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Volume 16 Number 3 Volume 16, Summer 1970, Number 3 Article 4

The Partnership of Bench and

Edward D. Re

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This Article is brought to you for free and open access by the Journals at St. John's Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE PARTNERSHIP OF BENCH AND BAR'

EDWARD D. RE*

Y OUR GRACIOUS INVITATION to deliver the Mr. Robert H. Jackson Lecture does me great honor. It is an honor, however, which gives pause for a variety of reasons. Not only do I succeed a formi- dable array of outstanding scholars and jurists, as prior speakers, but I also address a distinguished assemblage of state judges each of whom, I am sure, is master within his field of the law. These facts constitute a mandate to strive to bring you a message both significant and timely. The administration of justice is the cause that brings us together. Our common bond is the love of the law, respect for the , and an understanding of the . Nothing less than the doing of justice is our common mission. Each of us here is privileged to par- ticipate in an ageless process designed to achieve justice here on earth. Also we share common goals and ideals, and reverence for the law as an instrument of justice. "Justice," said Daniel Webster, in his eulogy of Mr. Justice Joseph Story, "is the great interest of man on earth." In that sense we may properly be regarded as "ministers of justice." Yet we cannot lose sight of the reminder of Charles Evans Hughes, in his Presidential address to the American Bar Association, "that the justice to be administered is justiceaccording to law."' I am confident that all of you must share my deep concern and regret that so many topics could be chosen that reflect the crises in which the administration of justice finds itself today. A sense of history will

t The Mr. Justice Robert H. Jackson Lecture, National College of State Trial Judges, Reno, Nevada, Aug. 18, 1970. * , Customs . B.S., St. John's University, 1941; LL.B., St. John's University, 1943; J.S.D., New York University, 1950; Ped. D., Aquila, , 1960; LL.D., St. John's University, 1968; LL.D., St. Mary's College of Notre Dame, Indiana, 1968; LL.D. Maryville College, St. Louis, Missouri, 1969. 1 Hughes, Liberty and Law, 11 A.B.A.J. 563 (1925). THE PARTNERSHIP OF BENCH AND BAR show that within our society and our pro- "the spark that kindled the white flame of 3 fession there are seeds that permit both progress." self-evaluation and self-improvement. So I Writing in 1937, Dean Wigmore stated speak not as an alarmist, nor even as a that "the great result [of Dean Pound's ad- reformer, but rather as one who has not dress] was that the soul of the profession only conviction in our profession, but also had been touched."'4 There can be no doubt confidence in its ability to continue to per- that, for more than a generation, that ad- form the lofty mission of doing justice ac- dress had a profound influence on the im- cording to law. provement of the administration of justice Surely there is no thought of shirking in America. responsibility, or neglecting problems re- Dean Pound observed that "[d]issatis- quiring solution. There is, however, an faction with the administration of justice is awareness that the problems are not really 5 as old as law." He then set forth the new. Preceding generations also have been causes of dissatisfaction under four broad faced with the responsibility of adjusting categories: and improving in order to meet the needs of a developing and evolving society. (1) Causes for dissatisfaction with any legal system, (2) causes lying in the pecu- This awareness seems indispensable in liarities of our Anglo-American legal our democratic society whose ideals and system, (3) causes lying in our American lofty goals, as expressed by our founding judicial organization and procedure, and fathers, were admittedly only aspirational. (4) causes lying in the environment of Such a society, it must be remembered, is our judicial administration.6 not a fully developed society, but rather one that is, in a sense, unfinished, still develop- There is so much in Dean Pound's ing and evolving. memorable address, that is so valuable and so pertinent today, that one is tempted, Anyone concerned with the administra- almost beyond endurance, to treat and tion of justice would profit greatly by read- comment upon all of the points that he so ing Dean Roscoe Pound's notable address wisely and eloquently raised. I have re- entitled: The Causes of Popular Dissatis- strained myself, however, and have chosen of Justice.2 faction with the Administration to discuss only one small phase of his Delivered as far back as 1906, at the 29th critique. That phase pertains to what is annual meeting of the American Bar Asso- commonly called the adversary system. ciation in St. Paul, Dean Pound's address has been described by Dean Wigmore as The adversary system has been described

