The Lawyer's Function

IN the Congressional Library at Washington, above the statue of Law, appear the words, “Of Law there can be no less acknowledged than that her voice is the harmony of the world.” In many recent publications have appeared casual references to lawyers as a class of parasites feeding upon the labor, the disagreements, and the unhappiness of others.

The conflict between these two sentiments, of which perhaps the latter has the more general acceptation, would seem to make it worth while for a lawyer to examine into his conduct, and the conduct of his professional brethren, to see whether he and his kind are harmonizers of society, spreading peace and fostering unity, or parasites, welcoming discord, and living from the sores and afflictions of their fellow men.

At the outset, it may well be admitted that what is here written down may contain neither new ideas nor even old thoughts in modern tailoring; but now and then it need not involve a waste of time to go down into the cellar of the past and look upon the foundation stones, or even perhaps to strip away the interior decorations of our establishment, and see of what sort of material our house of labor is built.

The first query which naturally presents itself is whether the present vast and complex administration of the law is a necessity. Incidental to this query there is, of course, the consideration as to whether or not rules of conduct for society as a whole, and the individuals therein, are essential. But for the purposes of this article, perhaps we may assume, without argument, that society as a whole recognizes and always will recognize that there must be fundamental and accepted guides for conduct in business and social relations, and that there must be a machinery for enforcing the individual compliance with such principles for the common benefit.

In an elementary social state but few laws would be necessary; but it must be obvious that, as population increases and the occupations of men show augmenting variance, the applications of fundamental laws will increase in complexity and refinement until the time inevitably comes when it is necessary, not only to have judges of conduct and tribunals for the settlement of disputes, but also to have in the community certain members devoting themselves wholly to the study of the growth, development, and application of legal principles, in order that the judge, to whom new and complicated situations are presented for decision with such frequency as to allow scant time for consideration, may be enlightened as to all the elements of the problem on behalf of each litigant. Furthermore, in the search for truth, as distinguished from that which appears to be true, or which may be true, it is inevitable that the rules for making such distinguishment will become as important as the rules for the ultimate decision of the controversy. Professional advocates would therefore appear indispensable, granting acceptance of present social conditions.

Perhaps, then, the assumption may be fairly made that the function of the lawyer as a harmonizer is plain and valuable; and we may enter with this premise upon the intended consideration of this article.

When is a lawyer a harmonizer and when a parasite ? The suggestion that a lawyer is ever a parasite will probably meet with such ready acceptation from all grades of society that no argument will be necessary thereon. It is the present intention to show that there are certain plain lines of distinction between the function of harmonizer and that of parasite, which can be borne in mind by every practicing lawyer to the advancement of his own self-respect and for the promotion of society’s esteem for the profession.

A lawyer’s activities may be divided into three classes: Advice, Litigation, and Law-making.

In the realm of advice a lawyer may choose between counseling his client how to uphold the rights secured to him by the justice of his cause, and how to obtain benefits from the application of technicalities and the use of the weaknesses of the particular statute or precedents under consideration, whereby he may attain advantages inconsistent with fair play between man and man. Every time a lawyer encourages such an application of the law as, resulting in injustice, casts disrepute upon the law, or its administration, he is plainly promoting discord either in the present or in the future. Every time a lawyer counsels controversy for the establishment of a right as recognized by existing law, or for the promulgation of new law beneficial to the majority of society, he is exercising his true function, and the charge which he lays upon his individual client and, through him, upon industry and progress in the mass, if reasonable in amount, is well earned and should be cheerfully paid. When, however, a lawyer gives the other kind of advice, the expense, perhaps cheerfully borne by the client who profits personally therefrom, must be finally laid upon society as a whole, which is thereby paying for its own injury, and naturally resents the charge.

Let it be understood that there is no assumption in this article that men are unwilling to be known as parasites, or to reap the rewards thereof. It should, however, be noted that in the long run humanity manages to exterminate the parasite, and the survival of the legal profession, and the perpetuation of honest pride in this occupation, must be entirely dependent on what lawyers give to society in excess of that which they take away.

The activities of a lawyer in litigation even more characteristically exhibit these two functions. The lawyer who endeavors by every means to present fully and completely all the elements of his client’s cause, and to point out, with all the directness consistent with courtesy and calm, the defects in his opponent’s presentation, is fully meeting his responsibility to give a conscientious judge all the information obtainable bearing upon the question at issue. He is therefore promoting speedy as well as just settlement. On the other hand, the lawyer who, by every artifice at his command, endeavors to cloud the strength of his opponent’s cause, not striving to show the real weaknesses of testimony, but, by befuddling witnesses, attempting to create false weaknesses; who endeavors, in his own case, not so much to bring out all of the strength of his actual position, as to build up a situation mixed of truth and supposition which may give his client an advantage — this lawyer is not only breeding distrust of the law in the minds of every one within the court-room, but is making for ultimate injustice for both his client and his adversary.

