Rubin, Samuel

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 3 | Issue 5 Article 42-1928The Lawyer and the Public WelfareSamuel RubinBaltimore BarFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Legal Profession Commons, and the Social Welfare Law CommonsThis Comment is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationRubin, Samuel (1928) "The Lawyer and the Public Welfare," Indiana Law Journal: Vol. 3: Iss. 5, Article 4.Available at: http://www.repository.law.indiana.edu/ilj/vol3/iss5/4INDIANA LAW JOURNALTHE LAWYER AND THE PUBLIC WELFAREIn recent months there has been considerable criticism of thelegal profession. It appears that some people think of lawyerssomewhat along the line of the story told of a certain Dean ofEly. It is said that at a dinner, just as the cloth was being re-moved, the subject of discussion happened to be the extra-ordinary mortality among lawyers. "We have lost," said agentleman, "not less than seven eminent barristers in as manymonths." The Dean, who was very deaf arose, at the conclu-sion of this remark, and gave the company grace, saying, "forthis and other mercies make us devotedly thankful."The legal profession is affected by changed modern condi-tions, as are other vocations and professions. But taking intoconsideration all phases of the situation, it is undoubtedly themost high-minded of all the so-called learned professions, withthe possible exception of the ministry. This, regardless of thefact that there are occasional black sheep in the fold. The in-tegrity and loyalty of the profession to the trusts and confidencesreposed in it demonstrate its worthiness. It has been said, andprobably truthfully, that every thirty or thirty-five years, inter-ests equal in value to all the real and personal property in theUnited States pass through the hands of the legal profession,and are entrusted to its care, either in the way of litigation,succession, transfer or through the management of capital. Thisvast sum depends upon the skill and integrity of lawyers for itsproper disposition, and does not take into consideration the ser-vices'of lawyers in the protection of life and liberty.No matter where one goes in this vast country, from thesmallest hamlet to the great cities, one will find large numbersof lawyers whose characters are above reproach, and whose in-tegrity and judgment are above question. You go to your law-yer for advice when you are in all kinds of difficulties, andyou tell him secrets of every kind and nature, business, domestic,social and personal. These secrets you very rarely trust toany other ear. Many instances occur in which advantage maybe taken by attorneys of those who are weak, ignorant and inlegal difficulty. But very rarely indeed, is this confidence foundunworthy. Certainly, no secular profession is entrusted withgreater responsibility. Undoubtedly, there have been a certainnumber of lawyers who have engaged in questionable enter-THE LAWYER AND THE PUBLIC WELFAREprises, and who in character and ability have not measured upto the professional standard. We do not pretend there has beenno occasion for complaint. There are quack physicians, anddishonest merchants. There are ministers who betray theirtrusts, and there are pettifogers who betray their clients; butare these the tests upon which a whole profession is to bejudged? Everybody knows that there are members of all classeswho are unfit and unworthy. It always has been so. Whatevercriticism may be made against lawyers may be made against allother classes.But lawyers have not ceased to be high-minded and patrioticbecause some of their number have failed in their duty, or be-cause some have taken questionable employment. In the law,however, the pettifoger and imposter is more easily known thanin other callings, for the reason that the lawyer is under con-stant public observation, and the doings of the profession arediscussed by people generally, and commented upon in the publicpress. It is a comparatively easy matter to learn the standingand character of any member of the legal profession. Reason-able people however, do not pass hasty judgment because a fewfall. They do not consider any class of people as being eitherangels or reprobates. People average up pretty evenly whendue allowances are made for opportunities and temptations.Chief Justice Sharwood has wisely said: "There is no pro-fession in which moral character is so soon fixed as in the law.There is none in which it is subjected to more severe scrutinyby the public. It is well that it is so. The things we hold dear-est on earth-our fortunes, reputations, domestic peace, the fu-ture of those dearest to us, nay our liberty and life itself, weconfide to the integrity of the legal counsellors and advocates.Their character must not only be without stain, but withoutsuspicion. In short, there is, perhaps, no profession, after thatof the sacred ministry, in which a high tone morality is moreimperatively necessary than that of the law."Because a person of doubtful character resides in a givenneighborhood is it right to infer that all persons residing inthe same neighborhood are of the same class? Because a certainfamily contains a notorious black sheep is the whole family to bebranded the same? Let us not forget the character of the lawyeris pretty much what the laity make it. The character of thebar is but a reflex of the character of the community. An un-scrupulous bar could not exist in a high-minded community.INDIANA LAW JOURNALOne of the first duties of the lawyer to himself and to thecommunity is honesty. I do not refer simply to common honesty,but to the uncommon kind. I realize that lawyers have oftenbeen accused of dishonesty and sharp practice by the ignorantand unthinking. The fact nevertheless remains, that the