I have heard the utility of legal ethics denied. It is said that the rules in legal ethics are the same as the moral rules that govern men in every branch of society and in every profession—except as there may be certain conventions as to professional etiquette—and that if a man is honest, there ought to be no difficulty in his following the right course in the discharge of his professional duties. If a man is lacking in probity of character, it is said the discussion of legal ethics will do him no particular good, because if he is tempted to a crooked path or an unjust act by his pecuniary interest, he will yield, and neither lectures on ethics nor the establishment of an ethical code will make him good; whereas the upright man will either not be so tempted, or should he be, he will clearly perceive the necessity for resisting the temptation.

In the course of my consideration of this subject, I looked into a text-book on moral philosophy and the general system of ethics with the hope that I might find something there that would suggest, by analogy, a proper treatment of the subject in hand. I consulted Paulsen's "A System of Ethics." The analogy between moral philosophy and legal ethics is not very close, but I found a passage or two bearing on this very issue, which it seems to me might not be inappropriately quoted here. In the conclusion of his introduction, Paulsen says:

Paulsen refers to the fact that Schopenhauer takes a different view:

To this view Paulsen replies:

What is here said concerning the usefulness of an investigation of fixed ethical principles has application to a consideration of what rules of conduct should prevail in the legal profession. The high social purpose of the profession, its beneficial function, and the limitations upon its action that should be self-enforced in order to make the calling an advantage and not a detriment to the public weal, should be understood. Indeed, the profession of the law, if it serves its high purpose, and vindicates its existence, requires a double allegiance from those who have assumed its obligations, first, a duty toward their clients, and second, a duty toward the court. And though the two sometimes seem to conflict, they must be reconciled in the way which will best promote the effective administration of justice and the peace of society. The path to be followed in achieving this golden mean in the intricacies of professional relations is not as manifest as the rule of honesty and morality in ordinary life. The great problem of government that is never completely solved and that is changing with changing conditions is how to reconcile the protection of individual rights, helpful to the pursuit of happiness and the welfare of society, with the necessary curtailment of those rights and freedom, by governmental restriction, to achieve the same object. So the adjustment of the duties of the lawyer toward his client and toward the court in the interest of society, are not always easily distinguishable and an attempt to make them clear, therefore, is justified.

An understanding between the client and his representative that remuneration is a proper incident to their relation insures a greater confidence in the activity and devotion of his lawyer to his interest on the part of the client and stimulates industry and sincere effort on the part of the lawyer. It is far better that the employment on a pecuniary basis should be understood by all men, by the courts and by the parties, than that some secret arrangements should exist unknown to the court and the opposing party. But it is said that to give to counsel, skilled, learned and familiar with the arts of advocacy and the preparation of cases, a pecuniary motive to make the worse appear the better reason, necessarily leads him to an attempt to influence the court against a just result. For since one or the other conclusion must be unjust, one of the paid attorneys arguing the cause before the court must be arguing for the unjust side and in favor of wrong. Hence, it is claimed, the system of paid advocacy must in every case tend to an effort on one side or the other to pervert justice and mislead the judges into inequity and wrong.

It may be agreed that if there were not certain limitations upon the means which counsel may take to maintain the justice of their clients' cause, vif they were justified in suborning witnesses, and coaching them to testify to an unfounded state of facts, if they were permitted to misstate the evidence after it has been adduced, if it were regarded as proper for them to accept employment in the prosecution of a cause which they knew to be brought only for a wrong purpose and without any just foundation, or if in a civil cause they were retained to make a defence which they were advised was false and wrong, then it might be that advocacy under such freedom from limitation would not aid the judges in avoiding wrong conclusions and unjust judgments. But there are limitations upon the duty of counsel to their clients. There are also limitations upon a lawyer's action which he cannot violate without a breach of his duty to the court of which he is an officer and to the public interest in the maintenance of the proper administration of justice. We find, therefore, that the goal to be reached in reference to the ethical duty of an attorney in the discharge of the functions assigned to him by the law, is the reconciliation of his duty to his client, with his duty to the court. To mark out this line in advance is easier than to determine each special duty in a concrete way, yet neither is free from difficulty and each requires a calm and clear understanding of the function of counsel as an instrument in the machinery of justice. This is the main object of legal ethics. It covers other fields and is important in those fields, but no other is of such primary importance.

