WARREN ON THE DUTIES OF ATTORNIES AND SOLICITORS.
IT has been the aim of all great teachers to elevate the real by means of the ideal. The pupil is bidden to strive after a state of perfection not mundane, in order to attain an earthly excellence. The student of the higher branches of art is urged to seek after an unattainable beauty and sublimity, that he may acquire an actual grace and gusto grande the humblest are excited to study a style above what they may finally pursue, in order that this lower branch may be improved by traits of the purity and severity of that whence they have descended. It is the same in morals, and properly so. As we never can get all we even earnestly hope for, a man will never become so good as he wishes; and the only effect of taking his merely possible as a model, would be to make him worse than he really need to be. Mr. Warren has acted upon this excellent rule in his Advice to Attor- nies and Solicitors in ease and posse, delivered in a series of lectures at the Law Institution. Taking for his text the initiatory oath, "I do swear that I will truly and honestly demean myself in the practice of an at- torney and solicitor according to the best of my knowledge and ability— so help me God," he proceeds to lay down the law for producing the beau ideal of an attorney. The great importance and power of his calling to the interests of his countrymen—the high and rigid morality he should strive after—the sedate but courteous demeanour and the patient mind he should cultivate—how he should "scorn delights and live laborious days," in order to sustain the character of an "attorney at Law" or a "solicitor in Equity "—are eloquently reiterated upon the student. Blended with this general exhortation is a variety of advice more prac- tically useful. The most judicious conduct for the pupil to pursue during the early years of his articleship, the works he should read, and the sta- tutes he ought to master as he advances in his status pupillaris, are pointed out, together with a variety of information, which may be called "prime wisdom," since it lies before him "in his daily life." As long as Mr. Warren has to deal with the education of the youthful lawyer, he can sustain the high moral tone of his discourse. He does his best, too, when he enters on the practical duties of the passed attorney, to uphold the height of his great argument : but the daily pressure upon the actual practitioner is more than morality will altogether bear tip against. He must not foster litigation ; he must not misadvise Ins client, or permit ease or carelessness to injure his interests ; he must not
exercise undue influence over his mind, (for if he do he may get hauled over the coals,) or even take a legacy left him to the injury of the right- ful heirs. With the clients of his brethren the case is different. Much, indeed, is said, and very properly said, of the honourable spirit in which an opponent is to be met; but still, cases do occur, where, if you cannot beat him on the merits, you must try to do it on the forms.
"If the case against you be of such a nature as warrants you, according to your best judgment as a conscientious and gentlemanly practitioner, in taking a technical objection to the reception of some instrument intended to be adduced against your client, and of which you may have an exact copy,—if, for instance, it had been wrung from your client by duresse, or obtained by fraud, but of which you have no legal proof,—consider well beforehand whether the objection be really tenable. Do not show your teeth unless you can bite; for it is likely to expose you to the derision of your opponent and the severe comments of his counsel in court. Take care to have the document carefully counted beforehand —every word of it—by one, or perhaps two persons, on whose accuracy you can rely, and let them be in court; and also have you a copy of the Stamp Act in court; so that if you take the objection you may do so effectually. How many a fraudulent instrument has thus been happily reduced to waste paper In- sufficiency of the stamp is an objection much oftener overlooked than may be supposed. One of the present judges, a great ornament to the bench, when at the bar led for the plaintiff in a cause on the Northern circuit, in which he obtained a verdict, after a display of much practical skill and tact. As soon as the verdict had been returned, he said, while unrobing, to one of the juniors on the other side, What could you all have been about to let that deed pass muster? The stamp is wrong!' And so it was! Why,' he was answered, 'our attorney ought to have looked to that—' 'So he ought,' was the smiling reply; but ours did—found out the blot, mentioned it at consultation, and thus enabled me to shape the case in such a way as to give us the best chance of hiding the blot.'" Is not all this a pretty picture of the law ? In the first place, we be- lieve a fraudulent instrument—a deed obtained under duresse, for in- stance—can be set aside, in Chancery. Bat the expenses and delays of that court are so great, that no practitioner will advise recourse to it, if he can avoid it, or at all unless the property be of large amount. Then, though Mr. Warren's precept goes to an assumed case of substantial merits, it does not appear that his example did : it is obvious that the merits are not considered in the decision. Nor is this all, or the worst. The Government, in order to check a possible evasion of the stamp- ditties, denies the very first object of civil society, justice between man and man. This is done ruthlessly, and in utter defiance of all right or reason. It is not a fraudulent evasion of the duty that