He was called Honest Abe in part because of his ethics as a lawyer for more than 25 years
Abraham Lincoln’s name has symbolized integrity, trust and honesty for more than 150 years. Lincoln was called “Honest Abe” because he acted ethically, particularly as a practicing attorney for the quarter century at the bar before he became the 16th President of the United States in 1861.
Attorneys in the mid-19th century era when Lincoln practiced were largely self-regulated when it came to ethical standards and practices. The first formal canons of ethics for the legal profession were not proposed by the American Bar Association (“ABA”) until 1908.1 Those early guidelines for professional responsibility have been revised many times over the years. The ABA Model Rules of Professional Conduct (“Model Rules”) were adopted in 19832 and have been enacted in some form by every state except California, which has its own Rules of Professional Conduct.3
So what were the ethical principles that guided Abraham Lincoln in his law practice and gained him the respect and reputation as “Honest Abe”?4
The making of an ethical lawyer
When Lincoln was admitted to the Illinois bar in 1836, there were barely any law schools and no organized bar maintaining ethical standards. Most aspiring lawyers in Lincoln’s time apprenticed to practicing attorneys to gain some experience, studied up on the law and then were orally examined by judges or attorneys to become certified to practice law.5
It is legend that Lincoln’s ascendency from the backwoods to become a trial lawyer started at age 23 when he allegedly purchased a barrel that contained a copy of Blackstone’s Commentaries on the Laws of England, a work reciting black letter law that was a bible for early American lawyers. He studied Blackstone on his own.6 In fact, while living in New Salem, Illinois in the early 1830s, Lincoln got his start in the law when he assisted a local justice of the peace in drafting some legal documents, borrowed law books and became involved in some lawsuits of his own. His local popularity allowed him to be elected to the Illinois Legislature in 1834, where he served while gaining valuable experience in drafting and interpreting laws.7
Lincoln was encouraged to study the law by friends who came to consider him as a virtual bookworm who “was always reading, writing, cyphering and writing poetry.”8 People thought that his folksy manner and storytelling, which included plenty of tales spiced with humor, irony and morality,9 would serve him well as an attorney. He attacked Blackstone as if his life depended on it. While some of his learning habits of reading at all times of day and night seemed a little odd to Lincoln’s frontier friends, it was agreed that he possessed the lawyer-like traits of a persuasive advocate.10
The determined young Lincoln realized that a law career was a means to make a name for himself and allow time to pursue his love of politics.11 The legal profession also was his ticket to escape the hard life of farming, river barging, land surveying and storekeeping that had been his lot in early life.12 According to his law partner William Herndon, Lincoln’s ambition was like “a little engine that knew no rest.”13 His resolve to succeed was a characteristic of a diligence that he exhibited throughout his career as a practicing attorney.
Competence that counts
Ethical conduct demands that lawyers provide competent representation for their clients. The ABA Model Rules stipulate that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”14 Throughout his legal career, Lincoln made a concerted effort to meet this standard in representing his clients.
Lincoln began practice in 1837 in a partnership with seasoned attorney John T. Stuart in Springfield. As he gained experience and started to build a reputation for himself, he gravitated to a partnership with Judge Stephen T. Logan in 1841. Logan & Lincoln dissolved in 1844 when the two saw that they had little temperamentally or politically in common and the senior partner brought his own son into the practice.15 In the same year, Lincoln settled into practice with the much younger William Herndon (“Billy” as Lincoln called him) in the two-man firm of Lincoln & Herndon. It was a relationship that lasted for the rest of Lincoln’s life.16
In the antebellum decades before the development of legal specialization that evolved after the Civil War, most attorneys competed intensely for whatever business that walked through the door or might be referred by other attorneys on the rural judicial circuit in counties surrounding Springfield. Versatility was the name of the game for general practitioners like Lincoln. Whether in his Springfield office or on the “mud circuit” tramping by horse or buggy from one courthouse to another for months on end, Lincoln was primed to take just about any case that came his way. He interpreted wills and commercial instruments, sued to collect on debts, handled property, domestic and neighbor disputes, championed an occasional criminal offense and more.17
Lincoln constantly mustered the strength and ability to handle the pressures of a demanding practice, even while taking time out for politics and raising a family.18 Together with his successive partners, he represented clients in over five thousand cases or matters during his legal career.19 Ultimately, with tenacity and experience, he became what one of his peers called “the strongest trial lawyer we have had in Illinois.”20 This is a telling statement about the enormous capabilities of a lawyer who did not have much more than a year of formal schooling.
