David Hoffman's Fifty Resolutions II
Bill Long 12/12/05
The Resolutions for today, if followed, would change the face of American law.
10. "Should my client be disposed to onsist on captious requisitions, or frivolous and vexatious defenses, they shall be neither enforced nor countenanced by me. And if still adhered to by him from a hope of pressing the other party into an unjust compromise, or with any other motive, he shall have the option to select other counsel."
COMMENT: Note the "spirit" of this Resolution. The ultimate loyalty of the lawyer is not to the client but is to some other source, whether you call it justice or the legal process or the honor of the profession. The lawyer doesn't seem to be the one who exists simply to honor the client's wishes. That is, there is something called "justice" which is probably independent of the client's claims and possibly even of his/her interests. It is that justice which the lawyer serves.
11. "If, after duly examinig a case, I am persuaded that my client's claim or defense (as the case may be), cannot, or rather ought not to, be sustained, I will promptly advise him to abandon it. To press it further in such a case, with the hope of gleaning some advantage by an extorted compromise would be lending myself to a dishonorable use of legal means in order to gain a portion of that, the whole of which I have reason to believe would be denied to him both by law and justice."
COMMENT: In one case in my private practice, where I was representing an indigent person in a social security case, I determined that the facts didn't "add up" to justify our claim (The client had originally filed the claim pro se). Instead of arguing what I felt was a frivolous claim, I sent a letter to the judge telling him that I felt we didn't have a case and I didn't want to bother him with a less-than-marginal case. The judge wrote back the most gracious letter I have ever received from a judge. He knew exactly what I meant, and he was thanking me for being a part of a joint system rather than an adversarial one. Maybe I did the wrong thing. But at least it is something to think about. Hoffman's Resolution # 11 helps frame the issue.
12. "I will never plead the statute of limitations when based on the mere efflux of time; for if my client is conscious he owes the debt, and has no other defense than the legal bar, he shall never make me a partner in his knavery."
COMMENT: I think if any lawyer implemented this principle today in his/her practice of law, that lawyer would be subject to disciplinary process. In today's world the statute of limitations is a weapon you use with eagerness. Indeed, it is the first place you look for a defense. Hoffman's point is very clear. If his client owes a debt, pay up, buddy, even if the statute of limitations has run. My, he challenges us, doesn't he?
13. "I will never plead or otherwise avail myself of the bar of infancy against an honest demand. If my client posseses the ability to pay, and has no other legal or moral defense that that it was contracted by him when under the age of twenty-one years, he must seek for other counsel to sustain him in such a defense. And although in this, as well as in that of limitation, the law has given the defense, and contemplates, in the one case, to induce claimants to a timely prosectuion of their rights, and in the other designs to protect a class of persons, who by reason of tender age are peculiarly liable to be imposed on, yet, in both cases, I shall claim to be the sole judge (the pleas not being compulsory) of the occasions proper for their use."
COMMENT: See my thoughts on the preceding Resolution. Here, however, the final comment on the lawyer being the "sole judge" of the use of this defense tells us that the lawyer first consults his/her conscience before the interests of the client.
14. "My client's conscience and my own are distinct entities; and though my vocation may sometimes justify my maintaining as facts or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privilege of solely judging to what extent to go. In civil cases, if I am satisfied from the evidence that the fact is against my client, he must excuse me if I do not see as he does, and do not press it; and should the principle also be wholly at variance with sound law, it would be dishonorable folly in me to endeavor to incorporate it into the jurisprudence of the country, when, if successful, it woud be a gangrene that might bring death to my cause of the succeeding day."
COMMENT: Hoffman's last thought is provocative. He is aware as he represents one client how it will affect his cases with other clients. Certainly every attorney is aware of this today, but what seems to be different in Hoffman's case is the fact that a client's cause must pass the bar of the attorney's conscience before the attorney will take on the case or represent the point.
Let me close this essay by asking a question regarding lawyers in America that I indirectly probed in this essay on prestige. Harris Polls since 1977 have shown that the profession in America that has lost the most prestige in that time has been the legal profession. In nearly 30 year the "prestige" factor of lawyers has fallen in half. Now fewer than 20% of Americans think of lawyering as a high status occupation. We rank above real estate sales people but far below teachers, doctors, firefighters and nurses. I think also that in that period the official understanding of what a lawyer is (based on the things for which we can be disciplined) has changed from the lawyer as a servant of the public or profession to the lawyer as the adversarial representative of a client. Zealous advocacy is the rage today, even as programs in dispute resolution are cropping up all over the country. So, I wonder if there is any correlation between the legal profession's decline in prestige in the country and our taking on the value of zealous advocacy as our defining virtue. What would happen if public service returned to the fore as the determining mark of our profession? As was the case in my own firm, pro-bono was encouraged, and we were even give up to 50 hours of credit per year to pursue pro-bono cases, but the sense was very clear that these were where we should put our conscience. When we got over our pro-bono cases, we should return to real law, which were the adversarial cases.
Thank you, David Hoffman, for getting us to think. Or is it just to dream?
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