Is a lawyer bound to support an unjust cause?

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Part of The Lawyers Journal

Title: Is a lawyer bound to support an unjust cause?
Creator: Cutler, A. S.
Language: English
Year: 1952
Subject: Lawyers -- Ethics.
Rights
Fulltext: Is a Lawyer Bound to Support an Unjust Cause? . by A. S. CUTLER• , . . The layman's question which has most tormented the lawver over the years is: "How can you honestly stand up and def<ond .a man you know to be guilty?" Or, a'S to civil cases: "How can you defend a case whe::i rou know you client is wrong and really owes the money <iought i' .. At the outset we must («:member that in a democratic country even the worst offender is entitled to a legal d.:.fender. If a percon accused of crime cannot afford a lawyer. the court will_ assign one to defend him without cost. Many lawyers however, believe the right to defend means the dU.ty to ~iiiploy any means, including the presentation of testimony th~ la~yer knows to be false. , · Should ihe Lau>yer Blindly Reflect His Client! Such an attorney argues the lawyer has no right to judge b: ~ client to be guilty or to apprai'se a civil action by deciding .i.i~ c&ent is in the wrong. Such a lawyer argues that before one kno Nfl. _a person to be guilty in a criminal matter or wrong in a ch·il adion there mllSt be a judgment of the C9urt to that effect. Judgments are notoriously uncertain when ap~lied to conflicti;.g evidence. In supPort of ·this position, advocates enjoy r~citing the following colloquy attributed to Sai:n.uel Johnson by his famous bil)gr&.pher, James Boswell: ·· BOSWELL: But what do you think of supporting a cause you irnow to be bad? JOHNSON: Sir, you do not know it to be good or bad till the jud_ge determines it. You ar~ to state facts clearly: !IO that your thinking, or what you call knowing, a cause to ~ bad must be fro_!!l rea!oning, must be from supposing your argumenls to be weak and inconclusive. But Sir, that is not enough. An argument which does not covince yourself mav 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 ca.use js bad, but to say all you c3.n for your client, and then hear the judge's opinion. BOSWELL: Why, no, Sir,_. Everybody knows you are paid you have no warmth, and appearinv to be clearly of one opinion when you are in realitv of another opinion, does not such.dissimul8tion impair one's honestv? I'S there not some dan11:er that a lawyer may put on the same mask in commo-i life in the intercourse with his friends? JOHNSON: But. Sir, does not affectin11: a warmth when for afrecting warmth for your client, an.d it is therefore properly no di'ssimulation: the moment you come from the Bar you resume your usual behaviour. Sir, a man will no more carry the artifice of the Bar into the c~mmon intercourse of scciety, than a man who is paid fq_r tumbling upon his hands will continue to. tumble on his hands when he should walk upon his feet. · . It is argued that what a lawyer 'says is not the expression of his own min<J and opinion, but rather that of his client. A lawyer has no right to state his own thoughts. He can only say what his' client would have said for himself had he pOO:iessed the proper skill to represent himself. - Since a client is de\;med innocent until proved guilty, a lawyer·s knowledge that his client is guilty does not make him •so. As one attorney put it: The lawyer is indeed only the mcuthpiece and prolo• The author Is a member of the ~ew York Bar (New York City}; thb~ piece Is t11.ken from the American Bo.I" Journal, April 1!152.The Editora. cutor of his dient, and the underworld, in their characteri<Jtically graphic manner, indeed call their lawyers the mouthpiece. It is well to remember that an advocate should never bt:come a litigant, a's it were, and must never inject his own thoughts and opinions into a case. It is asked: Hew can a lawyer, or any person for· that matte'", know whether a person is guilty before his guilt is establisi1ed? "To be guilty" under our concepts of due process means to be so adjudged after a trial by a jury or cau;:t "\S due process in the particular case mav reauire. A perso:i charged with crime mi,ht be completelv deprived of counsel. For all the la-wyers in the community millht believe him guiltv and wash their hands of him. · Again: How does such. prejudgment of guilt differ from .the lynch mob, which i'S equally ~ convinced of guilt that it considers a trial an idle ceremony? True, to be Sb:\J.