The ideal lawyer! Is such a being possible? To many the adjective and the noun stand in contradiction. As well speak of the ideal thief. "Ideal" in the best sense of the word implies supreme excellence. It suggests as to persons that moral superiority which attracts and compels admiration. But such a character is to many incompatible with the life and work of the lawyer. In the declaration of the Master, "Woe unto you lawyers," they see the deserved condemnation of the entire profession. In their judgment one may properly speak of the best, the most successful, the most active lawyer. Indeed, any superlative is accepted as appropriate which does not suggest morality. The early history of Massachusetts illustrates this.
Washburn, in his Judicial History of Massachusetts, says: "It was many years after the settlement of the colony, before anything like a distinct class of attorneys at law was known. And it is doubtful if there were any regularly educated attorneys who practiced in the courts of the colony during its existence. Lechford, it is true, was here for a few years, but he was soon silenced, and left the country. Several of the magistrates had also been educated as lawyers at home, among whom were Winthrop, Bellingham, Humfrey, and probably Pelham and Bradstreet. But these were almost constantly in the magistracy, nor do we hear of them ever being engaged in the management of causes. If they made use of their legal acquirements, it was in aid of the great object which they had so much at heart,—the establishment of a religious commonwealth, in which the laws of Moses were much more regarded as precedents than the decisions of Westminster Hall, or the pages of the few elementary writers upon the common law which were then cited in the English courts."
By an act passed in 1663, "usual and common attorneys " were excluded from seats in the General Court, as the Massachusetts Legislature is called. In 1656 the following statute was enacted:—
"This court, taking into consideration the great charge resting upon the colony, by reason of the many and tedious discourses and pleadings in the courts, both of the plaintiff and the defendant, as also the readiness of many to prosecute suits in law for small matters, it is therefore ordered, by this court and the authority thereof, that when any plaintiff or defendant shall plead by himself or his attorney, for a longer time than one hour, the party that is sentenced or condemned shall pay twenty shillings for every hour so pleading more than the common fees appointed by the court for the entrance of actions, to be added to the execution for the use of the country."
There was a crafty wisdom in this statute which commends itself to any one of much experience on the bench, and I venture to suggest that a similar act might to-day be sustained.
If the ideal lawyer is the one who stands at the head of his profession, and is regarded as the ablest lawyer, the question arises: What gives him his position, what is the general understanding of his characteristics and qualifications? Many would say that he is the one who has the greatest knowledge of the law and is most successful in keeping his clients safe from the consequences of their own wrongful conduct. The idea that he carries conscience into his own life, or into the advice that he gives his client, is repudiated. I remember listening to a severe denunciation of the profession. After a while I ventured to ask the individual so denouncing, his reason therefor, and he promptly replied that once, when sued on a promissory note, he was pressed for money and wanted time. So he consulted a lawyer, who advised him that the statute of limitations was a perfect defense, and on his suggestion that plea was made, sustained, and judgment entered in his favor. He insisted that the lawyer ought to have told him that as an honest man he should pay the debt; that he should not have advised him to the wrong of pleading the statute of limitations. After some conversation I asked him if he had since paid the note. "Oh no," he promptly replied, "I have a judgment against the owner." He was abundantly able to pay, and the burden of his complaint was that, although the lawyer had stated correctly his legal rights, he had not at the same time assumed the prerogative of directing his conscience to the injustice of a technical defense to a just debt.
But a curious contradiction to this denunciation of the lawyer is his prominence in official life. Without stopping for statistics, which have been so often collated, it is enough to say that in the public life of this country the lawyer has been the conspicuous factor. The judiciary, of course, is altogether composed of members of the profession. In executive offices and legislative halls the law has predominated and still predominates over every business, and all other professions. Yet the public life of this country has been of the highest character. Acting for the public as the lawyers have done in these various fields of official labor, they have proved true to their employment, and it may safely be said that the scandals which have sometimes been found in official life have seldom attached to them. How can this be accounted for except upon the theory of a general personal integrity? It will not do to suggest that the office-holding lawyers are mere illustrations of that singular character portrayed by the novelist Stevenson, Doctor Jekyll and Mr. Hyde,—honorable, high-toned, faithful, in one aspect of life; dishonest, unreliable, base, in another. Neither will it do to say that they have been selected for official life only because of their capacity for drafting statutes, bills, and documents, their familiarity with the details of legislative and executive life, and that the public consciously ignores the want of character. Nor is it a sufficient explanation that, although the great mass of the profession is corrupt, there are a few who are reliable, and they are the ones whom the public select for official life. The truth is, their very prominence in public life, their fidelity to the trusts therein imposed, is evidence which cannot be ignored that the profession has and maintains a character for honesty and uprightness which attracts general confidence.
Beyond this official recognition is local prominence. Go into any village, town, or city and ask for the leading citizen or citizens, and you will be sure to hear the name of some lawyer. In our New England villages, Squire, as the lawyer was familiarly called, was generally named as the leading citizen. This official selection and social prominence furnishes satisfactory evidence that the profession is not destitute of moral superiority; for surely it would be an unjustifiable reflection on the American people, that they give official and local prominence to unworthy men.
