notion of his own as to the accused's guilt or innocence. The canon under discussion does not make it the duty but the right to do so if he choose.

A more difficult question and one that has caused considerable discussion in England is not touched by the canon. I refer to the question of taking up or continuing the defence of an accused person after he has confessed his guilt of the crime charged.

In the Courvoisier Murder Case, 1 Townsend St.T. 244, (1) the celebrated Charles Phillips was counsel for the accused. During the trial the prisoner made a complete confession to his counsel but at the same time insisted that he continue his defence. Phillips' first impulse was to throw up his brief but finally at the urgent suggestion of his associate counsel Mr. Clarkson, he laid the matter before Baron Parke, one of the presiding Judges. Baron Parke on being told that the accused refused to release his counsel, told Phillips that he must continue to act and he did so. Courvoisier was convicted and executed. On the fact of the confession to his counsel becoming known, Phillips was severely criticised by the London Examiner, not because he did not abandon the accused, but because it said he endeavored to fasten the crime upon an innocent party, a fellow servant named Sarah Mancer, a charge, which if true, would have amply justified the criticism. He was also blamed by his legal brethren for having mentioned the confession to Baron Parke, thus not only putting the Judge in an awkward position but being unfair to the accused. Although the Examiner returned to the attack from time to time it was not until after the lapse of nine years that Mr. Phillips, then occupying an important judicial position, made any reply. A consideration of all the evidence convinces one that Mr. Phillips violated no ethical principle. He not only did not endeavor to cast suspicion upon Sarah Mancer after the confession, but, in his speech, he expressly told the jury that he did not mean to do so. The whole question of the duty of counsel after his client has confessed has been reviewed by the English Bar Council whose ruling is published in the 1917 White Book at 2433. The general conclusion is that where an accused person has confessed to his counsel, a confession "is no bar to that advocate appearing or continuing to appear in his defence, nor indeed does such confession release the advocate from his imperative duty to do all he honorably can do for his client. But such a confession imposes very strict limitations on the conduct of the defence. An advocate may not assent to that which he knows to be a lie. may not connive at, much less substantiate a fraud. While therefore it would be right to take any objection to the com

He

(1) A very full account of this controversy is to be found in Costigan's Cases on Legal Ethics, 321.

petency of the Court, to the form of the indictment, to the admissibility of any evidence or to the sufficiency of the evidence admitted, it would be absolutely wrong to suggest that some other person had committed the offence or to call any evidence which he must know to be false having regard to the confession; such, for instance, as evidence in support of an alibi, which is intended to show that the accused could not have done or in fact had not done the act. That is to say, an advocate must not (whether by calling the accused or otherwise) set up an affirmative case inconsistent with the confession made to him." As to counsel's duty with respect to the evidence for the prosecution, "no rule can be laid down than this, that he is entitled to test the evidence given by each individual witness and to argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged. Further than this he ought not to go."

(7) "He should not, except as by law expressly sanctioned, acquire by purchase or otherwise any interest in the subject matter of the litigation being conducted by him. He should act for his client only and having once acted for him he should not act against him in the same matter or in any other matter related thereto, and he should scrupulously guard and not divulge his client's secrets or confidences."

This canon, as it was drafted, is in direct conflict with section 73 of the Manitoba Law Society Act. In England (1) and in every other province a champertous agreement between a lawyer and his client is not only unenforceable but is an indictable offence. In two provinces, Alberta and Ontario, a barrister upon call is required to take an oath amongst other things "not to be guilty of champerty or maintenance.'

It sometimes happens that what is legally right is ethically wrong and although the Manitoba statute permits a lawyer to bargain for an interest in the subject matter of the litigation, if the tendency of such a bargain is to degrade an honorable profession it should be reprobated. An interest in the subject matter reduces the lawyer from the position of the litigant's advocate to that of his partner, subjects him to all the temptations which beset a party, and not infrequently leads to unhappy conflicts between them when it comes to a question of settlement. The right to bargain for such an interest encourages that maladorous species the "ambulance chaser."

I am sure no member of the profession wants to see repeated in Canada a scene such as followed the mine explosion at Coal Creek, Tennessee, some years ago by which hundreds of men were killed, when numerous lawyers hastened to the place and as stated in Ingersoll v. Coal Creek, 98 S.W.R. 178, "entered actively into the competition for business," openly

(1) 1 Hals. 51; in re Solicitors, [1912] 1 K.B. 302.

soliciting bereaved widows to entrust them with the right to bring suits for damages for a share of the proceeds. The report says that 190 damage actions were in this way started. The attorneys for the defendant attempted by negotiations with the plaintiffs' attorneys to effect a compromise but the latter no doubt to some extent influenced by their interest in the actions refused the amount offered. The defendant's attorneys then adopted the unethical course of going behind their back and making the offer to the plaintiffs, who accepted it and the enterprising attorneys got nothing.

