Ethics in Service | Page 8

he is to decide. The real enthusiasm of advocacy which is necessarily developed by the relation of attorney and client would doubtless have a tendency to mislead the court if exerted in behalf of one side only, but where both sides are represented, where the same earnestness in the proceeding of each side is present, it is the best method within human ken to reach a sound conclusion both as to the facts and as to the law. No one who has had experience on the Bench in reaching judicial conclusions and who has thereafter been obliged in an executive position to reach important, and it may be final, conclusions upon questions involving both fact and law, can fail to recognize and acknowledge the powerful influence for justice that honorable and learned members of the law exert in the causes which they present to a court. The counsel who argues the losing side of a case contributes quite as much to the assistance of the court as the successful advocate. The friction of counsel's argument against counsel's argument develops every phase of possible error in a conclusion and thereby enables a just, intelligent, acute and experienced court to see clearly what is the right which should be embodied in its judgment.
The practical value of argument by paid counsel on both sides is shown in many ways. In the first place, it is well understood in weighing legal precedents that there is little authority in the decision of a court which has been reached without the benefit of the argument of counsel. In some states, courts are required to answer questions from the legislature as to the constitutionality of proposed laws. The best authorities hold that opinions given under such circumstances are merely advisory, since they lack opposing arguments made by counsel whom the spirit of professional advocacy arouses to industry in the search for precedent. They go so far as to say that answers so given should not conclude the same court in a litigated case arising subsequently. An earnest and commendable desire to win leads the counsel to search not only libraries but his own brain for the strongest reasons that he can summon upon which to base a judgment in behalf of his client. Why is it that a great Bar makes a great court? Though it may seem a truism, I repeat, it is because the great Bar furnishes to the court all the reasons that can possibly be urged in each case and enables it to select from among all the reasons developed by the ingenuity and intense interest of men skilled in the law.
Counsel ought to decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass the opposite party or to work oppression. His appearance in court should, therefore, be deemed equivalent to an assertion on his honor that in his opinion his client's case is a debatable one and one proper for judicial determination. He should know that under a proper code of ethics, no lawyer is obliged to act either as adviser or as advocate for every person who may wish to become his client; that he has the right to decline employment, and that each lawyer on his own responsibility must decide what business he will accept as counsel, what causes he will bring into court for plaintiffs, and what suits he will contest in court for defence. The court knows that the responsibility for bringing questionable suits or for urging questionable defences, is the lawyer's responsibility. He can not escape it by urging as an excuse that he is only following his client's instruction. The judge knows that no honorable lawyer would coach a witness to testify falsely, and that in dealing with the court each lawyer is required to act with entire candor and fairness in the statements upon which he invokes its action. The judge knows that it would not be candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the argument of opposing counsel, the language of a decision, or the wording of a text-book. He may fairly rely on a lawyer not to cite a decision that he knows has been overruled, or a statute that he knows has been repealed. He may properly rely on the counsel's not asserting a fact that has not been proven.
Yet he knows that lawyers owe entire devotion to the interest of the client, and warm zeal in the maintenance of his rights and that they will exert their utmost ability lest anything be taken or be withheld from him, save by the rules of law, legally applied. He knows that counsel has the right to proceed in the view that