Still again, no profession is to-day so singled out and entered upon by ambitious, brainy young men, as that of the law. No one is so crowded. It does not stand to reason that the high-spirited Americans are pressing eagerly toward a profession whose practice implies dishonesty. Do not all these things point directly to the fact that there is an ideal lawyer, that moral superiority is consistent with and to be found in the profession?
Before, however, considering the characteristics of the ideal lawyer, let me notice some other charges against the profession. One is that it is a consumer and not a producer. It adds nothing to the material wealth of the nation; it lives and grows fat on the mistakes and sins of others. The farmer, the miner, the mechanic, the manufacturer, all are adding to the general property. The artist, sculptor, painter, or architect leaves behind him, in stature, painting, or building, visible, tangible evidence of his contribution to the well-being of society. The lawyer does nothing in either of these directions; he is only a burden upon and not a blessing to society. It may be conceded that he adds little to the material wealth of the nation, that his work is not with things that are tangible, and which perish with the using; but shall it be said that that profession which has produced the mighty structure of the common law, with its wealth of blessing to social, business, and political life,—which has stood in all the great epochs of Anglo-Saxon liberty as the earnest and strong defender of the common people,—has produced nothing of blessing?
Another charge is that it promotes quarrels. As it lives by the disputes of others, the more disputes, the better it lives. So it encourages litigation. It magnifies to the individual his supposed wrongs, and provokes a lawsuit, when a few kindly words would settle all controversy and leave friends where he has made enemies. In other words, it is a stirrer up of strife. A familiar saying is that two lawyers will grow rich where one will starve. No one is injured without some lawyer suggesting an action to recover damages. To preserve a semblance of respectability he employs that phenomenon of despicability—in Western parlance called a snitch--to work up the lawsuit and secure his principal's employment. The existence of these legal parasites may be conceded. Unfortunately they are too numerous. But they represent the lower side of professional life and they speak for only the commercial fragment. They do not typify the profession, nor illustrate its ideals. Against them no war is so earnestly waged as that carried on by the bar itself. Indeed, the great lawyers, they who are the leaders, are more distinguished for their ability to settle than to promote litigation. The true lawyer is a peacemaker, a counselor rather than an advocate.
But I must not tarry on the lower phases of professional life. Let me rather discuss the higher. For it is the ideal lawyer I wish to present; and what has been said surely indicates that there is a higher side, that the term "ideal lawyer" is not necessarily or even generally a contradiction between noun and adjective.
Law is the potent force which binds all the separate, and often heterogeneous, individual atoms into a single social whole, unites protection to the individual with efficiency of combined action, and thus makes possible all the blessings which have come through increasing civilization and improving social order. And surely he who is the great artificer in the workshop of the law is not to be ignored in the consideration of the great problems of life. Indeed, strike from Anglo-Saxon history and present American life the lawyer and his achievements, and Sahara's shifting sands would present nothing more barren and hopeless.
So I pass to the question, Who is the ideal lawyer, what are his characteristics, what his essential elements and qualifications? And first let me say that he is honest,—honest with his clients, with the court and jury, with the public and himself. And this honesty is not, like good clothes, put on for prayer-meetings and social occasions, and put off in times of business or politics. It is that thorough, ingrained honesty which knows but one time, and that is life; but one duty, and that is action.
Every lawyer aims to be honest with his client, and with the court and jury: self-interest compels this. He knows that fidelity is essential to success. The most dissolute and depraved man, in the hour of sickness, seeks a doctor on whose advice he can rely, and who will be faithful to his patient. Never does he call in one whom he cannot trust. So the worst of men, needing legal advice, go to a lawyer who will not betray them. And this is the general rule of all employment. I care not how corrupt a community may be, let it be understood that a lawyer is faithless to his client and betrays his interests, and he is shunned by all. He loses not only caste but business. Seldom do we hear of a lawyer who proves false to his client. Indeed, the complaint is that he is too loyal, and that in order to serve his client, he acts dishonestly to others and wrongs the public.
In like manner self-interest compels him to be honest with the court and jury. He knows that success depends largely on the confidence which they have in his truthfulness. I have been on the bench, trial and appellate, for forty-one and a half years, have held court in a dozen states, have had before me thousands of lawyers, and only in a single instance did I ever detect one in a deliberate, intentional lie, and I soon made his practice in my court so inconvenient that he left the state. I do not mean that I have not often found lawyers exaggerating or omitting facts. Generally these exaggerations and omissions were thoughtlessly made, and were due to the eagerness of counsel to impress the court with the merits of his client's case; but sometimes I fear they were intentional. I doubt not other judges would make a similar statement of their own experiences. Indeed the judge must largely rely on the statements of counsel, for in the vast volume of business which comes before most of them there is no opportunity for a personal examination of the truthfulness of every such statement.