Is a Lawyer Bound To Support an Unjust Cause?

A Problem of Ethics
Author(s): A. S. Cutler
Source: American Bar Association Journal, Vol. 38, No. 4 (April 1952), pp. 300-302
Published by: American Bar Association
Stable URL: http://www.jstor.org/stable/25717999 .
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 Is a Lawyer Bound To Support an Unjust Cause?

A Problem of Ethics

by A. S. Cutler of theNew York Bar (New York City)

The layman's question which has son by his famous his hands when he should walk upon
biographer,
most tormented the lawyer over the Boswell: his feet.
James
years is: "How can you honestly Boswell: But what do you think of It is argued that what a lawyer
a cause
a man says is not the expression of his own
stand up and defend supporting which you know
you
to be bad?
know to be guilty?" mind and opinion, but rather that
Johnson: Sir, you do not know it of his client. A
Or, as to civil cases: "How can to be good or bad till the judge lawyer has no right
you defend a case when you know to state his own thoughts. He can
determines it. You are to state facts
your client is wrong and really owes clearly; so that your thinking, or only say what his client would have
the money sought?" what you call knowing,
a cause to be said for himself had he possessed
At the outset we must remember bad must be from reasoning,
must the proper skill to represent him
be from
that in a democratic country even supposing your arguments self. Since a client is deemed inno
to be weak and inconclusive. But
cent until
the worst offender is entitled to a
Sir, that is not enough. An argument
proved guilty, a lawyer's
legal defender. If a person accused which does not convince knowledge that his client is guilty
yourself
of crime cannot afford a lawyer, the may convince the judge
to whom does not make him so.
court will assign one to defend him you urge it; and if it does convince As one attorney put it:
him, then, sir, are wrong
why you The
without cost.
and he is right. It is his business to lawyer is indeed only the
Many lawyers, however, believe mouthpiece and prolocutor of his
judge; you are not
and to be confi
client, and the underworld, in their
the right to defend means the duty dent in
your own that a
opinion in
characteristically graphic manner,
to employ any means,
including the
cause is bad, but to say all you can
deed call their the mouth
for your client, and then hear the lawyers
presentation of testimony the law It is well to remember that an
piece.
yer knows to be false. judge's opinion. advocate should never become a liti
Boswell: But, Sir, does not as never
affecting gant, it were, and must in
Should the Lawyer a warmth when you have no warmth,
ject his own thoughts and opinions
Blindly Reflect His Client? and appearing
to be
clearly of one into a case.

Such an attorney argues the law opinion when you are in reality of It is asked:
another does not such dis
opinion,
yer has no right to judge his client simulation one's honesty?
Is How can a
lawyer,
or
any person
impair
to be guilty or to appraise a civil there not some that a lawyer for that matter, know whether a
danger
action by deciding his client is in may put
on the same mask in com person is guilty before his guilt is
mon life in the intercourse with his established? "To be guilty" under
the wrong. Such a lawyer argues
friends? our
concepts of due process means
that before one knows a person to to be so adjudged after a trial by a
be guilty in a criminal matter or Johnson: Why, no, Sir. Everybody
knows you
are
paid
for affecting jury or court as due process in the
wrong in a civil action there must warmth for your client, and it is particular
case
may require. A per
be a judgment of the court to that no dissimulation:
son charged with crime might be
therefore
properly
effect. Judgments are notoriously un the moment you come from the Bar completely deprived of counsel. For
resume
all the lawyers in the community
to conflicting usual behaviour.
certain when applied you your
Sir, a man will no more carry the might believe him guilty and wash
evidence.
the Bar into the common
their hands of him.
artifice of
In support of this position, ad intercourse of than a man
society, Again:
vocates enjoy reciting the following who is paid for tumbling upon his How does such prejudgment of
colloquy attributed to Samuel John
to tumble on
guilt differ from the lynchmob, which
hands will continue

