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know that she consented to it because she did not know her rights and did not know the danger that there was in the consent that she gave.
You have a smaller Bar than we. I do not think your bar goes quite to the extreme of going into business that we have with us. Perhaps I look at it from the stand-point of the bench, because when I departed from the virtuous paths of the profession I was on the bench; but I feel as if our profession were in great danger of becoming a mere business and that the practice in court, the argument, the traditions of the profession that we cherish, are in danger of being lost in the conditions that modern businesses have presented. A man says "I never go into court. You don't make any money in court. You make money in management." Well, if that be the case, I think we need a code of ethics a little more than we did when we were discharging the duty we had to discharge under the supervision of a court, that could pull us up when we departed from the rules. We in the United States say the importance of legal ethics is greatly increasing because of the change that conditions have brought about in the nature of the practice of the profession. I am glad, very glad, that the Canadian Bar Association has added its authority and its weight in forming a precedent for a set of rules so much like ours that they can be referred to as sustaining the position that the American Bar Association has taken. That the young lawyers, or young students at law, long for the teaching of such principles as are set out here, and the advantage of being able to refer to them, I can testify from somewhat extended personal experience. (Applause.)
AN ADDRESS BY CHIEF JUSTICE MATHERS
Early in the nineteenth century David Hoffman of Baltimore prepared a list of fifty resolutions for the adoption of students upon admission to the Bar. Resolution forty-eight says: "The ill success of many at the Bar is owing to the fact that their business is not their pleasure. Nothing can be more unfortunate than this state of mind. The world is too full of penetration not to perceive it and much of our discourteous manner to clients, to Courts, to juries, and counsel has its source in this defect. I am therefore resolved to cultivate a passion for my profession or after a reasonable exertion therein without success to abandon it. But I will previously bear in mind that he who abandons any profession will scarcely find another to suit him. The defect is in himself. He has not performed his duty and has failed in resolutions, perhaps often made, to retrieve lost time. The want of firmness can give no promise of success in any vocation."
In that resolution Mr. Hoffman struck the keynote of sucsuccess in the legal profession and of ethical conduct therein. The member of the Bar who has real liking of his profession as such, apart from its usefulness as a means of earning a livelihood, and has a knowledge of its history, customs, and traditions, will as a rule find his own ethical instincts a sufficient guide to right conduct in almost any circumstances; and the great majority of the members of the profession are admitted to practise as solicitors or called to the Bar and launched upon their respective careers with no other guide.
The curriculum of the Manitoba Law School is singularly defective in this respect. We cram a few legal principles into the law student and then turn him loose to grope his way through and to discover for himself what is and what is not professional misconduct.
In I believe all the provinces of Canada, with the exception of Ontario, Alberta and British Columbia, the candidate for call or admission is required to take an oath to truly and honestly demean himself in the practice of his profession to the best of his skill and knowledge, (1) but he receives no instruction as to
(1) The oath administered to a barrister in Ontario and to both branches of the profession in Alberta and British Columbia constitute brief ethical codes in themselves.
what constitutes correct demeanour. Often when it is unfortunately too late the young lawyer discovers that without any intention of doing wrong he has violated some principle of legal ethics, the existence of which he had never been taught, and has acquired a reputation for unethical conduct which he finds it difficult or impossible to shake off.
I hope the time will soon come when every law student will not only be taught the general principles of legal ethics but will also receive a grounding in the splendid history and traditions of the English and Canadian Bars.
The average candidate when he is first entered on the books of the Law Society knows nothing or next to nothing on any of these subjects and when he is admitted to the Bar his knowledge is of the same indefinite character. He has probably read Dickens and has in this way made the acquaintance of such distinguished members of the profession as Dodson and Fogg, Sampson Brass, Sergeant Busfuz and Solomon Pell, who so freely radiated erudition that Sam Weller the elder was convinced that like the frogs he must have brains all over his body. He has probably also read "Ten Thousand a Year" and has thus been introduced to such ethical models as Quirk, Gammon and Snap, or may have browsed his way through the poets and dramatists and met with such confidence inspiring pleasantry as "who will play the part of the honest lawyer? 'Tis a hard part that." The logical deduction from all this is that lawyers as a class are a lot of ignorant, scheming mountebanks, or bloodsucking scoundrels, who live by trickery and chicanery. No person who enters the profession with such an estimate of the personnel can entertain for it that feeling of respect which Hoffman regarded as so essential to success.
The first thing then the student should be taught is, that while the lawyers of the fiction writers, dramatists and smart story tellers unfortunately have in the past existed and perhaps may still be found, they are the jackals of which unfortunately all professions, even that of the ministry of the Gospel, have a few, but that the profession as a whole is composed of high minded and honorable men. He should be taught that the profession of the law is not a mere money making institution which barnacle like has attached itself to the ship of state and is tolerated only because the opportunity of ridding the community of its undesirable presence has not yet arisen but, that it is an absolutely essential institution in every civilized community; that the only place where the lawyer is not required is where the population is still in a state of barbarism where there is no law except the mere caprice of a chief or ruler; and that in the most highly civilized community their abolition would be followed by anarchy and chaos.
