An Essay on Professional Ethics / Second Edition

by George Sharswood

He cannot be faithful to his clients unless he continues to be a hard student of the learning of his profession. Not merely that he should thoroughly investigate the law applicable to every case which may be intrusted to him; though that, besides its paramount necessity to enable him to meet the responsibility he has assumed to that particular client, will be the subsidiary means of important progress in his professional acquisitions. "Let any person," says Mr. Preston, "study one or two heads of the law fully and minutely, and he will have laid the foundation or acquired the aptitude for comprehending other heads of the law."[26] But, besides this, he should pursue the systematic study of his profession upon some well-matured plan. When admitted to the Bar, a young man has but just begun, not finished, his legal education. If he have mastered some of the most general elementary principles, and has acquired a taste for the study, it is as much as can be expected from his clerkship. There are few young men who come to the Bar, who cannot find ample time in the first five or seven years of their novitiate, to devote to a complete acquisition of the science they profess, if they truly feel the need of it, and resolve to attain it. The danger is great that from a faulty preparation,—from not being made to see and appreciate the depth, extent, and variety of the knowledge they are to seek, they will mistake the smattering they have acquired for profound attainments. The anxiety of the young lawyer is a natural one at once to get business—as much business as he can. Throwing aside his books, he resorts to the many means at hand of gaining notoriety and attracting public attention, with a view of bringing clients to his office. Such an one in time never fails to learn much by his mistakes, but at a sad expense of character, feeling, and conscience. He at last finds that in law, as in every branch of knowledge, "a little learning is a dangerous thing;" that what he does not know falsifies often in its actual application that which he supposed he certainly did know; and after the most valuable portion of his life has been frittered away upon objects unworthy of his ambition, he is too apt to conclude that it is now too late to redeem his time; he finds that he has lost all relish for systematic study, and when he is driven to the investigation of particular questions, is confounded and embarrassed—unable to thread his way through the mazes of authorities, to reconcile apparently conflicting cases, or deduce any satisfactory conclusion from them—in short, he has no greater aptitude, accuracy, and discrimination than when he set out in the beginning of his studies. No better advice can be given to a young practitioner, than to confine himself generally to his office and books, even if this should require self-denial and privation, to map out for himself a course of regular studies, more or less extended, according to circumstances, to aim at mastering the works of the great luminaries of the science, Coke, Fearne, Preston, Powell, Sugden, and others, not forgetting the maxim, melius est petere fontes quam sectari rivulos, and to investigate for himself the most important and interesting questions, by an examination and research of the original authorities. "He that reacheth deepest seeth the amiable and admirable, secrets of the law,"[27] and thus may the student "proceed in his reading with alacrity, and set upon and know how to work into with delight these rough mines of hidden treasure."[28]

It may be allowed here to commend to most serious consideration, the remarks of one of the most eminent of the profession—Horace Binney—a gentleman of our own Bar, whose example enforces and illustrates their value: "There are two very different methods of acquiring a knowledge of the laws of England, and by each of them, men have succeeded in public estimation to an almost equal extent. One of them, which may be called the old way, is a methodical study of the general system of law, and of its grounds and reasons, beginning with the fundamental law of estates and tenures, and pursuing the derivative branches in logical succession, and the collateral subjects in due order; by which the student acquires a knowledge of principles that rule in all departments of the science, and learns to feel as much as to know what is in harmony with the system and what not. The other is, to get an outline of the system, by the aid of commentaries, and to fill it up by the desultory reading of treatises and reports, according to the bent of the student, without much shape or certainty in the knowledge so acquired, until it is given by investigation in the course of practice. A good deal of law may be put together by a facile or flexible man, in the second of these modes, and the public are often satisfied; but the profession itself knows the first, by its fruits, to be the most effectual way of making a great lawyer."[29]

Such a course of study as is here recommended, is not the work of a day or a year. In the meantime let business seek the young attorney; and though it may come in slowly, and at intervals, and promise in its character neither fame nor profit, still, if he bears in mind that it is an important part of his training, that he should understand the business he does thoroughly, that he should especially cultivate, in transacting it, habits of neatness, accuracy, punctuality, and despatch, candor towards his client, and strict honor towards his adversary, it may be safely prophesied that his business will grow as fast as it is good for him that it should grow; while he gradually becomes able to sustain the largest practice, without being bewildered and overwhelmed.

