CASES ON LEGAL ETHICS' CHAPTER I THE HISTORY AND ORGANIZATION OF THE LEGAL PROFESSION IN ENGLAND AND IN THE UNITED STATES SECTION 1.-THE HISTORY OF ADVOCATES IN THE CHAMPION. Edward Jenks, A Short History of English Law (1912) p. 198: As we have seen, the earliest lawsuit was a fight; and, in primitive times, deputies or agents are not at first allowed to fight, for obvious reasons. Even in Trial by Battle, however, the "champion," or professional pugilist, appears in English legal history at an early date, at any rate in civil causes; and he 1 "As understood by your Committee, the phrase 'Legal Ethics' broadly embraces every phase of morals and manners pertaining to the two branches of the legal profession-the Bench and the Bar-in their relation to the administration of justice."-Report of the Section on Legal Ethics of the Bar Association of San Francisco under date of October 13, 1910. "It is hard to mark the point where manners give way to morals, and all codes of legal ethics confuse the two. Perhaps it is as well that no attempt is made to separate them in such a code, and the writer will certainly not attempt to do so here. The important thing is to encourage right conduct, whether that conduct constitutes good manners merely or good morals."George P. Costigan; Jr., The Proposed American Code of Legal Ethics, 20 Green Bag, 57, 58. "Legal ethics may also be distinguished from the general subject [of Ethics] in that, while a violation of the moral code, as established by the conventions of society, will usually result in nothing worse than social ostracism, a disregard of the ethics of the bar may result in professional death. In * * the legal profession a summary jurisdiction is lodged in the courts to discipline offenders against morals and good conscience. To this extent legal ethics partakes of the nature of law."-Geo. W. Warvelle, Essays in Legal Ethics (1902) pp. 20, 21. 2 See, for examples, the cases transcribed into Bracton's Note Book, Vol. II, Cases 116(1220), 164(1222), 243(1227), 328(1229), etc.-Author's Note. "There thus arose for the purposes of the duel a body of bravos who, for sufficient payment, would undertake the ordeal, and risk the chances of punishment in the event of being vanquished. Accordingly, some of the older corporations had in their midst a retained champion who represented them, in defense of their rights, in any litigation in which they might be involved. COST.LEG.ETH.-1 may be said to combine in himself the functions of counsel, attorney, and witness, possibly even of the jury, of later times. At any rate, he may fairly be claimed as one of the direct ancestors of the legal profession. * The champion gradually disappeared with the disappearance of Trial by Battle; and his place was filled by the serjeant at law (serviens ad legem) and apprentice, and by the responsalis or attorney. 3 SERJEANTS. Frederic W. Maitland, in Maitland and Montague's Sketch of English Legal History (1915) 95, 96: In very old days a litigant is allowed to bring his friends into court and to take "counsel" with them before he speaks. Early in the twelfth century it is already the peculiar mark of a capital accusation that the accused must answer without "counsel." Then sometimes one of my friends will be allowed, not merely to prompt me, but even to speak for me. It is already seen that the old requirement of extreme verbal accuracy is working injustice. A man ought to have some opportunity of amending a mere slip of the tongue; and yet old legal principles will not suffer that he should amend the slips of his own tongue. Let another tongue slip for him. Such is the odd compromise between ancient law and modern equity. One great advantage that I gain by putting forward "one of my counsel" to speak for me is that if he blunders-if, for example, he speaks of Roger when he should have spoken of Richard—I shall be able to correct the mistake, for his words will not bind me until I have adopted them. Naturally, however, I choose for this purpose my acutest and most experienced friends. Naturally, also, acute and experienced men are to be found who will gladly be for this purpose my friends or anybody else's friends, if they are paid for their friendliness. As a class of expert pleaders forms itself, the relation between the litigant and those who "are of counsel for him" will be very much changed, but it will not lose all traces of its friendly character. Theoretically one cannot hire another person to plead for one; in other words, counsel cannot sue for his fees. Seemingly, it was in the reign of Henry III that pleaders seeking employment began to cluster round the king's court. Some of them With the growing discredit of the duel, to which the professional champion greatly contributed, the extension of civil business and the complications thence arising, more careful and exclusive study was given to the science of the law, and a body of persons, mostly, no doubt, of clerical training, devoted themselves to this pursuit."-F. A. Inderwick, The King's Peace (1895) p. 90. 3 In the later form of trial by battle, the parties were accompanied, not merely by their champions, but by their serjeants. For an interesting account of the preparation for such a combat, with a statement of the presence of the serjeants, see Lowe v. Paramour, 3 Dyer, 301a (1571). "Some there be who know not how to state their causes or to defend them in court, and some who cannot, and therefore are pleaders necessary; so the king, the busiest of all litigants, kept in his pay; they were his "serjeants"-that is, servants-at law. GROWTH OF A LEGAL PROFESSION UNDER Frederic W. Maitland, in Maitland and Montague's Sketch of English Legal History (1915) 92-94, 96, 97: A professional class of English temporal lawyers was just beginning to form itself. We say "of English temporal lawyers" because for more than a century past there had been "legists" and "decretists" in the land. * * * These legists and decretists constituted a professional class; they held themselves out as willing to plead the causes of those who would pay their fees. They did a large business, for the clergy of the time were extremely litigious. And what we might call an ecclesiastical "Bar" had been formed. The canonist who wished to practice in a bishop's court had to satisfy the bishop of his competence, and to take an oath obliging him to practice honestly. The tribunals of the Church knew both the "advocate" (who pleads on behalf of a client) and the "procurator" or "proctor" (who represents his client's person and attends to his cause). In course of time, two groups similar to these grew up round the king's court. We see the "attorney" (who answers to the ecclesiastical proctor) and the "pleader," "narrator" or "countor" (who answers to the ecclesiastical advocate). * * * Under Edward I a process, the details of which are still very obscure, was initiated by the king, which brought these professional pleaders and the professional attorneys under the control of the judges and began to secure a monopoly of practice to those who had been formally ordained to the ministry of the law. About the same time it is that we begin to read of men climbing from the Bar to the Bench, and about the same time it is that the judges are ceasing to be ecclesiastics. W. S. Holdsworth, A History of English Law (1909) Vol. II, pp. 261-263: In Edward I's reign we can see clearly that a legal profession is being formed, and that it already consists of the two branches of attorneys and pleaders (narratores or counteurs or serjeant that what plaintiffs and others cannot or know not how to do by themselves they may do by their serjeants, proctors or friends. Pleaders are serjeants wise in the law of the realm who serve the commonalty of the people, stating and defending for hire actions in court for those who have need of them."The Mirror of Justices, Book II, chap. 5, 7 Selden Society Publications, 47. 5 "Proctors were ecclesiastical agents. They were abolished as a distinct body in 1857, when the Courts of Probate and Divorce were established."Edward Jenks, A Short History of English Law (1912) 204, note. |