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YALE LAW JOURNAL
THE DUTIES OF ATTORNEY
Address by Hon. Edwin Baker Gager, M.^ A.,^ Professor^ of^ Gen- eral Jurisprudence, Yale^ Law^ School,^ to^ the^ Applicants for Admission to the Bar of Connecticut, in the
Superior Court,^ J^ tne^ 20,^ 1911.
The growing interest^ of^ tfe^ Bar^ in^ maintaining and^ raising the standards of professional excellence and professional con- duct is indicated by the raising of the requirements for^ admission to the Bar, and by the adoption by the Bar Association of sjecific canons of conduct, rather ethical^ than^ strictly^ legal in^ their^ nature. In response to^ this interest^ our^ Bar^ Examining^ Committee has recommended a course in legal ethics, and has^ made^ legal^ ethics a subject of examination. You,^ gentlemen,^ have^ the^ honor^ of being the first group of candidates to pass^ an^ examination^ in legal ethics. Your^ text^ has^ been^ the^ attorney's^ oath of^ office^ for this State; the declaration of legal ethics adopted^ by^ the^ State Bar Association, and Sharswood's Legal Ethics. That you are here in court awaiting the order that shall admit you to the ancient and honorable privileges and responsibilities^ of^ the attorney^ is^ a sufficient voucher that you are reasonably familiar with the prac- tical precepts^ involved^ in^ ethics^ as^ applied^ to^ the^ professional^ con- duct of attorneys at^ law.^ I^ shall^ not,^ therefore,^ attempt^ to^ re- capitulate here that in which you^ are^ certified^ by^ the^ Bar Exam- ining Committee as being already reasonably proficient. It is, however, my official duty, imposed by rule of court, to address you upon your duties and responsibilities as attorneys. Assuming your^ familiarity^ with^ the^ general^ subject,^ I^ wish^ this morning to direct your attention to certain matters^ which may appear obvious, and yet the neglect of which has caused many a young man, starting with prospects as bright as yours, to become a failure as a lawyer, and sometimes^ as a^ man.^ Some of^ you may remember the beautifully accurate description^ of^ a^ juris- consult given by Cicero. He^ must^ be^ "skilled^ in^ the^ laws,^ and^ in the usages current^ among^ private^ citizens,^ and^ in^ giving^ opinions and bringing actions and guiding his clients aright." Your first and foremost duty, then, is to know the law. It is an ancient saying that, the law is a jealous mistress, requiring ceaseless, single-hearted and enthusiastic devotion as a condition
THE DUTIES OF THE ATTORNEY
of her favors. To know the law is not simply to learn it once for all, to pass your examination and then merely draw from your knowledge as occasion requires. Even you, fresh from the learning of the schools, will soon find your sources run dry if you do not diligently, in season and out of season, pore over the books, exhausting, so far as practicable, the law of such matters as may come to you, and, should you have leisure, delve in those fields in which work is most likely to come. The longer I live the more clearly I see and the more strongly r realize that the reason why so many fail to reach a high standing in the pro- fession is that in the earlier years of their practice they did not adequately realize that the law is and always will be a learned profession, involving a lifetime of labor as the condition of its highest rewards. The man who knows is the man sought for by those desiring assistance in any profession; and it is as true of the lawyer as of the engineer, the surgeon or the specialist in any line; and this knowledge, to be effective,'must be your own knowl- edge. Beware of the habit of trying to get your law by asking older lawyers, trying to get it upon the streets, and so getting that worthless article familiarly known as curbstone law. Get your law for yourself; cultivate confidence in yourself and in your own powers of research and of reasoning, and then, for confirma- tion or correction, you may consult some older lawyer in whom you have confidence. To know the law means, for us, that so long as we remain in the profession we will continue to study the law, or that part of it which we more particularly affect. And here let me urge you, if you would become lawyers with the larger outlook, with a comprehensive grasp of the real meaning of the law and the mighty part it has played in the advancement of civilization, not to confine your reading and study to the con- crete rules of the system of law you may practice. rntimately connected with these rules, their ground work, the substratum, in fact, of the philosophy and theory of law, illustrating, explaining and vivifying it, are the history of law, comparative law, the principles of legislation and the principles of morals. The law you practice comes first, but to these subjects I have named should be cultivated in due proportion; and, as the years go by, the law will grow more and more interesting, its practice will give constantly increasing satisfaction, you will become more efficient lawyers, wiser, sounder, safer and better men.
