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Advocacy and professional ethics lecture notes
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LL.B. VI TERM Paper – LB-601 Advocacy, Professional Ethics and Accountancy for Lawyers
Objectives of the Course:
Professional ethics form the foundation in the lives of the lawyers. Every person has been given the right to engage a lawyer of their choice to represent their case. It means that lawyers have the constitutional obligation to take up the case of every person who approaches them for legal representation. Does it mean that the lawyer is obligated to represent a self-confessed murderer, rapist, and other accused persons who are alleged to have committed very serious offences against the nation even though his conscience or his personal beliefs do not permit that? How can the lawyer do that when his inner conscience revolts at the thought of represent a certain category of persons? All clients approach the lawyer with hope and desire that their lawyers will zealously represent their case. Does zealous representation mean that the lawyers must get the relief sought by the clients by all means? Are there any boundaries set by law or professional ethics that a lawyer must not cross? What is the role of truth and morality in determining the standards of professional ethics for lawyers? What conduct amounts to professional misconduct? What are the repercussions if a lawyer does not follows the principles of professional ethics? What are the mechanisms set by law to deal with complaints of professional misconduct? These and many other similar other questions trouble the mind of new entrants to law practice. The lawyers have to adopt ethical practices in all spheres of their profession from meeting clients, giving them legal counseling, presenting their cases before appropriate bodies, managing client’s accounts, etc. This paper covers this wide spectrum of lawyers’ conduct and specifically aims to
The course will be conducted through lectures, case method as well as participatory methods involving students in problem-solving, role plays, and simulation, etc. The full course is primarily class based but students are encouraged to focus on ethical issues during their internship in the other CLE course, namely, Moot Court, Mock Trial and Internship and raise those issues in the classes in this course
Learning Outcomes
It is expected that at the end of semester, the students will be able to
Evaluation Method and Scheme
The students will be evaluated out of 100 marks. Considering that the course is aimed at providing theoretical knowledge and practical skills, evaluation for this course has two components: (1) the end- semester written examination for 60 marks, and (2) classroom evaluation for 40 marks. The end-semester written examination will consist of eight questions. Students will be required to answer 5 questions of 12 marks each. The question paper may have parts requiring a certain number of compulsory questions to be answered from each part.
The students are required to self-study the prescribed opinions of the Bar Council of India. There will be a class test consisting of multiple choice questions based on these opinions of the Bar Council for 20 marks.
(d) Right to Practise : Section 29-30,33: Advocates to be only recognized class of persons entitled to practice, Right of Advocates to Practise
(e) Conduct of Advocates and Disciplinary Proceedings : Section 35-36,37-38 : Punishment of Advocates for misconduct, Disciplinary Powers of Bar Council of India, Appeal to Bar Council of India, Appeal to the Supreme Court Reading Material : Fifty Selected opinions of the Disciplinary Committees of Bar Councils [only soft copy will be supplied to students]
II Contempt Of Court - Contempt of Courts Act, 1971
(a) Contempt - Meaning and Purpose section 2(a), Civil Contempt 2 (b), Criminal Contempt 2 (c), Criminal Contempt - Mens Rea Principle in Contempt Cases Contempt by State Government (3- 4 Lectures)
(b) Defences – Sections 3 to 8 ( 2-3 Lectures)
Innocent Publication, Fair and accurate report of judicial proceedings, Fair Criticism of Judicial act, Complaint against presiding officers of subordinate courts , Publication of information relating to proceedings in camera & other defences, Contempt and Freedom of Speech
(c ) Contempt by Judges & Magistrates- Section 16 ( One Lecture)
(d) Punishment for Contempt - Sections 10 to 13 (2-3 Lectures)
Power of the High Court to punish contempt of subordinate courts and try offences committed outside jurisdiction, Punishment for Contempt and Contempt not punishable in certain cases, Purging of contempt
(e) Procedure Section 14- 15, 17-18 (2-3 Lectures)
Procedure where contempt is in the face of the Supreme Court or High Court, Cognizance of Criminal Contempt, Procedure after Cognizance AND Hearing of Criminal Contempt cases by Benches,
PART –B: Professional Ethics
Rules Governing Advocates: (10-11 lectures)
(a) Restrictions on Senior Advocates
(b) Standards of Professional Conduct and Etiquette
(i) Duty to the Court (ii) Duty to the Client (iii) Duty to the opponent (iv) Duty to Colleagues (v) Duty in Imparting Training (vi) Duty to render Legal Aid (vii) Section on other employements