Let him be careful, however, not to settle down into a mere lawyer. To reach the highest walks of the profession, something more is needed. Let polite literature be cultivated in hours of relaxation. Let him lose not his acquaintance with the models of ancient taste and eloquence. He should study languages, as well from their practical utility in a country so full of foreigners, as from the mental discipline, and the rich stores they furnish. He should cultivate a pleasing style, and an easy and graceful address. It may be true, that in a "court of justice, the veriest dolt that ever stammered a sentence, would be more attended to, with a case in point, than Cicero with all his eloquence, unsupported by authorities,"[30] yet even an argument on a dry point of law, produces a better impression, secures a more attentive auditor in the judge, when it is constructed and put together with attention to the rules of the rhetorical art; when it is delivered, not stammeringly, but fluently; when facts and principles, drawn from other fields of knowledge, are invoked to support and adorn it; when voice, and gesture, and animation, give it all that attraction which earnestness always and alone imparts. There is great danger that law reading, pursued to the exclusion of everything else, will cramp and dwarf the mind, shackle it by the technicalities with which it has become so familiar, and disable it from taking enlarged and comprehensive views even of topics falling within its compass as well as of those lying beyond its legitimate domain. An amusing instance of this is said to have occurred in the debate in the House of Commons, on the great question as to the right of the Parliament of Great Britain to tax the Colonies. At the close of the discussion, in which Fox and Burke, as well as others, had distinguished themselves, a learned lawyer arose and said that the real point on which the whole matter turned, had been unaccountably overlooked. In the midst of deep silence and anxious expectation from all quarters of the House, he proceeded to show that the lands of the Colonies had been originally granted by the Crown, and were held ut de honore, as of the Manor of Greenwich, in the county of Kent; and thence he concluded that as the Manor of Greenwich was represented in Parliament, so the lands of the North American Colonies (by tenure, a part of the Manor) were represented by the knights of the shire for Kent.[31]

Let me remark, too, before hastening to another topic more immediately connected with the duties of active professional life, that the cultivation of a taste for polite literature has other importance besides its value as a preparation and qualification for practice and forensic contests. Nothing is so well adapted to fill up the interstices of business with rational enjoyment, to make even a solitary life agreeable, and to smooth pleasantly and honorably the downward path of age. The mental vigor of one who is fond of reading, other things being equal, becomes impaired at a much later period of life. The lover of books has faithful companions and friends, who will never forsake him under the most adverse circumstances. "As soon as I found," said Sir Samuel Romilly, "that I was to be a busy lawyer for life, I strenuously resolved to keep up my habit of non-professional reading; for I had witnessed so much misery in the last years of many great lawyers, whom I had known, from their loss of all taste for books, that I regarded their fate as my warning." Mr. Gibbon was wont to say that he would not exchange his love of reading for the wealth of the Indies. It is indeed a fortune, of which the world's reverses can never deprive us. It fortifies the soul against the calamities of life. It moderates, if it is not strong enough to govern and control the passions. It favors not the association of the cup, the dice-box, or the debauch. The atmosphere of a library is uncongenial with them. It clings to home, nourishes the domestic affections, and the hopes and consolations of religion.

Another very delicate and often embarrassing question in the relation of attorney and client is in regard to the subject of compensation for professional services.

