O'BRIEN'S LAWYER.
Tait author of this work, we learn from the preface, was an Irish barrister, who was born in 1808 and died in 1840. His religion, according to the same authority, was of a rare and peculiar kind; pervading every action of his life, or rather his life itself, inducing him to consider it as a rule of professional conduct, and not a mere personal matter to be taken up on Sundays, at prayer-hours, and " idle times." His "reading lay principally among old books, and he therefore wrote naturally in their manner" ; or it may be truly said, that he had not only formed his style, but his modes of thought, upon the model of the older writers, and hence acquired that straiter notion of things, which prevailed when authority was more respected than it is now, especially the authority of casuists, and of the more formal parts of the Scriptures as rules of secular con- duct. The Lawyer, his Character, and Rule of Holy Life, is avow- edly written after the manner of HERBERT'S " Country Parson" : it is doubtful whether it was intended for publication, and it seems certain that it had not received the author's final corrections.
The volume in which The Lawyer appears consists of four parts,-- an Introduction, containing a brief notice of the life and character of the writer, with the editor's estimate of his work, and the style of which bears some resemblance to Mr. O'BRTEN's own, the result possibly of congenial feelings and similar studies : the author's "Apology for the Work," which chiefly consists of an argument upon the propriety of the much-mooted etiquette of the English bar, "that a barrister is not at liberty to refuse a brief," (Recant.. panied by a fee,) or in other words, that an advocate is justified in pleading a cause without regard to truth, morality, or justice : The Lawyer itself, being the writer's beau ideal of a Christian barrister in his various phases and relations of life—as "the Lawyer Ad- vising," "the Lawyer in Consultation," "the Lawyer in Vacation," "the Lawyer's Hospitality : an Appendix, by no means the least interesting part of the book, exhibiting the opinions of a variety of writers, but chiefly of older writers, on several questions relating to legal practice, but principally on the question which is in reality the germ of the volume, the right of the lawyer to advocate the wrong.
In the main portion of the book, the ideal picture of a good lawyer, there is much of sound doctrine and a good deal of proper morality, shaped and modified by one who has a practical expe- rience of the subject upon which he is writing. For his Lawyer the author collects a variety of traits not meeting in any one person, and rather a formation of ingenuity than a portraiture from nature. It has consequently the want of life which mere abstractions always possess, whether in fiction or didactic forma- tions. The Lawyer is also an imitation ; and though a good
imi-
tation, by a man to whom habitual study stands in the place of a second nature, yet it is presented in a style and cast of thought that seem now artificial if not obsolete. The work is consequently not striking, and not very attractive ; abounding in good thoughts well expressed, but rather calculated for the studious or scholastic than for the general reader.
An analogous remark applies to what, in one shape or another, fills more than half the volume—a consideration of the question, can a lawyer justly undertake an unjust cause ? This really curious and extensive topic is treated somewhat narrowly, and somewhat captiously, rather upon cases than principles, and eases sometimes strained if not quibbling; and for all useful purposes left undecided, except that Mr. O'BRIEN thinks that he ought not. BASIL MONTAGU like a pleader, BROUGHAM like an orator, and other writers, ERSKINE among the number, have, on practical grounds, advocated the affirmative. But upon the broad principle there is little doubt about the matter in well-constituted and well-reasoning minds. The difficulty lies in deciding what is clearly an unjust cause. In most cases of personal wrong— for example, slander, assault, seduction, adultery—the formal guilt of the party is not so much in dispute as the circum- stances attending it. The fact of the defendant's guilt, or conk. mission of the fact charged, is admitted : the point is, the com- plexion derived from the conduct of the parties, which may differ through every varying degree, from treachery and a flagrant breach of hospitality, to a husband conniving at his own disgrace or wink- ing at the entrapping of an incautious gallant. Upon all cases of this class, a mere theorist will say, nothing is more unchristianlike than to defend adultery and so forth : a practical philosopher will say that the moral offence is not the matter in dispute, but the ques- tion of civil compensation ; that these cases may properly be advo- cated, unless justice consists in hearing one side only ; and that the true nature of personal wrongs can never be got at from the state-' ment of the offender, as much or more being indicated by thg
