Abraham Lincoln: Good Lawyer, Bad Lawyer, Conflicted Lawyer

Lincoln in trialI recently quoted a fairly well-known section from some notes Abe Lincoln made for a lecture he was to present to young lawyers in 1850. Some of you asked if would post the whole document, which I am happy to do. Here it is:

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, — ordinary collection cases, foreclosures, partitions, and the like, — make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not. Extemporaneous speaking should be practised and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty — negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

This is uniformly excellent, and justly cited to show Lincoln’s high ideals as a man and a professional. This quote, however, is also cited for that purpose, and I am not so fond of it. Since it comes to us second-hand, a.k.a as hearsay, from Lincoln’s law partner, friend and biographer William Herndon, I hesitate to hold it against him too much, for it may be a misrepresentation. I am more concerned with the fact that what follows is sometimes packaged with the notes above, as if they are equally worthy of emulation. No, they are not.

Here is the passage, quoted here and in “Lincoln’s Lessons For Lawyers,” 36 N. KY. Law Review 295 (2009), by Frank J. Williams, Chief judge of the R.I. Supreme Court (Ret.). Lincoln reportedly turned down a collection case, telling the rejected client:

“Yes, there is no reasonable doubt but that I can gain your case for you. I can set a whole neighborhood at loggerheads; I can distress a widowed mother and her six fatherless children, and thereby get for you six hundred dollars, which rightfully belongs, it appears to me, as much to them as it does to you. I shall not take your case, but will give a little advice for nothing. You seem a sprightly, energetic man. I would advise you to try your hand at making six hundred dollars in some other way.”

Lincoln is certainly behaving professionally and ethically by advising the man that he should exercise compassion and kindness, and there is no rule or principle that says he has to take the case, or any case. Still, it is not the lawyer’s place to judge a litigant’s purposes as long as they have legal merit, not is it his proper role to decide that the money in question belongs to the widow as much as to the man (and what is that supposed to mean? It has to belong to one of them). Lincoln’s job, and duty, is to make the best argument under the law on behalf of his client, let the judge consider this as well as the argument from the widow’s advocate, and abide by the decision. The story reinforces the public misconception, also shared by many lawyers, that a lawyer is morally responsible for his or her client’s legal objectives. He isn’t, shouldn’t be, and can’t be.

It was said of Lincoln that “on the wrong side of a case, he was worse than useless to his client, and he knew it. He would never take such a case if it could be avoided.” If that is true, and I have my doubts, then he was in the wrong profession. How does the lawyer know for certain what is “the wrong side” of a case? If it is that objectively clear, then the litigation should be quick and painless.  What this means, again if true, is that Lincoln couldn’t represent a client whom he didn’t believe was innocent, if accused of a crime, or had the law and ethics on his side, in a civil matter. In my view, that’s not much of  lawyer.

It also wasn’t Lincoln, at least all the time. Lincoln’s most famous trial, immortalized in the 1939 film Young Mr. Lincoln, involved Lincoln using clever trial tactics to cast doubt on the guilt of his client and friend, Duff Armstrong, who was accused of murder. Duff was guilty, and Lincoln knew it. He was not wrong to show that the evidence and witness testimony was not sufficient to convict his client “beyond a reasonable doubt,” but based on the Herndon quote, usually cited to show that Lincoln insisted that a cause be “morally right” to be worthy of his advocacy, he was clearly on “the wrong side” by trying to free a murderer, and placed personal loyalty, in this case, against the higher ideals that he allegedly focused on the widow.

My guess? I think the lawyer of the lecture notes and the Duff Armstrong trial is the real Lincoln lawyer. The story about the widow sounds to me like an old friend telling an adoring but ethically ignorant public what they wanted to hear about Honest Abe.

Spark: Justice Dennis J. Curran







3 thoughts on “Abraham Lincoln: Good Lawyer, Bad Lawyer, Conflicted Lawyer

  1. Unless the whole offending passage is taken out of context, a generous reading of it may simply be that Lincoln was couching it inside the greater advice to a potential client to solve the problem without the law.

    Perhaps after reading the case, he saw that any number of laws or precedents or some-such could be argued ad infinitum to make it out like either party is in the right and that he knows such a wasteful spiral may end up leaving both parties the real loser despite one being a nominal winner…

    Of course, barring this generous reading requiring undisclosed context, your assessment is fair.

  2. Methinks my friend Jack protesteth too much.

    (One caveat: Don’t ever say that to anyone in a divorce case. I have seen enough real-life Wars of the Roses. If the lawyer says “I can wreak havoc,” he or she will ask, “Cash or check?”)

    It is the same advice Danny DaVito’s character gave in War of the Roses, more or less. The only person who makes out worse in a lawsuit than the one who won is the one who lost. If you can cut a reasonable deal without going to court, you should always do so. It is very believable, and is from the same man who claimed that Lincoln was a closet atheist (another claim I find very plausible). Ask my friends what I believe, and they will be pretty close to the truth. Herndon is as credible of a source as any.

    Too often, people like to maintain the air of superiority, mostly to feed their egos. Personally, I will be more than happy to feed anyone’s ego if it would get him to where I want to be. As Ronald Reagan wisely said, “it is amazing what you can get done if you don’t care who gets the credit.” And whenever you get angry, you essentially let your opponent win.

    Lincoln understood the value of self-debasement. We’re all “just human,” and any time we start feeling superior, the universe will slap us in the face like clockwork. Both remarks are consistent with the historical Lincoln, as I understand him. (But I could be wrong.)

    • Me thinks my friend Art reads too carelessly. Lincoln did not say that “The only person who makes out worse in a lawsuit than the one who won is the one who lost. If you can cut a reasonable deal without going to court”—not in the piece I criticized. He refused to take a case because of the pain it might cause to opposing party. That’s none of his concern, if the suit has merit, and he confessed it did.

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