Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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BAR

I.120.1

BAR, The, a term applied collectively to all who give professional assistance to others in legal controversies, and are licensed by some competent authority to do so. The term in this sense is variously ascribed to the fact that the space occupied by advocates in a court of justice, is separated by a rail or bar from that which is appropriated to spectators, and to a separation in a like manner of the benchers and readers from the students in inns of court on public occasions.

I.120.2

—As soon as a people emerge from barbarism, a body of men who make it their business to expound the law, and assist those who may need assistance in legal matters, is always observed to make its appearance, as one of the requisites of civilization and legal order, and the state confers upon its members special and peculiar privileges by law, and at the same time places them under regulations more or less strict, for the protection of the public and of those who may place their interests in their care. In the earliest accounts we have of judicial investigations, the litigants are brought into court in person, and are permitted to give their own account of the controversy, and the judges, after inquiring further, if the case seems to require it, proceed to give judgment for the one or the other, according as his story seems most plausible, or best supported by such evidence as is at hand. This places the ignorant and simple at the mercy of the cunning, crafty and designing, and it is easily made the means of perverting justice, and clothing wrong with the forms of law. In the famous description of the shield wrought by Hephæstus for Achilles, the picture of a judicial trial is given, and we perceive, immediately, that the most persuasive voice is expected to succeed, whatever may be the merits, unless perhaps the clamor of partisans, who are active and noisy about the court, shall sway the action of the judges in the other direction. That this would be so is by no means unlikely in any case in which popular sympathy is aroused or popular prejudice strongly excited, or even where money or family influence was able to produce the appearance of strong popular feeling. In Athens there seems to have been no distinct class of men who made advocacy their business, and causes were expected to be managed by some one interested therein; but friends sometimes appeared to support the cause of those who lacked the ability or the eloquence to speak on their own behalf, and sometimes a public prosecutor was appointed for a particular case, as Pericles was called upon by the people to prosecute Cimon, when the latter was accused of having been bribed to abandon the invasion of Macedon.

I.120.3

—In Rome, in its early days, the state of things was quite as little conducive to regular and unimpassioned judicial investigations, but gradually patrons assumed the defense of their defendants or clients, and, as Niebuhr describes the obligations and duties springing from that relation, "all clients, however different in rank and consequence, were entitled to paternal protection from the patron; he was bound to relieve their distress, to appear for them in court, to expound the law to them, civil and pontifical. On the other hand, clients were obliged to be heartily dutiful and obedient to their patron, to promote his honor, to pay his mulcts and fines, to aid him, jointly with the members of his house, in bearing burdens for the commonwealth and defraying the charges of public offices, to contribute to the portioning of his daughters, and to ransom him or whoever of his family might fall into the enemy's hands." The obligation to expound the law for his defendants rendered the patron subject to frequent calls, and made the study of the law a necessity, and those patrons who acquired reputation as specially learned and wise were frequently consulted by others also, and became known as juris consulti. So extensive was the business of some of them, that students attended them to learn the law from their exposition of it, and followed them into the forum that they might study and imitate their oratory. Some of them, however, were not advocates, but sat at home like oracles delivering opinions to those who called for them, with their students gathered about to listen and learn. The advocates were not compensated for their services unless by voluntary gifts, nor did the patron expect payment from his client otherwise than in the discharge of the reciprocal duties of the client above enumerated; but it was the patron's aim and interest to make his clientage as large as possible, for his importance in the state, his political influence and the gratification of his ambition for high office depended largely upon it. He was, therefore, interested in espousing earnestly the cause of his client, and protecting him to the full extent of his ability. Many jurisconsults delivered opinions freely upon similar considerations, but others took fees, and their services were often employed by advocates in their preparation for important trials. Forensic orators were also sometimes employed by others than their clients, and instances are recorded where their services were engaged by cities and provinces to impeach or prosecute at Rome, the officers who were accused of high crimes. In such cases a gratuity would be expected, and the advocacy of causes thus, at length, became a matter of business, which was sometimes united with the giving of opinions and sometimes not. The advocate was not expected to gather the information, or, as it would now be phrased, look up the evidence for the trial, but this was done by a lower grade of professional agents called procurators. A like distinction between those who prepare the case for trial and those who present it to the court has prevailed in most European states in modern times; and in France, Belgium, Geneva, and some of the German states, the advocates constitute an association or order into which admission can be obtained only by their own consent.