Like most attorneys, Lincoln worked hard to provide his clients with the best representation that he could offer.21 As a self-made lawyer, he had his work cut out for himself. Responding to an inquiry about a prescription for starting lawyers to obtain a thorough knowledge of the law, he recommended that, “The best mode [to learn and succeed at the law] is simple, though laborious and tedious. It is only to get the books, and read, and study them carefully. . . . Work, work, work, is the main thing.”22
The stature of some lawyers is measured by the quality of their pleadings and others by their courtroom skills. The many surviving briefs, pleadings, attorney communications and client advice letters in Lincoln’s clear, legible handwriting attest that he had a natural ability to prepare forceful arguments and provide solid client advice.23 But he was never a paper-producing litigation lawyer. He detested the mechanical drudgery of office work.
Lincoln generally found research and drafting tedious and avoided it as much as possible. Lengthy case citations in his briefs and oral arguments were virtually unknown.24 The relatively few statute books, treatises or case reporters in Lincoln’s office could hardly be called a library. For that matter, no more than a handful of law books could be carried on the circuit. But these were adequate for a mid-19th century practitioner like Lincoln who did not cite many case decisions in his pleadings and arguments.25 While he conducted legal research when necessary, general principles of law and logic, not rote case citations, were his stock in trade.26
Drafting pleadings initially did not come naturally to Lincoln. But he mastered his writing technique and worked at stating his clients’ claims without over-pleading. He advised that “[i]n law it is good policy never to plead what you need not, lest you oblige yourself to prove what you can not. Reflect on this well before you proceed.”27
The hallmark of a true trial lawyer is more than adequate drafting skills. It is the power to persuade in a courtroom. Lincoln’s facility with the use of spoken and written language improved with regular practice and application. Lincoln’s dexterity as a trial lawyer distinguished him from lesser attorneys of his time. He was gifted with extraordinary oratory skills and a huge ability to expand his intellectual capacity. He had the capability to use words to create visual imagery. A plain speaker, he coupled simple words with close reasoning and analogies that appealed to common sense. One colleague on the circuit observed that his unimpassioned simplicity was “confined to the case.” So it was usually uncharacteristic for him to “play to the pit” with histrionics in addressing juries.28 Another first-hand observer similarly remarked that “his speeches to the jury were very effective specimens of forensic oratory. He talked the vocabulary of the people, and the jury understood every point he made and every thought he uttered . . . He constructed short sentences of small words, and never wearied the mind of the jury by mazes of elaboration.”29
But Lincoln’s courtroom advocacy was more than just style. He had a substantive approach to examining witnesses. To the greatest extent possible, he attempted to pose questions that had no fat on the bones. His direct and lucid questions were bullets that shot directly to the heart of a case. Central to Lincoln’s approach was his care to ensure that his questions were carefully selected to fit into a structure that proved the case, not superfluous inquires that did no more than pile on additional non-essential information.30
With a keen sense of the psychological dynamics of a trial, Lincoln appreciated that a jury needs just enough facts to reach a proper result and that the day can be lost if jurors are fed too much indigestible information. Thus, it would not have occurred to Lincoln to employ an untargeted shotgun approach to questioning that lacked direction and focus or raised every conceivable or irrelevant detail surrounding a case just for the sake of providing filler. Concentration, discipline and control were his badges.31
Most telling about Lincoln’s trial strategy was his customary practice of making only the most essential objections in trial. Colleague Leonard Swett summarized Lincoln’s often reticent approach of not responding to an opposing counsel’s line of questions as evidence was adduced at trial: “Now about the time he had practiced this three-fourths through the case, if his adversary didn’t understand him, he would wake up in a few minutes [and] would begin to see that what he was so blandly giving away was simply what he couldn’t get and keep. By giving away six points and carrying the seventh he carried his case, and the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that. Any man who took Lincoln for a simple-minded man would very soon wake up with his back in a ditch.”32
