of morals which finds its best expression in the Golden Rule. The lawyer is governed by his own code of ethics. He appears in court, tries cases and argues appeals "to the end," it is stated in the Canons, "that justice may be maintained pure and unsullied." In New York at least, a violation of the Canons, even to the extent of using a circular letter to entreat former clients to return with their business, amounts to professional misconduct for which an attorney may be disbarred. The law student is examined on the Canons. Obedience to their precepts is commended as professional and worthy of praise even though the end may be that captive good must wait on captain ill.

Dr. Samuel Johnson in 1768, gave Boswell, who was a student of law with a novice's misgivings, a plain, sensible man's conception of the lawyer's duty:

"I asked him," says Boswell, "whether, as a moralist, he did not think that the practice of the law, in some degree, hurt the nice feeling of honesty. Johnson. 'Why, no, Sir, if you act properly. You are not to deceive your clients with false representations of your opinion: you are not to tell lies to a judge.' Boswell. 'But what do you think of supporting a cause which you know to be bad?' Johnson. 'Sir, you do not know it to be good or bad' till the judge determines it. I have said that you are to state facts fairly, so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the judge to whom you urge it; and if it does convince him, why, then, Sir, you are wrong, and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the judge's opinion.' Boswell. 'But, Sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion when you are in reality of another opinion, does not such dissimulation impair one's honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with his friends?' Johnson. 'Why, no, Sir. Everybody knows you are paid for affecting warmth for your client; and it is, therefore, properly no dissimulation; the moment you come from the bar you resume your usual behavior. Sir, a man will no more carry the artifice of the bar into the common intercourse of society, than a man who is paid for

'Matter of Schwarz, 231 N. Y. 642 (1921).

tumbling upon his hands will continue to tumble upon his hands when he should walk on his feet.'

"Let us free our mind from cant," said the old moralist. Nothing is more inconsistent with daily experience than the cant of professional ethics that the practicing lawyer owes a higher duty when engaged in the trial of a case than in honor so to present his client's case that he may win if the law and the facts permit. When he acts for his client, the responsibility is not his when the law fails to harmonize with his ideals of justice.

As Dr. Johnson said, so say, in substance, the Canons of Ethics. "In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense." You are not to deceive your client nor hoodwink a judge, but you owe to the interests of your client your best devotion, warm zeal, and utmost exertion that he may win if success within the bounds of the law is possible. You must not resort to perjured testimony or play unlicensed tricks on your opponent, but you may use all your energy, force and will, within proper bounds, in the service of your client, even though conscience, humanity and right are enlisted against him.

The lawyer is first, then, the faithful servant of his client, and, secondly, in a qualified sense, an independent officer of the court, owing a duty to the public as well as to private interests. He owes a three-fold fidelity, as Sharswood says, to the court, to the client and to the claims of truth and honor. It is his duty to insist upon the judgment of the court upon his client's claim. An officer of the court, he is only in a qualified sense a minister of justice, that justice which gives every man his due and is blind to the skill of the advocate, to which law in action pays practical tribute. As a citizen, his ideal should be to serve the community and sacrifice material gain to the general good; but as a lawyer, acting for his client, he is guided by professional conscience, a thing sui generis, which permits him to safeguard the rights of a client with courage and pertinacity and leave to the tribunal the decision of legal right or wrong. Surely this professional conscience is a better, and more practical, common-sense guide than an unprofessional fastidiousness which refuses its aid to the unpopular or the unworthy. I may refuse to speak to a man on the street if I disapprove of his conduct; but if he retains me as his

"Canon 15.

'Canon 30.

attorney I may speak to the court in his behalf, not as commending his conduct, but as presenting his case to the tribunal for its adjudication.

The Canons do not stop here. They admonish the lawyer that: "In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade;" they declare that: "All personalities between counsel should be scrupulously avoided;"s they charge him to be "concise and direct. in the trial and disposition of causes.' 19

I could suggest nothing better calculated to facilitate the administration of justice than obedience to these Canons and enforcement of them by the leaders of the bar. Dishonesty is disciplined. The maladroit self-advertiser is punished. Prolixity, profiteering and personalities between counsel have as yet escaped with no harsher rebuke than a vague, admonishing gesture.

An unhappy combination of easy judge, complacent jury, highly remunerated attorneys with a reputation for success at stake and a long drawn out trial, marred by the exchange of cutting personalities between counsel, might do much to bring the administration of justice into disrepute. The general public with its craving for sensation and excitement considers this situation as a part of the game and fails to note that it is in truth as unethical for lawyers to be dilatory, discourteous and exorbitant as to be candid self-advertisers. A bad cause decently presented may bring more honor to the advocate than a good cause presented by cunning or sensational methods.

