David Hoffman's Fifty Resolutions IV
Bill Long 12/12/05
Resolutions 18-23, 25-26
I will dedicate an entire essay to Resolution 24. Let's begin with 18.
18. "To my clients I will be faithful; and in their cause zealous and industrious. Those who can afford to compensate me, must do so; but I shall never close my ear or heart because my client's means are low. Those who have none, and who have just causes are, of all others, the best entitled to sue, or be defended; and they shall receive a due portion of my services, cheerfully given."
COMMENT: It is striking that about eight or nine of Hoffman's following Resolutions concern attorneys fees and client reputation, while only three of the 1908 Canons directly deal with these issues (Canons 12-14). This Resolution is not really in conflict with No. 1, where a "brake" is put on professional zeal, but needs to be understood in the context of the other Resolutions on duties to the profession and the courts. Even this Resolution is more a commitment to the system or the idea of justice than simply an intention to pursue, at all costs, the wishes of a client.
19. "Should my client be disposed to compromise, or to settle his claim, or defense, and especially if he be content with a verdict or judgment, that has been rendered, or, having no opinion of his own, relies with confidence on mine, I will in all such cases greatly respect his wishes and real interests. The further prosecution, therefore, of the claim or defense (as the case may be), will be recommended by me only when, after mature deliberation, I am satisfied that the chances are decidedly in his favor; and I will never forget that the pride of professional opinion on my part, or the spirit of submission, or of controversy (as the case may be), on that of my client, may easily mislead the judgment of both, and cannot justify me in sanctioning, and certainly not in recommending, the further prosecution of what ought to be regarded as a hopeless cause. To keep up the ball (as the phrase goes) at my client's expense, and to my own profit, must be dishonorable; and however willing my client may be to pursue a phantom, and to rely implicitly on my opinion, I will terminate the controversy as conscientiously for him as I would were the cause my own."
COMMENT: This partakes more of the spirit of sage or mature advice than of a "rule." Good judgment regarding the strength of a client's cause is of paramount importance. Notice the phrase in the mid-19th century, "to keep up the ball," relating to running up large legal fees. There is a tendency and even a temptation to do that, especially when you know that your client has a rather bottomless jar of money. I was involved in at least one case like this in private practice. When I mentioned my objections, I was removed from the case.
20. "Should I not understand my client's cause, after due means to comprehend it, I will retain it no longer, but honestly confess it, and advise him to consult others, whose knowledge of the particular case may probably be better than my own."
COMMENT: A salutary recognition by a senior scholar and distinguished practitioner that there will be cases that you just don't understand. Our strength rests not simply in our ability to argue our client's case but at times to admit that we don't know what we are doing.
21. "The wealthy and the powerful shall have no privilege against my client that does not equally appertain to others. None shall be so great as to rise, even for a moment, above the just requisitions of the law."
COMMENT: Does money speak in law? You bet your last dollar it does. If this statement is to be taken seriously, however, it is a fine expression of the principle that neither money, nor the client's concerns, will override the central importance of the pursuit of the right in the matter and the dignity of the profession.
22. "When my client's repuation is involved in the controversy, it shall be, if possible, judically passed on. Such cases do not admit of compromise; and no man's elevated standing shall induce me to consent to such a mode of settling the matter: the amende from the great and wealthy to the ignoble and poor should be free, full and open."
23. "In all small cases in which I may be engaged I will as conscientiously discharge my duty as in those of magnitude; always recollecting that 'small' and 'large' are to clients relative terms, the former being to a poor man what the latter is to a rich one; and, as a young practitioner, not forgetting that large ones, which we have not, will never come, if the small ones, which we have, are neglected."
COMMENT: We miss Hoffman completely if we ignore the biblical basis or background of many of his thoughts. This one comes from Jesus. From Luke 16:10, "Whoever is faithful in a very little is faithful also in much; and whoever is dishonest in a very little is dishonest also in much." In 19th century America the law was primarily a Protestant profession, with moral sentiments of mainline or evangelical Protestantism undergirding legal work.
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25. "I will retain no client's funds beyond the period in which I can, with safety and ease, put him in posssession of them."
COMMENT: This rule will take on immense importance in the Canons, but especially in the Code and the Rules. Many lawyers fall prey to this requirement about passing client money along to clients in a timely manner. If the money isn't yours, and you are not supposed to be using it, get it off your hands. Don't let it stay around and "tempt" you with its allure.
26. "I will on no occasion blend with my own my client's money. If kept distinctly as his it will be less liable to be considered as my own."
COMMENT: Clear, concise, to the point. This is a paramount duty today. Commingling client and attorney funds has gotten more than one lawyer disbarred. Here I think Canon 11 of the 1908 Canons muddies Hoffman's limpid water. Canon 11 provides, "Money of the client or other trust property coming into the possession of the lawyer should be reported promply, and except with the client's knowledge and consent should not be commingled with his private property or be used by him (i.e., the lawyer)." I think Hoffman's rule has more to be said for it than the 1908 Canon. The Canon perhaps imagines the situation where fees are due when money belonging to the client comes into the lawyer's possession. But I think that Hoffman's clarity is what is needed today.
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