THE DUTIES OF THE ATTORNEY
for hundreds of years they (^) have in practice been recognized as vital to the usefulness and the continued existence, even, of the legal profession. , The antiquity of the oath for admission (^) to the Bar indicates this: the oath which will be (^) administered to you was, in almost its identical (^) language of to-day, passed by the General (^) Assembly of this State in i7o8, and in England, (^) dating sometime between 1246 and i4o2, we find (^) a record of the attorney's oath which sounds (^) strangely familiar. Let me read it to you, (^) taken from the Book of Precedents in the Court of Exchequer, (^) "The Oath of the Attorneys in the Office of Pleas": You shall doe noe Falsehood (^) nor consent to anie to be done in the Office of Pleas of this Courte wherein you are (^) admitted an attorney. And if you shall knowe of anie to be (^) done you shall give Knowledge thereof to the Lord Chiefe Baron (^) or other his Brethren that it may be reformed you shall Delay (^) noe Man for Lucre Gaine or Malice you shall (^) increase noe (^) Fee but you shall be contented with the old Fee (^) accustomed. And further you shall (^) use your selfe in the Office of Attorney in the (^) said office (^) of Pleas in this Courte according to your best Learninge (^) and Dis- crecion. So helpe you (^) God. In spite of the cheap gibes we (^) sometimes hear, no clays of men is practically held in such (^) confidence as the members of the Bar. Life, liberty, property, (^) political and civil rights, are all intrusted to them, and how seldom is (^) that confidence violated, and how soon (^) is one, known to have violated such confidence, (^) over- whelmed with disgrace! (^) He is either disbarred or becomes pariah in the profession. Locke (^) said of moral rules that "No an escapes the (^) punishment of their censure (^) and dislike who offends against the fashion and opinion of the company (^) he keeps, and would recommend himself to it." If you would recommend yourself to the (^) company of the Bar you are about to enter (^) you must beware lest you offend against (^) its fashion and opinion as set forth in legal (^) ethics. The penalty may be discipline or disbarment, and a blasted profes- sional life. Here (^) let me remind you that legal ethics is not strictly a special kind of ethics or morals, but (^) it consists in .the application of those general moral rules which should govern the conduct of us all, to those special relations arising (^) from the nature of the lawyer's business. (^) If, in the broad sense, a man is sound morally, (^) his legal ethics will cause him little difficulty.
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Again, the lawyer^ is^ not^ the^ servant^ of his^ client,^ he^ is^ not the servant of the court, but he is an o.fficer of the court.^ I^ want you to realize that, gentlemen, as some justification for^ the^ years of labor that you have^ been^ through,^ and of^ the^ cae^ that^ is^ at- tempted to be exercised in^ the^ selection^ of those^ who^ are^ ad- mitted to the Bar, because the admission to^ the^ Bar^ makes^ you^ an officer of^ the^ court,^ and^ the^ office^ continues^ during^ good^ behavior, and the lawyer has as^ much^ right^ to^ appear^ in^ court^ as^ the^ judge to sit upon the bench. In Ex^ parte^ Garland,^4 th^ of^ Wallace,^ 333, the court said: The attorney being by the solemn judicial act of the court clothed with his office, does not hold it^ as^ a^ matter^ of grace^ and^ favor.^ The^ right which it confers is not revocable^ at^ the^ pleasure^ of the^ court, or^ at^ the command of^ the^ legislature.^ It^ is^ a^ right^ of^ which^ he^ can^ only^ be^ de- prived by^ the^ judgment^ of^ the^ court^ for^ moral^ or^ professional^ delin- quency. In the case In re Thomas, in the^3 6th^ Federal^ Reporter,^ 243, an application for the disbarment of an attorney because of al- leged unprofessional and immoral practices,^ -Mr. Justice^ -Miller spoke thus of the attorney as an officer of^ the^ court: The lawyer in this country is one of the administrators of^ justice. The judge who presides in the court is^ another,^ with^ more^ authority^ of position, and, perhaps, in some respects a more burdensome one.^ But^ the court, and the clerk, and the marshal, the sheriff, the jury, the lawyer, all constitute ministers of justice; and a lawyer who consciously^ undertakes to thwart justice is unfit for the position, as^ much^ as^ the^ judge^ who accepts a^ bribe,^ or^ knowingly^ decides^ a^ case^ against^ the^ law^ and^ the^ right; and it should be understood that^ they^ [that^ is,^ the^ lawyer^ and^ the^ judge] are subjected to the same responsibilities. They^ have^ a^ duty, undoubtedly, to their clients, but this is not the first duty, as is generally supposed. Their first duty is the administration of justice, and their duty to^ their client is subordinate to^ that. Remember that, gentlemen, when you appear in court, and when lines of conduct are suggested to^ you,^ that^ it^ is^ your^ duty to handle your case and to present it to the court^ with^ the^ same scrupulous faithfulness^ and honesty^ and^ fairness^ that^ you^ ex- pect of the judge^ in^ reaching^ his^ decision. Yesterday at the alumni dinner of^ the^ Yale^ Law^ School^ we^ heard the law referred to as a "noble profession." It has to do with the administration of^ justice:^ earthly^ justice,^ to^ be^ sure, but here and^ now,^ touching^ us^ all^ in^ the^ most vital^ points,^ and^ it^ is the nearest approximation to the ideal^ of^ enforcible^ rules^ of conduct that the social organization has hitherto succeeded in
