Ethics in Service Part 1

Ethics in Service.

by William Howard Taft.

PREFACE

The legal profession discharges a most important function in a civilized community, and it seems to me that a discussion of the ethics and ideals of that profession would come within the purpose of the Page foundation, which is described by the donor as intended to promote "the ethical side of business life, including the morals and ethics of public service." I shall first ask your attention to the history of the profession, which shows that a paid advocacy is the only practical system, and to the rules of conduct to which lawyers must be held in order that such a system shall promote justice. I cannot claim to have any peculiar knowledge upon this subject other than that derived from a somewhat brief practice of five years at the Bar, from an experience of eleven years on the Bench of trial and appellate courts, from a somewhat varied experience in the responsibility of government, not only in this country, but in those far-distant isles of the Pacific in which the United States has been grafting the principles of free government upon a civilization inherited from Spain.

CHAPTER I

HISTORY OF THE PROFESSION OF LAW

It is not too much to say that the profession of the law is more or less on trial. It is certain that there is a crisis in the life of our courts, and that a great political issue is being forced upon the people, for they must decide whether the courts are to continue to exercise the power they now have, and what character of service they shall be required to render. Judges are lawyers. They ought to be trained pract.i.tioners and learned in the profession of the law before they ascend the Bench, and generally they are. Therefore, our courts, as they are now conducted, and our profession, which is the handmaid of justice, are necessarily so bound together in our judicial system that an attack upon the courts is an attack upon our profession, and an attack upon our profession is equally an attack upon the courts.

We have all noted on the stage and in the current literature the flippant and sarcastic references to the failures of the administration of justice, and we are familiar with the sometimes insidious and too often open impeachments of the courts, which appear in the press and upon the hustings. They are charged with failure to do justice, with bad faith, with lack of intelligent sympathy for socially progressive movements, with a rigid and reactionary obstruction to the movement toward greater equality of condition, and with a hidebound and unnecessarily sensitive att.i.tude of mind in respect to the rights of property. One count that looms large in the wide range of the indictment against our judicial system is the immoral part that lawyers are said necessarily to play in the perversion of justice by making the worse appear the better reason. Such a public agitation and such an issue in politics lead to a consideration of the fundamental reasons for the existence of our profession in the past, and a further inquiry as to the need for it in the future, as preliminary to a discussion of the rules of conduct that should govern its practice.

There are those who intimate that we can learn nothing from the past.

They don't say so in so many words, but they proceed on the theory that man, under the elevating influences with which they propose to surround him, is suddenly to become a different creature, prompted by different motives. But those of us who have been fortunate in having an education permeated with an atmosphere of common sense, and an idea of how to deal with human nature as it is, realize that the world is not to be reformed tomorrow or in a month or a year or in a century, but that progress is to be made slowly and that the problems before us are not so widely different from those which were presented to our ancestors as far back as the Christian era. Nor can we fail to derive some benefit from a consideration of such troubles, tribulations and triumphs of our profession in the past as suggest rules of conduct for lawyers in the future. I do not mean that we are not to aspire for better things. Nor do I wish to deny us the happiness of hope for reasonable and real progress toward higher ideals. I simply insist that we ought not to ignore the lessons of experience when we deal with conditions as they are and as everybody who is familiar with them knows them to be.

The three civilizations in which we may most profitably study the growth and development of the legal profession are the Jewish, the Roman and the English. Among the Jews, the Mosaic law, which went into the smallest details of personal life, was the guide to their rule of action. As it had religious sanction, the high priests became the actual ministers of justice and the preservation of religion and law was united in them. Acting as their a.s.sistants, and as a.s.sessors in the tribunals of which the high priests were the head, were the Scribes. They were learned in the law; had a religious and priestly character themselves; interpreted the Mosaic law with a view to its application to the various facts and issues which arose; and were in addition the teachers of law.

It was to them that the rabbinical injunction was made "to make the knowledge of the law neither a crown wherewith to make a show, nor a spade wherewith to dig." And again it was said, "He who uses the crown of the law for external aims fades away."