plain-
tiff in what he proves, or still oftener in what he omits to prove. His own statement, indeed, may show his criminality ; but the point is, is he so great a criminal as his opponent would make out, if heard alone ? and the moral rock for the advocate to avoid is more in the conduct of the cause than in the acceptance of the brief. In cases of disputed right to property an argument of a similar nature applies : the right is very seldom all on one side. A case may seem and may be doubtful, but when the other side is opened a keen eye detects similar weaknesses there ; for, truth to say, questions of this sort are as often questions of caution and pru- dence as questions of equity. In criminal causes, perhaps nine out of ten of the accused are guilty, and their advocate knows it, either from their own admission or the nature of his instructions.The question that arises here is, is he justified in procuring their ac- quittal, by showing, for example, the failure of the proof required by the rules of evidence—such as is indicated by the frequent question in matters of petty theft, "Will you swear that no one else had
access to the place, and could not have taken," &c. And we think he is justified, as well as in using arguments on matters either of fact or of law within the record,—carefully avoiding to misstate questions of law or of fact, or to pledge himself personally to his belief of what he disbelieves. As for the idle and remote questions of how a man may use property he acquires doubtfully, or con- duct himself after he is wrongfully acquitted, they are beyond or beside our notice. It is a nicer point as to how a lawyer is justified in lending himself to take advantage of the forms of law to work injustice—as when a person avoids payment of a debt by pleading the statute of limitations, or dispossesses a person from an estate through a technical error in the conveyance. Legal authorities on the propriety of this or any other practice are worth nothing : the balance of general authority we think is against the conduct : but we rather incline to the opinion that an advocate is justified in stating the case to the court, and arguing upon the law, provided he goes no further. Practically, however, such cases are rare in the courts. Evidence before the Commissioners of Law Reform Inquiry states that such cases, connected with the possession of real property, are generally compromised, or surrendered without trial ; in cases of insolvency, we believe no law proceedings are ever taken when the debt is beyond the statute of limitations ; and the lawyers princi- pally concerned in such matters are not barristers but solicitors. Whilst, however, volumes upon volumes have been written about counsellors, few have troubled themselves about the inferior prac- titioners. " The lieutenant must be saved before the ancient." In the words of SIDNEY &mu, "the scrivener's is a lost soul," and no one takes the trouble to consider his condition.
Practically speaking, this custom of taking all cases that come, induces less evil than might be supposed; and, looking to general results and not to particular individuals, it is perhaps on the whole productive of good to the public, however discreditable to the pro- fession and its practitioners. The ingenuity of an advocate with a bad cause is opposed by another counsel with a good ; he has also the presiding judge to detect his fallacies, and, in common-law, the good sense of jurors to see through his quibbles, though they might not be able to answer them logically. A respectable solicitor, more- over, will not undertake a case obviously bad; and it is a complaint among certain unscrupulous practitioners that some barristers "will not do their duty,"—meaning that they will not heartily ar- gue it cause which they see to be unsound. Hence, dirty cases go in the first instance to dirty attornies, and then to "thick and thin" advocates ; a class of practitioners who in time become appreciated in the courts, and whose character possibly does more injury to a cause than their arguments serve it. Such is our view of the question at issue. In earlier times it seems to have been more scrupulously regarded. Sir MATTHEW
HALE, when a young man at the bar, was often in the habit of" re-
fusing to meddle" in cases that seemed unjust, till he found by expe- rience that such cases were often not so bad as they at first appeared.
