ART. V. The Lawyer and his Clients. Correspondence of Messrs. DAVID DUDLEY and DUDLEY FIELD, of the New York Bar, with Mr. SAMUEL BOWLES, of the Springfield Republican. Springfield. 1871.

BOSWELL gives this account of a conversation with Dr. Johnson:

"I asked him whether, as a moralist, he did not think that the practice of the law in some degree hurt the nice feeling of honesty.

"Johnson. Why, no, sir, if you act properly. You are not to deceive your clients with false representations of your opinion; you are not to tell lies to a judge.

"Boswell. But what do you think of supporting a cause which you know to be bad?

"Johnson. Sir, you do not know it to be good or bad till the judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, sir, that is not enough. An argument which does not convince yourself may convince the judge to whom you urge it; and if it does convince him, why then, sir, you are wrong and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the judge's opinion.

"Boswell. But, sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion when you are in reality of another opinion, does not such dissimulation impair one's honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with his friends?

"Johnson. Why, no, sir. Everybody knows you are paid for affecting warmth for your client; and it is therefore properly no dissimulation; the moment you come from the bar you resume your usual behavior."

And it is continually said: "One side of a case is right and the other side is wrong. Counsel, then, on one side or the other in a cause, is always arguing against the right and in

favor of the wrong."

The question of the duties of counsel has recently had a special interest given it by the correspondence between Mr.

David Dudley Field and Mr. Samuel Bowles. No one, at this day, will claim for counsel the latitude allowed them by Dr. Johnson, in the extract just given. But what is all this talk of affecting warmth when you do not feel it, of supporting the wrong side of a cause, of arguing against your belief, of the insincerity or dishonesty of the advocate? Where is the blame to be placed of prosecuting bad causes? What do counsel commonly do? What can counsel rightly do? And what have counsel, in fact, of late years been doing?

It is yet to be learned how a lawyer can argue a cause without a client, how he can argue a point of fact without having witnesses, how he can argue a point of law without citing cases. Perhaps, even if counsel go into court with a bad cause, there is as much guilt on the client's shoulders, who brought the cause to the counsel, as on the counsel's shoulders, who took the cause from the client. Moreover, it is one of the commonest things in the world for judges to differ in their views of the law of the same case, for jurymen to differ in their views of the facts of the same case, for clients to differ in their views of the justice of the same case, and for witnesses to differ in their stories of the same case, all being equally honest. If, then, judges, jurymen, clients, and witnesses can honestly err, why are the counsel deprived of the same very reasonable privilege? For, be it remembered, a counsel goes to trial, hearing one side of his case from one client, and judges and jury are often in doubt and utterly unable to agree, after hearing from both clients both sides. It may, then, be possible for counsel to be on what is finally adjudged to be the wrong side of a cause, and still have been honest in his advocacy of it.)

And what does the counsel, in conducting the trial of an ordinary cause in a court really do? For, of course, the abnormal knaves of the profession, as in any general discussion, are here to be thrown out of consideration. In the case of Ryves v. The Attorney-General, which attracted so much notice a few years since, where Mrs. Ryves attempted to establish her claim to royal lineage, this occurrence is reported:

"Dr. Smith then proceeded to address the jury for the petitioner, and was beginning to say that on his honor he believed his client's case to be well founded,' when the Lord Chief Justice interfered, and peremptorily said he could not allow the learned counsel to pledge his honor on his own belief. To do so were a violation of the rules of the profession, and a dishonor to counsel.' Dr. Smith apologized.”

And this same thing would be done in any rightly ordered court. It is understood, that counsel, in arguing cases, do not make statements of matters of fact on their own authority. They comment on what witnesses have sworn to. They are not allowed to do more than that. And as to arguments on points of law, generally, if counsel have no points of law in their cause that deserve a hearing, they do not get a hearing. And few intelligent counsel will take up the time of a heedless judge by talking nonsense. Moreover, there remains, behind all these points, the one fact, that counsel, who often argue losing causes, very soon argue no causes at all.

And as to the question what counsel can rightly do, it is plain in the beginning that, on many points, the duties of counsel and client present precisely the same questions.

It is wrong for a client to take away another man's property, or keep him out of his rights. It is wrong for counsel to help his client do either of these things by the use or abuse of the process of the court. And, as to the mere argument of causes in court, if a counsel never knowingly misstate facts or law, he can have a very clear conscience.