legalstandard of honesty is higher than that which ordinarily pre-vails in other vocations and professions. As a class lawyersare much more honest than merchants who misrepresent and lie;than physicians who have no faith in their cures; or clergy-men who preach what they do not believe, or of editors whochange their opinions according to the exigencies of the occasion.As we look upon society today, do we not see corruption in highand low places; do we not see big business asking for dishonestconcessions, and criminals pursuing their calling methodicallyand boldly and in defiance of law and of the public welfare?With these things in mind does it not speak well for the lawyerthat there are only occasional lapses from rectitude by mem-bers of the legal profession? As has been said the very kernelof the legal profession is in, theory, and should be in practice,honor and courage, in a word, character-that makes a manand moves the world.Abraham Lincoln, in one of his addresses remarks:"There is a vague popular belief that lawyers are necessarily dishonest.I say vague, because when we consider to what extent confidence and honorare reposed in and conferred upon lawyers by the people, it appears impos-sible that their impression of dishonesty is very distinct and vivid. Yetthe impression is common, almost universal. If we cannot be honest law-yers we had better be honest without being lawyers.In this connection the following story of Lincoln is illustrative.A stranger desired Lincoln's services. After hearing his storyLincoln told him that he could not take his case because theprospective client was in the wrong. "That is none of yourbusiness, if I have the money and pay you for taking the case,"retorted the client. "Not my business?" exclaimed Lincoln."My business is never to defend wrong." "Well, you can maketrouble for the fellow;" added the applicant. "Yes," repliedLincoln, fully aroused, "There is no doubt I can gain the casefor you, and set a whole neighborhood at logger-heads. I candistress a widowed mother and her six fatherless children, andthereby get for you $600.00, which as rightfully belongs to thewoman and her children as it does to you. But I will not do it.You must remember that some things which are legally rightTHE LAWYER AND THE PUBLIC WELFAREare not morally right. I would advise you to make $600.00 someother way.""Many good men," says Parry in his volume, The Seven Lampsof Advocacy," are troubled with the thought that advocacyimplied a certain want of honesty," and he then goes on andstates that Boswell, the biographer of Doctor Johnson, asked thedoctor whether he did not think that the practice of law in somedegree hurts the nice feelings of honesty. The doctor replied,"Why, no, sir, if you act properly. You are not to deceive yourclients with false representations of your opinion. You are notto tell lies to the judge." 1Let us remember that regardless of what the lawyer may thinkof the equity and justice of the case, it is his duty simply topresent his side. The opposing counsel presents his, and thejudge weighs the conflicting claims and decides. It should alsobe borne in mind that the lawyer argues his case and submitshis facts by honorable means, and a reputable lawyer wouldsooner lose than employ dishonorable means for victory. Law-1 Mr. Boswell then goes on to relate the following conversation:BOSWELL: "But what do you think of supporting a cause which youknow to be bad?JOHNSON: "Sir, you do not know it to be good or bad till the Judgedetermine. I have said you are to state facts fairly; so that your thinkingor what you call knowing, a cause to be bad must be from reasoning, mustbe from your supposing your arguments to be weak and inconclusive.But, sir, that is not enough. An argument which does not convince your-self may convince the judge to whom you urge it; and if it does convincehim, why, then, sir, you are wrong, and he is right. It is his business tojudge; and you are not to be confirmed in your opinion that a cause is bad,but to say all you can for your client, and then have the Judge's opinion.BOSWELL: "But, sir, does not affecting warmth when you have nowarmth, and appearing to be clearly of one opinion when you are in realityof another opinion, does not such dissimulation impair one's honesty? Isthere not some danger that a lawyer may put on the same mask in commonlife in the intercourse with his friends?"JOHNSON: "Why, no, sir; everybody knows you are paid for affectinga warmth for your clients, and it is, therefore, properly no dissimulation;the moment you come from the bar you resume your usual behavior. Sir, aman will no more carry the artifice of the bar into the common intercourseof society than a man who is paid for tumbling on his hands will continueto tumble upon his hands when he should walk on his feet."Mr. Parsons continues: "I like the rough English common sense of this;but the Irishman in the dock had an inspired vision of the same truth when,in answer to the clerk of the Crown, who called upon him with the familiarinterrogatory, "Guilty or Not Guilty?" he replied with a winning smile:"And how can I tell until I hear the evidence?"INDIANA LAW JOURNALyers are simply the mouthpieces of their clients, presenting theircauses for what they are worth, and leaving the responsibilityof decision with the proper tribunals. The lawyer generally be-lieves he is right and that his client is right, and he cannotknow whether he is wrong or not until he hears the evidenceon both sides, and even then it is his duty to see that the courtdoes not apply a wrong rule of construction or discretion. Ascounsel for a corporation or as an advocate before departmentsor legislative bodies the lawyer stands upon the same ethicalplane as the lawyer in the court-room. Truthfulness