In describing the principles of non-remuneration to the Scribes, the learned German Professor Schurer says: "In Christ's censures of the Scribes and Pharisees, their covetousness is a special object of reproof. Hence, even if their instruction was given gratuitously, they certainly knew how to compensate themselves in some other way." And it is because of this evasion of this rule that we find those pa.s.sages in the eleventh chapter of Luke, the 46th and 52d verses, which read:

Verse 46. "And he said, Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers."

Verse 52. "Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered."

The line between the judicial and advisory functions of the Hebrew Scribes was not closely or clearly drawn. They were evidently supposed to occupy a disinterested position toward those who consulted them and to be in a sense the a.s.sociates of the judges. Since the motive which prompted their study of particular cases was supposed to be only that of vindicators of general justice, the rules which nominally guided their action, as announced by the lawgivers, required that their services should always be gratuitous. But quite naturally their consultation with private litigants prompted such litigants to influence their view of the law, and command their skill in debate. And so to evade the rule which prevented remuneration they established the custom of giving presents in advance. These presents given in advance to secure the kindly favor of the Scribes are interesting as the precursors of that inst.i.tution dear to every English barrister, and not unknown--nor even objectionable--to American lawyers, to wit, the Retainer. In fact it was the impossibility of finding men who could remain judicial in their att.i.tude when the thought of remuneration moved them to advocate the cause of one of the litigants, that put the Scribes of those days in an indefensible position and led to the attacks upon them that we find in the New Testament.

And so it was in Rome. There the progenitor of the lawyer was first the priest, the _Pontifex_, mingling judicial and advisory functions, and then the _patronus_ or the orator, a man of wealth and high standing in the community, who had gathered about him freed men and Plebeians as his supporters. The latter were known as his _clientes_, from which term our word is derived. When one of his clients became involved in a lawsuit, the _patronus_ appeared to advise the judge--a magistrate acting only as vindicator of general justice and often not learned in the principles of law--and was not supposed to receive any compensation. Less than the _patronus_, but exercising similar functions, was the _advocatus_--who, though perhaps not so learned in the law, nor so formidable as a person, was able to a.s.sist the _patronus_ before the tribunal on behalf of others. There was in addition a body of men called "jurist consults,"

learned in the law and able to advise, who came to be recognized as the members of a select profession in the time of Augustus.

In the year 200 before Christ, the Cincian law was enacted, requiring that service of the _patronus_ and the advocate should be gratuitous, but it was soon evaded even as the Jewish laws had been. Again presents were made to secure the skilled advocacy of men learned in the law and acute in debate. These gifts like the Hebrew ones were paid in advance and were called "honorariums," another term which suggests the modern retainer. Neither an _advocatus_ nor a _patronus_ could sue for such honorarium at law because it was a violation of law, but once paid, the honorarium could not be recovered. Cicero boasted that he never violated the Cincian law, but historians of his period intimate that by secret loans and testamentary gifts his practice proved to be very profitable.

And it is certain, at least, that many of his contemporaries were made very rich by professional remuneration. Augustus directed the pa.s.sage of another law forbidding compensation to orators and advocates, but it was disregarded and subsequent emperors contented themselves with fixing limits for the fees to be charged. In the golden age of the Roman law, therefore, the payment of the profession became recognized as legitimate and the profession itself became a definite body with clearly understood functions.