There remains one other point. If it be considered settled what a counsel has a right to do for his clients, there still remains the point in some minds to be decided, what clients counsel has a right to have. And, on this point, the choice of the lawyer must be absolutely unlimited, and for his choice he can be blamed by no one. A lawyer has the right to take any clients he chooses. Sinners do have rights and must have justice. They cannot have justice without counsel. In a criminal proceeding no lawyer has a right to see a prisoner condemned contrary to the law and the evidence, for lack of counsel to protect him. In a civil cause every lawyer does, as a matter of fact, and does rightly, consult his own wishes as to accepting or rejecting particular cases or particular clients. The want

of a sufficiently large retainer is a ground which will appeal at once to the reason of any professional man, and very rightly. Men of reputation cannot be asked to give the power they have gained after long years of toil and study without being paid for it. Any lawyer is at perfect liberty to take any client that he chooses, with blame from no one. But what he may do for his client, after he takes him, is not matter to be unquestioned by others.

This brings us to the correspondence between Mr. David Dudley Field and Mr. Bowles. In December, 1870, in the New York correspondence of the Springfield Republican appeared some very severe remarks in relation to Mr. Field's professional conduct and reputation. Mr. Field wrote to Mr. Bowles, complaining of the publication, and asking a disavowal of the offensive matter. Thereupon ensued a long correspondence. It is here possible only to give a very brief statement of the points made or attempted to be made on either side.

Mr. Bowles makes two charges against Mr. Field: first, that Mr. Field has, in Mr. Fisk and Mr. Gould, clients notoriously bad men, who have robbed and are now robbing other men of their property; and second, that Mr. Field, as their counsel, has aided them in so doing. This is the substance.

To this Mr. Field replies that he is not responsible to any one for his choice of clients, and that, assuming his clients to be bad men, it is not only his, Mr. Field's, right, but his bounden duty, to defend them in their rights, and that he never has done anything but defend them in their rights. He says:

"To give this as a reason for not defending them, is equivalent to saying that the saints must have a monopoly of lawsuits. If a saint sues a sinner, the sinner shall not be defended. If it should happen that a saint wrongs a sinner, the sinner shall not sue the saint. . . . . In this state of things I know no better general rule than this: that the lawyer, being intrusted by government with the exclusive function of representing litigants before the courts, is bound to represent any person who has any rights to be asserted or defended. If a person has no rights, the lawyer is not bound to assist. If he has any rights, the lawyer is bound to see them respected, if he can. . . . . I do not assent to the theory of Brougham, that the lawyer should know nobody but his client. I insist that he should defend his client per fas and not per nefas. By this rule I am willing to be judged.

...

I am quite willing to leave to time the formation of a just public opinion. When that time comes, it will be known that, whatever may be the faults of the clients, their counsel, or that one of them for whom I speak with knowledge, has been governed by nothing but a sense of duty. . . . . You have ventured to arraign my professional conduct. I repel your charge, and challenge you to specify an instance. You fail to specify any, but say public opinion is against me. That will not do; you must go further or submit to be branded as a libeller. I have never been consulted beforehand about the management of the Erie Railway, or the issue of any of its stock or bonds, or the payment of any dividend to any stockholder or class of stockholders, or about what is known as the Erie classification bill, or about the gold operations of 1869, or any of the private transactions of Messrs. Gould and Fisk, or either of them, or about any transaction whatever of this company or these gentlemen, to which, so far as I now recollect, any exception has been taken."

And, finally, Mr. Bowles goes so far as to admit :

"I am only impressed with the fact that you believe yourself right, and that you are acting sincerely, if not intelligently. . .

"You have sinned against no statute; I will not undertake to say, even, that you have violated any prescript of the code professional. Within those lines you are wiser than I, and I shall not follow you..

"Thus I dismiss the most of your argument as purely technical, and not pertinent to my view of the subject."

It has been here attempted to give with fairness, in the words of the disputants themselves, the main points of this correspondence. And it must, it would seem, be admitted that Mr. Bowles does not make a very strong case. Mr. Field is a very cunning master of fence. Mr. Bowles had not the knowledge necessary for him on these points to cope with his opponent; and, as far as this controversy with Mr. Bowles is concerned, Mr. Field is undoubtedly right. Neither Mr. Bowles nor any one else has the slightest right to question Mr. Field's choice of clients. Nor has Mr. Bowles any right to publish, as he did, this statement about Mr. Field, that "his connection with Fisk and Gould secures him the favor of Barnard and the other ring judges, though it has destroyed his reputation as a high-toned lawyer with the public," unless he can, when called on, come forward with the facts to prove his statements.