Courts sit to hear controversies between parties over facts and law. Rules of procedure are for the purpose of reducing the issues of fact and law in such controversies to a form as narrow and concrete as possible. Men who are able to present a clear statement of the evidence and who are learned in the principles of the law and their application to the facts as they are developed are in a position to assist the judge to a quick and thorough understanding of the exact question which he is to decide. The real enthusiasm of advocacy which is necessarily developed by the relation of attorney and client would doubtless have a tendency to mislead the court if exerted in behalf of one side only, but where both sides are represented, where the same earnestness in the proceeding of each side is present, it is the best method within human ken to reach a sound conclusion both as to the facts and as to the law. No one who has had experience on the Bench in reaching judicial conclusions and who has thereafter been obliged in an executive position to reach important, and it may be final, conclusions upon questions involving both fact and law, can fail to recognize and acknowledge the powerful influence for justice that honorable and learned members of the law exert in the causes which they present to a court. The counsel who argues the losing side of a case contributes quite as much to the assistance of the court as the successful advocate. The friction of counsel's argument against counsel's argument develops every phase of possible error in a conclusion and thereby enables a just, intelligent, acute and experienced court to see clearly what is the right which should be embodied in its judgment.

The practical value of argument by paid counsel on both sides is shown in many ways. In the first place, it is well understood in weighing legal precedents that there is little authority in the decision of a court which has been reached without the benefit of the argument of counsel. In some states, courts are required to answer questions from the legislature as to the constitutionality of proposed laws. The best authorities hold that opinions given under such circumstances are merely advisory, since they lack opposing arguments made by counsel whom the spirit of professional advocacy arouses to industry in the search for precedent. They go so far as to say that answers so given should not conclude the same court in a litigated case arising subsequently. An earnest and commendable desire to win leads the counsel to search not only libraries but his own brain for the strongest reasons that he can summon upon which to base a judgment in behalf of his client. Why is it that a great Bar makes a great court? Though it may seem a truism, I repeat, it is because the great Bar furnishes to the court all the reasons that can possibly be urged in each case and enables it to select from among all the reasons developed by the ingenuity and intense interest of men skilled in the law.

Counsel ought to decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass the opposite party or to work oppression. His appearance in court should, therefore, be deemed equivalent to an assertion on his honor that in his opinion his client's case is a debatable one and one proper for judicial determination. He should know that under a proper code of ethics, no lawyer is obliged to act either as adviser or as advocate for every person who may wish to become his client; that he has the right to decline employment, and that each lawyer on his own responsibility must decide what business he will accept as counsel, what causes he will bring into court for plaintiffs, and what suits he will contest in court for defence. The court knows that the responsibility for bringing questionable suits or for urging questionable defences, is the lawyer's responsibility. He can not escape it by urging as an excuse that he is only following his client's instruction. The judge knows that no honorable lawyer would coach a witness to testify falsely, and that in dealing with the court each lawyer is required to act with entire candor and fairness in the statements upon which he invokes its action. The judge knows that it would not be candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the argument of opposing counsel, the language of a decision, or the wording of a text-book. He may fairly rely on a lawyer not to cite a decision that he knows has been overruled, or a statute that he knows has been repealed. He may properly rely on the counsel's not asserting a fact that has not been proven.