(c) 50 Selected Opinions of the Disciplinary Committees of the Bar Council of India, available at http://203.153.33.250:8282/gsdl?e=d-010-00-off-1lawbook--00-1----0--0direct-10----4-------0-1l--11-en- 50---20-about---00-3-1-00-00--4--0--0-0-11-10-0utfZz-8- 00&cl=CL1.1&d=HASH01690220b11483f79d156200&hl=0&gc=0>=0 (Self Reading for MCQ Test during semester for 20 marks)
(d) Cases on Professional Misconduct
Legal Profession in India
The history of the legal profession in India can be traced back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. In 1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition from Council members or the Governor. A second principle was also established during the period of the Mayor’s Courts. This was the right to dismiss an attorney guilty of misconduct. The first example of dismissal was recorded by the Mayor’s Court at Madras which dismissed attorney Jones.
The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Court of the Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As barristers began to come into the Courts on work as advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.
Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession. The charters of the Court stipulated that the Chief Justice and three puisne Judges be English barristers of at least 5 years standing.
The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and enrolled from practising in the Court. The Court maintained the right to admit, discipline and dismiss attorneys and barristers. Attorneys were not admitted without recommendation from a high official in England or a Judge in India. Permission to practice in Court could be refused even to a barrister.
In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was established, guided and controlled by legislation. In the Diwani Courts, legal practice was neither recognized nor controlled, and practice was carried on by vakils and agents. Vakils had even been appearing in the Courts of the Nawabs and there were no laws concerning their qualification, relationship to the Court, mode of procedure of ethics or practice. There were two kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of 1793 was enacted as it was felt that in order to administer justice, Courts, must have pleading of causes
administered by a distinct profession Only men of character and education, well versed in the Mohamedan or Hindu law and in the Regulations passed by the British Government, would be admitted to plead in the Courts. They should be subjected to rules and restrictions in order to discharge their work diligently and faithfully by upholding the client’s trust. Establishment of the High Courts
In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and Madras. The High Court Bench was designed to combine Supreme Court and Sudder Court traditions. This was done to unite the legal learning and judicial experience of the English barristers with the intimate experience of civil servants in matters of Indian customs, usages and laws possessed by the civil servants. Each of the High Courts was given the power to make rules for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The admission of vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts. It greatly extended the practice and prestige of the Indian laws by giving them opportunities and privileges equal to those enjoyed for many years by the English lawyers. The learning of the best British traditions of Indian vakils began in a guru-shishya tradition: “Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar were quick to learn and absorb the traditions of the English Bar from their English friends and colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in the Bar passed on those traditions to the disciples who continued to do the good work.” Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).
There were six grades of legal practice in India after the founding of the High Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the six grades of the profession into one system under the jurisdiction of the High Courts. The Legal Practitioners Act and the Letters Patent of the High Courts formed the chief legislative governance of legal practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted. In order to be a vakil, the candidate had to study at a college or university, master the use of English and pass a vakil’s examination. By 1940, a vakil was required to be a graduate with an LL.B. from a university in India in addition to three other certified requirements. The certificate should be proof that a. he had passed in the examination b. read in the chamber of a qualified lawyer and was of a good character. In fact, Sir Sunder Lal, Jogendra Nath Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an Advocate. Original and appellate jurisdiction of the High Court.
The High Courts of the three presidency towns had an original side. The original side included major civil and criminal matters which had been earlier heard by predecessor Supreme Courts. On the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney and advocate. On the appellate side every lawyer practiced as his own attorney.