In an address to a body of university students on the choice of a profession the late Right Hon. W. E. Gladstone said: "As
the God Terminus was an early symbol of the first form of property, so the word 'law' is the veritable emblem of the union of mankind in society. Its personal agents are hardly less important to the general welfare than its proscriptions, for neither statute nor parliament nor press is more essential to liberty than an absolutely free outspoken Bar. Considered as a mental training the profession of the Bar is probably in its kind the most perfect and thorough of all professions."
Even Professor Lecky who was obsessed with the erroneous idea that the practice of advocacy as it is practised by the most eminent of the legal profession is inconsistent with the highest ethical standards admits that, "in the interest of the proper administration of justice it is of the utmost importance that every cause however defective and every criminal however bad should be fully defended and it is therefore indispensible that there should be a class of men entrusted with that duty. It is the business of the Judge and of the jury to decide on the merits of the case but in order that they should discharge this function it is necessary that the arguments on both sides be laid before them in the strongest form." (The Map of Life, by Lecky, 101).
So much for the opinions of laymen, now let me give you the opinions of two very eminent Judges. Mr. Justice Best said in Morris v. Hunt, 1 Chit. Rep. 555: "There is nothing which has so great a tendency to secure the due administration of justice, as having the Courts of the country frequented by gentlemen so eminently qualified by their education and principles of honor, as at this time appear to discharge the duties which they are called upon to fulfil." Lord Chancellor Brougham, in Greenough v. Gaskell, 1 My. & K. 98, was even more emphatic. He said: "The interests of justice cannot be upholden, the administration of justice cannot go on without the aid of men skilled in jurisprudence, in the practice of the Courts and in those matters affecting rights and obligations which form the subject of all proceedings." (1)
The best sheet anchor any lawyer can possess is an ardent belief in his profession, its usefulness to the state, its respectability, its splendid traditions. If he starts on his career with a mind steeped in the history, traditions and customs of his profession, he is not likely to wander far from the path of rectitude. He will discover that to play the honest lawyer is not a hard part and that there is no other calling in which honesty and integrity pays such high dividends. He will discover, however, that there are certain ethical standards to which he must conform and that as to what these standards are his own moral or ethical instincts are not always a safe guide.
(1) See also lecture by Professor Richmond, Lawyers and the Public 18 L.Q.R. 400.
Suggestions for the adoption of a code or canons of ethics have not in the past met with much favor either in England or Canada. There has however been for some time a growing feeling here, stronger in the West perhaps than in the East, that the recognized ethical rules which experience has shown to be necessary for its government and control, if the profession of the law is to fulfil its highest destiny, should be formulated and reproduced in such a way as to be available for the guidance of the young practitioner instead of leaving him to discover when too late that he has been betrayed by ignorance into taking a false step.
In England the resolutions of the General Council of the Bar upon professional etiquette, conduct and practice collected and published in the 1917 White Book constitute a fairly complete code for the guidance of the higher branch of the profession. The Council is the accredited representative of the Bar charged with the duty of dealing with all matters affecting the profession .No such authority exists in Canada.
In Quebec, the General Council of the Bar has by its bylaws laid down certain ethical rules for the government of its members, and the Ontario Bar Association some years ago adopted a somewhat sketchy code. The question has been mooted in some of the other provinces with so far no concrete result. (1)
Some twenty years ago an agitation arose in the United States upon this subject. The matter was first taken up and acted upon by a number of State Bar Associations. Finally on the 27th August, 1908, the American Bar Association, meeting at Seattle, Washington, adopted a code of professional ethics with a recommendation that the subject be taught in all Law Schools and be included amongst the subjects on which candidates for admission to the Bar should be examined.
The Saskatchewan Bar Association and the Benchers of the Alberta Law Society more recently took steps towards the same end and Dr. James Muir, K.C., LL.D., of Calgary, prepared a draft which was printed and circulated. At a meeting of the Canadian Bar Association in 1918 a committee of which Mr. Angus McMurchy, K.C., of Toronto, was convener was appointed to consider the subject. This committee reported to the meeting held in Winnipeg in August last in favor of the appointment of a select committee to prepare a statement of the principles of legal ethics, using amongst other data the codes of the American and Ontario Bar Associations and Dr. Muir's draft. A committee of which I was named convener was appointed by the President, Sir James Aikins. At his request two drafts have been prepared, one by myself and another by Mr. E. K. Williams,
(1) Since this address was delivered the Bar Association of Saskatchewan has adopted a code largely based upon this draft.