CHAP. servant is regarded as the means of maintaining him at the XXXIX customary standard of living of his grade rather than as a payment for his services. His compensation is in honor. To keep the huckstering outsider from coming between patron and practitioner it is held unprofessional for the latter to deal through a middleman or to conceal his personality under a corporate name. The services of the salaried doctor of a ship, a college or a company ought to be gratuitous to the patient. The public accountant ought not to take service with an audit company nor the lawyer allow a collection agency to charge his patrons for his services. The practitioner ought not to pay commissions to laymen for securing business, divide his fees with persons outside the profession nor allow anyone to guarantee his honesty and efficiency. Since in any case he is presumed to do his best, working for a contingent fee is, save in certain cases, regarded as beneath the dignity of the profession. The putting of service above gain-getting implies a willingness to serve under certain circumstances without fee. The good physician stands ready to treat indigent sufferers, the good lawyer to take up the cause of the penniless victim of injustice. Architect, engineer and journalist are not called upon to serve the distressed individual but they may properly be called upon to contribute their professional services to a movement for public betterment. Every successful member of an honorable profession ought to be willing to do some free work. In consideration of the protection, recognition and rights enjoyed by the members of the professions, they generally acknowledge their obligation to practice with due regard to the interests of society. The scholar recognizes his obligation to proclaim truth at whatever cost to himself, the journalist his duty to publish the news fairly and without bias, the clergyman his call to apply Christian principles no matter who may be wroth, the physician his duty to stay out a pestilence even at the risk of his life. The architect should not, under his client's instructions, look for a way to evade the building code, nor should the engineer show how to dodge the sanitary regulations. The lawyer's first obligation is not to win his case, but to see that justice is done. To stoop to fraud or chicane on behalf of his client or to find him a crooked path around the statute is to violate the bar's implied contract with society. The Rela tion Must Be Per sonal Free Work Regard for the of Society CHAP. XXXIX The Doctors Oppose Secret or Abhorrence of Solicitation and Advertising In Some Cases the Reticence of Physicians Is AntiSocial While engineers and architects are at liberty to patent their inventions, the medical profession has always set its face against secret remedies and the patenting of a means of relieving human suffering, insisting that it is a part of the physician's honor not to restrict the use of a medicine for the purpose of private gain, but to give it freely to the world. The doctors' fight with the makers of proprietary medicines is a war to the knife between the professional spirit and the commercial spirit. There can be no doubt as to which is the true friend of the social welfare. Soliciting employment, advertising, seeking publicity, underbidding, attempts to supplant or to injure maliciously the reputation or prospects of a colleague are frowned upon as tending to lower the profession to the level of a trade. Lawyers ban advertising as tending to stir up litigation. There is, furthermore, the consideration that competitive advertising would greatly augment the expenses of professional men without making them in any way more useful to the public. The psychology, however, underlying the strong aversion to advertising in all the professions is, doubtless, the fear lest competition degenerate into an undignified scramble for business by all manner of self-laudation, falsehood and depreciation of rivals. In a profession pride is too strong to stomach the situation which would result if the members flung themselves upon a chance for employment with the abandon of newsboys or street-porters seeking patronage. In barring out any other means of commending oneself to possible patrons than worthy service, paid or unpaid, private or public, professional men are protecting not only their own interest, but that of society as well. CLIENT VS. SOCIETY As the older professions grew up at a time when the general or social interest was less clearly perceived than now, they show a tendency to put loyalty to the patron above duty to society. For example, the leaders of the medical profession formerly insisted that the physician has no right to speak of any ailment or defect he may learn of in his practice. In view of what we know about the communicability of diseases, is such secrecy ethical? If a health officer may nail a sign of warning on a house with a case of smallpox or scarlet fever, surely the physician is not bound to withhold all warm ing. Take the situation in Brieux's play, "Damaged Goods.' A young man not yet fully cured of a "social" disease plans to marry an innocent young woman. Is it right for his doctor to hold his tongue whe: her life and the sanity of her children are at stake? The new medical code sidesteps the problem by bidding the physician confronted by this type of case "act as he would desire another to act toward one of his own family under like circumstances." The truth needs to be hammered home that there exist certain racial and social interests which the doctor may never subordinate to his patient's desire for privacy. The office of attorney was created some six centuries ago to relieve the individual litigant of going personally from a distant part of the kingdom to attend the King's Court. At the outset the attorney seems to have been merely an agent standing in place of a principal. Although the profession has been slightly socialized by the requirement that the lawyer be of good moral character and learned in the law and by the theory that he is an officer of the court, the current conception of