Yet he knows that lawyers owe entire devotion to the interest of the client, and warm zeal in the maintenance of his rights and that they will exert their utmost ability lest anything be taken or be withheld from him, save by the rules of law, legally applied. He knows that counsel has the right to proceed in the view that his client is entitled to the benefit of every remedy and defence authorized by the law of the land and that the lawyer is expected to assert every such remedy or defence. But it is steadfastly to be borne in mind that the great trust to the lawyer is to be formed within and not without the bounds of the law. The office of a lawyer does not permit, much less does it demand of him, violation of law or any manner of fraud for any client. He must obey his own conscience and not that of his client. These limitations are binding upon the lawyer as a sworn officer of the court, and compliance with them is the true reconciliation of the primary duty of fidelity to the client, with the constant and ever present duty owing to the minister of justice in the person of the judge. These statements of the duty of the lawyer to the court in the advocacy of causes and in the presentation of his client's case, are taken from the Code of Legal Ethics, which was approved by the American Bar Association. I think that all lawyers and judges will agree that when lawyers live up to them, the danger of injustice from the enthusiasm, skill or eloquence of their advocacy is quite remote.

I don't mean to say that lawyers do not differ in the force of their statements, in their logical faculty, in their method of arranging arguments, in their fluency and in the cogency with which they present the cause of their respective clients. Of course the man who is fortunate enough to engage the abler lawyer enjoys the advantage of those gifts with which nature has endowed his representative, but that element of inequality can hardly be eliminated from the administration of justice. It has more weight in a jury trial than it has before a court, for the lawyers before a court are matching their acuteness and learning not alone with the counsel for the other side, but with the cold scrutiny of a calm, intellectual and judicial mind, trained to consider argument, and experienced in the elimination of the irrelevant, the emotional and the illogical.

The jury system, though somewhat crude and not always certain, has advantages that outweigh its possibility of injustice in the judicial system of a free government among a free people. It is important that the people shall have confidence in the courts, and it is important that they shall feel that they may themselves be a part of the judicial machinery. The value of popular confidence in the verdict of a jury selected at random from a community is great enough to offset any tendency to error that may at times arise from the undue influence of a jury advocate upholding one side of the controversy before them. If the jury is misled by the histrionic eloquence of counsel so that it clearly violates justice in its verdict, the court may always set aside its decision and give a new trial. Moreover, in any properly adjusted system, the judge should be able to clear the atmosphere of any false emotion that counsel may have created. He can remind the jury in his charge that they are judges, who may not indulge their emotions or their prejudices. He should follow closely the argument of counsel to the jury in order that his charge may clear up the evidence by inviting the attention of the jury to the weakness of proof at critical points of the cause, or by pointing out either the bias of witnesses or their opportunity or lack of it for observation, thereby eliminating those phases of the controversy that the earnestness of counsel may have seized upon to divert the attention of the jury from the real issue.

I have recently heard an arraignment of our present judicial system in the trial of causes by a prominent, able and experienced member of the Boston Bar. (I am glad to call him a friend. I value him highly as such.) He ascribes what he calls the growing lack of confidence in the justice and equity of litigation in the courts to the fundamental error in their procedure. He feels that the procedure now in vogue authorizes and in fact requires counsel to withhold facts from the court which would help the cause of justice if they were brought out by his own statement. To remedy this he suggests that all counsel should be compelled to disclose any facts communicated to them by their clients which would require a decision of the case against the clients. He contends further that the rules of procedure, which exclude hearsay evidence, and prevent the jury from hearing many facts which business men regard as important evidence, make it difficult to reach the truth which is essential to justice.

I set out this view as a possible basis for a discussion of the grounds for popular criticism of the courts. To require the counsel to disclose the confidential communications of his client to the very court and jury which are to pass on the issue which he is making, would end forever the possibility of any useful relation between lawyer and client. It is essential for the proper presentation of the client's cause that he should be able to talk freely with his counsel without fear of disclosure. This has always been recognized and has acted as a most salutary restriction on the conduct of counsel. No litigants, or intending litigants, would employ counsel if the latter were to assume the duty of extracting from their clients all their innermost thoughts with a view to revealing them to the court. The useful function of lawyers is not only to conduct litigation but to avoid it, where possible, by advising settlement or withholding suit. Thus, any rule that interfered with the complete disclosure of the client's inmost thoughts on the issue he presents would seriously obstruct the peace that is gained for society by the compromises which the counsel is able to advise.

