head of a commercial firm, the reason must lie deeper than in the measurement of their several powers of mind.

And the essential reason for such preference will be found to lie in the fact that the merchant is presumed to act always selfishly. His work may be very necessary to the community; but the motive of it is understood to be wholly personal. The merchant's first object in all dealings must be (the public believe) to get as much for himself, and leave as little to his neighbor (or customer), as possible. Enforcing this upon him, by political statute, as the necessary principle of his action; recommending it to him on all occasions, and themselves reciprocally adopting it, proclaiming vociferously, for law of the universe, that a buyer's function is to cheapen, and a seller's to cheat, the public, nevertheless, involuntarily condemn the man of commerce for his compliance with their own statement, and stamp him forever as belonging to an inferior grade of human personality.

This they will find, eventually, they must give up doing. They must not cease to condemn selfishness; but they will have to discover a kind of commerce which is not exclusively selfish.

90. THE PROFESSIONAL SPIRIT versus THE COMMERCIAL

...

SPIRIT 1

There must be a reason for this persistence of the traditional antipathy toward solicitation and advertising by lawyer and doctor. What is it? This old oak has strong and firm roots. Shall it be cut down or torn up to make way for modern shrubs?

Let us grant all that the advertising gentry say concerning their work — there are some things even they cannot advertise. The breath of frost will kill the finest Beauty rose, though the sturdy pine will hold its head high above the snow. There are some things so delicate, so subtle, so like the rose, that the cold air kills them. Even advertising for churchgoing takes but the form of a preachment upon "Going to church." It does not say: "Go to Dr. Jones: he is the best preacher and has the largest audiences." It does not

1 From Julius Henry Cohen, The Law: Business or Profession? pages 195-200. G. A. Jennings Company, Inc., New York; 1916. Reprinted by special permission of the publishers.

say: "Dr. Brown will heal your soul for a dollar any Sunday morning at ten." Nor does it urge upon you any particular church. No. It says: "Have you cast aside the custom and teaching of your younger days? Have you flung out of your mind out of your

life the habit of churchgoing — that habit your father and mother once taught you? Are you walled in shut off from something that calls for your active interest? Are you mentally blind?" Its advertising is limited to appealing to men to resume old habits of churchgoing. It names no church. It names no minister. When a church advertises, it confines its advertisements to a simple announcement of time and place and speaker, with an invitation the church may always make: "Come all ye that labor and are heavy laden."

Mr. Shoe-Man, you have shoes to sell. You may praise your product. Your son has to sell knowledge? Yes. Services ? Yes. And something more. Do you recall Sharswood's definition of the oath of “fealty" he took? Is your son not pledged to give loyalty to his client, to preserve inviolate his client's sacred confidences, to forget self in service for another? Can such fealty or service be bought and sold? ...

The basis of the relationship between lawyer and client is one of unselfish devotion, of disinterested loyalty to the client's interest, above and beyond his own. Let the lawyer seek you for his own profit and you despise him.

Mr. Shoe-Man, would you repeal these two of the Canons of Ethics of the American Bar Association?

27. Advertising, Direct or Indirect. The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. The publication or circulation of ordinary business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. But solicitation of business by circulars or advertisements, or by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real-estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers

in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning causes in which the lawyer has been or is engaged, or concerning the manner of their conduct, the magnitude of the interests involved, the importance of the lawyer's positions, and all other like selflaudation, defy the traditions and lower the tone of our high calling, and are intolerable.

28. Stirring up Litigation, Directly or through Agents. It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship, or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly, or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attachés, or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick, and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the Bar, having knowledge of such practices upon the part of any practitioner, immediately to inform thereof to the end that the offender may be disbarred.