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missioner then said, as showing that^ our^ judges,^ in^ providing^ for this ceremony, practically revive a custom existing certainly^ as long ago as^ 1648,^ because^ we^ have^ the^ specific^ record of what was then said by the Commissioner^ to^ the^ young men^ then^ stand- ing before him as applicants for the degree^ of^ Sergeant-at-Law. He said: I hold it not impertinent to^ mention something^ to^ you^ of^ the^ duties of an advocate; which are some of them to the courts and^ some^ to the clients. To the courts of justice he owes reverence, they^ being^ the^ high tribunals of law, and therefore great^ respect^ and^ reverence^ is^ due to^ them from all persons, and more^ from^ advocates^ than^ from^ any^ other.^ An advocate owes^ to^ the^ court^ a^ just^ and^ true^ information.^ The^ zeal^ of^ his client's cause, as it must not transport him to irreverence, so^ it^ must^ not mislead him to untruths in his^ information^ to^ the^ court.^.^.^.^ The^ duties of advocates to their clients are general and^ particular.^ The^ general^ con- sists in three things: secrecy, diligence, and fidelity. For^ secrecy:^ advo- cates are a kind of confessors, and ought to^ be such,^ to^ whom^ the^ client may with confidence lay open his evidences, and the naked truth of his case, and he ought not to discover them to his client's prejudice;^ nor^ will the law compel^ him^ to^ it. You remember the^ privilege^ of^ the attorney^ with^ reference^ to testifying as^ to communications between^ attorney^ and client;^ iand I' want to impress upon you most strongly^ that^ idea,^ that^ when you get in practice and people come to you to talk over their matters, those matters should^ be^ absolutely^ sacred^ and^ never travel beyond your lips, or beyond the work of the office, and^ the communications of the office necessary for^ the^ purpose^ of^ trans- acting the business: For diligence: much is required in an advocate in^ receiving^ instruc- tions, not only by breviats, but by looking into^ the^ books^ themselves,^ in perusing deeds,^ in^ drawing^ conveyances^ and^ pleas,^ in^ studying^ the points in law, and^ in^ giving^ a^ constant^ and^ careful^ attendance^ and^ endeavor^ in his client's causes. For fidelity: it^ is^ accounted^ vinculun^ societatis,^ the^ bond^ of^ society. The name of unfaithfulness^ is^ hateful^ in^ all;^ and more^ in^ advocates^ than others, whom the client trusts with his livelihood, without^ which^ his^ life is irksome; and the unfaithfulness or fraud^ of the^ one^ is^ the^ ruin^ of^ the other. And, as was perhaps more common in those times, he illus- trates his meaning by reference to the classics: Virgil, in^ his^ fiction^ of^ Aeneas^ going^ down^ to^ hell,^ sets^ these^ in^ the front of the crimes [and I give you^ the^ translation]^ :^ Here^ (that^ is,^ down where Aeneas was wandering through the confines^ seeing^ and observing
THE DUTIES OF THE ATTORNEY
the shades who were the denizens of that disagreeable (^) region), Here, those (^) who, while alive, hated their brothers, (^) beat their parents, or de- frauded their clients, imprisoned, (^) await punishment. For (^) your duty to particular clients you may (^) consider, that some are rich, yet with such (^) there must be no endeavor to lengthen (^) causes, to con- tinue fees. (^) Some are poor; yet their business must not be neglected if their cause be honest; (^) they are not the worst clients, (^) though they fill not your purses; (^) they will fill the ears of God with prayers (^) for you, and He who is the defender (^) of the poor will repay your charity. (^) Some clients are of mean (^) capacity; you must take more pains (^) to instruct yourself to understand their business. Some (^) are of quick capacity and confidence, yet you must not trust to their information. Some (^) are peaceable, detain them not, but (^) send them home the sooner. Some are (^) contentious, advise them to reconcilement with (^) their adversary. Amongst your clients (^) and all others, endeavor to gain and (^) preserve that estimation and respect (^) which is due to your degree (^) and to a just, honest, and discreet person. (^) Among your neighbors in the country, (^) never foment, but pacify contentions. So you see, gentlemen, (^) that this custom that we are fulfilling here this morning, in obedience (^) to the mandate of the judges, is of long existence, and that the notions (^) that we try to instill into you it has (^) been the aim of judges for a long (^) time to instill into those days the judge whose (^) official duty led him to pass the order transforming them from (^) private citizens to officers of (^) the court, was moved by (^) the same kindly feeling of interest (^) in their welfare and in their future that we feel (^) here to-day. For, in concluding his address, we (^) find that the Lord Commissioner, (^) away back there in the days of (^) the Roundheads and the Cavaliers, (^) extended to the new Sergeants-at-Law before him his best wishes. And (^) so I, as representing our loved and honored State, extend to you, as you enter the Bar of Connecticut, in the (^) language of the Lord Commissioner (^) in 1648, my heartiest and best (^) wishes: "And (^) what honor and advantage hath (^) been gained by any of the most eminent of your predecessors (^) in this degree, I do heartily wish may be multiplied unto you."
Edwin B. Gager.