The objection to the exclusion of hearsay evidence is equally unfounded. Its uses are said to be threefold, to convince in affairs of the world, to serve as the basis of action for business men, and to prevent opportunity for false witness. Yet it is not admissible in a court of justice to prove or disprove either a cause or a defence. The rules of evidence have been worked out by centuries of experience of courts in jury trials, and are admirably adapted to avoid the danger of error as to fact. I fully agree that in American courts the trial judges have not been entrusted with as wide discretion in the matter of admitting or rejecting evidence as they should have, and judgments have been reversed on technical errors in admitting testimony which should have been affirmed. As time goes on, however, the rule against hearsay evidence, instead of losing its force, is demonstrating its usefulness. The error and injustice that are committed in the public press by inaccurate, garbled and sometimes false statements of facts are increased in their injurious effect by the wider publication that newspapers have today, and the requirement that when a fact is to be proven in court it should be proven by those who have a personal knowledge of it, is one of the most wholesome and searching tests of truth that the whole range of adjective law furnishes. The opportunity for cross-examination, for finding out the bias of the witness, the advantage or disadvantage of his point of observation, the accuracy or inaccuracy in his recollection of the details of what he saw, are all means of reaching the real truth that the introduction of hearsay evidence would entirely exclude.

It is now more than fifteen years since this country was following with bated breath the judicial investigation of the charges against Captain Dreyfus for treason in having sold secrets of the French War Office to Germany. Under the civil law procedure, there is little, if any, limitation upon the kind of evidence which can be introduced to sustain the issue on either side, and the rule against hearsay evidence does not prevail. The shock given to the whole community of the United States by the character of evidence received to help the court determine the Dreyfus issue, was itself enough to show that the confidence of the public in the justice of the rule against hearsay evidence had grown rather than diminished with years.

Yet I am far from saying that we may not have improvement in our laws concerning testimony in court. The protection of those accused of crime contained in some of our constitutional restrictions may be too great. The charge against the administration of justice in the present system is that it is nothing but a game of wits, of cunning, and of concealment, promoted by the rules of procedure. I think this characterization is most unjust and most unwise because it aids the attack on a valuable and indispensable institution without suggesting any real security for such evils and defects as there are. An experience of many years in the trial of all sorts of causes as lawyer and judge and in framing a judicial system convinces me that the present method of hearing causes is correct. The enthusiastic advocacy of counsel when they are properly restrained as above suggested, and the rules of evidence adapted to winnowing out the false from the true, are admirably adapted to bringing about right results.

It is also asked whether members of the Bar live up to these rules restraining their enthusiasm and limiting their proper conduct in the advocacy of their clients' causes. One can reply that counsel differ in that regard, but that generally such rules are fairly well observed. The earnestness of advocacy often blinds them to the proprieties and the requirements of candor and fairness. They fall into the same errors that their clients do, though with a better knowledge of their duties in this regard. They share what has been characteristic of our entire people in the last two decades. The minds of the great majority have been focused on business success, on the chase for the dollar, where success seems to have justified some departure from the strict line of propriety or fairness, so long as it has not brought on criminal prosecution or public denunciation.

More than this, the tendency of legislatures, too often controlled by lawyers engaged in active practice, has been to distrust judges and to take away from them the power to control in the court room, as they do in the English and Federal courts. This has had a tendency to transfer to counsel greater discretion in respect to their conduct of cases and greater opportunity to depart from ethical rules with impunity in the somewhat reckless spirit of the times. The hampered power of the court to prevent the misconduct of counsel in many western states has not been conducive to certainty of justice nor has it been of a character to strengthen public confidence in just results. We find the bitterest attacks upon the administration of justice in those jurisdictions in which the people and the legislatures have themselves laid the foundation for the very abuses they subsequently criticise by taking away the power of the judge.