I.120.4

—Lawyers, as a distinct class or profession, made their appearance in England soon after the conquest, and as soon as the courts were permanently located at Westminster, practitioners gathered about the place of sitting, and schools for the reception of students sprung up, in which the most eminent and approved practitioners gave instruction. These schools were not always regarded with favor, and in 19th Henry III., that monarch issued a mandate for their suppression by the municipal authorities of London; and this led to, or was followed by, the establishment of inns beyond the jurisdiction. A palace before occupied by Henry Lacy, earl of Lincoln, was taken for this purpose in the early part of the fourteenth century, and has since been known as Lincoln's inn. The temple was also taken for the same purpose soon after, and a little later Gray's inn was established, the name taken for it being that of the proprietors of the soil. In the temple two societies were established, known as inner temple and middle temple, and the four inns of court exist as places for instruction in the law to this day, and each has subordinate and dependent inns known as inns of chancery, where instruction is given preparatory to admission to the inns of court. Each of the inns of court is independent of the others, but their regulations for calling persons to the bar are substantially the same. The government is in the hands of the benchers, who are selected from the barristers according to seniority. Students are not called to the bar until they have been for 5 years members of one of these societies, unless they are of the degree of master of arts or bachelor of laws of one of the universities, when it may be 3 years; nor until they have passed an approved examination by the society to which they belong. The call makes them barristers, and after 16 years' service a barrister may be called to the degree of sergeant. From the sergeants the attorney general and solicitor general are chosen, and it is customary also to designate certain members as king's (or queen's) counsel; the designation being one of honor rather than of profit. The societies named enjoy the exclusive privilege of calling to the bar, and they may also expel a member for cause, and thereby disbar him. Barristers and sergeants can make no contract for compensation, but the custom is to deliver with the brief a fee proportioned to the importance of the case, and the expected value of the desired service, and also to pay a like fee on any consultation. The lower order of practitioners in England is that of attorneys, who are regularly admitted to practice by the respective courts upon examination. These issue writs, prepare and serve pleadings, do whatever may be necessary to prepare the case for the advocate, and then instruct the advocate by a brief which is to be his guide on the trial. They are not at liberty to appear as advocates in the higher courts, but are represented there by barristers or sergeants. Attorneys are paid according to a fee bill prescribed by law, and they may bring suit for their fees. In chancery the practitioners are called solicitors, corresponding to attorneys in the law courts, and counselors who are the advocates. In the ecclesiastical courts the practitioners are proctors and doctors of the civil law, and in the courts of admiralty they are proctors and counselors. Advocates may practice in different courts, but they are expected to choose the branch of law to which they will give attention, and confine their practice chiefly to the appropriate court or courts.

I.120.5

—The profession in Ireland corresponds to that of England, and requires no special notice. The barristers are only admitted after keeping certain terms in the inus of court of London, and at the king's inn at Dublin.

I.120.6

—In Scotland the several grades are writers, solicitors and advocates, the latter being licensed by the faculty of advocates.

I.120.7

—In the United States the members of the legal profession are attorneys and counselors at law, solicitors and counselors in chancery, and proctors and counselors in admiralty; but the distinction between the two grades has become almost nominal in the states generally, and purely nominal in some. Attorneys may appear as advocates in all the courts, but in a few cases counsel are required to sign pleadings or give certificates of merits. Counsel, when any distinction is made, are merely attorneys who have been for a certain time at the bar. They may not only contract for a compensation for their services, but in the absence of any special contract, the law implies one on which suit will lie. It is never thought discreditable for counsel in America to bring suit for fees which will not be paid with out, though reputable counsel seldom do so except in extreme cases. In France, where an advocate may sue for his fees, it is commonly esteemed unprofessional to do so, but the custom is more general to pay in advance than it is in America. Attorneys are licensed to practice in the several courts by the courts themselves, sometimes under rules prescribed by statutes, and sometimes under regulations which the courts prescribe. The rules are exceedingly dissimilar: all that is prescribed in many states is, that an applicant for license shall be a male resident of the proper age, and pass an approved examination, but in other states he must produce evidence of having pursued the study of the law in the office of a practitioner or in a law school for a period of time named, which period ranges from two years to five. A very large proportion of students are educated in the law schools. In some states females, giving evidence of the proper qualification, may be admitted to the bar, and some few have been admitted. The federal courts admit, on motion, those who are practicing attorneys in the highest state court.

I.120.8

—In Great Britain advocates as well as the judges must appear in court in wigs and gowns, but this is not required in America. In the supreme court of the United States, however, the judges wear gowns.