3 Wigmore, Roscoe Pound's St. Paul Address of 1906, 20 J. AM. JUD. Soc'Y 176 (1937). 2 Pound, The Causes of Popular Dissatisfaction 4 Id. at 178. with the Administration of Justice, 29 A.B.A. 5 Pound, supra note 2. REP. 395 (1906). 6 Id. at 397. 16 CATHOLIC LAWYER, SUMMER 1970 as that competitive system for the adminis- of course that a judge should be a mere tration of justice that prevails in our umpire, to pass upon objections and hold country under which "the judge is relatively to the rules of the game, and that the parties should fight out their own game passive, listening, moderating, and passing ' in their own way without judicial inter- on what is offered to him." I have chosen ference. We resent such interference as to discuss the adversary system because its unfair, even when in the interests of justice. misunderstanding and abuse have seriously The idea that procedure must of necessity affected, if not distorted, the proper role of be wholly contentious disfigures our judicial the lawyer in the American system of the administration at every point. It leads the administration of justice. Hence I have most conscientious judge to feel that he is merely to decide the contest, as counsel chosen to speak of the role of the lawyer in present it, according to the rules of the the decision-making process. Since I deem game, not to search independently for the role of the lawyer to be crucial in the truth and justice. It leads counsel to forget judicial process, I have labeled my re- that they are officers of the court and to marks: The Partnership of Bench and Bar. deal with the rules of law and procedure exactly as the professional football coach Under the second "main head" entitled: with the rules of the sport. It leads to ''causes lying in the peculiarities of our exertion to "get error into the record" Anglo-American legal system," Dean Pound rather than to dispose of the controversy discussed "the doctrine of finally and upon its merits. It turns witnes- contentious procedure which turns litigation ses, and especially expert witnesses, into into a game." He observed that a "no less partisans pure and simple. It leads to sensational cross-examinations "to affect potent source of irritation lies in our Ameri- credit," which have made the witness stand can exaggerations of the common law con- "the slaughter house of reputations." It tentious procedure." prevents the trial court from restraining the bullying of witnesses and creates a Noting that it is probably only a survival general dislike, if not fear, of the witness of the days when a was a fight be- function which impairs the administration tween two clans, and that it is peculiar to of justice. . . . The inquiry is not, What Anglo-American law, Dean Pound declared do substantive law and justice require? that "it has been strongly curbed in modern Instead, the inquiry is, Have the rules of English practice."" After observing that the game been carried out strictly?10 "with us, it is not merely in full accep- tance," but that "its collateral possibilities Dean Pound's indictment and bill of par- have been cultivated to the furthest extent," ticulars were devastating when first uttered. Dean Pound stated: I have eliminated several counts that are no longer true today, and that have been Hence in America we take it as a matter cured by modern codes of practice and pro- cedure. Enough, however, remains of the contentious spirit to continue to give life 7 Cheatham, The Lawyer's Role and Surround- ings, 25 ROCKY MT. L. REV. 405, 409 (1953). 8 Pound, supra note 2, at 404. 9 Id. at 405. 10 Id. at 405-06. THE PARTNERSHIP OF BENCH AND BAR to the charges pronounced in 1906. This, of ance from the sporting theory of justice," course, means that much more remains to and a "near future when our courts will be done in rekindling the spirit of profes- be swift and certain agents of justice, whose sional responsibility in bench and bar so decisions will be acquiesced in and re- that each may appreciate the proper role spected by all."' 15 that it must perform in our system for the All of us share that profound hope, and administration of justice. all of us, I am sure, are working mightily But let us turn again to Dean Pound: to help achieve it. I should like to refer to certain areas where progress may fairly be The effect of our exaggerated contentious reported, and then to mention areas which procedure is not only to irritate parties, require additional effort and our continuing witnesses and jurors in particular cases, attention. but to give to the whole community a false notion of the purpose and end of law. When we speak of the administration of Hence comes, in large measure, the modern justice, we of course must speak of American race to beat the law." and judges, for what they do, in large mea- sure, is the administration of justice. There- The learned scholar and keen observer fore, when our attention is directed to the concluded his discussion of the "irritation" quality of the administration of justice, we caused by the "exaggerations of the com- ought properly to focus upon the manner in mon law contentious procedure" with the which lawyers and judges do their work. following crucial sentence: "Thus the In evaluating the quality of the administra- courts, instituted to administer justice ac- tion of justice, we, in effect, evaluate, pri- cording to law, are made agents or abettors 12 marily, the qualitative performance of of lawlessness.' lawyers and judges. Admittedly, lawyers Dean Pound, however, was no prophet and judges are not the only participants. of doom, and referred to some of the events The process necessarily requires the partic- that gave hope for improvement. He men- ipation of others whose services may indeed tioned our law schools that in his opinion be indispensable. None, however, possesses were "rivaling the achievements of Bologna the prestige, influence and ability to effect and of Bourges to promote scientific study change and improvement, as bench or bar. of the law."'1 3 He also referred to the "ac- Although it is the proud boast of all tive Bar Associations in every state to re- Americans that ours is a "government of vive professional feeling and throw off the and not of men," it is axiomatic that yoke of commercialism.' 