In England, for two hundred years after the Conquest, the priests were the only learned men, and they, too, like the Scribes, acted as judges and advisers of litigants. Even as late as the time of Henry VIII, as we know, the Keeper of the King's Conscience and the head of the Court of Equity, was an Ecclesiastic in the formidable person of Cardinal Woolsey. About the reign of King John, laymen became lawyers, and in Henry III's time the Pope forbade priests to fit themselves in civil law or to act as advisers in respect to it. We may properly say that the profession of the Bar, as a recognized English inst.i.tution, had its beginnings in the struggle for individual rights by which the English race forced the great charter from King John. We find that in the history of the early English administration of justice, bailiffs, undersheriffs, clerical attaches and the underlings of the courts had gone into the business of acting as attorneys, of cheating their clients, and of stirring up litigation. While statutes were directed against their abuses, I cannot find that there was any English statute forbidding lawyers to receive compensation for their services, although the action of the Pope in forbidding his priests to study and practice law in England may indicate some such abuses. It is certain that legal services were not regarded as creating a debt due from the client to the lawyer who had served him. By statute, now, attorneys and solicitors in England are ent.i.tled to fixed fees for professional services. But in the case of barristers, down to the present time, while they may demand a retainer for their services in advance, they still cannot recover by suit if the services are rendered without receiving it. This may possibly be derived from the early Roman and Jewish view of the professional relation and suggests the probability that early in English history professional services were deemed to be gratuitous.

The grant of Magna Charta by King John, in response to the demand of the Barons at Runnymede, gave birth to the Bar in its modern character.

Articles 17 and 18 of that instrument provided that Common Pleas should not follow the court of the King, but should be held in a certain place, and that trials upon certain writs should not be taken outside of their proper counties. It provided further that the King or the Chief Justice should send two justiciaries into each county, four times in the year, to hold certain a.s.sizes within the county, with four knights of the county, chosen by it, on the day, and at the place appointed. The 45th article promised that the King would not make Justiciaries, Constables, or Bailiffs excepting of such as knew the laws of the land and were well disposed to observe them. The result of this provision by which Common pleas courts came to be held at Westminster, while regular a.s.sizes were held in the counties, was the establishment of the four Inns of Court, so-called, Lincoln's Inn, the Inner and the Middle Temple, and Gray's Inn, together with a number of others known as Chancery Inns, which have of late years disappeared. Henry III took these Inns under his especial protection and prohibited the study of law anywhere in London save in the Inns of Court. They were the homes of the Bar, for within their walls lawyers had their offices, and there students of the law received their education. In fact, they may be said to const.i.tute the foundation of the modern profession of the law in the English-speaking race.

The Inns of Court were at first an aristocratic inst.i.tution, and only men of good blood were permitted to practice in them. Indeed, that was the case in the early days in Rome. Pliny reports that no one could become a _jurist consult_, an _advocatus_ or a _patronus_ except he be of the Patrician cla.s.s. But soon after the Empire began, this rule broke down and the Roman Bar became open to all. So, too, in the English Bar at first admission was controlled by the Benchers or governing bodies of the Inns of Court and the students were chosen only from good families.

It was probably this that led to their unpopularity and to the denunciation which they received in Wat Tyler's day, in the fourteenth century, and from Jack Cade's followers whom Shakespeare makes wish to kill all the lawyers in the next century. Their exclusive spirit pa.s.sed away, however, and while aristocratic cla.s.s distinctions were rigidly maintained in English society, the Bar became most democratic through the avenue to positions of highest influence on the Bench and in politics which it freely offered to able men from the people. And, indeed, there is no part of English history that is so full of interest as the stories of her great lawyers, who, beginning in the humblest conditions of life, fought their way by real merit into positions of control in the government and thus gave ability and strength to the aristocracy of which they became a part.

In the three centuries or more after the establishment of the Inns of Court, no division appeared in the profession of the law, and it was not until about 1556 that the profession became separated into attorneys at law and solicitors in chancery, on the one hand, and barristers on the other. The former dealt directly with clients and performed the preliminary work of drafting doc.u.ments and preparing briefs, while the latter, the barristers, drafted the pleadings and presented the causes in court. A similar division of functions prevailed in the Roman Bar. I shall have occasion later to comment on the advantages and disadvantages of this division, but this summary reference is sufficient for my present purpose in tracing the history of the Bar in England. During this period, after the establishment of the Inns of Court, the unpopularity of the Bar manifested itself in the enactment of statutes forbidding the election of lawyers to Parliament. This gave rise to the noted Parliament known as the "Dunces Parliament," because everybody who knew anything about the law, and therefore about the framing or the operation of statutes, was excluded from members.h.i.+p.

