David Hoffman's Fifty Resolutions VII
Bill Long 12/13/05
Resolutions 33-37
33. "What is wrong is not the less so from being common. And though few dare to be singular, even in a right cause, I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom. It is better to be right with a few, or even none, than wrong, though with a multitude. If, therefore, there be among my brethren any traditional moral errrors of practice, they shall be studiously avoided by me, though in so doing I unhappily come in collision with what is (erroneously, I think) too often denominated the policy of the profession. Such cases, fortunately, occur but seldom; but, when they do, I shall trust to that moral firmness of purpose which shrinks from no consequences, and which can be intimidated by no authority, however ancient or respectable."
COMMENT: Can you imagine such a statement in a current code of legal ethics? Are we the richer or poorer for not having such a statement? There was no talk of "right and wrong" in my experience of legal practice, but there was lot of talk about how to make sure we abide by the rules.
34. "Law is a deep science. Its boundaries, like space, seem to recede as we advance; and though there be as much of certainty in it as in any other science, it is fit we should be modest in our opinions, and ever willing to be further instructed. Its acquisition is more than the labor of a life, and after all can be with none the subject of an unshaken confidence. In the language, then of a late beautiful writer, I am resolved to 'consider my own acquired knowledge but as a torch flung into an abyss, making the arkenss visible, and showing me the extent of my own ignorance.' (Jameson)"
COMMENT: I think I will only add to this the beloved quotation by Isaac Newton. "To myself I seem to have been only like a boy playing on th esea shore, and diverting myself in now and then finding a smoother pebble or a prettier shell than ordinary, whilst the great ocean of truth lay undiscovered before me." We are starkly ignorant, though we crave knowledge and competence. What is a professor's ethical task today given that reality?
35. "I will never be voluntarily called as a witness in any cause in which I am counsel. Should my testimony, however, be so material that without it my client's cause may be greatly prejudiced, he must at once use his option to cancel the tie between us in the cause, and dispense with my further services or with my evidence. Such a dilemma would be anxiously avoided by every delicate mind, the union of counsel and witness being usually resorted to only as a forlorn hope in the agonies of a cause, and becomes particularly offensive when its object be to prove an admission made to such counsel by the opposite litigant. Nor will I ever recognize any distinction in this respect between my knowledge of facts acquired before and since the institution of the suit, for in no case will I consent to sustain by my testimony any of the matters which my interest and professional duty render me anxious to support. This resolution, however, has no application whatever to facts contemporaneous with and relating merely to the prosecution or defense of the cause itself, such as evidence relating to the contents of a paper unfortunately lost by myself or others, and such like matters, which do not respect the original merits of the controversy, and which, in truth, adds nothing to the once existing testimony, but relates merely to matters respecting the conduct of the suit, or to the recovery of lost evidence; nor does it apply to the case of gratuitous counsel--that is, to those who have expressly given their services voluntarily."
COMMENT: Hoffman gets a little tied up in the details, don't you agree? Canon 19 of the 1908 Canons, however, preserves the spirit of this Resolution. It emphasizes the two points that a lawyer shouldn't be a witness in his client's behalf except for formal matters and that if he is forced so to testify, he sould leave the trial of the case to other counsel.
36. "Every letter or note that is addressed to me shall receive a suitable response, and in proper time. Nor shall it matter from whom it comes, what it seeks, or what may be the terms in which it is penned. Silence can be justified in no case; and though the information sought cannot or ought not to be given, still decorum would require from me a courteous recognition of the request, though accompanied with a firm withholding of what has been asked. There can be no surer indication of vulgar education than neglect of letters and notes. It manifests a total want of that tact and amenity which intercourse with good society never fails to confer. But that dogged silence (worse than a rude reply) in which some of our profession indulge on receiving letters offensive to their dignity, or when dictated by ignorant importunity, I am resolved never to imitate, but will answer every letter and note with as much civility as may be due, and in as good time as may be practicable."
COMMENT: Return your phone calls and emails. Keeping lines of communication open is not only a professional courtesy; it allows additional opportunties to solve problems.
37. "Should a professional brother, by his industry, learning, and zeal, or even by some happy chance, become eminently successful in causes which give him large pecuniary emoluments, I will neither envy him the fruits of his toils or good fortune, nor endeavor by any indirection to lessen them, but rather strive to emulate his worth, than enviously to brood over his meritorious success, and my own more tardy career."
COMMENT: Here is not the place for a disquisition on one of the seven deadly sins: envy. A new book on the subject might help you on that. But it is worth asking whether certain professions or just certain people are more prone to envy than others. Is envy as practiced by men different from women? Is it hard-wired into our psyche? What are the best means for helping us live within ourselves and our situations?
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