1 4 Specifically, justice is administered by men, and that Dean Pound looked forward to "deliver- the quality of the administration of justice necessarily depends upon the quality of the men who administer it. Emerson has 11 Id. at 406. 12 Id. 33 Id. at 417. 14 Id. 15 Id. 16 CATHOLIC LAWYER, SUMMER 1970 said that what we are speaks louder than opposites that clash and are reconciled." what we say. I should like to add that Stated in broad terms, he noted that "rest what we are manifests itself in everything competes with motion, permanence with we do. Quite properly, therefore, the atten- flux, stability with progress." He quoted tion of all citizens should initially focus Alfred North Whitehead to indicate that upon the quality of the . Perspec- these antitheses are "inherent in the very tive, however, requires that the inquiry must nature of things," and that they are not be broader than the judiciary. An appreci- peculiar to the law. Its special applicability ation of the proper role of the lawyer in our to law is of course of particular importance system for the administration of justice will to us, for in the words of Demogue, "[t]o cause us to agree with the assertion of bring about reconciliations is the great work Mr. Justice Vanderbilt, a distinguished law of jurists."'20 Stability and progress, prece- school dean and president of the American dent and , justice that is universal and Bar Association, that a "judicial system in yet individual, are but a few of the "oppo- the long run can be no better than its sites" that the jurist must "reconcile" if bar."1' 6 By this statement Justice Vanderbilt his work is to be qualitatively acceptable. was not merely referring to the obvious It is against this background of the para- fact that the judges are selected from among doxical nature of the law that one ought to to the the bar. Rather, he was referring examine the paradoxical role of the lawyer key role that the bar, i.e., the lawyer, per- in our society. In a Carpentier lecture of a forms in the judicial system, for he spoke subsequent generation, Professor Elliott of the "essential part" of the lawyer, and Cheatham referred to the American lawyer urged every law student to "know as soon as "a paradox within paradoxes."' 21 Like as possible what are the professional re- Dean Pound before him, he too spoke of sponsibilities of The Legal Profession."17 the paradox, if not oddity, of the adversary At this juncture we are reminded of system that prevails for the administration what Mr. Justice Cardozo called the "Par- of justice. Professor Cheatham calls atten- adoxes of Legal Science."18s Quoting tion to the anomaly that "a trial, which the Demogue, the learned jurist pointed out state employs in settling unresolved contro- that "[t]o bring about reconciliations is the versies, is not a cooperative effort by state great work of jurists." 19 In his Carpentier agencies to determine the facts and apply lecture, delivered at Columbia in 1928, Mr. the law." He notes that in the adversary Justice Cardozo spoke of the "fundamental system "[t]he lawyers are the active agents who investigate, present, and urge their views of the facts and the law."'22 In this 16 A. VANDERBILT, CASES AND OTHER MATERIALS system, Professor Cheatham describes the ON MODERN PROCEDURE AND JUDICIAL ADMINIS- TRATION 26-27 (1952). 17 Id. 18 Cardozo, The Paradoxes of Legal Science, in 20 Id. 21 E. CHEATHAM, A LAWYER WHEN NEEDED 4 SELECTED WRITINGS OF BENJAMIN NATHAN CAR- DOZO 251 (M. Hall ed. 1947). (1963). 19 Id. at 255. 22 Id. THE PARTNERSHIP OF BENCH AND BAR role of the judge "the only impartial partic- adversary system that prevails in the trial ipant" as being "passive-listening, moder- and appeal of cases, extols the role of the ating, and passing on what is submitted to lawyer. It would seem clear, therefore, that, him.,,-' as long as the system is retained, no effec- tive improvements may be achieved without Clearly, under the system described, the improving the qualitative contribution of role of the lawyer is crucial. And here we the lawyer. Necessarily, this implies an can best appreciate the paradoxical and awareness of the key role of the lawyer, conflicting nature of his role. Professor and an appreciation of the responsibilities Cheatham states it well: that he must fulfill if the system is to work Though engaged in the public function of effectively as a device designed to achieve the administration of law, and its most justice according to law. influential participant, he is privately re- It must be noted that few would wish to tained by one side, and he aids, guides, and defends that side alone. While called discard the adversary system. Dean Pound, an officer of the court, he is a partisan for example, only decried the American "exaggerations representative relying on private retainers of the common law conten- 24 for his livelihood. tious procedure. ' 26 Since the examination of witnesses is the function of the lawyer, What is required under this system is the system is best suited to preserve both beautifully set forth by Professor Cheatham, the reality and appearance of judicial im- and I shall adopt his words as the text upon partiality which is indispensable for the which to build my thesis. continued respect that must be enjoyed by the judiciary. Most thoughtful observers Under this system something more is still believe that "the interested striving of required than wise and just laws. Men two contending parties is, in the long run, expert in the law are needed to individ- ualize the law, to apply it, to employ it, an infinitely better agency for the ascertain- and even to develop it in concrete cases. ment of truth than any species of paternal- In court, where the law is graphically ap- istic inquiry."27 Yet, it must be constantly plied, the work of lawyers makes this need remembered that the goal is the ascertain- manifest. In our country especially the ment of truth, and that the mission is the need for lawyers in court cases is great. doing of justice. The system must be made In no other nation does the representative to reveal truth and illuminate. It cannot be of the public, the judge, have so limited a role in court, and the partisan representa- the instrument of foreclosing proper inquiry tives, the lawyers for the parties, so domi- and obscuring vital areas requiring exam- 5 nant a part.2 ination. Experience has shown that the adversary Surely it can be seen at a glance that the