~g uP l]y the lynch mob without a trial may be son;i.~what more embarra~sing to the victim than to submit to a tri~l without counsel, but, if defense counsel plays the irriportant role which lawyers like to think he doe's, a person ch-arged with crime is indeed in an unhappy position if he has to rely on ·his own knowledge of the law ·and wits t!> counter ail experiencetl prosecutor bent on conviction and whose success is mea'Sured }Dr his percentage of convictions. · Another lawyer contends: On undertaking a client's cause, he must wipe out the villainy of the defendant with all the re'3our.ces at his command. Are not the facts that are unfavorable to his client to be left for the prosecutioD.? · · · If the lawyer may see the better way and approve (not to foster claims that are wrong) the circumstances that c'lmpel him, ~specially in criminal cases, tO follow the les':ier. Thus the law:ver lives with the maxim: "Video meliora proboqr.:e deteriortz sequor". · Such an attitude we submit enti~ely ove~looks the bifurcated robes of a lawyer. The duty is not simply one which he ow~ his client. . Just as important is the duty which the lawyer =J.wes the court and 'Society. Great as is his loyalty to the client, even greater is his sap c?ed obligation as an officer of the court. He cannot ethically, and should not by preference, present to the. court assertions \le knows to be false. The Canons of Professiohal Ethics of the · American Bar Association are deaf., succinct and unambigtious: The office of attorney d~ noi p~rnit, much less does it demand of him for any client, viO.\ation of law or anv manner of fraud or chicane. He must oi?eY his. own con-· science and not that of his client. The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merelv to haras's or to injµre the opposite party or to work oppression or wrong. His appearance in court should be. deemed equivalent to an as!ertion on his honor that in his opinion his client'~ case is one proper for judicial determination; The American Bar A::.·sociation recommends this oalh of ~dmission: I will not counsel or maintain any suit or proceeding December 31, 1952 THE LAWYERS JOURNAL 619 Is A La~r Bound To Support An Unjust c-u .. 7 which ehall appear to me -to be unj~. nor any defense ex~ (':~ :1, i.!i~lieve to be ,t.OJieslly debo'a~e 'l!lder ~ ·- I will emp~ for the purpooe of maiotainml the .. ..., confided to me such means only as are consi1tent with truth and honor, and will never seek to mislead the judge or jmy by any artifice or false atatement of fact or law. It io oaly when a lawyer rNlly believes his client is innocent that he ihould undertake to defend him. All our democratic safquards are thrown about a per,on · accused of a crime so that no innocent man may suffer. Cuilty defendants. thou•h tl.ey are entitled to be deleoded sincerely and . hopefully, lhould not be 'entitled to the pn!tentation of false testimony and insincerl! statements by--1. ·: It io too glibly said a lawyer should not judge hio 0w0 cijent and that the court•s province would thus be invaded. In more ·than 90 per cent of all c'riminal cases , lawyer knows when bra client io auiJty ar llOl guilty. The facts usually atand out with slaring and !lartling siJ.Dplicity. 11 a lawyer knows ~is client to be guilty, ·it io bi's' duty in ·such cue to tot aut the extenuating facts and plead for mercy · io which the lawyer sincerely believes. In the infrequent .numbet of cues where there io daub! of the client\ guilt anll the lawy.er sincerely believes his dient io innocent, he of coune should plead 'hia client's· caUIO to the b""t of hio ability. · · In civil caaet, the ~ of doubt is undoubtedly considerably l!l'eater. At a guess, only· one-third the cases pre10nted to • ·lawyer are pure black or pure white. In nilly one-third of th• · c .... does ·the lawyer indubitably know hio dient io wrong or righL lo the other two-thirds gray is the predominant· color. It is •he . duty of the advocate to appraise .the dient"s caute in bis favor. after giving due consideration to. the facts on the other .;de. lo such a case, it ls of course the dutv of the advocate to present hio dient's C!"