In closing argument, Lincoln was at his pinnacle of persuasion. By the end of a trial, he usually had what he needed for argument. Without pounding on the table or strutting about, he could move jurors more with a low-key, logical plea premised on the facts and justice of the case. Nineteenth century biographer Noah Brooks perhaps laid it on a little thick when he related that, in speaking to a jury, Lincoln rose to “twenty feet high” and he “no longer was the homely and ungainly man that he was reputed to be. His eyes flashed fire; his appearance underwent a change as though the inspired mind had transformed the body; his face, darkened with malarial influences and seamed with wrinkles of premature age, was transfigured with the mysterious ‘inner light’ which some observers have said reminded them of a flame glowing with half-transparent vase.”33 Notwithstanding such hyperbole, Lincoln’s contemporaries uniformly agreed that he had a substantially better command of rhetoric and elocution than most lawyers of his day.34
Diligence: A key to success
As professionals, lawyers must act with reasonable diligence and promptness in representing clients.35 Lincoln expressed his thoughts on these obligations in an 1850 lecture for young lawyers: “The leading rule for the lawyer, as for the man of every calling, is diligence. Leave nothing for tomorrow which can be done today. 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.”36
Preparation, organization and focus were central to Lincoln’s powers of persuasion and success in his law practice. He gathered the details of the essential facts; organized his story points into logical arguments; anticipated his opponent’s positions (conceding when he had no counterpoint); and presented his cases with an orderly discipline and self-assurance.37 Lincoln comprehended the importance of staying on theme without deviating from the indispensable points required to prevail. Lincoln himself did not believe that he was a good spontaneous or extemporaneous speaker but was at his best when he had time to thoroughly prepare his thoughts for presentation.38
One might have been surprised by the forcefulness of Lincoln’s thought processes upon visiting the one-room office that he shared with his partner Herndon near the courthouse in Springfield. The furnishings were sparse, worn and functional. Lincoln, often clad in a black shawl, might start the day stretched out on an old sofa reading a newspaper or chatting with a passerby.39 Tidiness was not a virtue of this law office. A visitor once noticed that some flower seeds that had been ignored in a corner of the office had germinated in the dust of the unswept floor.40
It was observed that Lincoln’s filing system sometimes consisted of stuffing papers into his famous stovepipe hat, which Herndon called his “desk and his memorandum book.”41 The popular Lincoln biographer Carl Sandberg wrote that the iconic tall cylinder sometimes ran over at the rim with Lincoln’s bankbook, miscellaneous correspondence and notes to himself reflecting his thinking. By Sandberg’s account, it sort of whistled softly, “I am not a hat at all; I am the little garret roof where he tucks in little thoughts he writes on pieces of paper.”42 But one would have been mistaken in believing that Abraham Lincoln’s relaxed office demeanor indicated that he might be a laid-back country lawyer. He was fiercely competitive in his representing clients at all times.43
Lincoln’s diligent representation of the defendant in the 1857 federal trial in Chicago in the pivotal case of Hurd v. The Rock Island Bridge Company is a prime example of the preparation, attention to detail and trial skills that he exhibited at the height of his legal career. In 1856, the Effie Afton, a river-packet, had struck the pier of the first railroad bridge built across the Mississippi River. The case brought to bear more than the question of who was liable for the damages to the bridge and the riverboat. The case symbolized an economic clash between traditional river transportation and the expanding modern railroads in the development of the West.
In readying for the Hurd trial, Lincoln spent months inspecting the collision site, testing river currents, calculating river and bridge traffic, analyzing the bridge’s architecture and interviewing witnesses. An engineer who observed the trial commented on the completeness of his defense: “Lincoln’s examination of witnesses was very full and no point escaped his notice. I thought he carried it almost to prolixity, but when he came to argument I changed my opinion. He went over all the details with great minuteness, until court, jury, and spectators were wrought up to the crucial points. Then drawing himself up to his full [six-foot, four-inch] height, he delivered a peroration that thrilled the courtroom and, to the minds of most persons, settled the case.”44
Lincoln’s industrious and clever defense of the accused in the celebrated “Almanac Case” of People v. Duff Armstrong in 1858 again illustrates his thoroughness. The elderly mother of one of Lincoln’s long-time friends called upon him to represent her son,45 who was charged with a brutal murder. The odds appeared strongly stacked against Lincoln’s client, who was alleged to be a perpetrator in the bludgeoning death of a man at a rural camp meeting on a summer night in 1857. A co-defendant had already been found guilty and received a stiff prison sentence. But Lincoln took nothing for granted. He personally interviewed witnesses, walked the crime scene at night and retained a medical expert to provide an alternative theory that sought to shift blame for the fatal blow to the already convicted co-defendant. But Lincoln also had another defense “surprise card” up his sleeve.