300 American Bar Association Journal

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 Legal Ethics

is equally so convinced of guilt that I will not counsel or maintain any Where the lawyer is convinced,
it considers a trial an idle ceremony? suit or proceeding which shall appear after studying the law and the facts,
True, to be strung up by the lynch to me to be nor any defense
unjust, that his client cannot succeed, his
mob without a trial may be somewhat such as I believe to be honest
except
more
embarrassing to the victim than ly debatable under the law of the duty is to obtain the best settlement
to siibmit to a trial without counsel, land; he can, fairly and expeditiously.
if defense counsel the im I will employ for the purpose of
Every hour of the day, the lawyer
but, plays
portant role which lawyers like to maintaining the causes confided to
is a persuader. His success must be
think he does, a person charged with me such means as are consistent
only measured by the ability he possesses
crime is indeed in an unhappy posi with truth and honor, and will never
tion if he has to rely on his own seek to mislead the judge or jury by to make others see situations in the
knowledge of the law and wits to any artifice or false statement of fact same light that he does.
counter an or law.
prosecutor
on
experienced
suc
That does not mean, however, that
bent conviction and whose
lawyer really It is only when a the lawyer should fool himself. He
cess is measured of
by his percentage
convictions.
is innocent that believes his client should not be such a partisan that
Another lawyer contends: he should undertake to defend him. he blinks at the true facts and views
On a client's cause, All our democratic safeguards are the situation the rose-col
undertaking through
he must wipe out the villainy of the thrown about a person accused of a ored glasses of hopefulness, partisan
defendant with all the resources at crime so that no innocent man may
his command. Are not the facts that ship, or his own self-interest.
suffer. Guilty defendants, though
are unfavorable to his client to be
are entitled to be defended sin
A lawyer should worship truth
left for the prosecution? they and fact. He should unhesitatingly
If the lawyer may see the better cerely and hopefully, should not be cast out the evil spirits of specious
way and approve to foster claims entitled to the presentation of false
reasoning, of doubtful claims, of in
(not
are
testimony and insincere statements
that wrong) the circumstances
that compel him, especially in crimi credible or improbable premises.
by counsel.
nal cases, to follow the lesser. Thus
Truly, the best persuader is one
the lawyer lives with the maxim: It is too glibly said a lawyer should
who has first really persuaded him
not
"Video meliora proboque deteriora judge his own client and that self after a careful analysis of the
sequor". the court's province would thus be
an attitude we en facts that he is on the right side.
Such submit invaded. In more than 90 per cent
Some assert that lawyers must be
tirely overlooks the bifurcated robes of all criminal cases a lawyer knows
actors. That is only partially true.
of a lawyer. The duty is not simply when his client is guilty or not
An actor can portray abysmal grief
one which he owes his client. Just
guilty. The facts usually stand out
or ecstatic happiness without having
as important is the duty which the with glaring and startling
simplicity.
any such corresponding feeling in
lawyer owes the court and society. If a lawyer knows his client to be
Great as is his loyalty to the cli
his own heart. A young actor can
guilty, it is his duty in such case to
ent, even greater is his sacred ob set out the extenuating facts and
well portray the tragedy of King
Lear, though his face is unwrinkled
ligation as an officer of the court. plead formercy in which the lawyer and unmarred after his make-up is
He cannot ethically, and should not
sincerely believes. In the infrequent removed.
by preference, present to the court number of cases where there is
assertions he knows to be false. doubt of the client's guilt and the
A good actress can portray the
The Canons of Professional Ethics anguish of a doting mother over the
lawyer sincerely believes his client
of the American Bar Association is innocent, he of course should death of a child, even though the
plead actress herself is a mere girl whose
are clear, succinct and
unambigu his client's cause to the best of his
ous: only relationship with children has
ability.
The office of does not been with her own sisters and
attorney In civil cases, the area of doubt is
permit, much less does it demand of brothers.
him for any client, violation of law undoubtedly considerably greater.
or
any manner of fraud or chicane. At a guess, only one-third the cases The good lawyer cannot make
He must
obey his own conscience presented to a lawyer are pure black
such quick changes as the actor.
and not that of his client. or pure white. In The true lawyer can only be per
only one-third of
The lawyermust decline to conduct the cases does the lawyer indubi suasive when he honestly believes-he
a civil cause or to make a defense
is right. Then the able advocate is
when convinced that it is intended tably know his client is wrong or
invincible. His is so
merely
to harass or to
injure
the op right. In the other two-thirds gray persuasiveness
can
posite party or to work oppression is the predominant color. It is the powerful that it pierce through
or wrong. of the advocate to appraise the rock and steel. Indeed, it is so strong
duty
His appearance in court should be
client's cause in his favor, after giv that it can change the mind of a
deemed to an assertion
equivalent
judge who has already decided to
on his honor that in his opinion his ing due consideration to the facts on
the other side. In such a case, it is find to the contrary.
client's case is one proper for judicial
determination. of course the duty of the advocate to Ofttimes a lawyer has argued
The American Bar Association present his client's case to the best against his better judgment, has
recommends this oath of admission: of his ability. allowed himself to be persuaded