However, in Madras the vakils started practice since 1866. In 1874, the barristers challenged their right to do original side work. However, in 1916, this right was firmly established in favour of the vakils. Similarly, vakils in Bombay and Calcutta could be promoted as advocates and become qualified to work on the original side. By attending the appellate side and original side
Excerpts: THE SEVEN LAMPS OF ADVOCACY By EDWARD ABBOTT PARRY
There are seven lamps of advocacy: The lamp of honesty, the lamp of courage, lamp of industry, the lamp of wit, the lamp of eloquence, the lamp of judgment, and the lamp of fellowship.
I. THE LAMP OF HONESTY
The great advocate is like the great actor : he fills the stage for his span of life, succeeds, gains our applause, makes his last bow, and the curtain falls. Nothing is so elusive as the art of acting, unless indeed it be the sister art of advocacy.
The young student of acting or advocacy is eager to believe that there are no methods and no technique to learn, and no school in which to graduate. Youth is at all times prone to act on the principle that there are no principles, that there is no one from whom it can learn, and nothing to teach. Any one, it seems, can don a wig and gown, and thereby become an advocate. Yet there are principles of advocacy ; and if a few generations were to forget to practise these, it would indeed be a lost art. The student of advocacy can draw inspiration and hope from the stored-up experience of his elders. He can trace in the plans and life-charts of the ancients the paths along which they strode, journeyed. They can be seen pacing the ancient halls with their clients, proud of the traditions of their great profession — advocates — advocates all.
Without a free and honourable race of advocates the world will hear little of the message of justice. Advocacy is the outward and visible appeal for the spiritual gift of justice. The advocate is the priest in the temple of justice, trained in the mysteries of the creed, active in its exercises. Advocacy connotes justice. Upon the altars of justice the advocate must keep his seven lamps clean and burning rightly. In the centre of these must ever be the lamp of honesty.
The order of advocates is, in D'Aguesseau's famous phrase, " as noble as virtue." Far back in the Capitularies of Charlemagne it was ordained of the profession of advocates " that nobody should be admitted therein but men mild, pacific, fearing God, and loving justice, upon pain of elimination." So may it continue, world without end.
From the earliest, Englishmen have understood that advocacy is necessary to justice, and honesty is essential to advocacy. Every pleader who acts in the business of another should have regard to four things : — First, that he be a person receivable in court, that he be no heretic, nor excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the order of sub- deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-one years of age, nor judge in the same cause, nor open leper, nor man attainted of falsification against the law of his office.
Secondly, that every pleader is bound by oath that he will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrong-doing. Thirdly, that he will never have recourse to false delays or false witnesses, and never allege,
proffer, or consent to any corruption, deceit, lie, or falsified law, but loyally will maintain the right of his client, so that he may not fail through his folly or negligence, nor by default of him, nor by default of any argument that he could urge ; and that he will not by blow, contumely, brawl, threat, noise, or villain conduct disturb any judge, party, serjeant, or other in court, nor impede the hearing or the course of justice. Fourthly, there is the salary, concerning which four points must be regarded — the amount of the matter in dispute, the labour of the serjeant, his value as a pleader in respect of his (learning), eloquence, and repute, and lastly the usage of the court."
Nevertheless, although an advocate is bound by obligations of honour and probity not to overstate the truth of his client's case, and is forbidden to have recourse to any artifice or subterfuge which may beguile the judge, he is not the judge of the case, and within these limits must use all the knowledge and gifts he possesses to advance his client's claims to justice. Boswell asked Doctor Johnson whether he did not think " that the practice of the law in some degree hurt the nice feeling of honesty? " To whom the doctor replied : " 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. Lord Chief Justice Cockburn, set forth his views of an advocate's duty, concluding with these memorable words : " The arms which an advocate wields he ought to use as a warrior, not as an assassin. He ought to uphold the interests of his client per fas, and not per nefas. He ought to know how to reconcile the interests of his clients with the eternal interests of truth and justice." If an advocate knows the law to be x, it is not honest to lead the court to believe that it is y. Whether the advocate does this by directly mis-stating the law, or by deliberately omitting to state it fully within the means of his knowledge, it is equally without excuse, and dims the lamp of honesty.
