Page:The Green Bag (1889–1914), Volume 20.pdf/115

 THE GREEN BAG or informed against under an invalid statute, or if the indictment or information is fatally defective, or if the indictment or information is so drawn as really to charge a smaller offence than the one for which conviction is sought, any lawyer is justified in defending even a guilty man on such grounds, for what we need is justice according to law, and such defense will promote such justice. So a lawyer may properly see that a guilty man is convicted on only legal evidence, for if we are to keep our liberties we must see that no man's life, liberty, or property is taken away except on legal evidence proven in the orderly administration of justice. But when it comes to defending on the merits a man the lawyer knows to be guilty, putting on the stand witnesses the lawyer knows are committing perjury, and then arguing to the court or jury that the perjured testimony is correct, the writer can see only immorality. The writer has always insisted that a lawyer had no moral right to defend on the merits a man he knew in advance to be guilty, and has supported his position by two reasons: i. Such action warps the lawyer's moral nature, and, 2, in so far as the lawyer does not deliberately become accessory after the fact to the crime, his knowledge of his client's guilt robs his exertions in the client's behalf of their effectiveness. The first reason seems to the writer con clusive, but for those who believe that the guilty man has a right to have his defense vigorously presented, the second reason shows that the supposed right of the guilty man is infringed unless he is defended by a man who believes in his innocence. But what of the case where a lawyer enters upon the trial of a criminal case in the belief that his client is innocent and in the course of the trial discovers that he is guilty? No hard and fast rule can be advocated. The answer in each individual case must depend upon the stage the case has reached, and in particular upon the possibility of the lawyer withdrawing with out tacitly or otherwise making known the

guilt of the client. An attorney employed to defend a man who cannot be compelled to incriminate himself or testify against himself violates the trust and confidence reposed by his client and unwarrantably takes a brief for the prosecution if he with draws from the defense of the case at a time when such withdrawal is explainable only by the guilt of the defendant. An attorney will not be permitted to divulge, without the client's consent, any matter which has been communicated to him in professional confidence, and for a lawyer by an eleventh hour withdrawal to announce, in effect, the guilt of the defendant in a criminal case would be in the highest degree unprofessional and immoral. He must stay in the case, for he was employed to defend. not to convict, the defendant, but as was said in an English divorce case, "there is an honorable way of defending the worst of cases."1 Since the defendant has no legal or moral right to lie to judge or jury, he has of course no legal or moral right to have his lawyer lie for him; but short of lying and of casting suspicion on innocent people the lawyer must in all honorable ways present the case of the defendant. Fortu nately it falls to the lot of very few men to be confronted with such a moral problem. For most of us there are no last moment revelations of guilt in criminal cases. One such case, however, resolved in the highminded way in which the bar as a rule meets its moral obligations, we have in the case of the English barrister, Charles Phil lips. The writer is moved to dwell a little upon that case because, despite the conclu sive presentation of Mr. Phillips' eminently proper action, contained in the appendix to Sharswood's little book on Professional Ethics, there still are lawyers even, and of course there still are laymen, who have never heard of his side of the question, and who, therefore, feel that he debased him self and his profession. The facts are these: 1 Smith v. Smith, 7 P. D. 89.