Page:The Green Bag (1889–1914), Volume 20.pdf/111

 62

THE GREEN BAG

is no shadow of doubt in his own mind that it is an unjust cause. The editor of Law Notes in October, 1900, declared that " Law Notes has at various times devoted consid erable space to the question of Legal Ethics, gathering the opinions of judges and other distinguished legal authorities. But it has yet to hear of any authority which justi fies, or even permits, the abandonment of a case by a lawyer who has discovered that his client has no meretorious defense." A consideration of the context in which those sentences occur leads me to the opin ion that what the editor of Law Notes meant by an abandonment of a case was not a withrawal from any connection with it but 'an unauthorized dismissal of it or, if the attorney represented the defense, the equivalent of an unauthorized consent to the entry of a judgment by the opposite party without the client being given an opportunity to substitute another attorney who believed in the client's cause. If the editor of Law Notes meant that, no quarrel can be had with his position, but we can still criticise him for using language ca pable of serious misconstruction even by a lawyer reader. If, however, the editor of Law Notes meant any thing short of what is above supposed to have been the sense in which he .used the word "abandon" then certainly the legal profession cannot and does not endorse what he says. The New York Supreme Court has pointed out: "So any conduct on the part of the client, during the progress of the litigation, which would tend to humiliate the attorney, such as attempting to sustain his case by the subornation of witnesses, or any other unjustifiable means, would furnish suffi cient cause" to "justify an attorney in aban doning a case in which he has been retained."1 1 Tenney v. Berger, 93 N. Y. 524, 530. That case supports the proposition that an attorney "cannot abandon the service of his client without justifiable cause and reasonable notice" (Ibid. 529), but can of course do so for such cause and on such notice. See Weeks on Attorneys at Law, sec. 255; 2 Clark & Skyles on Agency, sec. 711 (c).

Whenever the circumstances of a civil case make it clear that a man of honor and conscience cannot longer be a party to its prosecution or defense without dishonor and moral degradation, it is of course his duty, paid legal advocate though he may be, to abandon the case in the popular meaning of the word, by withdrawing from from it and letting the client find, if he can, another lawyer to take the withdrawer's place. We lawyers are apt to be more cautious about asserting this in regard to criminal cases than in regard to civil cases, for reasons which we shall discuss later, and even in civil cases we are sure that a lawyer should never desert the client at a stage in the case where no other lawyer can be employed, unless the moral necessity for so doing is absolutely apparent. It has often been urged against lawyers that they will interpose certain defenses when they know that the other party's cause is just. Among these defenses are infancy, the statute of limitations, and the statute of frauds. In the first place, it should be said that in the vast majority of cases where these pleas are made it is not known that the plaintiff 's cause is just, and the lawyer putting in the defense simply selects his surest way of 'winning. Then again, not all lawyers would put in such pleas where justice demands that the plain tiff recover. Hoffman's i2th and i3th resolutions on professional deportment are as follows: XII "I will never plead the Statute of Limita tions when based on the mere efflux of time; for if my client .is conscious he owes the debt, and has no other defense than the legal bar, he shall never make me a partner in his knavery. XIII. "I will never plead or otherwise avail of the bar of Infancy against an honest demand. If my client possesses the ability to pay, and has no other legal or moral defense than that it was contracted by him when under