I.120.9

—It is important now to understand what are the privileges of the members of the bar, and what are the rights and privileges of those who employ them. In general terms it may be said that the conduct of business in the higher courts is exclusively in the hands of the bar, though a party has a right to conduct his own suit in person if he shall see fit to do so, but unless he is familiar with legal forms he would scarcely be safe in venturing to act in person, whatever might be his ability. Judges of courts are also expected to be appointed from among the members of the bar, and in some states this is required by law. Prosecuting or district attorneys are also chosen from the same body of men, and so are the officers who perform the duties of master in chancery. In respect to justices and judges of inferior courts no such requirement is made, and in those courts any one may appear as an advocate whom a party sees fit to employ.

I.120.10

—It is remarkable that the full privilege of transferring the defense of his case to counsel was formerly restricted in England to civil cases and cases of misdemeanor. On trials for treason and felony the accused was permitted to be heard by counsel on such questions of law as might arise; but it was considered the duty of the judge to be vigilant that no injustice be done to an accused party, and the judge alone could call the attention of the jury to such facts as might be supposed to favor the defense. This idea that the accused, if innocent, would be protected by the counsel and assistance of the judge was pleasant in theory, but it could seldom have much foundation in fact, and was sometimes a cruel mockery. The prosecution was usually presented by able counsel, and the keenest and most fair-minded judge would be wholly unprepared, except in the simplest cases, to bring out the facts which might rebut the case for the crown. To do this, outside investigations would be required, and these the accused would seldom have the opportunity for making, and the judge never. "I have myself often," said a learned counselor whose practice in the last century was unsurpassed in extent, "seen persons I thought innocent convicted, and the guilty escape, for want of some acute and intelligent counsel to show the bearings of the different circumstances on the conduct and situation of the prisoner." Learned judges gave testimony to the same effect. Yet, although the privilege of full defense by counsel was conceded to persons accused of treason by stat. 7, William III, c. 3, it was not extended to those charged with felonies until 6 and 7 William IV., c. 114. In the United States the privilege is converted into a constitutional right. By the constitution of the United States a person charged with an offense in the federal courts is to have the assistance of counsel in his defense; and the several state constitutions contain similar provisions. If an accused party is unable to procure the assistance of counsel, because of his poverty, it is customary for the courts to designate some member of the bar to aid him; and though it has been decided in one state (Indiana) that counsel can not be compelled to give gratuitous services, it would be looked upon as unprofessional to refuse, and also as discourteous to the court. It is customary, however, for the state to provide some small compensation for counsel thus assigned. In the prosecution or defense of a case counsel are at liberty to do or say whatever might be done or said by their clients, and they are protected in doing so to the same extent that clients themselves would be if personally managing their own cases. The counsel is therefore privileged from prosecution for any defamatory matter that may be contained in his pleadings, and the same privilege protects his arguments in court. If, therefore, the counsel put forward theories or urge conclusions not warranted by the facts, he is not subject to responsibility, either civil or criminal, therefor, The privilege, however, may be said to be conditional: it is not so far absolute as to protect him if he shall wander from the subject in controversy to inflict gratuitous injury by dragging in irrelevant matters, or by defaming persons who have no connection with the controversy. It is expected that counsel shall argue questions of law to the court, and questions of fact to the jury when there is one, but in some cases—particularly in cases of libel—the jury, by constitution or statute, are made judges of the law as well as of the facts, and it is proper to address the argument on the law to them. Some courts have also held that the jury were judges of the law in other criminal cases, but the prevailing doctrine is that they must receive the law from the court. Nevertheless, if the jury disregard the instruction of the court and acquit an accused party, the acquittal is final.

I.120.11

—Next to being defended by counsel the most important privilege of the client is that his attorney shall preserve inviolable secrecy in respect to all facts which have been communicated to him for the purpose of obtaining his professional assistance, or which have come to his knowledge in the course of or because of his employment. The necessity that the client should be perfectly confidential with his counsel in order to have the full benefit of his assistance is conceded, and he is, therefore, encouraged by the protection which the law throws over his communications, to disclose fully all the facts known to himself which bear upon or may affect any question on which he needs advice or professional aid. The obligation to observe secrecy is not limited to the pendency of the particular case or controversy, but is perpetual, and the counsel will not be suffered to make disclosure as a witness in other cases, even if he were disposed to do so; the privilege of secrecy being that of the client himself, and not of the counsel. The client himself, however, may waive it, and permit a disclosure. The privilege is limited strictly to communications made with a view to professional assistance: what the party shall say in mere social intercourse, or communicate for any other reason than professional aid, is no more privileged than the ordinary talk between man and man. Communications in writing, the exhibition of title deeds, securities and other papers, are within the protection.

