can properly compare physicians and lawyers, to the discredit of the latter, we must first imagine physicians under a state system of medicine, in which not only broad theories of general practice, but also specific remedies and regulated doses are prescribed by a law-making power beyond the control of the physician, and under which the patient is himself clamoring for the administration of the theory, the remedy, and the dose prescribed by law, and the physician is liable for malpractice if he makes any novel departure and fails.
If the lawyer should disregard all absurdity, anachronism, and formalism, and follow his highest concepts of ideal justice, he would be liable to encounter the technical attacks of an adversary, which, according to existing law, the judge under his official oath, must recognize. And, if judge, advocate, and adversary should all accept the same ideals, their disposition of the cause might be at variance with actual law.
The simple truth is that all men are not agreed; that no technicality, no anachronism, and no absurdity has its place in the law which did not in its origin appeal to some man as reasonable, or was not introduced into the law to promote some one’s idea of justice. It is not lawyers who are at fault, but the law; and until lawyers are given the law-making power they should not be blamed for the faults of the laws.
III
The worst charge that can be laid at the lawyer’s door, in respect to defective laws, whether procedural or substantive, is that, in the interest of his client, he takes advantage of the law as it is, or as he claims it is, instead of as it ought to be in the opinion of his critic.
It is always a serious question how far a lawyer may sacrifice the legal rights of his client, to his own sense of right and justice; but as a possible result, I suggest that a lawyer who sacrifices his client’s actual rights to his own ideal sense of propriety, which is at variance with the legal measure of those rights, may be liable in damages for the departure. With us in the United States it is not generally believed that a lawyer is bound to accept a client or a cause (as I understand an English barrister, generally speaking, is), and to that extent he may refrain from prosecuting or defending a cause which he deems unjust; nor is he bound to advance any illegal proposition, nor to maintain any position which he deems to be untenable; but it is, probably, his legal duty to his client, having accepted his cause or defense, to insist upon every right, whether procedural or substantive, the waiver of which would be disadvantageous to his client.
In short a lawyer is not the free agent that his critic would have us believe; he, as much as any one else, is the victim of a system which he did not originate, and for which he is not solely responsible. And as a matter of fact, through such agencies as the American Bar Association, the lawyers, as a profession, are doing a great deal toward a reform of law, of procedure, and of legal ethics. But as a profession they have no authoritative means of expression. The American Bar Association is a purely voluntary association; so are most, if not all, of the various state and county bar associations, and while they may resolve and may advise, and may formulate canons of legal ethics, and recommend simplification of practice, and the abolition of legal absurdities, they are really powerless until they get legislators and governors and people to rectify what they point out; and this process needs time.
With a proper reform of procedure it is to be hoped that there will come, in a large measure, the disappearance of what is generally deemed absurd technicality. And lawyers, who are not in fact inert, are moving vigorously to that end. No lawyer is familiar with the practice in all of the states, and none can speak for all of the states; but as in England many of the absurdities of practice were abolished in 1873 upon the giving to the High Court of Judicature of the power to make and enforce its own rules, so, I understand, they have largely disappeared in Connecticut with the introduction of the simplified practice of 1879; and it is to be hoped that the same experience will follow from the model rules adopted in New Jersey in 1912, and by the Supreme Court of the United States for equity practice in 1913. And it does not seem too much to hope that a similar expectation may be founded on the efforts now making through the American Bar Association to induce Congress to allow the Supreme Court to formulate uniform rules of practice at law for the Federal courts, and on the forthcoming report to the New York Legislature of 1915 of the commission for the simplification of the New York practice.
IV
Criminal procedure is in another category. Lawyers as a class do not practice in the criminal courts except in the rural communities, and the criticism of criminal procedure does not arise from rural trials. It is from celebrated cases in urban communities, which receive widespread public attention, and wide newspaper notoriety, that we learn to suspect criminal procedure of its faults. But if we pause to analyze these fancied miscarriages of justice, we shall find that the blame attaching to lawyers or judges is really slight. I have yet to learn that any of our jails are empty. And when we learn of the escape from conviction of some celebrated wrongdoer, who is popularly supposed to be worthy of punishment, it is not the lawyer, but the jury, which has acquitted, after the prosecuting officer has had an opportunity to present his case, and the judge to expound the law impartially. And when, after conviction, the accused escapes on appeal, or secures a new trial, it is usually because the judges are administering and applying a law which they did not make, but which the obligations of an oath compel them to enforce impartially.
