University of Michigan Law School - Quad Yearbook (Ann Arbor, MI)

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satislicd that his client has a meritorious case. In the other he determines to talqc the chances with the, motto as between himself and his client: ft l-Ieads, I win, tails, you lose . The great question in legal ethics is an old one, has been much discussed, and is still unsettled. It is this: ought a lawyer or advocate to espouse the cause of a client and either prosecute or defend a suit for him, when he conscientiously believes that his client ought not to prevail in his suit? This at once raises a moral question of conscience. It will be perceived that the subject has several bearings. There 'is a difference between taking thecase of a client to plant a suit, when the lawyer conscientiously believes ' that his client is in the wrong and ought not to recover, and where his client is a defendant in a suit, but relies upon a defence which is morally wrong. Again there is a difference between civil and crim- inal cases. In a civil cause it is hard to imagine a justification for planting a suit which the attorney believes to bemorally wrong, or -what is the same thing-which he conscientiously believes should be decided adversely to his client. In the first place it is hisduty . to advise his client that he has no case. If he does not do this he takes his money without consideration, and this is no better than robbery. If he does so advise his client, and, notwithstanding, his client wishes him to proceed and bring suit, he knows that his client is prompted by revenge, and he has no right to be an instrument in his hands for wrong and oppression. But suppose his client convinces him that it is to be a test case, and is to settle a legal principle not before passed upon by the Supreme Court of that State? Here, if it appears reasonable that there is a question in the case which has not been settled by the Supreme Court, although it does not appear to him certain, or even probable, that his client will win, he sought to entertain it, a than the court of last resort, ,for however wise, capable and honest ible that considerations may present nd not consider himself wiser a lawyer may be, it is poss themselves to the court p they may take an entirely different view of the law. A lawyer called of last resort that do not occur to him, or upon to defend a client in a civil suit cannot well refuse to do so. I-Ie has, however, the whole control and management of the defence ' e in his hands, and he has no right to permit his client to interpos a fraudulent defence, or one supported by suborned witnesses. Whenever he discovers that the cause that he has engaged in for his

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ground. llc is not responsible to any one for his choice of clients. 'l'liat is. hc has thc right to engage his service to one and not to another. ln making his selection, or rather in determining Whether he will accept a retainer, hc must decide as a matter affecting his professional honor, whether the client has rights to defend, Or 'EO obtain. by legal proceedingsg and it is his duty to defend his client in his rights, not in his 'wrongs A lawyer may, however, gin against the code of legal ethics in the methods which he adopts to defend his client in his rights. If he abuse the process of the court: if he resort to tricks, artilice or fraud, if he connive at or permit his client to use false testimony, or does any other dishonor- able act, he stands condemned before that high court ofymorals, whose unwritten law the profession is bound to obey. The jealousy with which the ethics of the profession are guarded is well exempli- fied in the case of Mrs. Rives, who attempted to establish her claim to royal lineage in England, and who had instituted a suit against the Attorney General. Dr. Smith appearedfor her, and in address- ing the jury, was just beginning to say: On my honor I believe my client's case to be well founded , when the Lord Chief justice interfered, and peremptorily said: I cannot allow the learned counsel to pledge his honor on his own belief. To do so were a violation of the rules of the profession, and a dishonor to counsel . Dr. Smith apologized. ' g It is, however, in criminal cases that the casuist summons the lawyer before the forum of conscience and declares that the accused must be guilty, or not guilty, of a criminal offense, that, if guilty, the advocate who undertakes his defence offends against right and justice, assails the Commonwealth by assisting criminals to escape merited punishment, and jeapordizes the peace of the community by turning free a depraved culprit unit to associate with the law abiding citizen. These results certainly do follow thegsuccessful efforts of a lawyer in defence of a person who has committed crime and has become one of the criminal class. Then shall the accused go undefended? Is not every person accused of crime presumed to be innocent until proved guilty, and does not the presumption attach as a shield for innocence until the verdict of guiltyiis ren- dered by the jury? If the lawyer is not to-undertake the defence of persons accused of crime, what becomes of those constitutional provisions which guarantee to every person accused of crime the I2