Putting his immense acumen as a cross-examiner to work at the trial, Lincoln deftly pinned down the main prosecution eyewitness’s testimony to emphasize that he had had a clear view of Armstrong striking the homicide victim on the head with a metal ball wrapped in a leather slingshot. Lincoln calmly questioned this eyewitness repeatedly about his view of the crime, which he testified was at a certain time of night and without obstruction from 150 feet through some trees under a brilliantly shining moon.
Lincoln then pulled the rug out from under the witness’s story when he took out an almanac that recited an entry stating that the moon had already set by the moment of the crime. He requested the court to take judicial notice that the supposedly bright moon was already down. The motion was granted. Lincoln ceremoniously showed the almanac entry to the jury. The witness was dumbfounded by this scientific evidence that undermined his testimony. The jury roared, took in Lincoln’s emotionally-charged closing and promptly acquitted the defendant.46
Another fundamental aspect of Lincoln’s thoughtful representation concerned his attentiveness and responsiveness to client needs. His numerous surviving letters to clients show that he highly regarded the professional necessity of keeping his clients advised about their cases and suggesting legal options to them.47 Practicing what he preached, Lincoln recommended that lawyers “Never let your correspondence fall behind.”48
Lincoln’s client advice letters were candid and direct. One example of such correspondence by him was a letter sent to Joseph Means in 1858 advising that “The statements made within, if true are evidence of fraud on the part of the executor in selling the land. Fraud by principles of law, invalidates everything. To get rid of the sale, a bill in chancery is to be filed, charging the fraud, and then, if the fraud can be proved, the sale will be set aside. This is all that can be said. Any lawyer will know to – to do it.”49 Could a client ask for a more forthright legal opinion?
Honest to the core, Lincoln had no hesitation in admitting his occasional neglect of a client due to the press of other business or politics. Typical of his philosophy that clients’ interests and business should predominate was his apology in a February 19, 1851, letter to client William Martin: “The Legislature having got out of the way, I at last find time to attend to the business you left me on behalf of Alton and Sangamon Railroad Company . . ..”50
While Lincoln was not necessarily recognized by his peers to be the most refined trial lawyer who ever set foot in an American courtroom,51 he had a personality that attracted clients and instilled confidence in juries that enabled him to conscientiously represent his clients with a moral integrity that compensated for any shortcomings in education or training.52
Fair fees pay dividends
When lawyers have ethical issues with their clients, it often concerns payment of attorneys’ fees. In this regard, the ABA Model Rules recommend, in part:
[a] lawyer shall not make an agreement for, charge, or collect an unreasonable amount for expenses and set forth guidelines for lawyers to follow in setting reasonable fees.53
For Lincoln, the practice of law was a respectable way to earn a living without getting his hands blistered.54 The problem then, as for lawyers now, was practical: obtaining paying clients. A majority of the cases that came Lincoln’s way were pretty routine and he took most of them.55 His practice depended on a large volume of fairly small debt collection matters (about 60 percent of his practice), property and boundary disputes, divorces, contract claims, personal-injury cases and an occasional criminal case.56 As his practice matured, Lincoln handled more sophisticated commercial and business cases and he was retained to appear in federal court in Chicago and beyond.57
Contrary to myth, Lincoln was not a legal Don Quixote or crusader at the bar.58 He took cases for what they were. For instance, although he held strong beliefs against slavery and is remembered as the Great Emancipator, he represented slave owners as well as those freeing slaves.59 Although he gained a reputation as a “railroad attorney,” he both sued and defended railroads.60
Cash payment for attorneys’ fees in Lincoln’s day was hard to come by and sometimes fees were paid by notes secured by property or in kind (such as crops, wood cords or services in exchange). In his early practice days, Lincoln took many cases for little more than $2, $5 or $10 each.61 Indeed, he became notorious with his colleagues for charging low fees. By the account of a fellow circuit rider, Lincoln’s fees were too reasonable. Lincoln’s fellow attorney, Ward Hill Lamon, commented that charging fees for services was “a branch of practice that Mr. Lincoln never could learn. In fact, the lawyers on the circuit complained that his fees were not at all commensurate with the services rendered.”62