One of the most widely exploited cases of this character was that in Missouri in which a conviction was reversed because of the absence of ‘the’ from an indictment; an absurdity, perhaps, in itself, but a mandatory requirement of the Constitution which the judges had no part in passing, and which they were sworn to support. And when in some celebrated case, and after a long trial, the jury convicts and the court on appeal confirms, then the most vigorous efforts are made, frequently by the critics of the courts themselves, to reverse their action by appeal to the pardoning power.
The defects of criminal procedure, such as they may be, are, like the defects of civil procedure, the faults of laws and lawmakers, and not of judges or lawyers. A lawyer may avail himself of them for the advantage of his client because of his conception of his duty to his client, but the defects which allow him to do this are not of his making. Here again, however, the question of ethical duty arises, whether he may or should avail himself, in behalf of his client, of some provision of law which somebody else, or even he himself, disapproves as tending to defeat the ends of justice.
This question affords me the opportunity to consider what the lawyer is, and by what rules he should be governed in seeking to utilize the law of the land in the interest of his client.
Was the office of lawyer instituted for the protection of society, as opposed to the individual? Is it an office, as alleged, which society maintains for its own benefit, as distinguished from the individual need of the man who hires the lawyer? In truth and as a matter of fact, no! Whatever may have been the origin, need, or history of lawyers in other systems of jurisprudence, in ours the office is derived with the courts directly from England. And in England, whatever may have been the limits which its incumbents must not transgress in fulfillment of their duties to society, the origin and concept of the office related distinctly to the needs of the individual. It was to meet individual needs, and not the needs of society (save as society is composed of individuals), that the office was inaugurated. Any one can be a student of laws, and proficient in his knowledge of them, but only one who is duly admitted to practice by complying with legal regulations can become or be a lawyer, in the official and the popular sense. And there was a time, in England, when in the official sense lawyers did not exist; they have a distinct, traceable origin, in which we can find the first germs of their official duty.
Fundamentally and historically a lawyer’s first duty is to his client, though he may not lawfully transgress certain other duties in his misconceived fidelity to his employer; and the man who maintains that lawyers are instituted and maintained by society for its own benefit, rather than for the benefit of the clients who hire them, is merely applying to an existing institution his own theories of what it ought to be, rather than stating what in its origin it was.
In the United States a lawyer now exercises the threefold function of adviser, representative, and advocate. The office of attorney, in the English courts, is said to have originated in a royal ordinance of King Edward I, in 1295; and the reason for its creation is said to have been the hardship to the individual defendant of going personally from distant parts of the kingdom to attend the King’s Court. These attorneys appear to have been at the outset agents merely, standing in the place of their principals; and so fully was the agency idea recognized that it is said that at one time an infant or an outlaw might be an attorney. Starting from this basis, as an office, the function of the lawyer developed until now he must be of good moral character and learned in the law, and must be examined for competency, duly admitted to the bar, and sworn to support the national and state constitutions, and to administer his office to the best of his ability.
It is historical error, therefore, to liken a lawyer to a priest, or to treat a lawyer as if he were a development from the priesthood, or his craft a priestcraft, or his concept of law revealed truth. Even among those lawyers who are criticized as being backward, inert, or otherwise reprehensible (although personally honest), the real basis of criticism, as I perceive it, is a too great fidelity to the interests of a client, and a willingness to utilize the law as it is, or as they think, or claim, it is, to the advantage of a client, who employs them, when, if they were merely indifferent, and were speculating philosophically upon the true interests of society, or were themselves making law, they would act otherwise. But this relates wholly to the lawyer as advocate; and it eliminates that vast body of cases never coming to light, but infinitely greater in number, in which the lawyer is adviser.
Although the lawyer as advocate looms large in the public mind through the usually sensational account of his activities which comes to public attention through the press, and in urban communities where these activities are most frequently made known, they are relatively insignificant when numerically considered. For instance, in my own judicial district, comprising the Borough of Manhattan, in the city of New York, there are about 12,000 lawyers, while there are awaiting trial in the Supreme Court usually about 13,000 cases, an average of only two pending cases to each lawyer, allowing for two lawyers in each case; but of these only 2416 cases are disposed of by trial in one year; so that the business of advocacy can bring the average lawyer in my community into court for a formal trial only in one case in about three years. Yet, there is doubtless more litigation in the aggregate in New York County than anywhere else in the United States, though perhaps not so much per lawyer. It will be seen therefore, if this county be taken as a type, that, relatively considered, advocacy is necessarily a small part of the average lawyer’s occupation. In fact, of course, some lawyers devote their attention much more largely to advocacy and are in the courts frequently, while others are never seen there; but I am speaking of the average.