In the third division of a lawyer’s activities perhaps there is more of the parasite and less of the harmonizer than in either of the other two. A mass of lawmaking, in fact, one might almost say the mass of law-making to-day, is devoted to the promotion of special interests, regardless of whether the common good is served or not. The lawyers who devise such schemes, and the lawyers in the legislature who allow such bills to become laws, are remarkably plain examples of the parasitical class. Yet in the province of law-making is one of the broadest and most splendid opportunities for the true harmonizer. Here, lawyers, finding through the practice of their profession the defects in the present law, may serve the community in a most effective manner through drafting and agitating for laws which their experience has shown to be desirable.

Allied to the possibilities of law-making is the opportunity constantly before a lawyer for the unmaking of laws, largely through the application of so-called constitutional principles. Here, again, is a plain line of demarcation, depending not so much upon whether or not a lawyer believes a law to be for the good of the majority, but rather upon whether he approaches the problem presented to him, of the possibility of overthrowing a statutory enactment, with the attitude of determining his course of action from a consideration of the essential merit of the law, as shown by a fair construction of the Constitution, or takes up his problem with the simple desire to find out if, by any possible construction of Constitution or statute, he may be enabled to overthrow the law, entirely regardless of its value to the community.

Among many objections to the foregoing reasoning, two may appeal to most lawyers. First: that it is exceedingly difficult to classify every activity as either harmonizing or parasitical. Second: that, were it possible to make such a classification with fair accuracy, the results attained would be hardly worth while, and distinctly impracticable in a business epoch. The conclusion from these objections would seem to be that the only proper standard for a lawyer to take is to work with all honorable means for the attainment of his client’s purposes, and rest the ethics of the situation upon the shoulders of his employer. The word “ employer ” is used because such an attitude necessarily results in making a lawyer a mere hireling. If, however, the law is to be esteemed a profession, there must remain with a lawyer the right and duty, not only to determine what shall be honorable means to an end, but whether that end itself is advantageous to, or subversive of the interests of, wellordered society. If a lawyer is to be a counselor, an officer of court, and hence a quasi-public official, he has a public trust to lend his efforts to the advancement of the common good and the promotion of social harmony. If a lawyer is a mere business man, employed to do a certain task for a certain wage, then he should, for the sake of honest manhood, strip away the cant, the deceitful pomp and circumstance which attend upon professional pride, and take the inevitably resultant position of a parasite, not necessarily harmful in all his activities, perhaps often feeding from malignant growths and hence benefiting his fellow men, but on the whole reaping or gleaning from what others have sown.

It does, however, appear from the trend of the times that future decades will show an increasing ethical communal responsibility among all classes of society, and among all reputable occupations. In this advance it would seem reasonable to expect that lawyers, as those who face daily the problems of the fulfillment and breach of obligation, and hence are keenly observant of the moral growth of a community, will strive to better thenworks in even greater degree than their fellows. The position of counselor is indeed difficult to fulfill for one who does not feel that he possesses a keener, deeper insight into the complex questions of right and wrong than is within the comprehension of the one who comes to him for advice.

There are certain branches of the profession which to-day have fallen into some disrepute from the well-recognized impracticability of obtaining an income therefrom without the sacrifice of considerable self-respect and the regard of one’s friends and neighbors. Perhaps therefore, gradually, the lawyers who are harmonizers and who refuse to become parasites may be differentiated from those who wish to be harmonizers but allow themselves to become parasites, even as these are to-day differentiated from those who wish to be parasites and now and then incidentally are surprised to find themselves harmonizers. If such a distinction should ever obtain general acceptation, the eventual disappearance of the parasitical lawyer will be inevitable. Let it once be known that the majority of the profession refuse to promote discord and only lend effort to aid in peace and security, and the success of a plainly unjust cause will be well-nigh impossible, since the appearance of the parasitical lawyer in court will condemn the case ab initio, and the judge who will rule in favor of such a one will be required to satisfy a suspicious public of the purity of his motives before expecting further confidence to be bestowed upon him by the voter or the appointive power.

It may be that this writing has begun too far in the “ shadowy past,” and gone too far into the “ misty future,” to permit of its being of any avail in the “ living present; ” but when one realizes that the past holds all our guides to conduct, and the future all our reason for being, the demands of the present diminish considerably in importance. At least, it may be said that those members of the Bar who realize that there is an ethical problem constantly confronting them and adopt some standard for its daily solution, are storing up comfort against a future day of doubts. When they, warmly clad, well fed, and comfortably housed, see the bread line forming in the city square, when they pass the careworn, anxious crowds waiting outside the newspaper offices for the first edition of “ want-ads,” when they observe from house to office twenty shapes of wretchedness to one appearance of happiness, they may examine into their conduct of life with calm scrutiny, knowing that, whatever be the wrongs responsible for these miseries, that which they have taken from the world has been in exchange for full value received, and their bread and cake have not been bought at the expense of such as these.