What in the United States are known as contingent fee contracts and in England speculative actions, not involving a stipulation for an interest in the subject matter but in which the solicitor's right to payment hinges upon the results have received countenance in both cuontries. In a speculative action for personal injury before Mr. Justice Darling in which the defendant obtained a verdict, he ordered the plaintiff's solicitor to pay the defendant's costs but his decision was reversed by the Court of Appeal, 110 L.T. 94. The Master of the Rolls said in his opinion "there is no impropriety at all in a solicitor's merely conducting a speculative action, for if it were improper for a solicitor to do so, many poor people would be unable to get their legal rights." A few months before Lord Chief Justice Russell said "it was perfectly consistent with the highest honor to take up a speculative action in this sense, viz., that if a solicitor heard of an injury to a client and honestly took pains to inform himself whether there was a bona fide cause for action, it was consistent with the honor of the profession that the solicitor should take up the action. It would be an evil thing," he said, "if there were no solicitors to take up such cases because there was in this country no machinery by which the wrongs of the humbler class could be vindicated, Law was an expensive luxury and justice would very often not be done if there were no professional men to take up their cases and take the chance of ultimate payment; but this was on the supposition that the solicitor had satisfied himself by careful inquiry that an honest case existed."

In such an action it would be perfectly fair that a solicitor, considering the risk involved, should be remunerated upon a somewhat higher scale than that ordinarily allowed. To guard against abuse, all agreements stipulating for more than the usual costs should be in writing and approved by some competent official of the Court at the commencement of the business, otherwise they should be unenforceable.

(8) "He should report promptly to his client the receipt of any monies or other trust property and avoid the co-mingling with his own, or use of trust money or property."

(9) "He is entitled to reasonable compensation for his services but he should avoid charges which overestimate or

under-value the service rendered. When possible he should adhere to established tariffs. The client's ability to pay cannot justify a charge in excess of the value of the service, though his poverty may require a less charge or even none at all.”

(10) "He should avoid controversies with clients regarding compensation so far as is compatible with self-respect and with the right to receive reasonable recompense for services. He should always bear in mind that the profession is a branch of the administration of justice and not a mere money getting occupation."

Many of the applications to strike solicitors off the rolls would be unnecessary if all would observe the advice contained in canon 8. The mingling of client's money with his own has led to the downfall of many solicitors without any premeditated wrongdoing on his part, and the danger of such a course cannot be too forcibly impressed upon every young practitioner.

My observation has led me to the conclusion that the best and most successful members of the profession, seldom if ever, have a dispute with their clients over a question of costs and in the rare instances in which such disputes do arise the solicitor is almost invariably found to be in the right. The lawyer who insists upon his strict legal right with respect to compensation under all circumstances will discover that he has adopted a poor method of attracting clients. Litigation with clients is one of the most unfavorable forms of advertising the lawyer can indulge in, and is in the long run almost certain to be unprofitable. On the other hand generous treatment of clients, particularly if they are poor or in very hard circumstances, even the writing off of all fees is like casting your bread upon the waters; it will return after many days. Abraham Lincoln owed in considerable degree his start on the road to the presidency to his reputation for generous treatment of the unfortunate.

(11) "He should not appear as witness for his own client except as to merely formal matters, such as the attestation or custody of an instrument, or the like, or when it is essential to the ends of justice. If he is a necessary witness with respect to other matters, the conducting of the case should be entrusted to other counsel."

It is stated, 2 Hals, par. 663, to be doubtful whether a person who appeared as counsel can give evidence in the same proceeding. In two cases in Ontario, Benedict v. Boulton, 4 U.C.R. 96; and Cameron v. Forsyth, Id. 189, he was said to be incompetent. Later however in Davis v. Canada Farmers Mutual, 39 U.C.R., 452, it was held that although there was no rule of law preventing an advocate also being a witness "it is an indecent proceeding and should be discouraged." With respect to any incident arising out of the litigation concerning which it is necessary to have the evidence of counsel

engaged, the English rule is for counsel to make his statement from his place at the Bar without being sworn; Hickman v. Berens [1895], 2 Ch. 638. Even if thought advisable that counsel should be sworn the practice is for him to give his evidence from his place at the Bar without entering the witness box. Wilding v. Sanderson [1897], 2 Ch. 539.

The English rule is stated in the White Book for 1917 at 2428 as follows: "A barrister should not accept a retainer in a case in which he has reason to believe he will be a witness and by being engaged in a case it becomes apparent that he is a witness on a material question of fact, he ought not to continue to appear as counsel if he can retire without jeopardizing his client's interests. Nor should counsel accept a brief in an Appellate tribunal when he has been a witness in the Court below."

"TO HIS FELLOW LAWYER"

(1) "His conduct towards his fellow lawyer should be characterised by courtesy and good faith. Whatever may be the ill feeling existing between clients it should not be allowed to influence lawyers in their conduct and demeanour towards each other and towards the suitors in the case. All personalities between them should be scrupulously avoided as should also colloquies between counsel which cause delay and promote unseemly wrangling."

(2) "He should endeavour as far as possible to suit the convenience of the opposing lawyer when the interest of his client or the cause of justice will not be injured by so doing."

(3) "He should give no undertaking he cannot fulfil and he should fulfil every undertaking he gives. (1) He should never in any way communicate upon the subject in controversy, or attempt to negotiate or compromise the matter directly with any party represented by a lawyer, except through such lawyer."

Not only is a compromise made with a party without the knowledge of his solicitor extremely bad form but if made for the purpose of depriving the solicitor of his costs the Court will intervene to protect him. (2)

(4) "He should avoid all sharp practice and he should take no paltry advantage when his opponent has made a slip or overlooked some technical matter. No client has a right to demand that his lawyer shall be illiberal or that he shall do anything repugnant to his own sense of honor and propriety."

(1) Such undertakings may be summarily enforced; Re Osler, Man. R. Temp. Wood, 205; Re McPhillips, 6.M.R. 108.

(2) Stewart v. Hall, 17 M.R. 653