In his interesting history of the American Bar, Mr. Charles Warren, of the Boston Bar, says:

"Lawyers, as the instruments through which the subtleties and iniquities of the Common Law were enforced, were highly unpopular as a cla.s.s in England during the period of Cromwell and Milton."

Milton wrote:

"Most men are allured to the trade of law, grounding their purposes not on the prudent and heavenly contemplation of justice and equity, which was never taught them, but on the promising and pleasing thoughts of litigious terms, fat contentions and flowing fees."

As examples of a lawyer's reputation in London in the seventeenth century, Mr. Warren cites the t.i.tles of the following tracts printed at that time: "The Downfall of Unjust Lawyers"; "Doomsday Drawing Near with Thunder and Lightning for Lawyers"; "A Rod for Lawyers who are Hereby declared Robbers and Deceivers of the Nation"; "Essay where is Described the Lawyers, Smugglers and Officers Frauds."

I note these facts as I progress to indicate and reinforce my original statement that the present time is not the only time in the history of civilization when lawyers have received the condemnation of their fellow subjects or fellow citizens. Yet not only has the profession survived such movements but its usefulness has been recognized in succeeding crises.

I need hardly mention that most of the progress toward individual liberty in English history was made through the successful struggle of the lawyers against the a.s.sertion of the divine right of Kings and through the defence of privilege by members of our profession. Lawyers like Lord c.o.ke and Lord Hale stand out in the profession for their maintenance of the independence of the judiciary and their support of the liberties of subjects. The great charters, the Pet.i.tion of Right, the Habeas Corpus Act, the Bill of Rights, and the Acts of Settlement, establis.h.i.+ng the judiciary independent of Royal control, were obtained at the instance of lawyers who knew better than any other cla.s.s the absolute necessity for such reforms in the maintenance of free inst.i.tutions.

The evolution of the Bar in this country during colonial times--especially in New England--was a curious counterpart of the history of the English Bar three centuries before. The founders of New England came here to escape a persecution for their religious beliefs and law was closely connected in their minds with the injustices, the inequalities and the rigid hards.h.i.+ps of the common law as administered by judges appointed and removable at the will of the Tudors and Stuarts.

At that time lawyers exercising their profession were the instruments of a system that had become non-progressive. They had lost the principles of justice in technicalities and had become mere political tools in the hands of tyrants. But in England, the law soon lost its narrowing, hard and inflexible character through the intervention of courts of equity and through the genius and broad views of great judges of common law like Mansfield. It was modified further by the civil law and by the needs of a developing world commerce, and after the action of the Long Parliament and the Revolution it was no longer used as an instrument of tyranny.

In this country, however, the Puritans and the Pilgrims approved of neither the common law nor the English judicial system, and as lawyers were only part of that system, they considered the abolition of the profession from their society as an end devoutly to be wished for and promptly sought. Among the Pilgrim fathers there was not a single lawyer, while among the Puritans there were only four or five who had been educated as lawyers and even they had never practiced. The consequence was that during the seventeenth century and far into the eighteenth, lawyers had little place in the social or political inst.i.tutions of the colonies. In New England there was a theocracy. The judges--none of them lawyers--were all either ministers or directly under the influence of the clergy. A colonial common law grew up among them, based on a theological reasoning and was really administered without lawyers. In the Ma.s.sachusetts body of liberties, it was provided that a man unfit to plead might employ a person not objectionable to the Court to plead for him, on condition that he give him no fee or reward.

In 1663 a usual or common attorney was prohibited from sitting in the general court.

As society progressed, however, as commerce and trade increased, as wealth grew, as business transactions became more extended and as learning spread from the clergy to other persons, opportunity and inducement were furnished for the study of the law, and professional training became more general. The crying need for a learned and honorable profession of the law was made manifest by the growth of a cla.s.s of advocates and advisers whose influence was most pernicious.

