76
The Green Bag
That the duty that counsel owes to the court and to the public be increased, and that the duty which he owes to his client be decreased proportionately, so that pri vate interests shall not have the power to induce an officer of the court to trespass upon the rights of the public. In that respect I make this suggestion that it might be worthy of this Association and of the profession in general to consider the proposition to make the members of the profession officers of the public almost exclusively, and that re muneration be derived from the public in the same manner as judges are now paid. Then again, as part of the expenses of the litigation, the client engaging the services of an attorney could then be required to pay into the public treasury a certain sum of money for the services of counsel. Counsel would then be directly responsible to the public, and his only object in the practice of his profession would then be to aid in the proper administration of justice. I do not know whether this system has ever been suggested to the profession, or whether it is in practice in any community, but I am convinced that it is one which deserves careful attention, and one in relation to which the profession generally ought to take some action. The condition of the law and the very law itself, as it has existed in our state and in nearly all of the states of this country, has been to blame for a great number of the gross abuses practised in the profession. Take, for instance, the subject of negligence. There is but one doctrine in relation to this subject which is just and fair, and that is the doctrine of comparative negligence. Now, the defendant may be guilty of negligence in a high degree, and the plaintiff, who is guilty of a slight want of ordinary care, it matters not how serious may be the injuries he
may have suffered, is practically with out redress. The question of negligence oftentimes depends upon the slightest scintilla of evidence, and it is a question for the court in numerous instances whether or not the question of negli gence shall be submitted to the jury at all. Taking into consideration the case of a man who has been mutilated or injured for life, the temptation for a client or a witness to supply the missing link in the testimony is altogether too great, and therefore it has been my observation and the observation of the profession generally, that there is hardly a case of personal injury tried in our courts, but what there appears testi mony which undoubtedly has been stretched to the limit, or is not well founded in fact. The charge is also made that counsel in many instances aid and abet the furnishing or supplying of this testimony. Then again, a practice has sprung up and is exten sively followed in relation to the prose cution of cases for personal injuries which practically makes an attorney as much interested financially in the outcome of the case as the client him self, and in fact makes him in many respects more interested, because in addition to the financial interest, his personal reputation is also at stake. Quite a number of the members of our profession personally are charged with inducing the bringing of personal injury suits, or with sending out agents for soliciting personal injury cases upon a contingent fee. This practice is gen erally considered by the profession as reprehensible, and rightly so. No lawyer has the right, legally or morally, to instigate legal business of any kind, or to foster litigation. Especially is this so in relation to personal injury business. To me there can be no more deplorable fact than for an attorney personally, or by
