No. 2418.

Book 4, tit. chap. 1, sec. 1.

No 2419.

whatever may be his learning or qualities. He labors generally under such an excitement, that it would be difficult to behave with that temperance and discretion so necessary in the proper management of a cause; besides it is proper that he should not come in personal collision with the opponent, for this would produce many indiscreet acts which would be prejudicial to his

cause.

The principal law agents in this country are, 1, officers known in the courts of common law, by the name of attorneys; in courts of equity, as solicitors; and in courts of admiralty, as proctors; 2, counsellors; 3, notaries; 4, conveyancers.

SECTION 1.—of ATTORNEYS, SOLICITORS, AND PROCTORS.

2418. An attorney at law, is an officer in a court of common law jurisdiction, who has been admitted in such court to the practice of the law, after an examination as to his qualification, and is duly authorized to manage the cause of any client who may confide in him, as his advocate.

Attorneys are not admitted to practice unless they have qualified themselves by previous study, and have undergone an examination, according to the rules of the court; they are also required to be men of good moral character. In general, persons applying to be received as attorneys, have had the benefit of a liberal education, but although this is a great advantage, yet it is not indispensably necessary, and many attorneys, in this country, have become highly distinguished, who are self-made men. In modern times, a knowledge of the Latin and French languages, however imperfect, is sufficient, and the Greek may, in great measure, be dispensed with.

2419. The duties of an attorney, where the offices of attorney and counsellor are not separated, is to conduct the suit of his client through the courts, and to

No. 2420.

Book 4, tit. 1, chap. 1. sec. 2.

No. 2421.

take all proper and lawful measures to represent his case fully and fairly before the court and jury. It is not less his duty to advise him, in the preliminary stages of the cause, as to the best mode of a just settlement of it, either by compromise or otherwise when it can be done, and, if not, to direct him as to the best mode of securing his evidence, and putting himself in the right, when that depends upon himself.

SECTION 2.-OF COUNSELLORS AT LAW.

2420. In some courts, as in the supreme court of the United States, advocates are divided into counsellors at law and attorneys at law; these two classes are kept separate, and no person is permitted to practice both.(a)

In those courts it is the duty of the attorney to examine the case, collect all the facts, and make a clear brief of them, and of the points of law on which the case can be supported. This brief is submitted to counsel, and on it he relies for the true statement of the facts.

2421. It is the duty of the counsel to draft or review and correct the pleadings, to manage the cause in court on the trial, and, during the whole course of the suit, to apply the established principles of law to the exigencies of the case. He is not bound, as is sometimes vulgarly supposed, to take any unjust or unfair advantage for the purpose of overthrowing justice, on the contrary he should always remember he is one of her ministers. In giving their advice to their clients, and in the management of their causes, professional men have duties to perform to their clients, to the public, and to themselves. In such cases they have thrown upon them something which they owe to the fair administration of justice, as well as to the private interests of their employers. The interest propounded

(a) 2 Dall. 399.

No. 2422.

Book 4, tit. 1, chap. 1, sec. 2.

No. 2423.

for them ought in their own apprehension to be just, or at least fairly disputable; and when such interests are propounded they ought not to be pursued per fas et nefas. (a) Still, however, counsel ought not to undertake, in a doubtful case, to be at once judge, jury, and arbitrator, and decide against a client who may have a just cause.

2422. In the selection of an attorney, solicitor, or proctor, it is essentially important to select not a mere lawyer, but a man of known high character as to honor and honesty, as well as for his knowledge of all his professional duties, and also of adequate knowledge of the world, and a good negotiator; one who is disposed to avoid litigation, and above all, one who has not any connection with the expected adversary.

2423. There are men in the profession whose long established character for honor, honesty and learning, is so well known, that it is not difficult to select from among them; but there are others who, though not so well known, are still deserving of patronage on account of their personal merit and learning. In the selection of these the following rules should be observed:

1. A purchaser should never employ, on his behalf, an attorney or solicitor who is concerned for the vendor of the estate; in such a case, the attorney would be placed in a position unpleasant to himself, of deciding between the conflicting interests of the parties, and it might become impracticable for him to act with honor toward both of his employers.

