claim which is in contest between Mr. Tobey and a Mr. Wheeler, and that it had been difficult to find out where he was. It may perhaps be said it sufficiently appears that both sides were anxious to get hold of him. Certainly it appears that Mr. Thomas, for his client, the defendant Wheeler, had been seeking for the whereabouts of this man for a good while, and his first intimation about where he probably was, was the receipt of the notification given by counsel on the other side that Mr. Oswalt's deposition would be taken on commission at Salt Lake City. Thereupon he and Mr. Downing instituted proceedings by which Mr. Eames, who is not a lawyer, as I understand it, but is some kind of an agent that does not shine very creditably in this connection, was requested to go to Salt Lake City and find Oswalt, and have a conversation with him, and, as is averred, get him away from there and bring him here, where he could be interviewed by Mr. Thomas. It is very clear that Mr. Eames did go to Salt Lake, and found his man, had conversations with him, made him drunk, got him away so that the deposition could not be taken at the time appointed at Salt Lake, brought him to this place, took him to the office of Mr. Thomas, and Mr. Thomas had the conversation with him. Now, if it were clearly proved that Mr. Thomas gave directions and instructions to do all of this, I think his case would be a bad one. But Mr. Eames' instructions, so far as Mr. Thomas is concerned, are in writing, and what is not in writing depends mainly on the testimony of Mr. Thomas himself; and I must say, on behalf of Mr. Thomas, he swears with a great deal of apparent candor, with none of the usual effort to evade, and not to recollect, and get round things; and it is favorable to him, I think, that he states the case just as he understood it, and tells the truth. Mr. Thomas' view of some of these things may be unfortunate; and his explanation of why he did some of these things does not, in my opinion, come up to the highest standard of honor in the legal profession. He has views about those things which I would not approve. He has notions about the rights and duties of an attorney to look after his client's interests, and to seek interviews with his opponent's witnesses, and to bring them to his office, and things of that kind, which I do not think are justifiable. But we cannot expect every attorney of the court to be imbued with the very highest standard of legal ethics, and it would be a very dangerous rule that would throw every man over the bar whose views upon that subject were of a lower grade than those of gentlemen of a higher notion of the moral obligations of an attorney. It is somewhat like the general distinction between crimes punishable by statute and moral delinquencies, to which men must be left for their correction to the public sentiment of the community, or to religious principles, or to their general sense of right and wrong.

The main charge against Mr. Thomas, and the one which presses the hardest, is in these written instructions, which were prepared by Mr. Downing, were submitted to Mr. Thomas, considered by him very

fully, and handed to Mr. Eames as the guide of his conduct. I do not think it necessary to read those particular sentences which bear the hardest upon Mr. Thomas, but they do imply a desire that this witness shall be seen by Mr. Eames before this deposition is given; they do imply a desire that Mr. Thomas shall in some way have an opportunity of talking with Mr. Oswalt; they do imply a desire that Mr. Eames shall, in his interview with Mr. Oswalt, if he obtains one, endeavor to make a favorable impression on Oswalt in regard to Mr. Thomas' client (I think that is the worst expression in the instruction), that he shall have a talk with him, and that he shall try to incline him favorably to Mr. Thomas' client. Certainly that cannot be approved of. Certainly it is a thing that ought not to be done. Certainly the practice of the law would become a very bad thing if the lawyer opposed to a man shall go to his witness and seek to impress him favorably to their side, or against him for whom he is known or expected to be a witness. I disapprove of such a thing as that very much. I feel bound to say here that I do. But that is not the question that I am to decide. I am to decide whether Mr. Thomas was guilty of such moral delinquency and intention of wrong as disqualifies him for practicing law in this court. I cannot say it. I think Mr. Thomas acted very unwisely, very imprudently; did not act well in the matter. I should hate to see other attorneys here follow that example. But Mr. Thomas says, and swears (and there comes in the value of the frankness with which he does swear; he does not deny all that; he takes it upon himself)-he says: "I approved of these instructions, but I never thought for a moment of any improper inducements being held out to Mr. Oswalt to make him swear otherwise than what he would have sworn. It was no part of my advice that he should be tampered with by being made drunk, carried off to a hotel, or kept out of the way. I had no purpose of that kind; and the language does not necessarily imply it. I simply knew he was a very important witness for both sides, and that he had been hiding out of the way for months and months, and we wanted him as badly as the other side. I wanted an opportunity to know from his own mouth what he would swear to." That is the substance of what Mr. Thomas says, and I am inclined to think he tells the truth. I do not think he meant bribery, or intimidation, or any guilty means of achieving the object which he had in view. The trouble is that that kind of a thing is susceptible of misconstruction; not only misconstruction, it is susceptible of abuse, and it is one of the means which lead to abuse.