23 Id. 26 See notes 8 & II supra (emphasis added). 24 Id. at 4-5. 27 Millar, The Formative Principles of Civil Pro- 25 Id. at 5. cedure 1, 18 ILL. L. REV. 1, 16 (1923). 16 CATHOLiC LAWYER, SUMMER 1970 system or process will achieve its goal, and situations they constitute a body of princi- fulfill its lofty mission, only when all of ples upon which a lawyer may rely for the participants fully perform their profes- guidance. The disciplinary rules, however, sional responsibilities. More particularly, it unlike the ethical considerations, are man- can only serve as an instrument of justice datory in character and state the minimum if counsel for both sides adhere to proper level of conduct below which no lawyer standards of professional responsibility and can fall. A violation of a disciplinary rule competence. Under this system, competence subjects a lawyer to disciplinary action. is no mere desideratum; rather, it is the in- Although the Code does not prescribe either dispensable quality that is required to make disciplinary procedures or penalties for vio- it effective, worthy of our confidence, and lations of a disciplinary rule, an enforcing to justify its preservation. agency may find interpretive guidance in the basic principles embodied in the canons Having highlighted the role of the lawyer, and the objectives reflected in the ethical and having alluded to the indispensable considerations. requirement of competence, I wish to men- tion certain hopeful signs of progress. Of particular relevance to our subject is the new Canon 6 of the Code of Profes- Since our subject essentially involves an sional Responsibility. Canon 6 provides that appreciation of professional responsibility, "A Lawyer Should Represent a Client the most recent accomplishment pertains to Competently." Especially pertinent is Eth- the new Code of Professional Responsibility ical Consideration 6-1 that states that "be- approved by the American Bar Association cause of his vital role in the legal process, in 1969. This Code, the product of almost a lawyer should act with competence and five years of work by the Association's proper care in representing clients." It also Special Committee on Evaluation of Ethical states that "[h]e should strive to become Standards, represents a comprehensive re- and remain proficient in his practice and statement of the former Canons of Profes- should accept employment only in matters sional Ethics. Most of the principles and which he is or intends to become competent concepts embodied in the old canons, and to handle." Under Canon 6, Disciplinary the opinions and decisions based upon Rule 6-101 deals specifically with "Failing them, have been embodied in the new Code. to Act Competently." It provides that:

The Code contains nine canons with (A) A lawyer shall not: ethical considerations and disciplinary rules (1) Handle a legal matter which he under each canon. The canons constitute knows or should know that he is brief, general statements of subject matter, not competent to handle, with- embodying the general concepts from which out associating with him a law- are derived the ethical considerations and yer who is competent to handle disciplinary rules. The ethical consider- it. ations are of an aspirational nature, and (2) Handle a legal matter without represent objectives or ideals toward which preparation adequate in the cir- every lawyer should strive. In many specific cumstances. THE PARTNERSHIP OF BENCH AND BAR

The foregoing canon and disciplinary cess can only function well if the impartial rule should be read in conjunction with has been "informed." This neces- the ethical considerations set forth under sarily requires a "competent, adverse pre- Canon 7 which provides that "A Lawyer sentation of and issues." The Should Represent A Client Zealously recognition by the Code, and through the Within the Bounds of the Law." Under the Code, the organized Bar, of the key role heading of the "Duty of the Lawyer to of the lawyer in informing the tribunal is, the Adversary System of Justice," Ethical in my opinion, one of the major progressive Consideration 7-19, after stating that our features of the Code. It is a major feature legal system provides for the because it places the requirement for the of disputes governed by the rules of sub- competent handling of a case in its proper stantive, evidentiary and , perspective. Its importance is not limited to states the following concerning our adver- the protection of the rights of the client, sary system: but is acknowledged and treated as an es- sential element in the adjudicatory or deci- An adversary presentation counters the sional process. It is placed in the context natural human tendency to judge too that the decisional process "requires an swiftly in terms of the familiar that which informed" and impartial tribunal. Too often is not yet fully known; the advocate, by there is stressed the element of impartiality his zealous preparation and presentation of facts and law, enables the tribunal to come at the expense of information and enlighten- to the hearing with an open and neutral ment. Impartiality implies a judicial attitude mind and to render impartial judgments. of detachment and neutrality between the parties. It means not favoring one litigant It adds that: "The duty of a lawyer over the other, and that judicial behavior to his client and his duty to the legal system and conduct ought never even appear to be are the same: to represent his client zeal- partisan. It does not mean disinterest or in- ously within the bounds of the law." sensibility to the ends of justice. The ideal Perhaps most germane to the point that of impartiality is separate from the necessity I wish to emphasize is Ethical Consider- of being adequately informed. The Code ation 7-20 that states: highlights the responsibility of the lawyer in "informing" the tribunal. In order to function properly, our ad- Surely it is not necessary before this judicatory process requires an informed, impartial tribunal capable of administering audience to indicate the overwhelming im- justice promptly and efficiently according portance of facts, and how the court, in the to procedures that command public con- words of the late Professor Llewellyn, is fidence and respect. Not only must there interested "in discovering, from and in the be competent, adverse presentation of facts, where sense and justice lie."2 8 The evidence and issues, but a tribunal must be aided by rules appropriate to an effec- tive and dignified process. 28 Llewellyn, The Modern Approach to Counsel- Clearly, therefore, the adjudicatory pro- ling and Advocacy, 46 COLUM. L. REV. 167 16 CATHOLIC LAWYER, SUMMER 1970 responsibility of counsel competently to but also to the court and to the legal system present the facts of a case cannot be dis- itself. puted. Obviously the court is not expected This particular duty of counsel was for- to know the facts. Apart from the doctrine merly dealt with in various opinions of of judicial notice, cases are decided on the bar association committees on professional the record made at the trial. Nor basis of ethics. Mr. Drinker, a leading authority on may the appellate court consider matters - professional ethics of the bar, in 1953 in the certified record.2' not set forth wrote: What is important for us to note is that The extent to which it is regarded as counsel's responsibility is not limited to the counsel's duty to advise the court as to competent presentation of the facts of the matters relevant to the proper decision of case. He is also responsible for the compe- the case of which opposing counsel is tent presentation of the applicable law. ignorant or which he has overlooked turns Ethical Consideration 7-23 sets forth the on the degree to which the old idea that following observations: litigation is a game between lawyers has been supplanted by the more modern view 3 0 that the lawyer is a minister of justice. The complexity of law often makes it fully informed difficult for a tribunal to be Mr. Drinker adds: unless the pertinent law is presented by the lawyers in the cause. A tribunal that is Always, however, must be borne in mind fully informed on the applicable law is the principle that the theory of our system better able to make a fair and accurate is still that justice is best accomplished by determination of the matter before it. The having all the facts and arguments on each adversary system contemplates that each side investigated and presented with max- lawyer will present and argue the existing imum vigor by opposing counsel, for 3 law in the light most favorable to his decision by the court and . ' client. Relying on respectable authority, and One may very well inquire as to the limits interpretations of Canon 22 of the former of counsel's professional responsibility. For Canons of Ethics, Mr. Drinker concluded example, is counsel under a professional that: responsibility to disclose to the court a de- cision directly adverse to his client's case, A lawyer is bound to tell the court of directly adverse to any and that is unknown to his adversary? The any decisions proposition of law on which he expressly answer to this question ought to reveal the relies, of which the lawyer on the other true nature of counsel's responsibility and side is apparently ignorant and which the duty that he owes not only to his client, would reasonably be considered important 2 by the judge sitting in the case.3

(1946), quoted in K. LLEWELLYN, THE COMMON .30 H. DRINKER, LEGAL ETHIcs 76 (1953). LAW TRADITION 238 (1960). 29 See materials cited in E. RE, BRIEF WRITING 31 Id. 32 Id. at 78. AND ORAL ARGUMENT 52 (1965). THE PARTNERSHIP OF BENCH AND BAR

In addition to opinions of bar association trolling directly adverse" to the committees on legal ethics, considerable position urged. In one respect the new authority has existed which favored disclo- Code does not adopt the standard of dis- sure. An excellent exposition is found in the closure indicated in Opinion 280 handed New Jersey Supreme Court case of In re down in 1949 by the American Bar Associ- Greenberg3 3 decided by Mr. Justice Van- ation's Committee on Professional Ethics derbilt. All doubt on the question, however, and Grievances. Opinion 280 stated in part: has been put to rest by the new Code, which requires disclosure and upholds the We would not confine the Opinion to "controlling authorities",-i.e., those deci- duty of the lawyer as an officer of the sive of the pending case,-but, in accor- court, or in the beautiful phrase used by dance with the tests hereafter suggested, Mr. Drinker, as "a minister of justice." would apply it to a decision directly ad- You will remember that I have referred to verse to any proposition of law on which the Code as a recent hopeful sign. the lawyer expressly relies, which would reasonably be considered important by the Disciplinary Rule 7-106(B), under judge sitting on the case. . . . The test in Canon 7, expressly provides: every case should be: Is the decision which opposing counsel has overlooked one which In presenting a matter to a tribunal, a the court should clearly consider in decid- lawyer shall disclose: ing the case? Would a reasonable judge (1) Legal authority in the controlling properly feel that a lawyer who advanced, as the jurisdiction known to him to be law, a proposition adverse to the undisclosed decision, was lacking in candor directly adverse to the position of and fairness to him? Might the judge con- his client and which is not dis- sider himself misled by an implied repre- closed by opposing counsel. sentation that the lawyer knew of no adverse authority? The extent of the responsibility is set forth as follows in Ethical Consideration Mr. Justice Vanderbilt, in the Greenberg 7-23: case considered and adopted Opinion 280, but limited it, however, "to decisions of the Where a lawyer knows of legal authority courts of this State and, with respect to in the controlling jurisdiction directly federal questions, to decisions of the courts adverse to the position of his client, he 3 4 should inform the tribunal of its existence of the United States."1 In effect, Mr. Jus- unless his adversary has done so; but having tice Vanderbilt applied the standard or duty made such disclosure, he may challenge its of disclosure presently required by the Code soundness in whole or in part. of Professional Responsibility. Many may feel that it does not go far enough. Al- It is to be noted that the new Code of though I, too, agree with that view, and Professional Responsibility limits the duty prefer the test or standard set forth in of disclosure to "legal authority in the con- Opinion 280, one cannot overlook the

