Page:The Green Bag (1889–1914), Volume 20.pdf/141

 THE GREEN BAG "The noble art, which had once been pre served as the sacred inheritance of the patri cians, .was fallen into the hands of freedmen and plebeians, who, with cunning rather than with skill, exercised a sordid and pernicious trade. Some of them procured admittance into families for the purpose of fomenting differences, of encouraging suits and of pre paring a harvest of gain for themselves or their brethren. Others, recluse in their cham bers, maintained the dignity of legal professors, by furnishing a rich client with subtleties to confound the plainest truth, and with argu ments to color the most unjustifiable preten sions." It is interesting to note, however, that even in the good Judge's citations of ancient fees it appears that Isocrates is supposed to have received the equivalent of eighteen thousand dollars for a single speech. Surely this must have been as large a reward for those days as even the princely rake off of a Cromwell or a Dill. Nor can we doubt that the beneficiaries of the modern manufacturer of securities share with him without repining. It is also to be observed that in the end the classic system broke down. One wonders also if it is not more for the public welfare" that a lawyer should receive his reward in a business-like payment than in the gratitude of clients "from whose votes on a future occasion they might solicit a grateful return." The ideal state when men will work for joy alone has not yet come and to discard our present fee system would involve either a class of rich lawyers or compensation by the state. The former course would be wholly bad, the latter would be consistent with the theory that a lawyer is an officer of the court but wholly inconsistent with the other theory of partisan zeal. So we see that the discussion of this problem again brings us to the conflict between these two principles of professional responsibility. This conflict is especially conspicuous in our country because we have combined the two offices of advocate and solicitor, and it is pos sible that the true solution of the problem may be found at last in a practical separation of the two classes of lawyers for which different standards may be prescribed. There can be

no doubt of the need of the counsellor to guide the business man through the intricate relations of a highly developed civilization, and it is inevitable that the material interests of such counsel should be closely wrapped up in those of his clients and that his attitude should be purely partisan. To him can be entrusted the duty of discovering all possible grounds in support of his client's contention when litigation finally ensues. But the lawyer who assumes to aid the court by examination of witnesses and by narrowing the issues to some that are susceptible of simple solution may well be placed on a different footing and made an integral part of the machinery of justice. It has frequently been noticed that in our larger centers there is a growing ten dency for Court practice to flow to lawyers who devote their time exclusively to that work. There are few of these who have had the courage to withdraw from the great financial firms and set themselves up as exclusively trial lawyers dealing only with the attorneys of litigants, but some in our larger centers have begun to make this their practice. The position of the trial lawyer in a large firm handling enormous financial interests has long been unsatisfactory, for the proportion of work he performs and the proportion of income he earns for his firm is so much smaller than that produced by the promoter of corporations that the firm inevitably comes to regard the trial lawyer as merely a useful adjunct of a more important system. He can only escape this tendency to subordination by assuming an entirely indejjendent position and he can only avoid the commercial and financial work and confine himself to trial work (unless indeed he be one of the unfortunate triers of personal injury cases) by dealing with attorneys, and he can only obtain the patronage of other attorneys by proving that he is not a com petitor and by rigidly adhering to the English method of never dealing directly with the client. There are many who believe that the tendencies we have outlined may yet over come the traditional dislike of our democracy to a special class of advocates. Should that ensue we believe the most difficult problems of legal ethics would be easy of solution.