in from medical witnesses in a suit for malpractice. Far more at is the tolerance by judges of the outrageous fees charged torneys appointed to administer the estates of bankrupts and decedents and as receivers of corporations in difficulties. The way g judges will allow property to be devoured by the rolling up of big fees for imaginary or superfluous legal services by their brothers of the bar is nothing less than scandalous." 19

"20

Public welfare interests are ignored by professional men not only because of guild selfishness but also because of selfish loyalty to patient or client. Loyalty may be selfish or unselfish. Unselfish loyalty is necessary in the professional man as "counsellor in the intimate matters of life. . . . Hence he not only keeps locked within his breast the secrets entrusted to him, but he forbears to use to the disadvantage of his patron anything he has learned in a confidential relation." But supposing what he has learned shows the doctor that his patient's condition constitutes danger to the public safety, as when patients with an infectious disease are working in bakeries, at soda water fountains, or in other places where they may spread disease. He acts contrary to the public welfare if he keeps silent. Again, supposing a person comes to a lawyer, confesses he is guilty, and wants to be defended. The public welfare is violated if a lawyer takes such a case and uses all his ingenuity to clear a guilty man. If he is assigned to a questionable case by the court he may properly undertake a defence in order that the accused may have the benefit of those forms of procedure which have developed to safeguard the innocent, but it is contrary to the public welfare to use all his ingenuity and influence with judge and jury in order to get a reputation as an attorney of extraordinary ability who can win the hardest kind of a case.

When income becomes the standard of professional success, then rivalry for professional excellence degenerates into rivalry for income. When this tendency has deed in a profession, the professional spirit is contrary to public welfare interests. Hence the hopelessness of trying to make a profession in this stage of development more public-spirited by appealing to the professional spirit. This type of professional spirit causes the lawyer to become the selfish servant of corporations and to aid them in getting around the law. It causes physicians to seek the patronage of the wealthy, to

19 Ibid. 74-75.

20 Ibid. 69.

refuse to expose social causes of disease such as bad tenements, and bad sanitation in factories. It causes the young journalist to write the stories wanted by the commercial interests behind the paper without any regard for the public welfare.

If it is vain to hope to develop a public welfare standard of professional excellence merely by stimulating the professional spirit, when the standard of professional excellence has come to be defined in terms of money, then it is vain to hope to improve business behaviour by fostering in the business man a professional pride. Professional pride of this kind amounts to the same thing as the business man's pride in private profits. The right professional attitude and the right business attitude should be inculcated at the start in the professional and the business school. There young men should be trained to look at professional and business problems from the point of view of the public welfare. Until the instruction in the schools is given from this point of view the conflict between egoistic and public welfare interests will continue in the professions and in business, and will be traceable away back to the very beginning of the professional and the business man's life. When the instruction has once been given uncompromisingly from the point of view of the public welfare, then the conflict will be between practitioners who continue to hold the point of view of their school and those who abandon it for the sake of quick success. In the last analysis this conflict is inevitable and irrepressible. It is a conflict between men of contrary dispositions. But, as things are, the egoistic dispositions are, too often, encouraged in professional schools, which fail to emphasize public welfare interests. The educational institutions are those in which the reform on behalf of the public welfare must begin.

T

CHAPTER XVI

THE CONFLICT OF INTERESTS IN THE LEGAL

PROFESSION

HE attitudes of the legal profession are ascertained from the official code of ethics of the American Bar Association 1 and

3

other publications of that association,2 from the publications of the Committee on Professional Ethics of the New York County Lawyers' Association, and through a discussion with lawyers, of their code and of problems of professional ethics. The professional attitude, as set forth, is that of "ministers" of the law. "As well in the domain of public as of private law, the great fundamental principle for judge and counsellor ought to be, THAT AUTHORITY IS SACRED. There is no convenience so great, no private hardship so imperative, as to justify the application of a different rule to the resolution of the case, than the existing state of the law will warrant. 'There is not a line from his pen,' says Mr. Binney of Chief Justice Tilghman, 'that trifled with the sacred deposit in his hands. by claiming to fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred, I should rather say, dreaded, as an implication of his conscience. His first inquiry in every case was of the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the 1 American Bar Association, Canons of Professional Ethics.

2 The most important of these is Sharswood's Professional Ethics, Reports of the American Bar Association, Vol. XXXII, 1907. A former secretary of the American Bar Association writes: "I do not know of any conflict between the Canons of Ethics and anything in Sharswood. The Canons, however, are the official code adopted by the American Bar Association, and the treatise of Sharswood is simply an interesting volume published by the American Bar Association for the benefit of its members."