! io tho' best of his ability; · r.1 . , Where the lawyer ia coovioced, alter 81..iyu;g the law and the la<:ts. that hio dient cannot s~d. his dutv is to obtain _the best settlement he can, fairly and .. peditiouoly. Every hour of ·the day, the lawyer is a persuader. Hi's surceH must be measured by the ability he possesses to make oth~ see 'lituations in the -.ame ligln that he does. That does not mean, however, that the lawyer should fool himself, He shaulci not be such a partisan that he blinks at the true facb and views the situation through. the raoe-colored glasses c:.f hopeful._ partisanship, ar hio. own self-interest. A lawyer lhould ,...-ship truth and fact. He '<hould uu · hesitatjngly ~.ut out the evil spirits of specious rea1oning. of douht .. 'ful daims, <3f incredible or improbabl~ nremiaes. Truly, the boot persuader io one who has first really persuaded himself alter a careful analysis of the lacits t.!>at he io on the risht side. Some allert that laW)'ers must be actor§. That is only partially b'ue. An actOr can porb'ay abysmal grief or eatatic happiness- without haYing any such corresponding feeling in his own heart. A young actor can well portray the tragedy of Ki•~ Lear, though hio I- is unwringled and unmarred alter has make· up is remcwed over ~'°;!.h:;~ 'd::1r'!:: ~;g~i: :~·~u'?.b"! mere girl whose aaly relationship with children has been with I"' own sisters and brotto.ers. The good lawyer cannot make such quick aan~s •• t.h.t actor. ' The trUe lawyer can only be persuasive when he honeativ beijeYes 9',e is riadat. Then the able advocate is invincible. His persuasiveness is to powerful that it can pierce throuah IOek and • s!o.el•,. ltldoeAI.- it is so.-.stroog that it can chanp the mind of a jiiilge wlio 'bu' already decided to find to the cool[my. · · Ofttimes a lawyer has argued again1t his better 1uda:rDP.t, bu allowed himself to be persuaded aaaiM! himself. Sometimes too, he has won.. Yet, no lllf.tter ~ l!l'08t the mao, the true lawyer cannot di'ssembl.e. 11 he has. no confidence in his own locts and in the truth and righteoume11 of his dient's cause. then nc matter how hard he tries and how good an a- he may be. his auditors will perceive that he himself does not reallv belie .. ·what be utten. That way. lies di1aster. lo this search for the !,IUl'lainme~t of the truth, however, th• lawyer should not hypnotize. himself.' Merely be?use hio cllent retains him for a fee, the lawyer should· not oermit himoelf" to be o' erpenuaded. It has often been ••spec!ed that the more gold wiih which you croos the palm of the fortune-tolling «YP'Y· the better mirht i,.. the fortune slie would predic• It hardly need be •@id that lawyers, however, should be ahem the ilinerant and nomadic atatus of RYJ>sies. Their power to look the facfls in the eye should not be affected or weakened merelv by the size of the f~e involved. It is to be noted that in this diocussion, the lawyer always 0c:ts with sincerity and honesty. His }!_artisan paaition predisposes him Lo believe in his dient's cause. lje is not insincere. enou~. bow- .. e\"el", to tender facts that he knows to be false or take a pcnition · in .which he does not believe sincerelv. A lawyer who sians hio name to a set of papers, should in ellect vouch for the honesty and !aim.., of his cliont's cause. Otherwise strike and blackmail suits based upon improper motives would clutter up the court calendars to such an exent that honest and fair causes would be 'Seriously delayed in trial. It is as much the lawyer's duty to brush off and refuse ton .rticipate in cases that are mouldv i?id can· dDlv add _de1tructive fungus arowth to the tree of jU''1:ice, as it is to ·refuse to auilt Pl the subornation of perjury. ~ lawyer sho.uld .itrive to do his bit towards pruni•a and keeping alive the indisnemable flower of justice as the gardenq tends and nurtures his J>lants. All lawyers know everyone is entitled to the beat defenae h· cap muster. This does DC!t mean every lawyer m111t take· everv co.ff. including those in which he has no belief in his client•• conttntion.. For