For the advocate must remember that he is not only the servant of the client, but the friend of the court, and honesty is as essential to true friendship as it is to sound advocacy.
II. THE LAMP OF COURAGE
Advocacy needs the " king-becoming graces : devotion, patience, courage, for- titude." Advocacy is a form of combat where courage in danger is half the battle. Courage is as good a weapon in the forum as in the camp. The advocate, like Csesar, must stand upon his mound facing the enemy, worthy to be feared, and fearing no man. Unless a man has the spirit to encounter difficulties with firmness and pluck, he had best leave advocacy alone.
William Henry Seward was acting in the defence of the negro Freeman in 1846,who killed a farmer and several of his family. His advocacy was of no avail to the negro, but his eloquent speech remains a noble statement of the duty of the advocate, and a fine example of devotion and courage in the exercise of that duty.
The whole speech is worthy of study, as it contains a glowing and reasoned appeal for the right of the most degraded human being in a civilised state to a real hearing of his case in a judicial court, which can only be obtained through honest and competent advocacy.
" In due time, gentlemen of the jury, when I shall have paid the debt of nature, my remains will rest here in your midst with those of my kindred and neighbours.
It is very possible they may be unhonoured, neglected, spurned! But perhaps years hence, when the passion and excitement which now agitate this community shall have passed away, some wandering stranger, some lone exile, some Indian, some negro, may erect over them an humble stone, and thereon this epitaph : ‘He was faithful.' " These words, as he desired, are engraved on the marble over him, and he is remembered at the American Bar as an advocate who upheld its best traditions, and feared not to hold aloft the Lamp of Courage.
III. THE LAMP OF INDUSTRY
The first task of the advocate is to learn to labour and to wait. There never was a successful advocate who did not owe some of his prowess to industry. From the biographies of our ancestors we may learn that the eminent successful ones of each generation practised at least enough industry in their day to preach its virtues to aspiring juniors. Work soon becomes a habit. It may not be altogether a good habit, but it is better to wear out than to rust out. Nothing, we are told, is impossible to industry. Certainly without industry the armoury of the advocate will lack weapons on the day of battle.
There must be years of what Charles Lamb described with graceful alliteration as " the dry drudgery of the desk's dead wood " before the young advocate can hope to dazzle juries with eloquent perorations, confound dishonest witnesses by skilful cross-examination, and lead the steps of erring judges into the paths of precedent.
All great advocates tell us that they have had either steady habits of industry or grand outbursts of work. Charles Russell had a continuous spate of energy." Do something! "
Abraham Lincoln owed his sound knowledge of law to grim, zealous industry. In after-life to every student who came near him his advice was, " Work! work !work! "
Advocacy is indeed a life of industry. Each new success brings greater toil. Campbell, writing home from the Oxford Circuit, describes the weary round of his daily task. Some advocates suffer thus every day the court sits, whilst others sit round and suffer envy. " I ought to have got
so far to-night on my way to Hereford, but we have a long day's work before us, and I shall be obliged to travel all to-morrow night. You can hardly form a notion of the life of labour, anxiety, and privation which I lead upon the circuit. I am up every morning by six. I never get out of court till seven, eight, or nine in the evening, and, having swallowed any indifferent fare that my clerk provides for me at my lodgings, I have consultations and read briefs till I fall asleep. This arises very much from the incompetence of the judge. It is from the incompetency of judges that the chief annoyances I have in life arise. I could myself have disposed of the causes here in half the time the judge employed. He has tried two causes in four days. Poor fellow, he is completely knocked up." An advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition.