I.120.12

—Attorneys and counsel have a lien upon all papers and securities their clients may place in their hands, and upon moneys collected by them, as security for any sum that may be owing to them for professional services and expenses. They probably have at common law no lien upon any judgment that may be recovered by them except to the extent of their own fees that may be included therein, and which have been taxed against the opposite party. As between themselves and their clients their own fees are not measured by the allowances of the fee bill, but, in the absence of special contract, rest upon a quantum meruit; the fee bill being the measure only as between the successful and the defeated party to the cause. But in England the attorney recovers according to the fee bill, and may be required to have his bill taxed before payment. Sometimes attorneys take charge of suits on an agreement that if successful they shall have for their services a certain portion of the damages or other thing recovered; but the practice is thought by many to be unprofessional, and is held by some courts to be illegal for champerty. An agreement by an attorney to warrant success in a suit is contrary to public policy, and void.

I.120.13

—An attorney when licensed to practice takes an oath, which is somewhat different in different states, but the most important provisions of which are that he will conduct himself with all due fidelity to the courts in which he may practice and to his clients. He then becomes an officer of the court, and is under obligation to assist the court with his advice whenever called upon, and becomes under a moral obligation to defend the honor and integrity of the court if they shall be unjustly assailed. He also becomes subject to the discipline of the court if he shall be guilty of improper practices, and he may be punished as for contempt of court for disorderly or unbecoming conduct in its presence, for refusal to obey its proper orders, for making wrongful use of its process, for abusing the confidence of his clients, or for dishonesty in his professional employment. In gross cases he will be disbarred, by which is meant that his license to practice will be revoked: and this may be done for any reason that would render him unworthy of general confidence; as for example, if his reputation for truth should become so bad that the community would not believe him under oath, or if he should be convicted of some heinous or degrading offense. The power to disbar an attorney for assaults made upon the judge out of court because of something done by him judicially, or for intemperate criticism of his judicial conduct in the public press, has sometimes been exercised, but the right to do so has as often been questioned, and a prudent judge will leave such abuses to the same remedies that are open to others.

I.120.14

—In respect to the institution of suits the attorney must obey the directions of his client, and he will be responsible in damages in case he shall refuse or neglect to do so. When the suit is instituted, however, the attorney must exercise his own judgment, and the client's remedy, if he is dissatisfied, is to dismiss him and put his case into other hands. The employment obliges the attorney to give his client his best endeavors for success; but he never by any implication of law warrants success, and is entitled to compensation even when the client, acting upon his mistaken advice, has lost his cause. But for losses occurring through his fraud or negligence, the client may recover damages; and for gross frauds or other misconduct to the prejudice of the client, the court will sometimes give summary remedy by attachment.

I.120.15

—How far the counsel is morally bound to consider the interests and the feelings of others when his client's interests are at stake, is a much mooted question. Lord Brougham, in the defense of queen Caroline, advanced the extraordinary doctrine that, "an advocate in the discharge of his duty knows but one person in all the world, and that person is his client." But advocates equally eminent with himself have rejected such a doctrine as being degrading to the profession, subversive of the very reasons upon which their peculiar privileges exist, and because it would convert a class which are supposed to be ministers of justice, into instruments of injustice, oppression and outrage whenever the necessities of bad cases shall require it. No client has any right to require that any counsel shall in his interest pervert the law, or give a false color to the facts, or abuse witnesses who are apparently fair, or inflict wanton injury on any one: being called to the bar as an aid to the court in administering the law, the first duty of counsel is to assist in seeing justice done, and his services to his client must keep this primary duty in view. That sentiment, however, which is often expressed, that counsel have no moral right to render legal assistance to those whom they may know or believe to be guilty of crimes with which they are charged, has no just or reasonable foundation whatever. For, in the first place, the counsel is not made by the law the judge of his client's guilt, and if he were, he might misjudge upon some preliminary statement, and leave an innocent party to be condemned without a defense. But, in the second place, it is a duty which every one connected with the administration of the law owes to the law, to see that all, even those most guilty, are only condemned according to the law; for only by that course can order be preserved, and the law made an effectual protection to the innocent. The sentiment referred to, pushed to its legitimate conclusion, would justify summary execution without trial in every case where guilt appeared certain; for a trial without defense—especially if defense be refused because of supposed guilt—has little or no significance or value as a judicial investigation. It is, therefore, a part of the obligation the counsel assumes, not less to the law than to his client, to point out and insist upon all the defects, whether of law or of fact, that may exist in the case against him, and to urge an acquittal whenever he can show that the case is not complete. To this extent, to quote the language of Mr. Charles Phillips, "the counsel for the prisoner has no option. The moment he accepts his brief every faculty he possesses becomes his client's property. It is an implied contract between him and the man who trusts him." But further than this he can not rightfully go. It would be improper for him to endeavor to influence the jury by urging upon them his own opinion, and it would be as well unprofessional as dishonest if he were to do this when the opinion he expressed was not that which he held. In cases where only civil rights are involved, counsel has a right to take advantage of legal rules for the benefit of his client, even when in the particular case they seem to operate unjustly. Legal rules are established from reasons of general policy, and because they produce the best results in the great majority of cases, and injury in particular cases is inseparable from any rules of general order. All that can be properly required of counsel in such cases is, to use his best endeavors to bring about voluntary arrangements when equity seems to require it.