Lincoln would not put making a dollar over maintaining his integrity. In one case he told a client, “I can win your case. I can get you $600. I can also make an honest family miserable. But I shall not take your case, and I shall not take your fee. One piece of advice I will give you gratis: Go home and think seriously whether you cannot make $600 in some honest way.”63
A particular situation regarding attorneys’ fees that always stood out in Lamon’s mind was a case in which a $250 fee for Lincoln and his co-counsel was agreed in advance. The case was tried and won in twenty minutes. Lincoln asked, “What did you charge that man?” Advised that it was a set fee of $250, Lincoln retorted, “The service was not worth that sum. Give him back at least half of it.” When co-counsel protested, Lincoln replied with displeasure, “That may be, but I am not satisfied. This is positively wrong. Go, call him back and return half the money at least, or I will not receive one cent of it for my share.”64
Although his fees were low in comparison with some other attorneys, Lincoln seldom provided representation for free. A notable exception was his defense of Duff Armstrong, a case taken out of gratitude for old friendship.65
Even charging low fees did not generate a 100 percent collection rate and Lincoln sometimes found it necessary to sue clients for fees.66 A curious incident involving a fee of $5,000, the highest he ever received, caused Lincoln to file a collection action against his client, the Illinois Central Railroad. In 1853, Lincoln sued McLean County, Illinois, on behalf of the Illinois Central Railroad to test the constitutionality of an Illinois statute that granted the railroad immunity from local taxation. He was paid a $250 fee for his successful work in the trial court and defended two appeals. Lincoln then sent a bill for legal fees of $2,000 to his client.
The railroad’s superintendent was George B. McClellan, who later served as the commanding Union general during the Civil War until a frustrated Lincoln relieved him. McClellan returned the favor by unsuccessfully running against Lincoln for president in 1864. In response to presentation of the bill, McClellan exclaimed, “Why, sir, this is as much as Daniel Webster himself would have charged. We cannot allow such a claim.” On his way home to Springfield, some lawyers persuaded Lincoln to raise his demand to $5,000 and induced him to sue. He did. Perhaps embarrassed by the shabby treatment that it had accorded Lincoln, the railroad defaulted and the $5,000 judgment was promptly paid. It was an extraordinary fee for its day.67 Always faithful to “Billy” Herndon, Lincoln followed his customary practice of evenly dividing this fee with his junior partner.68
Lincoln’s law practice brought him the dignity and comfortable middle-class living that he desperately sought. But he never became wealthy in the practice of law. Averaging little more than $2,000 income a year, he had a net worth of no more than $12,000 when he said his final farewell to his law partner and friends in Springfield in early 1861.69 His financial standing was certainly good for his day, but hardly a fortune.70
Although Lincoln’s inhibition to charging high fees prevented him from becoming rich by practicing law, he did make an adequate income to allow time for him to devote to his political activities and also maintain his principles against gouging clients. In some 1859 remarks to some law students, Lincoln expounded on ethical practices concerning attorneys’ fees: “An exorbitant fee should never be charged. As a general rule never take your whole fee in advance, nor 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 of 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.”71
An independent advisor
There is a common public perception that lawyers sometimes stir up litigation rather than acting as peacemakers intent on resolving legal problems. Long before the profession began self-policing itself with recommended ethical standards, Lincoln followed his own moral compass in rendering candid advice based on his independent professional judgment in providing practical and honest legal opinions for his clients.72
Throughout Lincoln’s career he was known as a “litigation man.”73 He was a trial lawyer who settled cases when he could and went to trial when he could not. The more accomplished that he became as a trial lawyer, the greater value he saw in settling a legal dispute. If a case could be settled short of trial, Lincoln would seek a way to resolve it. When he was convinced that his client did not have a sufficient claim, he had no hesitation in suggesting a graceful settlement. Knowing when to pick his fights, he did not encourage litigation when it was not well-advised.74
Thus, Lincoln strongly advised that lawyers should
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 superior opportunity of being a good man. There will still be business enough.”75