In all countries advanced in civilization, and whose laws and manners have attained any degree of refinement, there has arisen an order of advocates devoted to prosecuting or defending the lawsuits of others. Before the tribunals of Athens, although the party pleaded his own cause, it was usual to have the oration prepared by one of an order of men devoted to this business, and to compensate him liberally for his skill and learning. Many of the orations of Isocrates, which have been handed down to us, are but private pleadings of this character. He is said to have received one fee of twenty talents, about eighteen thousand dollars of our money, for a speech that he wrote for Nicocles, king of Cyprus. Still, from all that appears, the compensation thus received was honorary or gratuitous merely. Among the early institutions of Rome, the relation of patron and client, which existed between the patrician and plebeian, bound the former to render the latter assistance and protection in his lawsuits, with no other return than the general duty, which the client owed to his patron. As every patrician could not be a sufficiently profound lawyer to resolve all difficulties, which might arise in the progress of a complex system of government and laws, though he still might accomplish himself in the art of eloquence, there arose soon a new order of men, the jurisconsults. They also received no compensation. On the public days of market, or assembly, the masters of the art were seen walking in the forum, ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes on a future occasion, they might solicit a grateful return. As their years and honors increased, they seated themselves at home, on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their doors.[32] Often, indeed, the patron was able in his own person to exercise the office both of advocate and counsellor. It was only in the more glorious, because the more virtuous, period of the republic, that the relation was sustained upon so honorable a foundation. In the progress of society, the business of advocating causes became a distinct profession; and then it was usual to pay a fee in advance, which was called a gratuity or present. As this was a mere honorary recompense, the client was under no legal obligation to pay it. But the result necessarily was, that if the usual present was not given, the advocate did not consider himself bound in honor to undertake the advocation of the cause before the courts. Afterwards, Marcus Cincius Alimentus, the tribune of the people, procured the passage of the law known as the Cincian law, prohibiting the patron or advocate from receiving any money or other present for any cause; and annulling all gratuities or presents made by the client to the patron or advocate. But as no penalty was prescribed for the breach of the law, it of course became a dead letter. The Emperor Augustus afterwards re-enacted the Cincian law, and prescribed penalties for its breach. But towards the end of his reign, the advocates were again authorized to receive fees or presents from their clients. The Emperor Tiberius also permitted them to receive such forced gratuities. This led to the abuse referred to by Tacitus, and induced the Senate to insist upon the enforcement of the re-enactment of the Cincian law, or rather a law limiting the amount of the fees of advocates.[33] Nero revoked the law of Claudian, which was subsequently re-enacted by the Emperor Trajan, with the additional restriction that the advocate should not be permitted to receive his fee or gratuity, until the cause was decided. The younger Pliny mentions a law, which authorized the advocate, after the pleadings in the cause had been made and the judgment had been given, to receive the fee, which might be voluntarily offered by the client, either in money or a promise to pay. Erskine, in his Institutes of the Law of Scotland, understands the law in the Digest De Extraordinariis Cognitionibus as authorizing a suit for the fee of a physician or advocate without a previous agreement for a specific sum.[34]

The consequences may be best told in the impressive language of the historian of the Decline and Fall of the Empire: "The noble art, which had once been preserved as the sacred inheritance of the patricians, was fallen into the hands of freedmen and plebeians, who, with cunning rather than with skill, exercised a sordid and pernicious trade. Some of them procured admittance into families for the purpose of fomenting differences, of encouraging suits, and of preparing a harvest of gain for themselves or their brethren. Others, recluse in their chambers, maintained the dignity of legal professors, by furnishing a rich client with subtleties to confound the plainest truth, and with arguments to color the most unjustifiable pretensions. The splendid and popular class was composed of the advocates, who filled the Forum with the sound of their turgid and loquacious rhetoric. Careless of fame and of justice, they are described for the most part, as ignorant and rapacious guides, who conducted their clients through a maze of expense, of delay, and of disappointment; from whence, after a tedious series of years, they were at length dismissed when their patience and fortune were almost exhausted."[35] Is not this probably the history of the decline of the profession in all countries from an honorable office to a money-making trade?

It is the established law of England, that a counsellor or barrister cannot maintain a suit for his fees.[36] There is in that country a class of mere attorneys, who attend to legal business out of court, who bring suits and conduct them up to issue; but who are not allowed to speak in court. This latter privilege is confined to serjeants and barristers. Attorneys are regulated by statute, and are subject to many restrictions; having a rate of fees, settled either by statute or established usage; and required to be fixed by the taxation of an officer of the court before a suit can be brought for them. Barristers are admitted only under the regulations established by the various inns of court; and the serjeants, who long had the monopoly of the Bar of the Common Pleas, are appointed by patent from the king. A barrister cannot be an attorney.[37]