Litigants needed guidance in the presentation of their cases and no learned profession being available, the underbailiffs, undersheriffs, clerks and other underlings of the administration of justice began to practice, without real knowledge. Greedy and lacking in principle, they developed trickery and stirred up litigation for their own profit, just as their predecessors had done three hundred years before in England.

Colonial statutes were then pa.s.sed, forbidding such underlings of the court to practice law at all. But lawyers were not popular in colonial days even after the Bar became able and respectable. In fact a bitter spirit was manifested against lawyers even as late as Shays's Rebellion after the Revolutionary War.

Between the years 1750 and 1775, more than a hundred and fifty young men from the colonies were admitted to one of the four Inns of Court and became educated lawyers with the purpose of entering the profession in their native colonies. How far the presence of such a cla.s.s of educated lawyers through the colonies contributed to the resentment against the stupidity and injustice of the English colonial policy which brought about the Revolution, cannot be estimated exactly; but certain it is that the preparation of the lawyers who were then in their prime appears to have been Providential interference in behalf of the people of the United States. Never in history has the profession of the law received so great a harvest of profound students of the const.i.tutional principles of government as did our country at this time. Our lawyers signed the Declaration of Independence, served in the Continental Congress, acted as delegates to the Const.i.tutional Convention, and met in the various conventions called by the states to consider the ratification of that great instrument. They not only knew that common law, but they had studied closely the political history of Greece and Rome, and were familiar with the principles of government as set forth by Montesquieu and Adam Smith.

It was the American Bar that gave to the people of the United States such lawyers as Alexander Hamilton, John Jay, James Madison, George Mason, Thomas Jefferson, Patrick Henry, John Adams, James Otis, Samuel Chase, Samuel Adams, Roger Sherman, Oliver Ellsworth, James Wilson, Edmund Randolph and many others not less learned and brilliant, to establish their liberties, frame the limitations of their government and care for the protection of individual rights. The same Bar furnished a little later that lawyer and judge, John Marshall, whose interpretation of the Const.i.tution was as important in its beneficent effect as its original framing. That Bar not only helped largely in constructing the s.h.i.+p of state but it was also most instrumental in launching it on a triumphant and useful course through a century and a quarter. The profound grat.i.tude of succeeding generations owing to such a Bar ought never to be dimmed by partisan or misguided diatribes upon lawyers and judges.

CHAPTER II

LEGAL ETHICS

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 a.n.a.logy, a proper treatment of the subject in hand. I consulted Paulsen's "A System of Ethics." The a.n.a.logy between moral philosophy and legal ethics is not very close, but I found a pa.s.sage 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:

"Let me say a word concerning the _practical value_ of ethics. Can ethics be a practical science, not only in the sense that it deals with practice, but that it influences practice? This was its original purpose. 'It is the function of ethics,' says Aristotle, 'to act, not only to theorize.'"

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

"All philosophy," he says, "is theoretical. Upon mature reflection it ought finally to abandon the old demand that it become practical, guide action, and transform character, for here it is not dead concepts that decide, but the innermost essence of the human being, the demon that guides him. It is as impossible to teach virtue as it is to teach genius. It would be as foolish to expect our moral systems to produce virtuous characters and saints as to expect the science of aesthetics to bring forth poets, sculptors and musicians." To this view Paulsen replies:

"I do not believe that ethics need be so faint-hearted. Its first object, it is true, is to understand human strivings and modes of conduct, conditions and inst.i.tutions, as well as their effects upon individual and social life. But if knowledge is capable of influencing conduct--which Schopenhauer himself would not deny--it is hard to understand why the knowledge of ethics alone should be fruitless in this respect.... Moral instruction, however, can have no practical effect unless there be some agreement concerning the nature of the final goal--not a mere verbal agreement, to be sure, but one based upon actual feeling.... It will be the business of ethics to invite the doubter and the inquirer to a.s.sist in the common effort to discover fixed principles which shall help the judgment to understand the aims and problems of life."