You have to work hard and to think hard. I get some good help, as I tell you. My mode of work is this : One of these young men reads the brief and makes a note — a full one. I go through the note with him ' (smiling), ' cross-examining him, if you like. Sometimes, I admit, it may not be necessary for me to read the brief; the note may be so complete, and the man's knowledge of the case so exact, that I get everything from him. But it often is — in fact, generally is — necessary to go to the brief. You have seen me reading briefs here. I admit that I am quick in getting at the kernel of a case, and that saves me some trouble ; but I must read the brief with my own eyes, or somebody else's.' " I said, ' Sir John Karslake went blind because he could only read his brief with his own eyes. It is a great point to be able to read your brief with somebody else's eyes !' " Russell— Well, well, well, that's so! but it is not intuition.' " I said, ' It has been said that O'Connell never read his brief when he appeared for the defendant. He made his case out of the plaintiff's case.' " Russell — ‘I don't think that is likely ; I think O'Connell knew his case — the vital points in his case — before he went into court. There is often a great deal in a brief which is not vital, which is not even pertinent. I can read a brief quickly ; I can take in a page at a glance, if you like ; I can throw the rubbish over easily, and come right on the marrow of the case. But I can only do that by reading the brief, or by the help of my friends. I learn a great deal at consultations ; I am not above taking hints from everybody, and I think carefully over everything that is said to me ' (holding his hand up with open palm) ; ' I shut out no view. If I have a good point, it is that I can see quickly the hinge on which the whole case turns, and I never lose sight of it. But that is not intuition, my friend ; it is work.' " Industry in reading and book-learning may make a man a good jurist, but the advocate must exercise his industry in the double art of speaking and arranging his thoughts in ordered speech. He must be ready to leave his books awhile and practise the athletics of eloquence with equal industry. The silver-tongued Heneage Finch advises students " to study all the morning and talk all the afternoon."
For " bare reading without practice makes a student, but never makes him a clever lawyer." Our fathers understood this better perhaps than we do, and made provision of halls and cloisters and gardens, where students could take exercise and discuss the mysteries of their profession when the hours of reading were over.
"Wit is often the fittest instrument with which to destroy the bubble of bombast. “
Wit may fairly be used to strip the cloak of pretension from the shoulders of impudence. Holker was cross-examining a big vulgar Jew jeweller in a money- lending case and began by looking him up and down in a sleepy dismal way and drawled out : " Well, Mr. Moselwein, and what are you? "
" Agenschelman," replied the jeweller with emphasis. " Just so, just so," ejaculated Holker with a dreary yawn, " but what were you before you were a gentleman? " Wit, skilfully used, is the kindliest and most effective method of exhibiting the futility of judicial interruptions. " Where do you draw the line, Mr. Bramwell? " asked a learned judge in the Court of Common Pleas. " I don't know, and I don't care, my lord. It is enough for me that my client is on the right side of it."
Wit and courtesy need never be divorced. They are, indeed, complementary. Wit, deftly used, refreshes the spirit of the weary judge. Lord Chief Justice Coleridge, writing from the Northern Circuit, says : " Gully was excellent. His phrase, when he asked for a stay of execution ' in order to con- sider more at leisure some of your lordship's observations,' tickled my fancy very much. Misdirection was never more courteously described."
Satire or irony is often in danger of being misunderstood by the simple- minded jury. Ridicule, to be effective, must be pointed, even extravagant. In combating the defence of Act of God set up by an American advocate defending a client on the charge of arson, Governor Wisher, for the prosecution, disposed of the theory of spontaneous combustion, and succeeded in satisfying the jury of its absurdity : " It is said, gentlemen, that this was Act cf God. It may be, gentlemen. I believe in the Almighty's power to do it, but I never knew of His walking twice round a straw stack to find a dry place to fire it, with double-nailed boots on so exactly fitting the ones worn by the defendant."
Bowen, on the Western Circuit, was less fortunate. Prosecuting a burglar caught red-handed on the roof of a house, he left the case to the jury in the following terms : " If you consider, gentlemen, that the accused was on the roof of the house for the purpose of enjoying the midnight breeze, and, by pure accident, happened to have about him the necessary tools of a housebreaker, with no dishonest intention of employing them, you will, of course, acquit him." The simple sons of Wessex nodded complacently at counsel, and, accepting his invitation, acquitted the prisoner.
