To Lawyers

To Lawyers by Chief Justice Phear.

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"The profession of an advocate is, I like to believe, a most honourable one, and it is surely a noble principle of duty, by which all the members of it are proud to be actuated, that each must be ready when duly called upon, without hope of fee or reward, and solely pro deo, as the Iaconic mediaeval Latin has it, to defend the right of the poor and unprotected.

But it would open the door to a mischief that might soon become intolerable, if liberty were conceded to every idle person attending our Criminal Courts to volunteer his advice uninvited to any poor undefended accused person that he chose as each case came on for hearing, and to offer to shape the accused's plea for him and even to defend him pro deo. And I hope it is not necessary for me here to state that nothing of this kind is recognized as legitimate in the practice of our Criminal Courts. Yet it is difficult to say that the respondent's behaviour in the Police Court on the occasion in question, as described in his own affidavit, was not an illustration of this hypothetical case. Indeed, it goes further in the direction of error: for the respondent does not profess to have obtained or to have sought the ayah's retainer, or her acceptance of him as his advocate. Without that retainer his intermeddling was impertinent and unprofessional; with it, whether for fee or pro deo, he would undertake grave responsibilities from which he could not lightly free himself and would alter the career of the case, because he could not himself speak to facts, and his appearance on behalf of the accused would shut her mouth also.

I am afraid it is only too clear that the manner in which the respondent ventured to assume the character and to discharge the duties of advocate of the accused person in the conduct of her defence was at least irregular and blameworthy, though I will take it as not being established that his motive was personal hostility to the petitioner, as the latter's affidavit makes it out to be.

In the conduct of that defence, too, as he himself represents it: I cannot avoid the conclusion that he must have seriously transgressed the limits of an advocate's duty. When he says in his affidavit it is highly probable that a day or two after the trial was over he told certain persons that "it was the petitioner's" impertinence and evasiveness in the witness-box that provoked ''him, the respondent, to ' bully' him, and it was amusing to "notice that the doctor, who gave cheek to the lawyer from" the witness-box, has himself been obliged to confess that he " came out vexed and annoyed from the contest," it may be taken as certain that he considered there had been a contest between himself and the petitioner in the witness-box, the result of which he was pleased to discover was to vex and annoy the petitioner, and in the course of which he, the advocate, had been provoked into " bullying " the witness. Now, there is not a shadow of justification for behaviour of this kind disclosed in the affidavit. Apart from the vulgarity of the language employed by the respondent to describe it, the behaviour itself is quite unworthy of the advocate's profession. The affidavit does not state the particulars of the impertinence and evasiveness on the part of the witness which were referred to by the speaker, and in the absence of any such particulars we cannot now rightly assume that any such provocation existed. It is difficult, indeed, to imagine how anything of the kind could have occurred, if the advocate, who must have been practically uninstructed, limited himself to the only course of examination which was properly open to him; and there is not a trace of it to be found in the copy of the Magistrate's notes, which has been filed by the respondent.

But even had the petitioner returned impertinent answers to the advocate's questions, or evaded answering them altogether, it was for the Court, not for the respondent, to check him, and by a sufficient exercise of its authority to oblige him to answer with propriety. Occasions do unfortunately only too often occur when the stupidity, obstinacy, or perversity of a witness renders it necessary, in the interest of justice, that the Court should make its authority bear some what hardly and sharply upon him. But it is because an ultimate resort for this purpose always lies to the Court that the advocate is not permitted any license of the kind.

It is indeed of the essence of the English mode of trial that the advocate should have complete freedom of speech and all liberty or relevant questioning, and I trust that our Courts will never fail to give effect to this great principle. But advocates must on their part also never forget that they hold their privileges as a public trust; and that they discredit an honourable profession every time that they permit themselves to prostitute these privileges to the gratification of petty personal ends. I am afraid that the respondent, who after indulging in the small tyranny of cross-examination, found it amusing " to notice that the " doctor who gave cheek to the lawyer from the witness-box " had himself been obliged to confess that he came out vexed '' and annoyed from the contest," was then but little mindful of the nature of the responsibility which he owed both to the public and to his profession."

in Re the Complaint of Dr. C. J. KRIEKENBEEK against A.  J., a Proctor of the Supreme Court. - (1878) 3 NLR 242