V
Lawyers as a body are not without a code of honor, and though the laws have not defined this code, lawyers have to some extent done so, by their traditions and voluntary acts. One finds the same general outlines of ethical propriety in a lawyer’s conduct expressed in the regulations of Rome, the Code of Christian V of Denmark, promulgated in 1683, the practices of the French Bar, the traditions of the English Bar, the oaths in the German States, the oath of office in the Swiss Canton of Geneva, the statutory oath of the State of Washington, the code provisions of several western states, and the recently formulated canons of ethics of the American Bar Association, adopted in 1908. While these differ in detail, in underlying substance and dominant principle they are always much the same, and they all alike advocate and enjoin a high ideal of conduct whose controlling motive is altruistic. And yet throughout the entire period opportunity has been neither wanting nor neglected for writers to point the finger of scorn at the practices of lawyers. I am convinced that so far as this has any basis in the traditions of the profession itself, it arises from superficiality and misunderstanding on the part of the critic.
This is leaving out of consideration those black sheep within the profession, who disgrace it by their abuses. Whatever may be said of them they are relatively few in number, and thrive, so far as they do thrive, merely because of the failure of those interested, or charged with the duty, to utilize the remedies against them which the law itself, as well as the traditions of the profession, afford. I am not discussing those who abuse their office by violating its recognized obligations, but only the profession itself and its traditional standards. These are actually high, despite what in ignorance may be said to the contrary, but they do not embrace what some modern and enthusiastic progressives think they do or should embrace. For instance, while lawyers as individuals have ever actually been foremost in public service, and notably so in our own country, and while they are especially well equipped for it through their knowledge of history and laws, there is no tradition of the profession that they are public servants in the sense that they owe any duty to the public to bring about change. Every substantial change for the better seems in fact to owe its permanent formulation to the activity of some legally trained mind, but I am not aware that it is recognized by any tradition of the profession that a lawyer as such owes any duty to society as a constructive reformer.
The most perplexing ethical questions arise out of his position as advocate or attorney; in his position as adviser and counselor he may be free to counsel or dissuade, according to the very highest or even the most quixotic ideals; but when he has accepted responsibility as an attorney representing his client’s rights, or as an advocate to plead his client’s cause, then he is, or may be, pressed between the upper and nether millstones of inclination and duty.
For instance, it may be of great importance to the community that the truth should be known respecting a disputed fact, and it may be that a client may have confided the truth to his lawyer; but, whatever a lawyer may be personally inclined to do in respect to the disclosure of this truth, and whatever he may advise or whatever course he may adopt by way of inaction or refusal to proceed after learning the truth, he cannot by any legal process be compelled, nor will he be permitted, if he desires, to disclose it in evidence without his client’s consent . If it were his own secret, he could loudly proclaim it, but as it is his client’s secret, the law will not permit him to disclose it unless his client first waives the personal privilege accorded to him.
Now, this is the law, and not the mere arbitrary tradition of the profession. And like all law, it has its foundation in reason.
And so sound has this reason seemed to be that there is a progressive legislative wave operative in the United States, which in many states has now extended the rule to priests and physicians, and in some to trained nurses, while the height of absurdity in the application of the principle appears to have been reached when it was urged (but happily without success) in Iowa that the same secrecy should be observed and enforced in respect to the knowledge obtained by a veterinary surgeon in the treatment of a horse.
But, adverting to the principle itself, which imposes this silence on a lawyer, it has its foundation in the belief that the proper administration of justice requires that there should be the most complete freedom of exchange of confidences between lawyer and client, in order that the client may be induced to speak the truth and not to deceive his own lawyer; and it is assumed that with a knowledge of the truth the lawyer will be constrained to act properly, and justice will be more adequately served, than if through fear of enforced disclosure the client should deceive his own lawyer and set him on the wrong track.
But the honorable traditions of the profession will not permit the lawyer, as an ethical possibility, to use his knowledge of the facts actively to mislead.
One of the ethical problems which is endlessly discussed, but upon which lawyers appear almost without exception to be agreed, is the duty of the lawyer in defending one accused of crime, whom he knows, or has substantial reason to believe, to be guilty. In this one case lawyers as a class appear to be arrayed against a prevalent but superficial contrary sentiment in the community; they acknowledge and assert that such a defense may be properly undertaken. But even here, the proper ethical limits of such a defense are well understood.