the lawyer's duty is still far too individualistic to justify the prominence given to lawyers in our judicial system or the maintenance of law schools at the public expense. What, for example, is more at odds with common sense than to justify the advocate who defends an accused person whom he knows, or has good reason to believe, to be guilty? The excuses offered for aiding the culprit against society are mere sophistries, spun to gloss over the irresponsible practice of law. The argument that the lawyer who treats the accused as a criminal is presumptuously putting himself in place of the judge is a quirk that any bright schoolboy ought to see through. No doubt the guilty man should have the benefit of those forms of procedure which have been worked out as safeguards for the innocent. But such defense, if offered by an advocate appointed by the court, whose prestige is therefore not at stake, will not go beyond the proper minimum. On the other hand, the attorney who voluntarily takes such a case has a strong interest in getting his client off. Acquittal will enhance his professional reputation. So he does his best to thwart the prosecution and frequently succeeds in turning loose on society an unpunished criminal. Yet the public is bidden not to despise this mercenary who has deliberately thrust a spoke amidst the wheels of justice! СНАР. XXXIX The Legal Profession is but Slightly Immoral- ity of the That an Honest Lawyer May Defend Anybody XXXIX CHAP. A society always hard put to it to keep down crime should never cease to resent and denounce the profoundly immoral maxim that a lawyer unbidden can without dishonor undertake any defense. Profes- to a Con- GUILD SELFISHNESS In the codes of the professions it is possible to detect traces of a selfish guild spirit. In the ancient Greek oath, the Asklepiad or hereditary physician swears "to reckon him who taught me this art equally dear to me as my parents, to share my substance with him and relieve his necessities if required; to look upon his offspring on the same footing as my own brothers, and to teach them this art, if they shall wish to learn it, without fee or stipulation, and that by precept, lecture and every other mode of instruction, I will impart a knowledge of the art to my own sons and those of my teachers and to disciples bound by a stipulation and oath according to the law of medicine, but to none other." Here one sees the endeavor to shroud in mystery the art of healing and to restrict the number of apprentices to the profession. In the etiquette governing the relations among men of the same profession, there are things which savor of a conspiracy against the public. The old code for physicians forbade the consulting physician to give his opinion to the patient or his friends or any one but the attending physician. "Neither by words nor manner should any of the parties to a consultation assert or insinuate that any part of the treatment pursued did not receive his assent." "No hint or insinuation should be thrown out which could impair the confidence reposed in him (the attending physician) or affect his reputation." This rule is at once a betrayal of the truth, of the sick man who pays for the consultation, and of the public who have a right to know if the attending physician has bungled the case. Hence the later code says that "the benefit to be derived by the patient is of first importance" and declares that the consultant should be permitted to state to the patient or his friends the result of his study of the case in the presence of the physician in charge. Even when the codes are flawless, the guild spirit is at work prompting members of the same profession to hang together CHAP. XXXIX Profes righteous at the expense of the laity. We see this in the difficulty of extracting an adverse opinion from medical witnesses in a suit for malpractice. Far more flagrant is the tolerance by judges of sional the outrageous fees charged by attorneys appointed to administer Men Unthe estates of bankrupts and decedents and as receivers of cor- ly Stand porations in difficulties. The way judges will allow property to Another 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. THE PURIFICATION OF PROFESSIONS by One A Profes- sion Will Down if the Un worthy Are Not The promulgation of rules which formulate the common understanding of reputable practitioners is, no doubt, a great aid to well-intentioned but inexperienced members of the profession. But an altogether more vigorous policy is needed if the ideals of professions exposed to the full strain of modern com- Excluded mercialism are not to become a mockery and a jest. The mandarins of China are a standing illustration of how far performance may fall below high-sounding professions. Honorable. practitioners ought to be relieved of the competition of unscrupulous men who have wormed their way into the calling for the sole purpose of gain. Otherwise, men of high standing will starve and the profession will be given over to men of low standards or of no standards at all. Rules Should Be Not but As Well It is, therefore, not enough to set forth a code of ethics as a lamp to straying feet. It is necessary to make it worth while for wobbly practitioners to live up to the code. In army and In army and only Fornavy misbehaving officers are tried by court martial and dis- mulated missed, not for having broken any law but for having fallen Enforced below the standard of "an officer and a gentleman." Lawyers are regularly disbarred for flagrant practices and in some states physicians and public accountants may for unprofessional conduct lose their license. Proposals have been made that, after the society of a profession has made known its code of ethics, it shall create a standing committee on ethics which shall investigate all complaints submitted to it bearing upon the professional conduct of a member and after hearing the member involved shall report its findings to the council of the society. Publicity, reprimand, ejection from the society, dismissal from the profession constitute a gamut of penalties which might strike terror |