Now, under the English system of law by which counsel and attorneys practice in the courts of that country, and from which we derive most of our law upon the subject, the attorney and the counselor or barrister have separate and distinct duties. All this which Mr. Thomas undertook to do through Mr. Eames belongs in that country to the attorney at law, or the solicitor in chancery—the man who never appears in court at all, who gets up the testimony, who learns what

witnesses will swear, or at least what the witnesses on his side will swear to, who endeavors to inform the barrister or counselor what will be proved on the other side-and he, having ascertained all this, puts that into a paper called a "brief." That is the origin of the word "brief" in the practice of the law. This attorney, if it is a case at law, hunts all this up, ascertains, has his talk with his witnesses, learns from their own mouths what things they will testify to, and puts it down on paper, hands it to the barrister; and these are called "instructions" in the English practice. In those early days the lawyer made his speech before the evidence was offered. He says, "I am instructed that such and such things will be proven," and he refers to his paper, and he relies upon that instruction of the attorney; but he never has an interview with the witness, and it is considered unprofessional for him to have any talk in advance with a witness, even on his own side. But in this country that system has not prevailed. There is no separation of the duties of an attorney and a counselor. There is none in practice, although often those admitted to the bar are sworn in as attorneys and counselors both, but they perform the functions of both; and so the lawyer, placed as Mr. Thomas was, is very often compelled for himself to have interviews with his own witnesses, and to ascertain what they will testify to in the matter; and in the same way he must seek, either from his client or somebody else, to know what will be the case against him.

Now, in this double capacity, Mr. Thomas was seeking for light, and pursuing, as he supposed, the best interests of his client, as he swears; and I think did believe consistently with the proper course for a lawyer exercising both the function of an attorney and counselor. I think he was mistaken in the propriety of some of the efforts he made to discharge that duty. I should be sorry to have them prevail as the common modes of practice in this country. But, having read all the testimony in this case, and read the deposition and sworn answer of Mr. Thomas, I cannot feel that he was morally guilty of such intentional misconduct as justifies his expulsion from the bar. The motion to that effect is accordingly overruled, and also with regard to Mr. Downing.5

56

56 In Stephens v. Hill, 10 M. & W. 28, a proceeding in the Court of Exchequer in 1842, "an attorney" was charged with persuading a witness, by threats and promises, to go away so as not to testify, and with giving a writing to another witness, who was relied on to help get the first witness away, indemnifying him from any damage he might sustain or be put to by reason of going away so as not to testify. The attorney insisted that a rule to show cause could not be granted since the offence charged was indictable, but the court ruled otherwise, though holding that the attorney would not be required to answer the matters of an affidavit, as that might compel him to incriminate himself. Lord Abinger, C. B., said of the offense charged: "I cannot conceive how any attorney employed to prosecute or defend a suit in a court of justice can be justified in using any influence, directly or indirectly, for the purpose of preventing a witness who has been subpoenaed by his adversary from coming forward to give evidence. The present charge is therefore one of a very serious nature, as the proceeding complained of would, if un

COUNTENANCING CORRUPT PRACTICES BY CLIENT. N. Y. Committee. Question 9: A. v. X. A.'s claim is undoubtedly dishonest, but serious difficulties will be encountered by X. in his defense. Y. has knowledge of certain material facts and is also in possession of certain documentary evidence which, without the slightest

checked, be an easy way for any attorney to win his causes." Page 33. As the "attorney" was really a solicitor, and so was not on the roll, the court simply prohibited him from practicing in that court.

In Murray v. Lizotte, 31 R. I. 509, 77 Atl. 231 (1910), an attorney was suspended from practice for a year because, knowing that a layman had acted as special investigator for the petitioner in a divorce suit, he employed him as special investigator for the respondent in the suit and agreed to pay him for evidence to be obtained against the petitioner, or, as the opinion put it, "to pay him the price of his treachery." Dubois, C. J., said: "It is probably a case where zeal outran discretion. However this may be, it is time that a salutary lesson be given, to the end that fidelity and loyalty may be duly recognized and appreciated, and that lapses therefrom may receive proper condemnation." 31 R. I. at page 529, 77 Atl. at page 239. The court later had to enjoin the attorney from doing various things which he insisted that a layman could do and that therefore he could do, though suspended, such as collect claims, give advice on legal matters, draw deeds and other legal documents, search and certify titles, etc. See In re Lizotte, 32 R. I. 386, 79 Atl. 960, 35 L. R. A. (N. S.) 794 (1911).