A lawyer may not properly seek to divert suspicion from his own client, by pointing out another innocent individual as the offender, or by presenting false evidence in support of another theory; in each instance his only justifiable course is one of silence in respect to the actual facts, and of requiring the opposition to proceed to procure a verdict in strict accordance with law, and after sustaining the burden of proof which the law imposes upon the prosecution. In short, to act strictly upon the defensive. Yet it still may be asked why lawyers justify this course, when the interests of the community require conviction. Once again there is a reason, which appeals to lawyers as sound. In this view the peace and well-being of society, which is composed of individual units, depend upon the strict administration of criminal law. Its loose administration has, in time past, filled the world with unspeakable woe. The guaranty of due process of law, the writ of habeas corpus, the requirement of indictment by a grand jury, the privilege of counsel in criminal causes, and the right of trial by jury, are all remedies which bitter experience in the past with the loose or wicked administration of law, and particularly of criminal law, has demanded. The theory of the lawyer is really the theory of a constructive statesman, that the peace and wellbeing of society, as demonstrated by centuries of experience, make it desirable that criminal justice should be slow and careful, in order to prevent the sacrifice of innocent and law-abiding men. For, if the guilty cannot under the operation of the system be distinguished from the innocent, save by confession of his guilt, then, in order to relax the difficulties of conviction, requirements which are the actual safeguards of the innocent, and in reality of every man in the community who is liable to be suspected, are apt to be obliterated or weakened. Every precaution against wrongful conviction of an innocent man, which experience has demonstrated to be desirable to that end, is equally available as the right of a man who asserts himself to be innocent.
It must be remembered that the criminal law is only a crude device at best. It is man-made and not divine; it is not accurate; it does not measure moral guilt; only to a limited extent does it allow for provocation or temptation; it rarely allows for ignorance, and never for training, education, or environment; it is not necessarily tempered by mercy; mercy where allowed is usually optional with the individual judge; it makes no allowance for repentance; it is frequently cruel to the convict, not necessarily fitting the punishment to the crime or to the criminal; and it is always cruel to his dependents if he has previously met his obligations to them. And so considered, real justice may frequently be as well achieved by the sobering effect of a trial and acquittal, as by a conviction and punishment. It by no means follows that a man who has once committed murder may not become and be thenceforth a desirable citizen, if acquitted of his crime. Our present system succeeds to one much older which mercifully recognized a right of sanctuary and asylum for the guilty. We have abolished that right, except in the case of purely political offenders who have escaped to foreign lands. And the mere right to be defended by counsel and to be convicted by the due process of the law of the land, without personally or by counsel actively contributing to the result, is a meagre substitute, of which society itself, and its professed friends and spokesmen, have no right to complain until they reconstruct the criminal law along more accurately just lines, and impose upon the lawyer the duty of being the foe, instead of the friend, of his client.
But, in fact, this consideration of the duty of a lawyer in the case suggested is but an academic discussion, rarely of any practical application, because in actual practice the cases where it would apply are few, after we have eliminated those in which the lawyer has rejected a defense because it is not acceptable to him, or has advised his client to plead guilty and take the usually lighter consequences, because they both know his guilt and know that he is likely to be convicted; and after we have eliminated also the possibility that although guilty of some offense, it may not be the crime charged, and the other possibilities that the lawyer himself may not be fully advised, or that the client may consider himself guilty when in truth and under the law he is not.
In some cases the law itself gives no recognition to the plea of guilty, but requires a trial to take place at all events, to determine the degree of guilt. This is true in New York in respect to the crime of murder in the first degree.
Nor can a lawyer always escape the defense of a guilty man. A situation may arise in which he may be compelled to defend. It may be assumed, for instance, that if every counselor at a given bar voluntarily rejected the cause of an accused able to pay, he might appeal to the court to assign counsel for his defense, and that in such case, as well as in the more common one of the impoverished accused, it would be a duty to accept the assignment. In that event the counsel, though he might advise a plea of guilty, would have no right to enter it against the protest of his client, but would be legally bound to see that he secured a fair trial, and that, if convicted, his conviction should be upon the evidence, and in accordance with law.
So it may be seen that extreme cases may arise in which it is the legal duty of the lawyer to defend a man whom he knows to be guilty, and in which he has no option. But ordinarily he can escape such a predicament, because in the United States he is ordinarily free to reject a case which is tendered to him, if its defense is distasteful or abhorrent to him.
When the lawyer’s personal interest alone is considered, or he seeks to subvert the law to secure to his clients what is legally denied to them, then the traditions and common precepts of the profession lay out for him a true and narrow course. These traditions have been formulated in the canons adopted by the American Bar Association, as a purely voluntary statement of the more common precepts of professional propriety. Space does not permit their full enumeration here, but the following quotation is an excellent summary: —
‘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.’