3 This committee passes upon questions submitted to it and renders decisions which are published from time to time. Over one hundred and sixty of these decisions have been published. See the pamphlet published by the committee entitled, Questions Respecting Proper Professional Conduct with the Committee's Answers, Questions 1 to 149 inclusive," and leaflets giving other questions and

answers.

American Bar Association, Canons of Professional Ethics, Sec. 32.

cause, and his intense desire to reach it, if it was not the justice of the law, he dared not to administer it.'" 5

The justice of the law, as applied to a particular case, is not so easy to interpret as it might seem to a layman. Even if a lawyer or judge strives to interpret exactly according to precedent, no two cases are exactly alike. When a client brings a case the lawyer considers under what law he may get justice for his client, and, in so doing, makes his own interpretation of the law. He decides that the law applies to this new case, and makes the interpretation of the law that will make this application plausible. He cites legal authority for his interpretation, and, in so doing, makes his own interpretation of the authorities.

That is, the premises even of the lawyer or judge who tries to be severely deductive in his interpretations are as truly individual assumptions as are those of one who assumes a wider discretion. As Professor Corbin says of judicial thinking,—and it is true, also, of the thinking of lawyers before the court-: "In a superficial aspect, the application of rules to cases may seem to be a deductive process; a pre-existing general rule is the major premise from which the judge arrives at a particular conclusion applicable to John Doe. In fact, however, the . . . supposed general rule is an inductive conclusion on the part of the judge from preceding individual instances. His decision of the case is a new instance which later judges and theorists will use as the basis of a new induction. In all cases the judge must construct his own major premise, and this he does not find an easy matter.'

"6

Law must, in the nature of the case, be regarded as inexorable rule, for a rule of conduct that could be changed at the whim of a judge would not be a rule of conduct. But the very inexorableness of the rule requires that it be intelligently applied. The tendency of lawyers and judges has been to emphasize inexorableness at the expense of intelligent interpretation, not only because the conventional attitude is the easy one, but also because legal tradition has emphasized the rights of propertied classes as against those without property. As Judge Learned Hand of New York has written: "Conservative political opinion in America cleaves to the tradition of the judge as passive interpreter, believing that his absolute loyalty to authoritative law is the price of his immunity from political pressure and of the

5 Sharswood, Professional Ethics, 40-41.

Corbin, The Law and the Judges, Yale Review, N. S. Vol. III: 239-240. See also Cook, Privileges of Labor Unions in the Struggle for Life, Yale Law Journal, XXXVII: 796, n.

security of his tenure. . . . In its passionate adherence to this tradition such opinion is not disinterested; it would as eagerly encourage judicial initiative, if the law were framed by labor unions, as it insists upon rigid obedience in a system framed for the most part for the protection of property and for the prevention of thorough going social regulation.” 7

The law, as it has developed, is, for the most part, for the protection of property. It is largely concerned "with the property relations of men, which reduced to their simple terms mean the processes by which the ownership of concrete forms of property is determined or passes from one person to another." 8 The result is that the emphasis on law as inexorable rule is apt to be justified on the ground of the necessity of such emphasis for the security of property rights. It is held that the law must be made certain, even at the expense of justice, "that it may be a certain rule of decision, and promote that security of life, liberty and property, which, as we have seen, is the great end of human society and government. Thus industry will receive its best encouragement; thus enterprise will be most surely stimulated; thus constant additions to capital by savings will be promoted; thus the living will be content in the feeling that their earnings are safely invested; and the dying be consoled with the reflection that the widow and orphan are left under the care and protection of a government, which administers impartial justice according to established laws." 9

In their zeal to emphasize the authority of law, lawyers have tended to lose sight of their own authority, and their obligation to use the law to promote justice. There are always two factors in a case, the law and the situation that demands justice. Lawyers are as much under obligation to consider all elements in the situation, including the social and economic conditions, as to consider the law. And the changing social and economic conditions will of necessity change the interpretation of the law in its application to the situation.

Different types of lawyers will emphasize in differing degrees the authority of the law in its traditional aspects, and will limit correspondingly their consideration of social and economic conditions. The type that will do this extremely will be the conservative type, which has no vigorous intellectual interest in social and economic conditions, nor any pronounced sympathy with those whose condition

7 Hand, The Speech of Justice, Harvard Law Review, XXIX: 617-618.

8 Beard, An Economic Interpretation of the Constitution of the United States, 12. • Sharswood, op. cit., 53.