Ethics

My (Mis)Use of Sharswood

    In Understanding Lawyers? Ethics, I have two references to Sharswood, which I got from secondary sources.   The first reference is Sharswood?s assertion that ?The lawyer, who refuses his professional assistance because in his view the cause is unjust and indefensible, usurps the function of both judge and jury.?  The second is that the lawyer, having taken a case, should not use lawful means that he believes would have unjust consequences.  (I then go on to argue that Sharswood had it backwards ? that a lawyer has discretion to refuse the unjust case on moral grounds, but, once having taken it, he must use every lawful means that the client wants.)

    Those references are correct.  But I should not have relied solely upon secondary sources.  Now that I have read Sharswood (in order to criticize Bill Simon for misusing him), I know that Sharswood can be quoted for both sides of important issues of lawyers? ethics.

    With regard to Sharswood?s quotations that I used, he also said exactly the opposite.  As to the first, Sharswood said at another point of his essay that the lawyer ?has an undoubted right to refuse a retainer, and decline to be concerned in any cause, at his discretion.?  As to the second, he said that ?when a cause is undertaken, the great duty which counsel owes to his client, is immovable fidelity,? that the lawyer should be ?completely identified? with his client, that ?All considerations of self should by sunk by the lawyer in his duty to the cause,? and that ?he is not morally responsible for the act of the party in maintaining an unjust cause.?

    In short, Sharswood is a reliable but questionable authority for any ethical proposition, and I should not have quoted him without checking the original source.  Also, of course, he cannot be used to demonstrate what the general practice of lawyers was in the mid-19th century.

Full post as published by Legal Ethics Forum on December 10, 2010 (boomark / email).