Chapter V

I affirm the right and expediency of cross-examining attorneys in court, with a view to testing their credibility. An attorney’s relation to the trial is closer and more important than that of a witness. He has more to say and more opportunities to deceive the jury, not only by naked lying, but by both _suppressio veri_ and _suggestio falsi_. Why is it not important to ascertain his credibility; and if an inquiry into his private life and public reputation will assist, as himself avers, why should he not be put upon the grill and compelled to sweat out the desired incrimination? I should think it might give good results, for example, to compel him to answer a few questions touching his professional career. Somewhat like this:

“Did you ever defend a client, knowing him to be guilty?”

“What, precisely, was your motive in doing so?”

“But in addition to your love of fair play had you not also the hope and assurance of a fee?”

“In defending a client known to you to be guilty did you declare your belief in his innocence?”

“Yes, I understand, but necessary as it may have been (in that it helped to defeat justice and earn your fee) was not your declaration a lie?”

“Do you believe it right to lie for the purpose of circumventing justice?—yes or no?”

“Do you believe it right to lie for personal gain—yes or no?”

“Then why did you do both?”

“A man who lies to beat the laws and fill his purse is—what?”

“In defending a murderer did you ever misrepresent the character, acts, motives and intentions of the man that he murdered—never mind the purpose and effect of such misrepresentation—yes or no?”

“That is what we call slander of the dead, is it not?”

“What is the most accurate name you can think of for one who slanders the dead to defeat justice and promote his own fortune?”

“Yes, I know—such practices are allowed by the ‘ethics’ of your profession, but can you point to any evidence that they are allowed by Jesus Christ?”

“If in former trials you have obstructed justice by slander of the dead, by falsely affirming the innocence of the guilty, by cheating in argument, by deceiving the court whom you are sworn to serve and assist, and have done all this for personal gain, do you expect, and is it reasonable for you to expect, the jury in this case to believe you?”

“One moment more, please. Did you ever accept an annual or other fee conditioned on your not taking any action against a certain corporation?”

“While in receipt of such refrainer—I beg your pardon, retainer—did you ever prosecute a blackmailer?”

It will be seen that in testing the credibility of a lawyer it is needless to go into his private life and his character as a man and a citizen: his professional practices are an ample field in which to search for offenses against man and God.

The moral sense of the laymen is dimly conscious of something wrong in the ethics of the “noble profession;” the lawyers affirming, rightly enough, a public necessity for them and their mercenary services, permit their thrift to construe it vaguely as personal justification. But nobody has blown away from the matter its brumous encompassment and let in the light upon it. It is very simple.

Is it honorable for a lawyer to try to clear a man that he knows deserves conviction? That is not the entire question by much. Is it honorable to pretend to believe what you do not believe? Is it honorable to lie? I submit that these questions are not answered affirmatively by showing the disadvantage to the public and to civilization of a lawyer refusing to serve a known offender. The popular interest, like any other good cause, can be and commonly is, served by foul means when served at all. Justice itself may be promoted by acts essentially unjust. In serving a sordid ambition a powerful scoundrel may by acts in themselves wicked augment the prosperity of a whole nation. I have not the right to deceive and lie in order to advantage my fellow men, any more than I have the right to steal or murder to advantage them; nor have my fellow men the power to grant me that indulgence.

The question of a lawyer’s right to clear a known criminal (with the several questions involved) is not answered affirmatively by showing that the law forbids him to decline a case for reasons personal to himself—not even if we admit the statute’s moral authority. Preservation of conscience and character is a civic duty, as well as a personal; one’s fellowmen have a distinct interest in it. That, I admit, is an argument rather in the manner of an attorney; clearly enough the effect of this statute is to compel an attorney to cheat and lie for any rascal that wants him to. In that sense it may be regarded as a law softening the rigor of all laws; it does not mitigate punishments, but mitigates the chance of incurring them. The infamy of it lies in forbidding an attorney to be a gentleman. Like all laws it falls something short of its intent: many attorneys, even some who defend the law, are as honorable as is consistent with the practice of deceit to serve crime.

It will not do to say that an attorney in defending a client is not compelled to cheat and lie. What kind of defense could be made by any one who did not profess belief in the innocence of his client?—did not affirm it in the most serious and impressive way?—did not lie? How would it profit the defense to be conducted by one who would not meet the prosecution’s grave asseverations of belief in the prisoner’s guilt by equally grave assurances of faith in his innocence? And in point of fact, when was counsel for the defense ever known to forego the advantage of that solemn falsehood? If I am asked what would become of accused persons if they had to prove their innocence to the lawyers before making a defense in court, I reply that it is not for the public interest that a rogue have the same freedom of defense as an honest man; it should be a good deal harder for him. His troubles should begin, not when he seeks acquittal, but when he seeks counsel. It would be better for the community if he could not obtain the services of a reputable attorney, or any attorney at all. A defense that can not be made without his attorney’s knowledge of his guilt should be impossible to him.