LEGAL ETHICS.

AN ADDRESS BY CHIEF JUSTICE MATHERS.

(Continued from October issue.*)

I have always regarded it as highly improper for counsel either in argument to the Court or in address to the jury to assert his personal belief in his client's innocence or the justice of his cause or as to whether or not any fact or facts was or was not established by the evidence. I was a little surprised to find that the late Sir John Boyd, speaking on "Legal Ethics," 4 Can. L. Rev. 85, referred with only mild dissent to Archdeacon Paley's justification of a lawyer, even contrary to his real opinion, asserting his belief in the justice of his client's cause. Sir John says:

"It is now generally perceived that there is no duty cast upon the lawyer to assert his belief in the truth or justice of his client's case even if he does believe him in the right, and to make such an assertion where he doubts or has no faith in the right or justice of the claim is to violate truth for the purpose of leading the tribunal astray. If such declarations were to be made a part of each address the jury would take their omission to be a confession that the client's cause was unworthy. Therefore, as no conscientious man could make such assertion in all cases, and the declarations of an unconscientious man would soon carry no weight, it is best that no counsel should indulge in such expressions of personal belief, and this is the course followed by the best representatives of the Bar."

I know that lawyers of great prominence have not hesitated to express their own convictions, amongst them Lord Brougham, Sergeant Shee and Lord Campbell, but seldom or ever was it done without a rebuke. Erskine reprobated it, and Cockburn described it as unprecedented. The true rule as stated by Showell

*EDITORIAL NOTE.-An error was made in the note to the first part of this address published last month. The address was not delivered at the Canadian Bar meeting owing to the unavoidable absence of Chief Justice Mathers, but it was printed and circulated among the members, and assuredly it reflects the highest sentiments on the subject.-B. T.

Rogers in "Ethics of Advocacy," 15 Law Quarterly Review, 259, viz.:

"that it is an inflexible rule of forensic pleading that an advocate shall not, as such, express his personal opinion or belief in his client's case." "As a private adviser of his client," he says, “a lawyer is bound to express to him his individual and honest opinion. As an advocate in a public Court he ought not to express that opinion to the Court, whether it be for or against his client, and to do so is a distinct departure from his duty. Whenever an advocate asserts a thing as a fact he does so subject to the qualification -which is not the less real although unexpressed, and which the very capacity in which he appears is universally regarded as constituting an ipso facto implication-that he speaks according to his instructions and not of his own knowledge or belief. . . The personal opinion of an advocate is wholly irrelevant to every issue in his client's case which must be tried and determined solely. secundum allegata et probata; in short, as every juror swears that he will determine it-according to the evidence.” 14

The question sometimes arises whether the obligation to deal candidly with the Court obliges counsel to mention a decision or decisions which he has discovered and which he believes to be dead against him. That it is his duty to do so, at least when the other side is not represented by counsel, is stated by Mr. Showell Rogers in the article referred to. He there says:

"The duty of counsel in all cases civil or criminal where only one side appears, clearly is to act as an assistant to the Court and as a minister of justice; just as counsel for the prosecution does . . in criminal cases, even when the accused is represented."

He mentions a civil case, Cole v. Langford, [1898] 2 Q. B. 36, in which Mr. Greyson Ellis, counsel for the plaintiff, opened his argument by saying:

"as the defendant does not appear in opposition to the motion, the plaintiff is bound to call the attention of the Court to certain cases which seem to raise a doubt whether the present action will lie."

He also refers to Beresford v. Sims, reported in the same volume at 641, where the accused was not represented. Channell, J., remarked upon the paucity of authority to which the Court had been referred or

The subject is discussed by the Alberta Court of Appeal in R. v. Moke, [1917] 3 W. W. R. 575.

which during the argument it had been able to find, "although of course," he said,

"we do not suggest that counsel for the appellant would not have brought any authorities before us that he knew of."

In a later civil case, Credits Gerundeuse v. Van Weede, 12 Q. B. D. 175, in which only one side was represented, Baron Pollock said:

"Mr. Barnes (counsel for the applicant), in moving, properly called our attention to a dictum in Patorni v. Campbell, which if effect be given to it is clearly against his application."