A great defect in the administration of justice is delay, but haste is not the remedy for delay. Haste is the prolific parent of error and injustice. Summary methods of disposing of business, while they may clear a crowded trial calendar, are not calculated to advance the administration of justice unless court and counsel are exceptionally sure-footed. "Without haste, without rest" is a safer rule to follow.

Rules of evidence are sometimes perverted from their proper purpose and used to shut out, rather than bring out, the truth. Dean Wigmore, in his work on Evidence, looking down from the cold heights of scholastic aloofness, where the weak or pliant hinges of the lawyer's knee stiffen somewhat, says, among other and more

"Canon 12. Canon 17.

Canon 21.

bitter counts in his indictment of our profession for failure to attain ideal standards of efficiency:10

"Most practitioners, to-day, are unskilled in the rules of Evidence. This is a hard saying; but those who ought to know report it so unanimously. The trial judges know the rules better, but still imperfectly. Is it not startling to reflect on the meaning of this?

"It means, in the first place, that the rules to a large extent fail of their professed purpose. They serve, not as needful tools for helping the truth at trials, but as game-rules, afterwards, for setting aside the verdict. Neither lawyer knew them well enough to avoid numerous violations of them at the trial; but afterwards the defeated lawyer (having duly emitted a machine-gun fire of objections) studied a few of them for the purpose of pointing out on appeal his opponent's errors. If the new trial is needed because neither the successful lawyer nor the trial judge knew the niceties well enough, then by hypothesis the system of Evidence failed, after all, for that trial, to accomplish its purpose.

"And, in the second place, it means that there are thousands of trials in which neither attorney knew enough either to observe the rules' niceties or even to point out his opponent's errors, and yet a verdict was reached which satisfied the judge. In other words, owing to ignorance of the rules, they were not enforced, and yet justice (presumably) was as well done as if they had been enforced. How far this is the fact, no one can know. But the widespread ignorance of the rules shows that it must be a large fact. And the moral is that we can probably get along just as well without enforcing many of the niceties of the rules.10a * * *

"Our judges and our practitioners must improve in spirit, as a prerequisite for any hope of real gain to be got from better rules. In the end, the man is more important than the rule. Better rules will avail little, if the spirit of using them does not also improve.

"Counsel must become less viciously contentious, more skillful, more intent on substance than on skirmishing for a position. The whole condition of below-par, now noticeable, is here involved. It has many symptoms and many causes."

The practicing lawyer improves the administration of justice as he displays the virtues of moderation, self-restraint and fair play and resorts to technicalities to expedite, not to impede the progress of his case. These virtues are not unknown, for without them a turbulent and pettifogging bar would speedily bring our legal system

10Wigmore, Evidence (2nd ed.), vol. I, sec. 8a, pp. 124, 127. 10a This sentence italicized by the writer.

into chaos. It would be a great advance toward the efficient administration of justice if procedure in courts should become as matter of fact as the business methods of the oyster bar in the Grand Central Station, though some allowances may be made for the forensic atmosphere and the ancient customs of courts and lawyers.

The lawyer can help to the same end when he approaches a case with the conviction that the time has come for him to aid the court by judicious criticism, to challenge that which passes for authority and to loose "the dead hand of the common law rule." As the customs of merchants change, the law should adapt itself to them. As the idea of legislative power changes, old theories of constitutional limitations are sloughed off. When the client's interests dictate such a course, the practicing lawyer need not fear to urge the modern view-point on the court. Many lament as a strange new theory the suggestion that the common law must grow, but there is nothing new about the adoption of the modern view-point by courts. What is antiquated to-day was once modern and practical. Call it sociological justice or any other hard name from the vocabulary of technical philosophy as you will, the courts have always in a greater or less degree given ear to those who contend for a modification of the old rule to conform to modern conditions.

Sir Matthew Hale, in common with the age of Cromwell and the Stuart Restoration in which he lived, believed in witchcraft; but he stated modern doctrines in a modern way when such doctrines had established themselves outside the courts of justice. A judge who listens with patience to arguments against the common sense of a law made for husbands, masters, landlords and magistrates in a comparatively simple state of society is no radical; he is not even a liberal. He is the true conserver of the life-giving spirit of the law and of our institutions as against the letter that kills. Any one who follows the decisions of the United States Supreme Court and of our own Court of Appeals cannot fail to observe that in these supposed shelters of reaction the law is being steadily rewritten to conform more nearly to the standards of the time and that an occasional display of atavism excites more wonder than the most advanced example of evolution and progress. I would be loath to advertise for lawyers to bring cases to have the law changed; but I can readily point to recent liberalized decisions of courts of last resort which would have been deemed revolutionary even ten years ago, and might have been decided otherwise without affronting authority. But they may be followed in turn by so-called reactionary decisions, as