3 15 N.J. 132, 104 A.2d 46 (1954). 34 Id. at 137, 104 A.2d at 49. 16 CATHOLIC LAWYER, SUMMER 1970 progress inherent in the express recognition public official. As far back as Alexis de that the lawyer owes such a duty to the Tocqueville, in his famous work, Democ- court and to the legal system. Setting this racy in America, one reads statements such responsibility forth in the new Code, and as: "In all free governments, of whatever couching it with the dignity and force of a form they may be, members of the legal disciplinary rule, is properly regarded as a profession will be found in the front ranks 3' '6 hopeful sign. of all parties. A reading of the Greenberg case will Surely the observation is accurate. But it reveal certain other statements of Mr. Jus- underscores the role of the lawyer as a tice Vanderbilt that serve to introduce public office holder and his leadership whik another aspect of the subject. These state- he holds political office. It does not reflect ments also highlight the responsibility of however, his influence and ability to im- the lawyer. Mr. Justice Vanderbilt wrote: prove the quality of the administration of justice by the competent practice of his The process of deciding cases on appeal profession. It tends to obscure the influence involves the joint efforts of counsel and and contribution of the lawyer in his daily, the court. It is only when each branch of and more usual, capacity as an advocate. the profession performs its function prop- erly that justice can be administered to the There is need to be reminded of the princi- satisfaction of both the litigants and society pal role that the lawyer, not only does and a body of decisions developed that will perform, but must perform in the deciding be a credit to the bar, the courts and the of cases. Furthermore, under our system, it - state. is a role that only the lawyer can perform.

Although the learned jurist and judicial Since the usual aspect of a lawyer's work reformer limited his statements to the "pro- is that of an advocate, too often one thinks cess of deciding cases on appeal," it is only of the contribution that the lawyer clear that the "joint" effort mentioned ap- makes to the client. None other than plies throughout the entire decisional pro- Woodrow Wilson, speaking as a lawyer, in cess, and is not limited to the appellate an address entitled The Lawyer and the process. The cooperative effort, which I Community, said: "Our duty is a much have chosen to call The Partnership of larger thing than the mere advice of private Bench and Bar, applies to every phase of clients." 37 He indicated that "[w]e are the decisional process. Indeed, it is designed servants of society, officers of the courts of to emphasize and highlight the role and the justice. "8' contribution of the lawyer in the decisional It is often forgotten that by the compe- process. Too often one thinks only of the influ- ence of the lawyer as a legislator or as a 36 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 274 (P. Bradley ed. 1956). 37 Wilson, The Lawyer and the Community, 35 A.B.A. REP. 419, 421 (1910). 35 Id. at 137-38, 104 A.2d at 49. 38 Id. THE PARTNERSHIP OF BENCH AND BAR tent, professional handling of a case, the judges decide cases. But here again the lawyer is performing, and has the duty to analysis and effort center around the role perform, a role that must assist the judge and contribution of the judge. In this lec- in deciding the case, justly and according ture I have attempted to extol and give to law. Too often judges, lawyers and the prominence to the contribution of the public, think of the decisional process as lawyer in that process properly called by the sole responsibility of the judge. Such Mr. Justice Cardozo, the "judicial process." a thought falls far short of the fact, and One aspect of the lawyer's work that will does violence to the cooperative effort that serve to demonstrate the essential nature of must prevail if the system is to succeed. the lawyer's contribution to the judicial It must be admitted, however, that there process, is the writing of briefs that are is an explanation, if not justification, for submitted to the court. This phase of the the neglect in the appreciation of the role lawyer's workaday world can be regarded of the lawyer in the decisional process. Too as tedious and dull only if one fails to often, in understanding the judicial process, appreciate its importance in the judicial the concentration of effort has been on the decisional process. Once a lawyer is made mental process of the judge. The judicial to realize the crucial part that a brief can process seemed naturally to imply the play in the decision of a case in a particular judge's mental process. The inquiry seemed way, the writing of a brief will be under- to be: How does the judge decide the case taken with renewed vigor and interest. presented? What factors does he consider Justice Rossman, a former Justice of the and what are the elements that move him? Supreme Court of Oregon, summarized well A remarkably successful effort to "de- the point I wish to make when he wrote: scribe the process" is found in Mr. Justice "If better briefs are written, the courts will 4 2 Cardozo's lectures entitled The Nature of produce better decisions. the Judicial Process.3 9 His incisive and The statement highlights the direct rela- penetrating "introspective searchings of the tionship between the input or contribution spirit" 40 have been most helpful. They have of the lawyer, who in the first instance must offered insight to countless law students, prepare the case and submit his authorities and valuable instruction to many grateful for adjudication, and the end product of judges. It would be vain or presumptuous the adjudicatory process, i.e., the judicial to ask for a finer exposition or discussion of opinion. "the formula," 41 insofar as it may be ex- pressed, according to which American Mr. Justice Brandeis stated the point most candidly when he said: "A judge rarely performs his functions adequately