" brevity is the soul of wit."
Good advocacy displays the highest form of wit in an instinct for brevity. The healthy appetite of judge and advocate alike is shown in a keenness to " get through the rind of the orange and reach the pulp as soon as possible."
The eloquence of advocates of the past must largely be taken on trust. There is no evidence of it that is not hearsay. For, though we have the accounts of earwitnesses of the eloquence of Erskine, Scarlett, Choate, or Lincoln, and can ourselves read their speeches, the effect of their eloquence does not remain. We are told about it by those who experienced it, and can believe or not as we choose. It is the same with actors. It requires genius to describe acting, so that the reader captures some of the experience of the witness. The most eloquent advocacy that is reported in print is to be found not in law reports, but in fiction — in the speeches of Portia and SerjeantBuzfuz, for instance, where for all time the world continues hanging on the lips of the advocate in excited sympathy with the client. There are some who think that rhetoric at the Bar has fallen in esteem. The modern world has certainly lost its taste for sweet and honeyed sentences, and sets a truer value on fine phrases and the fopperies of the tongue ; but there will always be a high place in the profession for the man who speaks good English with smooth elocution, and whose speeches fall within Pope's description : Fit words attended on his weighty sense, And mild persuasion flow'd in eloquence. The test of eloquence in advocacy is necessarily its effect upon those to whom it is addressed. The aim of eloquence is persuasion. The one absolute essential is sincerity, or, perhaps one should say, the appearance of sincerity.
It would appear from the history of advocacy that the flame of the lamp of eloquence may vary from time to time in heat and colour. One cannot say that the style of one advocate is correct and another incorrect, since the style is the attribute of the man and the generation he is trying to persuade. Yet, however different the style may be, the essential power of persuasion must be present. He must, as Hamlet says, be able to play upon his jury, knowing the stops, and sounding them from the lowest note to the top of the compass. Brougham's tribute to Erskine's eloquence is perhaps the best pen-picture of an English advocate we possess, and it is noticeable how he emphasises this power of persuasion and endeavours to solve the psychology of it. He places in the foreground the physical appearance of the man, a great factor in each style of advocacy.
" Nor let it be deemed trivial," he says, " or beneath the historian's province, to mark that noble figure, every look of whose countenance is expressive, every motion of whose form graceful, an eye that sparkles and pierces, and almost assures victory, while it 6 speaks audience ere the tongue.' Juries have declared that they felt it impossible to remove their looks from him when he had riveted and, as it were, fascinated them by his first glance; and it used to be a common remark among men who observed his motions that they resembled those of a blood-horse, as light, as limber, as much betokening strength and speed, as free from all gross superfluity or encumbrance. Then hear his voice of surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness, deficient in compass indeed, and much less fitted to express indignation, or even scorn, than pathos, but wholly free from harshness or monotony. All these, however, and even his chaste, dignified, and appropriate action, were very small parts of this wonderful advocate's excellence. He had a thorough knowledge of men, of their passions, and their feelings — he knew every avenue to the heart, and could at will make all its chords
A client is entitled to the independent judgment of the advocate. Whether his judgment is right or wrong, it is the duty of the advocate to place it at the disposal of his client. In the business of advocacy judgment is the goods that the advocate is bound to deliver. Yet he is under constant temptation to please his client by giving him an inferior article. The duty of the advocate to give only his best.
The above question frequently arises, and some counsel have considered themselves bound to obey the wishes of the solicitor. There is no doubt that this is the safest course for the advocate, for, if he does otherwise and the result is adverse, he is likely to be much blamed, and the solicitor also is exposed to disagreeable comments ; but I hold, and have always acted upon the opinion, that the client retains counsel's judgment, which he has no right to yield to the wishes or opinions of any one else. He is bound, if required, to return his brief, but if he acts against his own convictions he sacrifices, I think, his duty as an advocate."