2. A cestui que trust should not select the trustee to act for him, in a case relating to the trust property, though the trustee may be an attorney, for their interest might conflict with each other; and again, the interest of the attorney might be opposed to that of the trustee. Indeed, the attorney himself, feeling a

(a) 1 Hagg. R. 222.

No. 2124.

Book 4, tit. 1, chap. 1, sec. 2.

No. 2424.

just sense of delicacy, would not consent to act as attorney, and, as such, perform those acts which he was bound to do as trustee.

3. No attorney, solicitor or counsel should be employed, who has been concerned for the opposite party in any other suit or business, by which he would be enabled to take advantage of facts previously communicated to him confidentially, or incidentally, and which would be injurious to the latter. Nor can an attorney, who has been employed by one of the parties, give up his client and become concerned for the other; for, having obtained his client's secrets, he cannot lawfully make any use of them to his disadvantage; and, if he attempts to do so, he will be restrained. (a)

2424. The selection and employment of an attorney or other professional man is called a retainer. Although it is not indispensably necessary that the retainer should be in writing, unless required by the other side, it is still very expedient. (b) It is, therefore, highly proper, particularly when the client is a stranger, to require from him a written retainer, signed by himself; and, in order to avoid the insinuation that it was obtained by contrivance, it should be witnessed by one or more respectable persons. When there are several plaintiffs, it should be signed by all, and not by one for himself and others, especially if they are trustees or assignees of a bankrupt or insolvent. The retainer should also state whether it be given for a general or qualified authority.

The practice of obtaining a written retainer, is for

(a) Chalmondeley v. Clinton, 19 Ves. 261, 273.

(6) In Maryland and in Maine the attorney need not have a warrant of attorney to appear. Henck v. Todhunter, 7 Har. & John. 275; Penobscot Boom Corporation v. Lamson, 4 Shepl. 224; Bridgton v. Bennett, 10 Shepl. 420. In some states, as Pennsylvania and Illinois, a warrant of attorney to appear is not required, unless demanded by the other side. Lynch v. Commonwealth, 16 S. & R. 368; Campbell v. Galbraith, 5 Watts, 423.

No. 2425.

Book 4, tit. 1, chap. 1, sec. 3.

No. 2425.

It

the advantage of both the attorney and the client. is better for the attorney, because he gets rid of all difficulty about proving his retainer; and it is better for many clients, as it puts them on their guard, and prevents them from being drawn into law suits, without their own express direction.(a)

At the time of giving the retainer, it is usual for the client to pay a sum of money to the attorney, for the purpose of insuring his services; this is called a retaining fee. When an attorney is thus employed, there is an implied contract, on his part, that he will use due diligence in the course of legal proceedings, but it is not an undertaking to obtain a judgment.(b) He is bound to act with the most scrupulous honor, and to attend to the interest of his client only.(c)

SECTION 3.-OF NOTARIES PUBLIC.

2425. A notary or notary public is an officer appointed in the several states under their respective constitutions and laws. These officers are common all over the continent of Europe, where they exercise much more power than they do in England. (d) Their

(a) Owen v. Ord, 3 Car. & P. 349.

(b) Gallaher v. Thompson, Wright, R. 446. See Cox v. Livingston, 2 W. & S. 103; Hogg v. Martin, Riley, 156; Wilson v. Russ, 7 Shepl. 421; Mardis v. Shackleford, 4 Ala. 493; Wilcox v. Plummer, 4 Pet. 172.

(c) Galbraith v. Elder, 8 Watts, 81; Cleavinger v. Reimer, 3 W. & S. 486.

(d) These officers were known among the Romans, but in Rome they were not at first invested with a public character. Originally slaves, but afterward freemen, had tables in the forum, or public place, whose profession was to receive, excipere, the agreements of citizens who applied to them to reduce their contracts to writing. They were then called tabellions, from tabula or tabella, which in this sense meant those tables or plates covered with wax, which were then used instead of paper. Tabellions differed from notaries in many respects: they had judicial jurisdiction in some cases, and from their judgments there were no appeals. Notaries were then the clerks or aiders of the tabellions, they received the agreements of parties which they reduced to short notes, and, on this account, they were called notaries. These contracts were not binding until they were written in extenso, which was done by the tabellions. In after times, the notaries themselves wrote out at length these contracts, which was