31) Cardozo, The Nature of the Judicial Process, in SELECTED READINGS OF BENJAMIN NATHAN CARDOZO 107, 108 (M. Hall ed. 1947). 40 Id. at 110. 42 Rossman, Appellate Practice and Advocacy, 41 Id. 34 ORE. L. REV. 73 (1955). 16 CATHOLIC LAWYER, SUMMER 1970 unless the case before him is adequately would be wrong to omit reference to Web- presented."4 : ster and the other great advocates whose ar- guments were accepted and became a part 44 The words selected by the distinguished of the ultimate warp and woof of the law. jurist are most revealing. The inference is inescapable that an "adequate" presentation The reference to the contribution of the is required for "adequate" judicial perfor- advocate, Daniel Webster, recalls the fa- mance. Clearly, if the standard of judicial mous decision of Mr. Chief Justice Marshall performance is to be one of "excellence," in McCulloch v. Maryland.45 For a dra- what is required is an "excellent presenta- matic example of the specific contribution tion." This, of course, calls attention to of Webster to that decision one ought to the fact that the calibre of judges will read the contentions of counsel set forth in reflect the calibre of the bar. More impor- the official report of that famous case. Not tant for our subject, it infers that the only does the Court follow closely the quality of justice and its administration will questions presented and the arguments of also in large measure reflect the calibre of counsel, but it adopts several statements the bar. Surely no more serious observa- made by Webster. Indeed, his statement- tions can be made to dramatize the key "An unlimited power to tax involves, neces- role of the lawyer and the bar in our society. sarily, a power to destroy"-becomes Chief Justice Marshall's famous utterance that The references to brief writing indicate "[t]he power to tax involves the power to that by the proper performance of his re- 4 ; destroy.' sponsibility to the client, by the competent and thorough presentation of his case, Many specific examples can be given of counsel is also fulfilling a higher and more the contribution of the lawyer's brief to noble function by helping to shape the the judicial opinion. Some of these exam- judicial opinion and the law itself. ples reveal the authorship of certain pas- sages and phrases that are well-known to Mr. Whitney North Seymour, a distin- historians and lawyers. Their origin is often guished leader of the bar and a former attributed to the judge who authored the president of the American Bar Association, opinion. As in the example of Chief Justice in an address entitled The Bar as Law- Marshall in McCulloch, research would re- maker, emphasized this responsibility and veal that many famous phrases represent contribution of the bar when he said that: the skill and handiwork of lawyers- The advocate has played a part in the lawmaking process through the persuading of judges to decide cases in particular ways. 44 Seymour, The Bar as Lawmaker, in M. PAUL- Thus, in any treatment of Marshall's contri- SEN, LEGAL INSTITUTIONS TODAY AND TOMORROW bution to American , it 174 (1959). See also Re, The Lawyer as a Law- maker, 52 A.B.A.J. 159 (1966). 45 17 U.S. (4 Wheat.) 316 (1819). 46 For an interesting discussion of this case in its 43 Brandeis, The Living Law, 10 ILL. L. REV. historical context, see J. MARKE, VIGNETTES OF 461, 470 (1916). 42-46 (1965). THE PARTNERSHIP OF BENCH AND BAR counsel who submitted the case for adjudi- Karl N. Llewellyn, who spoke of "the pre- cation. ferred, phrased opinion-kernel." Professor Llewellyn, in his The Common Law Tradi- A search for the original author of tion, stated: famous or interesting phrases found in judicial opinions would not be devoid of What is wanted is a passage which can good humor. An example may be found in be quoted verbatim by the court, a pas- the Supreme Court decision of Greene v. sage which so clearly and rightly states McElroy47 wherein Mr. Justice Harlan in a and crystallizes the background and the separate opinion wrote: result that it is recognized on sight as doing the needed work and as practically de- manding to be lifted into the opinion.r0 It is regrettable that my brother Clark should have so far yielded to the tempta- All lawyers know, as do all judges, that tions of colorful characterization as to there is no substitute for careful and pains- depict the issue in this case as being whether a citizen has a "constitutional right to have taking preparation. Enough has been said, access to the Government's se- however, to demonstrate that thorough crets" . . . 48 preparation is not merely an obligation or responsibility owed to the client. It is a pro- With judicial diplomacy and tact, so fessional responsibility with ramifications typical of that gracious jurist, Mr. Justice that directly affect counsel's duty to the Clark in a footnote to his dissent replied: court of which he is an officer, and to society in general. Although the immediate My brother Harlan very kindly credits objective may be the vigorous presentation characterization" in me with "colorful of the case so that he may be successful, stating this as the issue. While I take great to the judicial process goes pride in authorship, I must say that in this his contribution instance I merely agreed with the statement beyond the success of the moment. His of the issue by the General and presentation of the case, if professionally his co-counsel in five different places in competent, ought to render valuable assis- 49 the brief for the United States. tance to the court or judge charged with the responsibility of decision. All lawyers will properly deem it to be high praise for a learned justice to acknowl- This realization of the role of counsel edge "agreement" with counsel's statement adds a new dimension to the indispensable requirements of thorough preparation and of the issue in the brief. More important, however, this has practical significance to competent presentation of a case. The the lawyer in the active and daily practice lawyer, by applying his professional skills, will succeed in attaining several goals. First, of his profession. It brings to mind the his responsibility to his suggestion made by the late Professor he will discharge client. Second, he will be rendering assis-