vitiates the deed : so-pure an accident or oversight, that it requires two separate counters of the number of words to surely discover it, suffices. Nor is this denial of justice necessary. If a penalty could not be relied on, the ques- tion of fraudulent or grossly negligent evasion might be left to the jury. Yet such is the legislation of red-tapists ; such throughout the formalism of English law, or rather perhaps of the interpreting lawyers. When will a statesman arise to deal with the question of legal reform both as to improvement of the laws and the simplification of their practice? It should, however, be observed, in justice to Mr. Warren, that he some- times lays down a high, and, what is perhaps better, a specifically prac- tical rule of morality, in cases where not only perhaps the usage of soli- citors is against him, but the very " jus et norms" of the bar. "Yet are you sometimes placed in such difficult circumstances, that the finest discretion may be foiled;—when, for instance you have been consulted by more than one party to a transaction of the kind which I am mentioning; when the acts, intentions, and wishes of each are known to you, and yet you are driven at length, from the course of events, to make your election whose solicitor you will continue, it having become impossible for you to afford your former amicable services as a mediator or common friend. What are you then to do? Will you select A, or B,—having thenceforth to act against one of them, whose secrets, nevertheless, you became possessed of in the character of his or her confidential adviser? Each of the parties is now hopelessly exasperated against the other, and hostile proceedings are inevitable. The course to be taken in such a case, and on similar occasions, must depend upon circumstances, and your own sense of honour and delicacy; which may prompt you to decline further interference, pro- fessionally, for either party. I knew a case some time ago of the description which I have been indicating, in which an estrangement between relations was suddenly kindled into an extraordinary intensity of fury and hatred, as is but too often the case when once a spark of animosity exists among relations. In this instance, however, the attorney whom the three parties had consulted, knowingly to each other, on finding that he had arrived at the point where he could not, without compromising his own feelings of strict propriety and honour, act hos- tilely against any of those who had consulted him, wrote to each of them, an- nouncing his determination to withdraw altogether, and desiring them forthwith to consult other advisers. His firm adherence to this resolution had the effect of bringing his heated clients to their senses; and he had ere long the great satis- faction of bringing about a reconciliation, through the exercise of peculiar talents for negotiation. I need not, however, pursue these observations further. Your own cultivated sense of honour will enable you to act conformably with it on all occasions, and prevent your ever being exposed to the pain and humiliation of being restrained only by the public interference of the court from acting against one whose secrets you had become acquainted with in your professional capacity."
This is sound and proper; a fit course not only for gentlemen but for honest men. Yet why are solicitors alone to be restrained by a sense of what is right, or sometimes, as it seems, by the arm of the court? A barrister will not only get possession of his client's secrets as described by Mr. Warren, but even of his ripe case as advised and shaped by legal ingenuity, with all its strength and all its weaknesses; he will plead his cause in open court ; and then, in the event of future proceedings, carry his knowledge confidentially obtained, and his assistance, (being properly paid for,) to the other side. And this, too, not as an individual turpi- tude, but an " etiquette" of the bar—whose cardinal rule is the maxim, "never refuse money." Compared with this conduct, taking fees and neglecting to attend to the business is venial,—though that is nothing short of swindling, and would be so ruled in the case of an attorney. The "superior practitioners" of the law want reforming as much as the law itself.
Bating a tone rather too loftily pitched for the theme, and a somewhat florid mode of composition in treating the generalities of manners and morals, Mr. Warren's work may be recommended as the young attorney's text-book. It contains a fund of judicious and useful advice to the student and the young practitioner as to his studies and conduct, not only in such general matters as secrecy, but in particular and more pro- fessional points,—such as "Avoid zealous witnesses"; "Prove, but do not over-prove" ; and questions of a still more technical character. The directions he gives are enforced by examples, which not only illustrate the rule, but give some curious insight into the working of the law and the practice of its professors. A little condensation in the exhortations, and on those matters which concern a liberal education as much as any peculiar training for the law, with an omission of passages appropriate in the place of lecture but rather encumbering in a printed book, would render The Moral, Social, and Professional Duties of Attornies and Solicitors, as complete in a literary as in a professional point of view. This improvement is the more to be desired as there is no other existing publication upon the subject on anything like so complete a male; at the same time, it is a critical improvement independently of the use- fulness of the book.
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