counsel in the conduct of the litigation. A lawyer should never ignore known customs or practices of the bar, or the rules of a particular court, without notice to the opposing counsel. While it is by far the better practice to have agreements and stipulations between attorneys in writing, still counsel should never refuse to carry out any oral agreement affecting the conduct of a case, fairly entered into. If a client wishes the assistance of additional counsel, a lawyer should not object, if the colleague offered is unobjectionable. If he cannot agree with his client on these matters, then he will be entirely justified in withdrawing as counsel after giving his client a reasonable time and opportunity for engaging other counsel.

10. Attorney as a witness.-An attorney should not be a witness for his client without withdrawing from the case and leaving the trial of the cause to other counsel and then only when essential to the ends of justice. A lawyer occupying the attitude both of counsel and witness for his client necessarily subjects his testimony to criticism, if not suspicion. Counsel should withdraw just as soon as he learns that his testimony will be necessary, and it does not satisfy the spirit of this rule simply to turn the trial of the case over to a partner. Testifying as to merely formal matters, not vital to the merits of the case, or as to those things about which there is no dispute, is usually held permissible without withdrawing from the case.

11. Conduct as to jury.-During or before the trial of a case counsel ought never to converse pri

vately with any of the jurors. No matter what the attorney's motives, they are liable to be misconstrued if he talks with jurors. While it is the duty of the court and its officials to provide for the comfort of the jurors, any special public interest by attorneys so as to attract the attention of the jurors, during the trial of a case, is not to be commended. If attorneys think they see anything that should be done for the comfort of the jurors they can properly suggest it privately to the court.

12. Attorney and client.-The relation of an attorney to his client is one of trust and confidence, calling for the highest degree of good faith. In his intercourse with clients he should be absolutely candid and fair. The relationship should be such that the client will have the utmost confidence in his counsel, so that he may feel entirely free to tell his attorney all the particulars of the case, those that are prejudicial as well as those that are favorable. In order that this may be done, the lawyer is bound to act for the client's interests. So long as the relationship continues it is best for the lawyer to refrain from engaging in business dealings with his client, particularly with reference to the subject matter of the litigation.

Lord Brougham in the defense of Queen Caroline is reported to have said, "An advocate by the sacred duty which he owes his client knows in the discharge of that duty but one person in the world, the client, and none other. To save that client by all expedient means to protect that client at all hazards and costs. to all others, and among others to himself is the

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highest and most unquestioned of his duties." 11 biographer of Rufus Choate, one of America's most famous trial lawyers, says that he accepted Lord Brougham's doctrine without any qualification, that he should identify himself completely with his client's interests and balk at nothing which would win. That "he fought his cause through every court into which it could be carried or driven, and he went in for victory to the last beat of the pulse and the last roll of the drum.” 12

The extreme limit in defending a client's interests advocated by Brougham and Choate has not met with the approbation of the members of the English and American bar. It is agreed that a lawyer is only bound to present one side of a case, but in doing this he should not use unfair or unlawful means. In presenting his case to a court or jury he is entitled to take all fair advantages as shown from the evidence, but as an officer of the court he should not attempt to mislead by going outside the record or insisting upon that which he knows to be false. True, under our present system of the conduct of trials, the lawyer cannot-like the judge-be solicitous only to do justice. The facts stated to him by his clients have always been held confidential communications, even though if known they would absolutely defeat the cause for which the lawyer is contending.

Abraham Lincoln is reported to have said to a client, "I can't serve you, for you are wrong and the

11 29 Canadian Law Times, p. 270.

12 10 Ohio Law Reporter, 172.

other fellow right. My business is never to defend wrong. 13 Sir Matthew Hale is stated to have said in his early practice that he would not take a case if he thought it was unjust, but afterwards he changed his views in this regard, finding that it would be impracticable to decide, without knowing either the facts or the law, which side was just.' Such a rule might put an end to the administration of justice.

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An attorney owes complete devotion to the interests of his client and a zealous defense of his cause with the utmost skill and ability, yet it should be ever kept in mind that the great trust is to be performed within the limits of the law.15 He should never in the trial of a case express his personal opinion without making it clear that it is his opinion. Rarely is he justified in stating his personal belief in the justice of the cause he is representing. If such a practice were followed, such statements would lose their force and subject counsel to the charge that he was wilfully trying to mislead the court and jury, and the failure to make them in a particular case would frequently be held a tacit admission that he did not believe his client had a meritorious cause. Such a practice would necessarily place the young and inexperienced attorney at a great disadvantage in the trial of a case against a veteran of the bar. In doing this the lawyer makes morality subject to professional success.16

13 10 Yale Law Journal, 24.

14 Sharswood, Legal Ethics, p. 88.

15 Par. 10 Alabama State Bar Association, Code of Ethics. 16 Sharswood, Legal Ethics, p. 101.

13. The defense or prosecution of those accused of crime.—This subject is very closely related to the one that has just been considered, but it is so important that it deserves special consideration. The first duty of a lawyer engaged in prosecuting a criminal case is, not to convict, but to try to see that justice is done. The New York Bar Association Canons of Ethics say that the prosecutor "should avoid oppression and injustice of any kind whatsoever. The suppression of facts or the secretion of witnesses capable of establishing the innocence of the accused is a public wrong. 9917 It is a fundamental principle of Anglo-Saxon jurisprudence that every man has a right to be defended, whether guilty or innocent. The Sixth Amendment to the Federal Constitution states: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, and to have the assistance of counsel for his defense." Most of the state constitutions of this country contain similar provisions. This right includes the opportunity of consulting with his counsel and to have the latter's advice on all matters relating to his defense. If he is without financial means to obtain a lawyer, it is the duty of the court to assign counsel to aid him, and one so assigned ought not to ask to be excused for trivial reasons. An attorney should not necessarily refuse to accept the defense of a person accused of a criminal offense because he knows or believes him guilty. A much discussed case illustrating this question was that of

17 Par. 5, New York State Bar Association, Canons of Ethics. 18 § 4 American Bar Association, Canons of Ethics.

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