47 360 U.S. 474 (1959). 48 Id. at 510. 50 K. LLEWELLYN, THE COMMON LAW TRADI- 9 Id. at 511. TION 241 (1960). 16 CATHOLIC LAWYER, SUMMER 1970 tance to the court or judge who must decide source than selfishness. It is a devotion to the case justly and according to law. And his conception of a useful and worthy in- third, he will be performing a vital public stitution. But that conception is a distortec one if it envisages only the cultivation ot function in shaping, developing and improv- skill without thought of how and to what ing the law itself. end it is to be used. . . . It is not beyond This last-mentioned function is perhaps the power of institutions which have so successfully mastered the art of penetrat- the most important. Indeed, it is the law- ing all the intricacies of legal doctrine to yer's most durable and lasting contribution impart a truer understanding of the func- to the law. Great lawyers, who have re- tions of those who are to be its servants. garded the law as a great profession, have That understanding will come, not from all stressed this aspect of the lawyer's work. platitudinous exhortation, but from knowl- Chief Justice Vanderbilt, for example, in edge of the consequences of the failure of writing of the functions of the lawyer, stated a profession to bear its social responsibil- ities and what it is doing and may do to that it was a "task of the great lawyer... 52 meet them. to do his part individually and as a member of the organized bar to improve his profes- I commenced by discussing our adver- '51 sion, the courts, and the law." sary system of law and that, as far back as Dean Pound's famous The professional responsibility inherent address, it was a cause of in this aspect of the lawyer's work has been dissatisfaction with the administra- given new vitality in Canon 8 of the new tion of justice. Since the lawyer is admit- tedly the central participant in that system, Code of Professional Responsibility. Canon 8 declares that "A Lawyer Should Assist the discussion necessarily had to revolve in Improving the Legal System." The canon around the work or function of the lawyer is important because it indicates a recogni- in the , and his role as an officer of the court. It is my conviction that tion of the public responsibility of the law- yer as a member of an honorable and the adversary system will work well, and is deserving of preservation, only if the role learned profession. It is important also be- of the lawyer in that system is properly cause it is responsive to the exhortation, if understood. not admonition, of Mr. Justice Harlan F. Stone: It is in the light of the social re- sponsibilities of the lawyer, and the legal [Mien serve causes because of their de- profession, that the lawyer's may be votion to them. The zeal of the student correctly perceived. And it is in the per- for proficiency in law, like that of his elder spective of his total responsibilities that brother at the Bar, comes from a higher both lawyers and laymen alike can appre- ciate the utility and wisdom of the adversary system. 5 L Vanderbilt, The Five Functions of the Lawyer: Service to Clients and to the Public, 40 A.B.A.J. 31 (1954), reprinted in I F. KLEIN & J. LEE, SELECTED WRITINGS OF ARTHUR T. VANDERBILT 52 Stone, The Public Influence of the Bar, 48 5 (1965). HARV. L. REV. 1, 14 (1934). THE PARTNERSHIP OF BENCH AND BAR

The adversary system will work pro- its proper functioning, lawyers and judges, vided its participants know its strengths and will perform their duties in accordance with weaknesses. For the judge and the lawyer the traditions and ideals of both bench and it is imperative that each also know its bar. The acknowledgment of the partner- limitations and shortcomings. It will work ship, and its attendant responsibilities, will well when the lawyer, its central partic- enure to the benefit of society, and will ipant, will fulfill all of his responsibilities earn for both bench and bar the gratitude with equal zeal-to the client, to the court of all those concerned with the administra- and to the law. It will work best when the tion of justice. Both lawyers and judges can lawyer fully appreciates his societal re- then assert with justifiable pride that "we sponsibilities in the lofty process in which are the servants of society, the bond- servants of justice." 3 he serves. The system will be truly worthy of preservation and the confidence of the people when those most responsible for 53 Wilson, supra note 37, at 439.

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