91. SOCIAL ETHICS IN THE LEGAL PROFESSION 1

The ethical question which laymen most frequently ask about the legal profession is this: How can a lawyer take a case which he does not believe in? The profession is regarded as necessarily somewhat immoral, because its members are supposed to be habitually taking cases of that character. As a practical matter, the lawyer is not often harassed by this problem; partly because he is apt to believe, at the time, in most of the cases that he actually tries; and partly because he either abandons or settles a large number of those he does not believe in. But the lawyer recognizes that in trying a case his prime duty is to present his side to the tribunal fairly and as well as he can, relying upon his adversary to present the other side fairly and as well as he can. Since the lawyers on the two sides

1 From Justice Louis D. Brandeis, Business A Profession, pages 339-343. Small, Maynard & Co., Boston; 1925. Reprinted by special permission of the publishers.

are usually reasonably well matched, the judge or jury may ordinarily be trusted to make such a decision as justice demands.

But when lawyers act upon the same principle in supporting the attempts of their private clients to secure or to oppose legislation, a very different condition is presented. In the first place, the counsel selected to represent important private interests possesses usually ability of a high order, while the public is often inadequately represented or wholly unrepresented. Great unfairness to the public is apt to result from this fact. Many bills pass in our legislatures which would not have become law, if the public interest had been fairly represented; and many good bills are defeated which if supported by able lawyers would have been enacted. Lawyers have, as a rule, failed to consider this distinction between practice in courts involving only private interests, and practice before the legislature or city council involving public interests. Some men of high professional standing have even endeavored to justify their course in advocating professionally legislation which in their character as citizens they would have voted against.

Furthermore, lawyers of high standing have often failed to apply in connection with professional work before the legislature or city council a rule of ethics which they would deem imperative in practice before the court. Lawyers who would indignantly retire from a court case in the justice of which they believed, if they had reason to think that a juror had been bribed or a witness had been suborned by their client, are content to serve their client by honest arguments before a legislative committee, although they have as great reason to believe that their client has bribed members of the legislature or corrupted public opinion. This confusion of ethical ideas is an important reason why the Bar does not now hold the position which it formerly did as a brake upon democracy, and which I believe it must take again if the serious questions now before us are to be properly solved.

Here, consequently, is the great opportunity in the law. The next generation must witness a continuing and ever-increasing contest between those who have and those who have not. The industrial world is in a state of ferment. The ferment is in the main peaceful, and, to a considerable extent, silent; but there is felt today very

widely the inconsistency in this condition of political democracy and industrial absolutism. The people are beginning to doubt whether in the long run democracy and absolutism can coexist in the same community; beginning to doubt whether there is a justification for the great inequalities in the distribution of wealth, for the rapid creation of fortunes, more mysterious than the deeds of Aladdin's lamp. The people have begun to think; and they show evidences on all sides of a tendency to act. Those of you who have not had an opportunity of talking much with laboring men can hardly form a conception of the amount of thinking that they are doing. With many these problems are all-absorbing. Many workingmen, otherwise uneducated, talk about the relation of employer and employee far more intelligently than most of the best-educated men in the community. The labor question involves for them the whole of life, and they must in the course of a comparatively short time realize the power which lies in them. Often their leaders are men of signal ability, men who can hold their own in discussion or in action with the ablest and best-educated men in the community. The labor movement must necessarily progress. The people's thought will take shape in action; and it lies with us, with you to whom in part the future belongs, to say on what lines the action is to be expressed; whether it is to be expressed wisely and temperately or wildly and intemperately; whether it is to be expressed on lines of evolution or on lines of revolution. Nothing can better fit you for taking part in the solution of these problems than the study and preeminently the practice of law. Those who feel drawn to that profession may rest assured that you will find in it an opportunity for usefulness which is probably unequaled. There is a call upon the legal profession to do a great work for this country.

92. THE LAW: BUSINESS OR PROFESSION?1

Now it is this very idea of service

a philosophy as true today that runs

of other businesses as it is of railroads and retailers through the whole of the ethics of the legal profession. The lawyer

1 From Julius Henry Cohen, The Law: Business or Profession? pages 42-43. G. A. Jennings Company, Inc., New York; 1916. Reprinted by special permission of the publishers.