Sir Joust DAVIES held an opinion that an advocate could not "honestly undertake the defence of a foul and desperate cause "; and various foreign writers, with some living American ones, main-
tain the same view.. The best argument upon the question how- ever, seems to us to be put forward by COOKE, the Solicitor-Gene- rat of the Commonwealth, on the trial of CHARLES the First, in his Vindication of the Professors and Profession of the Law, (1646.) "The client," he says, "I look upon as a sick man, distempered, passionate, wilful, and extremely in love with his own cause, whatever it be ; and many times the best advice to a resolute client is but as a good lesson set to a late out of tune—for affections preengaged draw away the judgment. Now the counsellor in the least measure ought not to feed the corrupt and peccant humour ; for that is not to act the honest lawyer but the flattering courtier, who steers his advice by the star of his prince's inclination, as our adversary Satan works upon our fancies, and the wind makes the waters rage. Nor is it enough to tell the client faintly that he doubts his cause but will do the best he can ; but to deal freely with him= Sir, thus I would do if it were my own case; if you will not follow my advice, go to another ; you are in a fever, and must not eat and drink after your own appetite.' I assure you there is a great difference between one counsellor and another ; therefore the precious ought to be distinguished from others. The shepherd and the butcher look upon the sheep with a different eye, the one to do him good, the other to eat him. The client retains two counsel ; the one cares not for the cause further than that he may gain by it ; however it succeeds, he deserves little in conscience : the other desires his client may have his right, and what is given him freely he accepts contentedly. But to speak truth, many times the clients deserve the blame and not we, for they conceal the worst of their cause; and so, for want of a true confession, as the priest says, the absolution is worth nothing; for proof being the chariot which carries the judge to give sentence, how can the counsel tell what the success of a difference will be 2—which answers a common cavil that lawyers will be of any side and there is but one aide true. The truth is many times in such a deep well that every lawyer bath not a bucket to draw. Titles of law are very difficult, perplexed, knotty cases, which will hardly be made plain. The judge lath one ear for the plaintiff, another for the defendant ; but the counsel hath both ears for his client; yet SO as if he can discover the in- justice of his client's cause, (and many times light may be seen at a little hole,) I am persuaded many of our great practisers will not maintain him in it. For, truly, to speak well in a bad cause, is but to go to hell with a little better grace without repentance : it is but a kind of juggling by an over-curious nourish to make a shadow seem a substance. If any of my profession think they may for their fee maintain a side which they think is dishonest, . . . . I would fein but ask them some such questions—Whether the least evil may be done to procure the greatest good ? and whether every particular calling must not yield to the general of Christianity ? and whether a Christian may do any thing against the truth, or must do every thing for the truth ? and whether to be willingly instrumental to condemn the innocent, and to justify the wicked, be not both an abomination to the Lord ? and whether he can answer it at the bar of Heaven, that many a poor man should be undone and want food and raiment, because he found out some formality of law or defect in the proceed- ings, yet persuaded in his conscience that the poor man had right to the thing in question. If any man practise upon each principles, I had rather be tongue- tied, or not know how to write my name—rather be the hall-sweeper, and should die with more comfort."
But, though the public may not be injured, and particular justice but very rarely defeated, the practice of undertaking every case, without care or consideration of its merits, acts injuriously upon the repute and character of the profession. Its narrowness of view, its preference of the form to the substance of justice, its quibbling disposition, and its love of endless disputation, originate in the very nature of practical law. The mean and mercenary spirit, which many think to be characteristic of the bar, is perhaps only the national disposition to acquire wealth, showing itself in a more offensive form than usual, when practised by a class which professes so nice an independence that it accepts a fee only as a free gift. But the practice of undertaking any cause, and the prac- tice, unquestionably base and disgraceful, of advocating both sides of the same cause at different stages of the proceedings, must tend to destroy the distinction between right and wrong, to habitually divert the mind from truth to sophistry, to blunt the sense of ho- nour, and to render many lawyers in their public conduct indif- ferent to truth, and equally indifferent to detection in falsehood if it has answered its momentary purpose.
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