THE

AMERICAN LAW REGISTER.

MAY, 1871.

THE PROPER LIMITS OF PROFESSIONAL RESPONSIBILITY AND DUTY.

THIS topic, always of considerable interest to the profession as well as the public, has, within the last few years, caused some public discussion in this country, which naturally tends to give it more or less of adventitious importance. We need not name any other instances than the defence of President Johnson by one distinguished counsellor and advocate, and the connection of another alike eminent, with the railway controversies in New York, to show what a singular amount of indefiniteness of views prevails in the public mind, as to the true limits of the duty and responsibility of counsel in regard to professional retainers. Some views were expressed in the public prints of the highest character in regard to the two instances alluded to, which indicated a crudeness of knowledge and a one-sidedness of view, in regard to these topics, that was truly amazing.

In the case of President Johnson, one of the leading journalists of the country announced opinions in regard to the discredit attaching to the agency of counsel in connection with the trial of President Johnson, which it would seem could only have proceeded from an entire misapprehension of all the just relations between counsel and client. And the long and acrimonious correspondence which was lately published between the other counsellor referred to and another not less prominent journalist, certainly proved, if it proved nothing else, that either the coun

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sellor must have been a very bold and reckless man to avow such opinions as he did in regard to his own sense of professional duty, or else that his antagonist could not very clearly have understood its just limitations. There certainly must have been great assurance on one side or great misapprehension on the other, and possibly both.

We have no desire or design to discuss these cases, in particular, further than as they may afford incidental illustrations of the views we may have occasion to express; but the occurrence of any such divergence of opinion as unquestionably prevails in the minds of the best informed classes in our country, upon questions of such vital importance, in the successful progress of one of the most extensive and important interests of the country-the administration of public and private justice-will surely justify our devoting a brief portion of our space, to an attempt to present the just limits of right and duty between counsel and client, or attorney and client; for there can be no important difference in regard to the rights and duties of counsel and attorney with reference to the character of clients or their causes.

The first and fundamental inquiry, in this connection, will naturally be, whether there is any limitation which counsel can properly prescribe to themselves in regard to the character of their clients or of their causes. We do not, of course, here refer to that division of labor or business which will always obtain, as matter of taste or convenience or propriety among the different members of the profession, and indeed of all professions. It would be absurd to deny the right and propriety of any member of the profession to select such a department of service as he deemed most suitable to his talents or his tastes. But the inquiry is, whether in that particular chosen department of the profession, counsel has any just right absolutely to turn away any one who desires his professional aid, and is willing to submit a cause to his management and discretion? The question in this broad sense is probably not entirely without its difficulty. and without the qualification last stated-that the client is willing to submit his cause to the management and direction of his counsel we should not hesitate to say, that counsel may be called upon to maintain causes in the interest and under the direction of clients, which no honorable member of the profession could fairly justify to himself. There are multitudes of causes

of such insignificance or of such vicious character, that they never should be brought into any court; and if already in court, should be taken out in the quietest and shortest way. And even beyond this, we cannot say that counsel are under any legal or moral duty of accepting all causes offered. Counsel are never in the position of common innkeepers, or common carriers, who are bound to serve all who come to the extent of their capacity, and in the precise order in which they offer. Counsel unquestionably have the right to select their clients in their own way. But they are bound not to adopt any rule of selection or exclusion which shall dishonor the profession.

It may be said too, with propriety and justice, that counsel are liable to misjudge in regard to the character of causes whether they will succeed or not, and whether they ought to succeed or not. That may be conceded; but no man who is fit for the profession need ever entertain serious doubt after making proper investigation in regard to the moral justice and propriety of a claim or a defence. We do not intend by this to make any invidious distinction between legal justice and moral justice. Counsel are, we believe, always at liberty to regard legal justice and moral justice as concurrent and coextensive; and to prosecute any claim of sufficient magnitude to justify prosecution, which they believe is legally maintainable; and to pursue any defence which they believe maintainable according to the fair and just application of the law.