An advocate of judgment has the power of gathering up the scattered threads of facts and weaving them into a pattern surrounding and emphasising the central point of the case. In every case there is one commanding theory, to the proof of which all the facts must be skilfully marshalled. An advocate with one point has infinitely greater chances than an advocate with twenty points. Rufus Choate was an advocate of great judgment, and not only was he enthusiastic and diligent in searching for the central theory, or 44 hub of his case, as he called it, but having made up his mind what it was, he rightly put it forward without delay, believing that it was the "first strike" that conquered the jury. Parker, his biographer, tells us that 44 he often said to me that the first moments were the great moments for the advocate. Then, said he, the attention is all on the alert, the ears are quicker, the mind receptive. People think they ought to go on gently, till, somewhere about the middle of their talk, they will put forth all their power. But this is a sad mistake. At the beginning the jury are all eager to know what you are going to say, what the strength of your case is. They don't go into details and follow you critically all along : they try to get hold of your leading notion, and lump it all up. At the outset, then, you want to strike into their minds what they want — a good, solid, general view of your case ; and let them think over that for a good while. 4 If,' said he emphatically, 4 you haven't got hold of them, got their convictions at least open, in your first half-hour or hour, you will never get at them at all.' "
Abraham Lincoln had a genius for seeing the real point of his case and putting it straight to the Court. A contemporary who was asked in later life what was Lincoln's trick with the jury replied, " He saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play.”
In nothing does the advocate more openly exhibit want of judgment than in prolixity. Modern courts of justice are blamed by the public, not wholly without cause, for the length and consequent expense of trials. To poor people this may mean a denial of justice. No one desires that the judge should constantly interfere with counsel in the discharge of their duties, but it
seems to be his duty on occasion to blow his whistle and point out to the combatants that they are offside.
If every one connected with the trial of an action were to train and use his judgment and co- operate with the judgments of his fellow-workers in a policy of anti-waste, a great reproach would be lifted from our courts of justice. Prolixity is no new disease.
" In his lordship's conduct of trials he was very careful of three matters : 1. To adjust what was properly the question, and to hold the counsel to that ; for he that has the worst end of the staff, is very apt to fling off from the point and go out of the right way of the cause. 2. To keep the counsel in order ; for in trials they have their parts and their times. His lordship used frequently to inculcate to counsel the decorum of evidencing practice. 3. To keep down repetition, to which the counsel, one after another, are very propense;
The judgment of an advocate may be called upon at any moment for a sudden decision that may mean the victory or defeat of his client. For this reason it is necessary that he should be always alert. The contents of his brief must be already in his mind, and his attention must be fixed on what is happening in court, which has rarely been foreseen in the best-prepared brief ever delivered to counsel. "Watch the case!" It is a golden rule.
An advocate who is always fumbling with his brief when he is examining a witness cannot follow the game that is on the table before him. Sound judgment is essential to the ex- amination of witness.
Two golden rules handed down from the eighteenth century, and maybe from beyond, are still unlearned lessons to each succeeding generation of advocates: 1. Never ask a question without having a good reason to assign for asking it. 2. Never hazard a critical question without having good ground to believe that the answer will be in your favour.
Most re-examination intending to rehabilitate the character of a witness is apt to make matters worse. These stories of actual happenings, trivial in themselves, teach us the necessity of judgment in advocacy. And I pray the young advocate not to rejoice too merrily over the errors of judgment of his seniors or lament too grievously about his own. Bear in mind that by acknowledged error we may learn wisdom, and that the only illuminant for the lamp of judgment is the oil of experience.
VII. THE LAMP OF FELLOWSHIP
An advocate lacking in fellowship, careless of the sacred traditions of brotherhood which have kept the lamp of fellowship burning brightly for the English Bar through many centuries, a man who joins the Bar merely as a trade or business, and does not understand that it is also a professional community with public ideals, misses the heart of the thing, and he and his clients will suffer accordingly.