But what of the case where both sides are represented? Even in that case Mr. Showell Rogers says:

"I venture to think that if a previous decision is found which is adverse and wholly undistinguishable-if in other words and to use a common expression it hits the bird in the eye-the only proper course in the general interest of justice is to bring it to the notice of the Court himself, if the other side fails to do so, and then to make the best of the situation."

He admits that this is a counsel of perfection which will win the approbation of the Court, but almost certainly lose him his client. This counsel of perfection was certainly pursued to a quixotic degree in Beauchamp v. Overseers, L. R. 8 C. P. 245. The fact was that the respondents had expunged the names of the Earl of Beauchamp and the Marquis of Salisbury from the list of voters upon the ground that as peers they had no right to vote. An appeal was taken from this decision by the both noble Lords, Mr. Wills, Q.C., appearing for Lord Beauchamp, and Mr. Manisty, Q.C., for Lord Salisbury. The question involved was whether a peer of parliament was entitled to be placed upon the register of voters, and both learned counsel (contrary to the interests of their clients if they desired the appeal to succeed), not only admitted that a peer had no such right but argued strenuously and at length against it. Mr. Wills said:

"All the authorities upon the subject are opposed to it and the most diligent search had failed to discover a single atom of authority in its favour."

Mr. Mainsty said he

"agreed that it would be vain to argue that a peer has a right to vote in the election of a member of the House of Commons or to be on the register of voters."

So fully did counsel for the appellants argue the case for the respondents that counsel for the latter were not called upon.

Bovill, C.J., said:

"From the course which the learned counsel have taken, and properly taken, on the argument of these cases it seems hardly necessary for us to do more than to pronounce a formal judgment for the respondents, the learned counsel for both appellants agreeing that their claim to vote is untenable."

Keating, J., said he desired to

"add an expression of my entire approval of the course pursued by the learned counsel for the appellants; and to say that I have yet to learn that it is otherwise than the duty of counsel to say so, when he finds a point not to be arguable. I have always understood it to be the chief function of the Bar to assist the Court in coming to a just conclusion."

Brett, J., however, was not so much enamoured of the course pursued by the appellants' counsel. He said it had "placed the Court in great difficulty." "I quite agree," he said,

"that it is the duty of counsel to assist the Court by referring to authorities which he knows to be against him. But I cannot help thinking that when counsel has satisfied himself that he has no argument to offer in support of his case, it is his duty at once to say so and to withdraw altogether. The counsel is master of the argument and of the case in Court and should at once retire if he finds it wholly unsustainable, unless indeed he has express instructions to the contrary. With the greatest respect for the two learned counsel who have appeared for the appellants in these cases. I must confess I do not quite approve of the course which they have taken."

Grove, J., the only other Judge, said:

"It is a difficult task to pronounce a judicial decision in a case where one side only of an argument has been heard, and therefore I abstain from going into my reasons for concurring in this judg ment."

If I might venture an opinion, it is that I concur with Brett and Grove. Had counsel for the appellant in an ordinary civil action pursued the course adopted by Messrs. Wills and Manisty, I can imagine with what amazement their client would have heard them, contending against the right they had been briefed to support. By doing so they were usurping the functions of the Court, and their client might very well say to them in the oft quoted language of Baron Bramwell,

"I want your advocacy not your judgment. I prefer that of the Court."

A litigant's rights in law are those which the Court gives him and he is entitled to have these rights so determined. It sometimes happens that claims are adjudged to be good contrary to the opinion of the most eminent counsel. I well remember when I was a very young practitioner pleading a defence contrary to the opinion and advice of the late Chief Justice Howell, than whom this province never had a sounder lawyer. He nevertheless not only supported that defence at the trial and obtained a verdict upon it, but held it in the Full Court.

What should counsel for the defence in a criminal case do, if he knew of a case dead against him which the prosecution had overlooked? Mr. Showell Rogers says in a note to the article already referred to:

"I lately asked a member of the Bar, a man of the highest honour, what would you do if you were defending a man on a capital charge and you were aware of a decision dead against you in point which had escaped the notice of the counsel for the prosecution and of the Judge at the trial, but which if disclosed would inevitably put the rope around your client's neck? The only answer I received, accompanied by a significant look, was 'I would rather not be placed in such a position.'"

If counsel for the accused person is not bound to bring to the attention of the Court or the prosecution evidence known to him, but of which both are ignorant, and the production of which would condemn his client,

C.L.T.-60