VI
Lawyers have always been and doubtless always will be condemned by those who picture to themselves a distorted type, examples of which unfortunately do exist and have existed, who use their knowledge of the law to impose upon or circumvent the innocent and ignorant. But this type is as much condemned by the profession itself as by the most severe critic; it is not in any respect representative, and where it flourishes it does so in spite of professional traditions, and because either of the secret manner in which it works, or of the absence of efficient machinery in the courts to follow up and punish professional misdeeds.
Lawyers themselves are also moving forward more actively than ever before to weed this class out of the profession. They come into it and stay in it for purely commercial reasons, and there ought to be no substantial difficulty in disbarring them when discovered. The members of the Association of the Bar of the City of New York have an active force of professional aids at work in the solution of this problem; the Committee on Grievances consists of volunteers who devote themselves to the work systematically throughout the year, meeting for the purpose of sifting complaints and taking evidence, on an average, more than one afternoon a week; its investigating and paid professional force, consisting largely of lawyers, costs the Association about $23,000 a year, every cent of which is contributed, in the first place, by lawyers, members of the Association, and only a small fraction of which is returned out of the county treasury in case of successful prosecution. The New York County Lawyers’ Association, with much smaller resources, does a similar work. The first-mentioned committee entertained and investigated, in 1912, 927 specific complaints against lawyers, and 29 complaints respecting the manner of administering justice in the county; and, in 1913, 819 complaints against lawyers, and 8 matters involving the administration of justice. This is a sample of the voluntary and expensive work which lawyers themselves, in a single community, are doing to meet the criticisms which are leveled against members of their profession, and it is practical and efficient work, and in that respect differs widely from much ill-founded criticism.
Conservatism is not necessarily an offense against society; it is frequently the excellent brake which prevents or retards a too facile descent of a dangerous declivity toward disorganization and anarchy. The law represents order, and order abhors a noisy and ill-considered clamor for change. Substantive law is fundamentally, according as its source is traditional or statutory, a formulated expression of the habits of the people as interpreted by the lawmakers, or else an effort by the latter to make a portion of the people change their habits and adopt those which appeal favorably to the legislators; the latter class of laws is a fruitful source of discord, for reasons which are psychological and human. Lawyers as a body are unquestionably conservative, but from the ranks of the profession have always come some of the most efficient of reformers, when the time was ripe for their reforms.
The duty of advocating change is, however, not a professional one. It might be desirable to find all lawyers in the front rank of progress, but it is no professional duty to be there, and as many men have many minds, it is not surprising that there are differences of view among lawyers respecting the true direction of the line of actual progress.
I have said little to confute the charge that advocacy takes from its practitioner the rounded view of his duty to the man who is not his client. Advocacy is one of the professional duties of a lawyer, although it is not pursued so frequently as might be supposed.
Advocacy, in its larger sense, includes the conduct of the trial and the supervision of the testimony elicited, as well as the final argument thereon. It is an advocate’s right, and may be his duty, to raise a legal objection to the admission of evidence. The advocate who now observes the ideals of his profession does not make futile or unfounded objections, nor does he in argument contend for unreasonable hypotheses. The average critic conceives some crafty Sergeant Buzfuz as the typical advocate and properly condemns him; and occasionally one meets such a man in practice; but when an advocate resorts to such pettifoggery, it should be obvious to the court in respect to points of law, and to the jury in respect to matters of fact, and should, and I believe does, bring its merited reward of condemnation and failure. As for the tenets of the profession, however, its canon advocates candor and fairness in all such matters; and as for the opinion of the profession, it holds in greater contempt a successful pettifogger than does the layman, who either patronizes or praises.
From an intimate acquaintance with the activities of the profession, I am satisfied that in its ranks are the foremost of practical reformers of the law; that as a whole it is not inert; that it neglects no duty which it owes to society; that it deprecates unjust methods of advocacy; that it is not responsible for any faulty criminal procedure, or for the so-called technicality of the law; that its precepts are highly honorable and specific; that it commends to its members high standards of individual conduct; and that where it advocates or excuses behavior which appears to the casual critic reprehensible, such as the defense of one known to be guilty, it is for reasons of public policy, and with entire fidelity to the true interests of society. I am satisfied that the profession itself cannot be justly arraigned for any violation of duty, or of any obligation which society has imposed upon it, or which it owes to society. Where individual members of the profession have done reprehensible things, it has been in violation of professional standards, and not in conformity with them; and though lawyers as a body have not been alert at all times and places to detect and punish the shortcomings of their fellows, even here there is greater activity at present than ever before in the history of this country, as I could show in detail if I had not already transgressed the reasonable limits of this article.