If

And we are not aware that any just charge of insincerity or moral blame can be laid at the door of any counsellor, on the ground of the doubtful character of a civil prosecution or defence. any such standard of morality were to be applied to the profession, it would be far higher and purer than is demanded of any other profession or pursuit in life. We are all compelled, more or less, to act upon uncertainty in everything that we do. Not that we would justify proceeding to do an act of morally doubtful character-far from it. Is the man who attempts to pursue a desired or contemplated benefit, to be charged with moral obliquity because he is not certain of success? But it may be said the case is different in the law, where there are two parties, and to pursue a doubtful claim or defence is exposing us to the hazard of doing injustice to the opposite party, which should never be ventured upon where there is even a doubt in regard to

the result.

But who shall or who can decide when a claim or defence is fairly hopeful?

It is just here, in our opinion, where the great divergence in the public mind upon this subject arises; and from which most of the public censure of the profession comes. We can all see, very clearly, that when counsel attempt to maintain a clearly bad cause or defence, there will be room for the perpetration of great injustice. Hence most unprofessional minds jump to the conclusion that in every cause the counsel, upon one side or the other, must be guilty of great moral turpitude, in attempting to maintain a cause which in their very consciences they know to be fatally bad. And those persons that have too much knowledge and sense of propriety to adopt any such extreme view of the morality of the legal profession, will still insist that in the course of professional life there must of necessity occur such a multitude of bad causes, in the practice of every counsellor, that he can scarcely be regarded as entirely free from moral guilt any portion of his life! There seem to us two very marked misapprehensions, in the public mind, upon this subject.

In the first place, the common mind does not, in any just proportion, give due credit for the very great uncertainty which really attends almost every cause in court which is ever brought to trial. The mere expense of unsuccessful litigation will drive almost every cause out of court before trial, unless there is some reasonable uncertainty either in regard to the law or the facts. The case almost never is brought to trial unless the counsel on both sides entertain some hope of success. Still, in a large number of causes-not one in ten-probably one in a hundred-there may arise a cause in regard to which there seems to be no great question to an impartial mind-in regard to which one might feel almost certain it must be decided in a particular direction. But even this tenth or hundredth cause may not seem so clear to the counsel employed as it does to the judge. And what is more amazing still, this tenth or hundredth cause, which the judge may esteem clear beyond all question-after it comes to be discussed again and again-may finally be decided precisely opposite to what at first the court had regarded so very certain and clear!

It is fair, perhaps, to illustrate this point by what we know to have actually occurred: since what has occurred, all must admit as likely to occur again-at all events to be a fair illustration.

Early in our judicial experience we found, at the close of a long term of jury trials, the usual number of exceptions to the rulings, at the different trials, and allowed them all; and, as usual, granted a stay of execution in all cases where the exceptions did not appear to be entirely frivolous. But there was one case that seemed to us so entirely of that character that we felt bound, in conscience, not to order a stay of execution. And to our utter amazement this very case was almost the only one of the term where the full court directed a new trial! And we believe the experience of the profession will justify the opinion that such cases are not of rare occurrence, where the most careful scrutiny and the most dispassionate judgment will not always be able to anticipate the ultimate decision of the court of last resort. There is nothing more obvious, as we advance along the road of human experience, than that there is no absolute infallibility in human judgment, except as we are compelled to recognise it in the decrees of tribunals from which there is no appeal. The apology of the chancellor to his subordinate for reversing his decrees, was met in no jesting spirit when he replied, "Never mind, I should do the same with your lordship's decrees, if I had the power."

The truth is, that 'all this clamor in the public voice, or from the public press, about the want of principle in the legal profession, because they are half the time engaged in prosecuting or defending bad causes, is simply absurd and ridiculous. It is in fact no more worthy of respect than the report of the countryman, after attending a term of court for the first time in his life, that it did not seem of much use going to law, since about as many causes seemed to be lost as gained. The truth is, some men will go to law, and will have their causes tried. There is a delight in the very uncertainty attending it, which is worth ten times. more to them than it costs, and is in itself as inexplicable as the love of war, or the love of amusement, or ten thousand other passions, which seem quite incomprehensible to those who have no propensities in that direction.

And litigation answers some other very useful purposes beyond and aside of its interest for the immediate contestants; it affords. the most exciting, and the most innocent, and often the most instructive pastime to the mere lookers-on anywhere to be found in the country-provided it is properly conducted, and is of a character to impress the mind with its importance and necessity.