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

Page 80 text:

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

Page 79 text:

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

Page 81 text:

getting that standard applied he represents the interests of his client, and in doing so can usually justify anything short of actual mis- representations of law or of fact. Wlietliei' intentional suppression of either amounts to such misrepresentation, and necessity for its use in a given case demands a withdrawal from that case on the lawyer's part is, ordinarily, left to his own conscience. The mere fact that the lawyer himself holds to a different view of the law or a different opinion as to the fact should not deprive his client of a more favorable one held by court or jury. The necessity of free discussion in the forum makes the two assumptions above mentioned indispensable, and court rules and professional opinion will both uphold the lawyer in acting upon them in all lawful ways. The supreme court of Nebraska was in- clined early to a somewhat stringent view of the subject of Hmis- conduct as a ground of new trials. The later decisions of that court, however, have indicated a clear perception that in so doing some risk of crippling the efficiency of the trial as a means of ascer- taining the truth was incurred. The lawyer is not alone in undertaking work involving as- sumptions liable to obscure the truth and even to cause habits tend- ing to prevent its successful application. The soldier must assume, even to the extent of willingness to slay the assertor of the contrary, that his country's cause, or that of the land for which he lights, is just, and that the orders of his superior are right and should be carried out. This has been sometimes supposed to convert him into a killing machine, as the lawyer's acceptance of employment in a case has been sometimes thought to convert him into a talking machine. The minister of the gospel adopts a creed and identifies himself with a church organization. He must thereafter assume that creed as true and defend and expound the tenets of that church at the risk of being pronounced heretical and treacherous if he varies, or un- faithful if he turns lukewarm. How much of the exercise of H-the will to believe this may involve there is neither space nor occasion now to inquire. The point is that, like the lawyer, he has fixed pos- tulates to which he must adjust his search for truth. The lawyer may even claim the advantage over both, that his assumptions are avowedly temporary, only undertaken for the case in hand and frankly so, thus putting him on the whole in a better position than his martial or clerical brother. He, also, can withdraw from his case easier than they, if the moral burden gets too heavy. 82