University of Nebraska College of Law - Yearbook (Lincoln, NE)

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principles of the common law were abundantly sufficient. Only the lawyer can legislate effectively in purely legal matters. He alone knows the old law, the mischief, and the practicable remedy. He, at least, can see that to enact new laws declaring what was com- mon-law already is confusing rather than elucidating the obvious. He alone can deal with the problem of today, how to CLd7l1'l.71'ZiSf67' the law to meet the demands of the world that is. Covenants, says Hobbes, without the sword avail nothing. New laws are Eptsneeded, but rather a more efficient and effectual machinery for enforcing what we have. lTo make the law respected, we must pro- vide laws that can be obeyed and can be enforced, must provide adequate machinery to enforce them, and the bar must devote its energies to the impartial administration of them to great and small alike. This is an honorable work, and, like all great work, it must be done, not for applause or for reward but for its own sake. lOut o it, as in so many other crises in our legal history, will arise once more, unimpaired in its essential lines, that 'fliving temple of jus- tice, that immemorial and yet freshly-growing fabric of our common law of which, as Sir Frederick Pollock has put it so well, the least of us is proud, who may point to so much as one stone thereof and say, the work of my hands is there. ig Z f?i-- 5, x 35. v.-V, 'gy-'7,'f. ,. 3 a ohcxgmqiitgalffhillgi Nvsqvka 'l Tl - 4.4. , qi , N'1Is1Xi4?4 ' AU'ii1i':' - J i v - , Lxvvlg f r- if K- l 1,5 st t fst'i?ll9i -7 fi .i ris it swift Qt get 'sw ei- Kr- 5 f wffff-f nf .w-. Nl --5 Qs1l5JL , xghlff All ' ' bg. 'l , N. 'llllll A W 80

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Latin regime which resorts to revolution instead ot a writ of Quo Wfarranto. A century of opposition to the power of courts over unconstitutional legislation has left the doctrine firmly intrenched in our polity. But where the constitution is constructed and recon- structed by lawyers and on legal theories, where questions of the highest economic and social import have to be passed upon by the courts in determining private controversies, the strain upon the law and upon the machinery of its administration is necessarily very great. It restrains, not individuals alone, but a whole people. And the people so restrained is apt to be jealous of the visible agents of the restraint, and to charge every departure from the social or eth- ical demands of the moment to warping of the law by crafty lawyers. But I speak of respect for In-zu, not of respect for Ia'zuyc'r.t. For it lawyers do not respect the law, who will? Respect for the law must begin with us. The bar has maintained a wonderful standard in this country when we consider how zealously we have wrought to turn the profession into a mere trade. XVhen we reflect that counsel is an oficer of the court, charged with the duty of assisting the court in the administration of justice, it seems difficult to con- ceive that counsel are hired by the year as part of the administrative staff of organizations that are everyday litigants to assist them in evasions of the law. WVe have gained much in some ways in unify- ing the professiong but in degrading the honorable position of counselor at law to that of a hired servant, we have lost quite as much as we gained. I do not question that all large enterprises must have their regular attorneys, employed for their business alone. On the other hand, to have the counsel who appears in court and conducts arguments and tries causes appear in the livery of a liti- gant is a distinct misfortune. I do not for a moment advocate any scheme so chimerical as division of the profession in America. But I do say that the commercial standard must be discarded and the professional standard restored, or we shall ourselves have dealt a sad blow at public respect for law. Today the growing point of law is in legislation. Judicial law- making is sterile. The growth of the future will take place through deliberate, conscious enactment, not by chance application of anal- ogies as causes arise. But the province of legislation in legal mat- ters is greatly misconceived. Laws are looked on as a sort of elixir of life for the body politic. Every one has his legislative pink pills or boluses or invigorating nervous essences to prescribe. The stat- ute-books teem with new laws on matters where the substantive 79

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LEGAL ETHICS BY PROFESSOR WILLIAM G. Hixs'r1Nos The lawyer need make no apology for what laymen regard as the peculiar ethics of his profession. It requires no skill in casuistry to show that he accepts a peculiar position. That position has its privileges and its responsibilities. I-Ie is not usually bound to as- sume the relation of advocate and legal adviser in civil matters, but having taken it he is bound to assume certain things, and even if he can not believe them, to act as if he did. Vtfhen assigned to the duty he may be required to act in behalf of one charged with crime on pain of loss of his position in the profession. In civil matters such a rule does not obtain and ordi- narily he is at liberty to take or refuse employment. Having taken it, however, he is bound to accept and act upon two propositions: first, that his client's account of the latter's own case is true, second, that the rights accruing under the law to his client by reason of the facts of that case are justly his and should be, as nearly as possible, all secured to him. If the lawyer is not willing to assume and act upon these two propositions to the utmost of his ability, learning and strength, he should not undertake that case. If he does undertake it he is bound to use every lawful means for success and especially to give the client his very best judgment and advice with a view solely to that clientis interestg and he is bound to keep the client's secrets absolutely inviolable so far as they have come to the lawyer's knowledge by reason of such employment. It will be readily perceived that the consequences of the fore- going assumptions are sometimes very far-reaching. Cf course, nothing can justify advising a course clearly illegal. The lawyer shown to have advised and knowingly assisted in a fraud is dis- barred for so doing, but much short of this he is liable to find him- self advancing arguments he knows to be unsound and urging upon courts and juries the adoption of conclusions in which he does not believe. The celebrated French lawyer Berryer is said to have once replied to a lady who asked him why he brought so many bad cases, even though he did win them, Because, Madam, I lose so many good ones. The answer seems at first glance merely cynical but it is not so. It has under it the profound thought that the lawyer is, after all, merely trying to help in the application of an external and objective social standard of right and wrong and not his own. In 81