I.120.16

—The evidence of an attorney's retainer in a case, as between himself on the one hand and the court and opposite party on the other, is found in the fact of his entering his appearance of record. In general the opposite party is not at liberty to question the fact that the appearance has been entered on a proper employment, and if the appearance is unauthorized, the party is nevertheless bound, though he may move to set it aside on showing the facts. He may also have an action for the recovery of any damages he may have suffered as a consequence of the attorney's unwarrantable act. When the relation has been formed by an actual employment, it is supposed to be based on a degree of confidence in the professional adviser that must subject the client in a very great degree to his influence. As the attorney is an officer of the court it becomes then the duty of the court to see that this confidence is not abused; and any business dealings between client and counsel will be scrutinized with a degree of jealousy, and with some presumption against its fairness. In some cases the courts have set aside gifts that were made by the client pending litigation, and held contracts which were made for a larger compensation than was stipulated for at the outset to be prima facie oppressive and void. They have also held void all securities obtained by the counsel for the purpose of protecting him against liability for his own wrongful acts or negligences. So a purchase by the attorney of the claim of the adverse party would give him no interest as against his client, and any contract whereby, directly or indirectly, he would obtain compensation from both parties, would not only be corrupt and void, but might subject him to summary punishment. If an attorney, by means of his employment, acquires knowledge of any defects in his client's title, the disability to take advantage of the fact for his own profit does not terminate with his employment, but is perpetual.

I.120.17

—All notices which a party to litigation may have occasion to serve upon the other, must be served upon his attorney, who is supposed to keep him informed of all the proceedings, and also of all collateral facts that may professionally come to his knowledge, so that it is a maxim of law that notice to the attorney is notice to the party himself.

I.120.18

—The attorney's employment in a cause continues until judgment is given, and afterward, if his client is the successful party, so far as to authorize him to issue process and receipt the amount when paid. If his client shall discharge him, the discharge does not become complete so far as the opposite party is concerned, until it is made effectual by rule of court and the substitution of another in his place.

I.120.19

—The following acts are not within the general authority of an attorney: To submit his client's case to arbitration against his will; to sell or assign a claim placed in his hands for collection; to compromise the claim; to accept in payment anything else but money; to buy in for his client land which he sells on execution or mortgage foreclosure; to file a creditor's bill or other supplementary proceedings to enforce the payment of a judgment when collection is not made by execution; to employ assistance in the case, or to pledge the credit of his client except for the legal expenses and other necessary costs in litigation. If an attorney should make a compromise of a case by consenting to a particular judgment, the client, by showing that it was without his consent, might have it vacated.

I.120.20

—An attorney may be a witness in a cause in which he is employed, but reputable attorneys seldom consent to this where their evidence is of much importance, or is disputed, but will withdraw from the case when they discover that their evidence is to be material and allow another to be substituted, that there may be no suspicion that they testify under bias.

I.120.21

—The business of attorneys and counselors may be and frequently is conducted by two or more as partners, and under all the rules that govern partnerships in general. But as this is not a commercial partnership, one of the number has prima facie no right to give commercial paper in the name of the firm.

I.120.22

—There is a bar association of the United States, composed of such members of the bar as see fit to join it, which holds annual meetings, at which an address is delivered by the president and papers read by others, and discussions had on important legal subjects. There are also state bar associations in some states, and also local associations in some cities and counties. These are expected, among other things, to promote good fellowship, and to take steps to rid the profession of members known to be unworthy.

THOMAS M. COOLEY.

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