In In re O'Keefe, 49 Mont. 369, 142 Pac. 638, L. R. A. 1915A, 514 (1914), an attorney was suspended for writing to witnesses who had refused to give testimony that was material a letter which led them to believe that they would be paid a certain amount contingent upon the successful outcome of the case. The court said that it was immaterial that the promise was so worded as to make its illegality apparent, that the attorney never intended to pay the witnesses anything, that the attorney's intention was to procure only truthful testimony, and that the witnesses in fact gave truthful testimony. Sanner, J., for the court, said: "The material question is what effect such promises are calculated to produce upon a witness or upon his testimony, and it cannot be gainsaid that this effect is not in the direction of plain unvarnished truth. In such matters the exigencies of any given cause must yield to the larger demands of public good, and we decline to hold that it is proper in this state for an attorney to buy testimony, whether true or false."-49 Mont. at page 378, 142 Pac. at page 641.

On offering to pay a witness as ground for the discipline of a lawyer, see L. R. A. 1915A, 514, note.

In Dickens' Case, 67 Pa. 169, 5 Am. Rep. 420 (1871), the court found that Dickens as counsel in a case had endeavored to get opposing counsel drunk in order to have the advantage over him in the trial. Agnew, J., said: "This was a wicked act, as well as one which struck directly at the due administration of justice. In its effect and criminal purpose it differs none from tampering with a juror, corrupting a witness, or bribing a judge. It strikes directly at the interests of the opposite party, with as great force as if he lost his cause from the misconduct of juror, witness, or judge. The man who can do this thing is unfit to practice in a court where justice is administered, and should be expelled from its bar; or at least should be suspended from the practice until he has shown, by sincere amendment, that his offense is thoroughly purged."

In In re Bayles, 156 App. Div. 663, 141 N. Y. Supp. 1052 (1913), a trap arranged by an attorney to get his client's wife to commit adultery, or to seem to, so as to furnish ground for divorce, was held to be ground for the attorney's disbarment.

An attorney for a husband, who colluded with the wife to have it appear that the attorney and she were staying at a hotel as husband and wife, so the husband could get a divorce, was disbarred for manufacturing evidence in Matter of Gale, 75 N. Y. 526 (1879).

difficulty-by simply affixing or withholding his signature-could be used to aid A. or to strengthen X.'s defense. Y. is evidently a person not affected by conscientious scruples as to the sanctity of an oath. He has a claim of $ — against S., a person closely related to A., and has made an offer to B., defendant's attorney, to withhold his signature from said papers and to testify for the defendant if his claim. against S. is fully paid by X. B. refuses to dicker with Y. and tells Y. that he will have none of his offers. B. feels that he is perfectly right in the matter, deeming the acceptance of such an offer absolutely and unqualifiedly unethical, immoral and dishonest.

So far, so good. But, now, what about X. and his interests? Is it B.'s duty to divulge to him the foregoing facts, he being ignorant thereof at this time? And, if X., upon learning these facts, should decide that his interests would best be served by accepting Y.'s offer, what attitude should B. assume? Under no circumstances will B. make a deal with Y., with or without instructions from X. Then, should B. withdraw from the case if X. does not agree with him as to the moral turpitude involved in making a deal with Y.?

Further, Y. being willing to aid A. upon the same terms, should that fact have any weight? Would X. be justified, under these circumstances, B. refusing to dicker with Y., in bowing to the inevitable and committing an obviously immoral act, although probably necessary to an otherwise absolutely honest defense?

Lastly, if your Committee is of the opinion that the foregoing matter should be brought to X.'s attention by B., and X. should accept Y.'s offer against B.'s wishes, would not B. be justified in refusing further to conduct X.'s defense? B. feels that he should not wink at such obviously nefarious and immoral conduct on Y.'s part and on X.'s possibly favorable attitude towards Y.'s offer. Is not B. right?

Kindly treat this matter as though it were impossible to obtain evidence of the numerous crimes involved.

Answer: Neither the interests nor instructions of clients justify their lawyers in countenancing or utilizing corrupt practices. A lawyer is under no duty to submit to his client for his decision a proposition in fraud of justice. A mere difference of view between lawyer and client does not require the lawyer to withdraw. Under the circum

stances suggested, the lawyer should not assist his client to avail himself of the corrupt activities of another. If so instructed by a client who will not be persuaded, in the opinion of the Committee he is justified in withdrawing from the cause.

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