and in-tegrity are as essential in the one place as in the other.The cases in which a lawyer can or ought to gee at the out-set that his client is wrong are extremely few. In the greatmajority of litigated cases, even after hearing of both sides, itis extremely difficult to say on which side the legal right lies. Asfar as questions of law are concerned it is extravagance to saythat anyone is ever palpably in the wrong; as even the courtsdo not agree with each other upon many legal questions. It isonly when the facts are thoroughly sifted, and then only, havewe a right to render an opinion on the merits of the case.Macauley has well said, "Scarcely any quarrel ever happens thatin which the right and wrong are so exquisitely balanced thatall the right lies on the one side and all the wrong on theother."It is said of Sir Matthew Hale: "If he saw a cause wasunjust he for a while would not meddle with it, but would givehis advice that it was so. If the parties after that would goon they were to seek another counsellor, for he would assistnone in acts of injustice. If he found the case doubtful or weakin point of law he always advised his clients to agree their busi-ness. Yet afterward he abated much of the scrupulosity he hadabout causes that appeared at first unjust. Upon one occasionthere were two causes brought to him which, because of ig-norance of the party or their attorney, were so ill representedto him that they seemed very bad. But he, inquiring moreclosely into them, found they were really good and just, so thatafter this he slackened much of his former strictness of refus-ing to meddle in cases which seemed at first blush bad."In nine cases out of ten the failure of justice is not due totechnicalities, but to the insufficiency of evidence, or of its con-tradictory character; and also of the fact that we are all humanand therefore fallable. It has been said that "legal technicalitiessometimes so strongly condemned by the ignorant and unthink-THE LAWYER AND THE PUBLIC WELFAREing, though often abused, yet are merciful expressions of the in-born desire of the human conscience for justice, and have oftenbeen the only means of protecting the innocent from tyrannicalNeros operating in the fair name of justice."The delays of trials are mostly the result of absent witnesses.Many people migrate from one state to another, and it oftenhappens that most important witnesses are beyond the reachof the court's process. Shall we under the circumstances forcea man to go to trial without regard to the presence of materialwitnesses? Is the abuse of this rule a reason for its change?The fact that the rule of conduct is easy of abuse, and in manyinstances has been abused, cannot be permitted to destroy it, orto encourage its disregard. "Society," said Justice David J.Brewer of the United States Supreme Court, "owes to every oneof its members justice. But society seeking justice can neverask for wrongdoing to accomplish it . . . It does not callupon the lawyer to be dishonest . . . in order to secure to hisclient vindication and justice. Sometimes in passion the publicdemands unjust punishment, and then the lawyer defending hisclient apparently acts against his obligations to the public. Butreally he is most loyally discharging his duty to society, for heis striving to exact from it that which it rightfully owes-jus-tice to the individual."The duty of the lawyer was clearly defined in a celebratedspeech of Erskine in his defense of Thomas Paine, indicted in1792 for publishing the "Rights of Man." The public wasaroused and indignant, and Erskine was very unpopular for hiscourage in his defense of his client. In his speech he stated:"In every place where business or pleasure collects the public together,day after day, my name and character have been the topics of injuriousreflection. And for what? Only for not having shrunk from the dischargeof a duty which no personal advantage recommended, and which a thousanddifficulties repelled. . . Little, indeed, did they know me, who thoughtthat such calumnies would influence my conduct: I WILL FOREVER,AT ALL HAZARDS, ASSERT THE DIGNITY, INDEPENDENCE ANDINTEGRITY OF THE ENGLISH BAR: WITHOUT WHICH IMPAR.TIAL JUSTICE, THE MOST VALUABLE PART OF THE ENGLISHCONSTITUTION, CAN HAVE NO EXISTENCE. From the momentthat an advocate can be permitted to say that he will or will not standbetween the Crown and the subject arraigned in court where he daily sitsto practice-from that moment the liberties of England are at an end. Ifthe advocate refuses to defend, from what he may think of the charge ordefense, he assumes the character of a judge; nay, he assumes it beforethe hour of judgment; and, in proportion to his task and reputation, putsthe heavy influence of perhaps mistaken opinion into the scales against the396 INDIANA LAW JOURNALaccused, in whose favor the benevolent principle of English law makes allpresumptions, and which commands the very judge to be his counsel."The state condemns no man unheard. "Strike, but hear me,"was the phrase of Themistocles to the angry Greeks. Everycriminal however depraved is entitled to a hearing in opencourt, as well as the claim upon the services of counsel. As itis the minister's duty to help the fallen; as it is the physician'sduty, like an angel of mercy, to relieve the sick and helpless, soit is the lawyer's duty to his client, to the court and to the gen-eral community to defend a human being accused of a crime, andto see that the punishment, if guilty, is apportioned to the crime.SAMUEL RUBIN.Of the Baltimore Bar.

The Lawyer and the Public Welfare

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The Lawyer and the Public Welfare

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Indiana University Bloomington Maurer School of Law