instance. a ~I-known public figure. very active at the Bar, refuses 19 represent alleged bootleggers. counterfeiters or rapists. Should he be cenaured because of such prejudices~ There are thcusagds of others at the Bar who could have repieoented defendants accused of those three crimes. when inde• i they were innocent. ' The matter of duty and personal preference is not to be CO'l fu1~. A lawyer has the right to repre~nt in civt1 courts the hu!baod or wile a..,...d of adultery. He does not have to do so ueless lie sincerely believes that his client i1 innocent of the offen"eo charged. · Of course. when a lawyer is assigned by the coun. he 'lil.Wlullill his obligation to the courL This does not indude, ·how· ever, presenting false oc improper tesili.pony. Nor doe. ~ justify diaimglation and i~sincerity, even .where the lawyer is consummat~ icg a court order to act in defendant's behalf. Rather it i> the duty of such an ad..,Cate to present all the relevaot. lacb and circumatances. If he can show the prose· cution is mistaken and his client is innocent. that is his duty~ If h• knows hi> client to be guilty; _then· it is his c!uty. merely to ,,.... (Continue~ on P•P '171) 620 ,THE 1,A WYERS JOURNAL December 31, 1952· Book Review REVISED PENAL CODE-: by Vfcente J. Franc:seo, · i-tpaired, so--h~d Pean -~r&ncisco .incisively cut tQ th~.d~ East Publishing, 1952. Vols. 1 & ·2, !"19.00 a volume; "'1ilosophical beds underlying e~ch provi.ioo of the peoo) .cad•. P35.00. a set. This was don_e. · ~ the. pref a~ -states, '"not out of presuJP.pbOn. None has contributed more to the country_'s legal literature but in the honest 'ConvicriC!n that a coUection of prO'lisians of l~w. than Dean Vicente J. Francisco. He has written Jegal treati~es and decided case_s must ·necessarily be haphazard, co~ing, _and and texts 00 almost ~ery ph~e of th~ Jaw, and always, each in the end of little help or value, unless it is brought together and field of the Jaw upon whicft-his .. incisive mind has ploughed. has ciianized oi:i the basi!· of· principles." · been enriched thereby. Every book he has written i's concededly At the same ·time. the ~mphasis due to judicici.I jnt~re~~On authoritative. and on more th~n one· occasion, the Supren:ie Coui-t, and applications. of:our criminal law wa'S not neglected.· OQ the iu its ,decision·. made reference to some of them. And if all the contrary, discus'sion ·of the decisional -l~w on the subjeCt waS made l<·gal tre~thes and texts he .bad previously written bear~~ i~ ruore comprehensive; by the manner of-presentation adopted;.'i~ preas of authority, that impress. ~ould be m~re m:u~ed and mdub!- is made in question and answer form in the maDDer. of Viada. table on his latest book. the sub1ect of wh1ch-cr1mmal law-~e IS The legal problem posed by every proviso in the penal code··and most qualified to write about. To, this subjec~, he h~ de_dicated a i:.> solution are presented in a direq, dramptic and .e~ly . .'.UIJ:dergreat portion of his life;· to his su~~. in its practice, he ow;" standable way. S~ch mode of approach· makes possible a :commuch of his fame as a legal practitioner. Indeed, the Dean s prehensive di~ussioa of almost al~ !he c&Jes decided. by the Suname has become inextricably linked, has become almdit synony- preme Court m connection with the particular proviso in. qu'81'.io1• mous even, with criminal law. It is not surpnsmg. ther~re. that Tl;n~s, the book i~ !lot only. an analytical study of the philosophy the publication of the present volume has been much awaited and behind each prov1s~c:m of: the code; it ah!o serves :the purpose of a. so well received. ca~-book. ynth th_1s deci..ded advEmtage: that it is.. presented in a Th I th ost ecent~ of the commentaries f4?.rm m~t c~nvenient both. for die busy la'Y}'er in the provinces th 'R ~dfa vol'C:Je ~w':s pr:mpted by the author's .. ~ - ·who clue. t~ c1rcumstan~ ~ftim~ beyond his·con~ol. -~annot keep on e evrse ena . • l d k .1 bl t th abrealst-with· all th.e decmons of the Su.preme Court -as· well a~ lief th.at i~ is his pro~ession.a th uty tod~a f av~! ·~at la:,~. Aii for the candidate for the bar. whO will find in· the n~er mode of hkni~ pr1~1~nal .experhien~~ . m k ~ t:a n~~: s:lf .citmbecomes ~f any app~ach, apt trainin!. in· how· to make effective answers to b·ar ow c."'tSe .. IS vam w en It is. ep 0 • • . I d questions. · use only when im~arted to oth~rs. The 1mp,artmg of know e ge: hc.wever. will be ineffectual, 1f not 4one·lYJ.th a noble ~urpose. Taken.all.tog~theJ!, Pean Francisco's Revised Penal~CodP. The· present work, impelled as it had been b.r the . auieor s ~en'Se is the most comp_re,flensiy~ s~udy. of· criminal law. so far pUblilm.ed. of kiruhip with his feJlow lawyers. and by his desire· ~ aid ID E;ach article of t,h~ ':Revised Penal Code is treated first, from ·its the fulfillment ·of the profession's ·pledge to defend_ t~e m~oce~t h1srorical aqd philosOphical background. folJowed by .the judicial and bring the guilty to jwtice." ha~ such .. a purpose. An~ m thi5' int~rpretations made tliereof. In conttovei~al ··questions, ·and iri st-nse, the book may tightly be; called a labour of love. the a~nce of decisions· by· the hil'her courts oil the matter, the • · · d k I · · auth~r ~tigg~t_s possible solutions. In the book, on~· readily ~ Dean Francisco's RetJiseJ Penal Co e ma es a we~ome the hand of )1. legal craftsman: ·it" is Written in a scholarly, ·but departure from the usual technique employed by other co~men- r~adable and far from pedilntic. ·manner. It breathes the spirit tators on the penal law. The autho~ has n~ contented hmrself and intent of the purpdie and fpnction of our· criminal law. It with citing and reproduci~g controlhn~ ~ecisions. but ha~ v~~- is compact but thorough in the treatment of the subjec't mat. tufed farther afield by settmg .down pri~cip~es and c~me~t~rie_s ter, anf] should be a cre~it to. the profeesionaJ library of judge;s derived from the ohilosophy and the Jurisprudence of cmrunal and ]awyers as well as to the bookshelf of stUdents ·bf law. law. As a skillful surgeon artfully cuts to l'et to the affected parts of the human anatomv sO that thev can .be remov._ed_o_• _____ ---------AT_. T_Y_. __ L __ oP~E~E_. A_D_R_r_AN_o_ IS A LA WYER . • . (Continued· from page 620) son argues, may not affect thi: character or soul of -ihe ·waJk~!". b h If Pleading earne~.Jy a cause which the lawyer knows to be untrq.e sent the· 6xte~uating facts &nd circumsta~ces on his client's e a · cannot btit perqiciously affect his charader. Chicanery and .insincerity sho~ld be nQ part of a lawyer's Whatever the situ.ation wa\s in JOhnson's day •. there should rnake-.up in any case. be no ~rtifi~ at the B~i:. Nor shoul~ a man "resume. his: W~aJ LeJ us return for a moment to the deliR"htful dialogue between behaviour .. the moment he comes from ihe Bar. The JaWjrer's Baswell and Johnson. It makes wonderful reading. Is it a reel usual behavior both in his office. and 8.t the Bar and in Societ\'. answ~ to the question pqsed p.t the b,eginning of .. this an~cle? should be that pf a man of pr~ity •: integrity aiid absolute dep~D.o. you_; MJ\ Lawyer, or 'ihdeeci UY human being posse~s dability. , ~ , tlie ambivalenee· to dissilllU.late ·in the courtroom, and· to .. resum~ The argument that a lawyer should be a mouthpiece for bi) your usual behaviour'·'. when you come from the Bar? Can yo11 client, indelicate as that connotation may be, is specious and onl.V throw off insincerity. and dissimulation. in the courtroom as thouP.I; logical to a limited extent. A lawyer shou14 nOt J>e m~rd)', ·~:.m:- it were a cloak, subdue that dishonest portion of your th~nki~li!", chanical apparatus reproducing the words and tJioughts and aliand resume being a man of. ~DteSrity whCn yoti retuFD to your bis· .of his client, ·no matter haw insincere oc· di\Shonest ... Rather the office? ~ r 18.wyer ·should refuse to-1peak ·those words as a mouthpiece, un~ less the utlerances of hi~ client are filtered and purified by truth Inevitably the two character traits contained in the one bodv and sinC.Crity:· -· · · - =~:!iJYd ::.::~~e~ in?e:;ii~;sl.v. dissimulation and insi~c~ritv will . Chicanery., dissimulation and insincerity may be words to be found in th~ dictionary in the lawyer's library. But thev should Whether he. w:~~~- ~'?l;l .~i~ .h.an~ .. ,?!'.. feet. ~:s Samut:I Johll~ .. never be ~o~nd in the Jaw:r~r·s heart. 676;- THE LAWX~RS JOU.RJo<AI,· December-· ~1; l~&e: -