April,1952 Vol. 38 301

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Legal Ethics

too, he perjury. A lawyer should strive

to the question posed at the beginning
against himself. Sometimes
has won. Yet, no matter how great do his bit towards pruning and keep of this article?
of Do you, Mr. Lawyer, or indeed
the man, the true lawyer cannot ing alive the indispensable flower
dissemble. If he has no confidence justice as the gardener tends and any human being possess the ambiv
in his own facts and in the truth nurtures his plants. alence to dissimulate in the court
and righteousness of his client's en and to "resume usual
All lawyers know everyone is
room, your

cause, then no matter how hard he behaviour" when you come from the
titled to the best defense he can
tries and how good an actor he may muster. This does not mean Bar? Can you throw off insincerity
every
be, his auditors will perceive that he and dissimulation in the courtroom
lawyer must take every case, includ
himself does not really believe what no belief as though it were a cloak, subdue
ing those in which he has
he utters. That way lies disaster. in his client's contention. For in that dishonest portion of your think
a man of in
In for the ascertain
this search stance, a well-known public figure, ing, and resume being
return to your
ment of the truth, however, the law very active at the Bar, refuses
to tegrity when you
coun office?
yer should not hypnotize himself. represent alleged bootleggers,
Merely because his client retains terfeiters or rapists. Should he be Inevitably the two character traits
him for a fee, the lawyer should censured because of such prejudices? contained in the one body would
not permit himself to be tend to merge. Obviously, dissimu
overper There thousands of others at
are
lation and insincerity will eventually
suaded. the Bar who could have represented
overcome
It has often been suspected that defendants accused of those three integrity.
Whether he walks upon his hands
themore gold with which you cross crimes, when indeed they were inno
or feet, as Samuel Johnson argues,
the palm of the fortune-telling gyp cent.
may not affect the character or soul
sy, the better might be the fortune The of duty and personal
matter
she would not to be confused. A
of the walker. Pleading earnestly a
predict. preference is
cause which the lawyer knows to be
in
It hardly need be said that law lawyer has the right to represent untrue cannot but af
or wife perniciously
yers, however, should be above the civil courts the husband
Lect his character.
itinerant and nomadic status of accused of adultery. He does not
Whatever the in
situation was
gypsies. Their power to look the have to do so unless he sincerely be no
facts in the eye should not be af lieves that his client is innocent of Johnson's day, there should be
artifice at the Bar. Nor should a
fected or weakened merely by the the'offense charged. man "resume his usual behaviour"
size of the fee involved. Of course, when a lawyer is as themoment he comes from the Bar.
must fulfill
It is to be noted that in this dis signed by the court, he The lawyer's usual behavior both
cussion, the lawyer always acts with his obligation to the court. This does in his office, and at the Bar and in
sincerity and honesty. His partisan not include, however, presenting a man of
Society, should be that of
position predisposes him to believe false or improper testimony. Nor and absolute de
probity, integrity
in his client's cause. He is not insin does it justify dissimulation and in
pendability.
cere enough, however, to tender facts sincerity, even where the lawyer is The argument that a lawyer
that he knows to be false or take a consummating
a court order to act
should be a mouthpiece for his
position in which he does not believe in defendant's behalf.
client, indelicate as that connota

sincerely. Rather it is the duty of such an tion may be, is specious and only
A lawyer who signs his name to a advocate to present all the relevant a limited extent. A lawyer
logical to
set of papers, should in effect vouch facts and circumstances. If he can should not be merely a mechanical
for the honesty and fairness of his show the prosecution is mistaken the words
apparatus reproducing
client'scause. Otherwise strike and and his client is innocent, that is and thoughts and alibis of his cli
blackmail suits based upon improper his duty. If he knows his client to be ent, no matter how insincere or dis
motives would clutter up the court to
guilty, then it is his duty merely honest. Rather the lawyer should
calendars to such an extent that the facts and cir to as a
present extenuating refuse speak those words
honest and fair causes would be cumstances on his client's behalf. unless the utterances
mouthpiece,
seriously delayed in trial. Chicanery and insincerity should of his client are filtered and purified
be no part of a lawyer's make-up in
It is as much the lawyer's duty by truth and sincerity.
to brush off and refuse to any case.
Chicanery, dissimulation and in
participate
in cases that are mouldy and can Let us return for a moment to sincerity may be words to be found
add destructive the delightful dialogue between Bos in the dictionary in the lawyer's
only fungus growth
to the tree of justice, as it is to re well and Johnson. It makes wonder library. But they should never be
fuse to assist in the subornation of ful reading. Is it a real answer to found in the lawyer's heart.

302 American Bar Association Journal

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