Lincoln put this admonishment favoring mediation and compromise into effect in his daily law practice. Indicative of such settlement advice was this letter to one client: “I sincerely hope you will settle it. I think you can if you will, for I have always found [the opposing party] a fair man in his dealings. If you settle, I will charge nothing for what I have done, and thank you to boot. By settling, you will most likely get your money sooner, and with much less trouble & expense.”76 A clerk who worked in Lincoln’s office stated that “I have heard him tell would-be clients again and again – You have no case; better settle.”77
Appraising cases with honesty
An honest lawyer should not assert a claim or argument or defend in a civil or criminal proceeding unless there is some basis in law and fact for doing so.78 Lincoln wanted to obtain clients as much as any lawyer, but he could not participate in a case that offended his sense of integrity or where he could find no merit.79 In one instance after another, Lincoln’s fellow lawyers reported that it was morally repugnant for him to represent or continue to represent a client whose cause he felt was wrong.80 A contemporary said that “It was morally impossible for Lincoln to argue dishonestly. He could no more do it than he could steal.”81
Lincoln did not mince words in advising clients. Without reservation, he advised one client, “I do not think here is the least use of doing anything more with your lawsuit. I not only do not think you are sure to gain it, but I do think you are sure to lose it.”82 He was heard saying to one prospective client that he had “a pretty good cause in technical law, but a pretty bad one in equity and justice.”83
His moral incorruptibility especially showed itself in criminal cases, which were a small part of his practice. In the course of defending in one trial, Lincoln became convinced of his client’s guilt and thought that he could not continue to defend him. He turned to his co-counsel and said, “The man is guilty. You defend him. I can’t.” Lincoln was induced to stay on and even present the closing argument. But his mind was not in it and the defendant was convicted. It was commented that “His logically honest mind chilled his efforts. While he made some good points, the honesty of his mental processes forced him into a line of argument and admission that was very damaging.”84 In defending a man charged with larceny, Lincoln became convinced that the man was guilty and ought to be convicted. While not abandoning the case, he urged his co-counsel to conduct the argument because he feared “the jury will see from my face the man is guilty and convict him.”85
But Lincoln also could show passion for an accused under certain circumstances. He represented Melissa Goings, an elderly woman charged with killing her husband in self-defense. She fled during the trial by stepping out a courtroom window. When the bailiff pointed to Lincoln’s complicity, he responded, “I didn’t run her off. She wanted to know where she could get a good drink of water, and I told her there was might good water in Tennessee.”86
It was hard for Lincoln to present a disingenuous argument to a court. When he came up short on authorities to support his position in his first argument before the Illinois Supreme Court, it was reported that he said, “As the court will perceive by looking at the record, the only question in the case is one of authority. I have not been able to find any authority to sustain my side of the case, but I have found several cases directly on point on the other side. I will now give these authorities and submit the case.”87
No different from most trial lawyers, Lincoln was never below using a technical argument or objection for tactical advantage if he had a good one to present.88 But he often would stand silent and concede facts to an opposing attorney who raised minor or irrelevant points that did not conflict with his own story line or did no damage to his own case. Letting the non-essential slide, he might state “I reckon it would be fair to let that in” or “We’ll give on that point” or “I reckon they were right there.”89 He did not waste effort protesting evidence where others might have been on their feet shouting futile objections. He had little patience for petty nit-picking and the good sense not to protest too loudly if he believed that certain evidence might get admitted anyway. He also could ignore evidence if it did not hurt his client’s case or small technicalities that did no harm to his client’s case.90
While he customarily showed respect for a court, counsel and witnesses, his patience could be tried where he felt that a court’s ruling was off-point or not well-informed. Many local judges in Lincoln’s day were lay people not well-schooled in the law. In one situation, Lincoln was appearing before a lay judge who had been elected to the elevated position of circuit judge. In response to Lincoln’s points, the judge repeatedly blurted out, “I don’t know about that. I don’t know about that.” Finally, Lincoln had had enough and could not contain himself any longer. He looked the judge straight in the eye and said, “I knew your Honor didn’t know about it and that’s why I told you.”91
Notwithstanding his usual courtesy, Lincoln had no hesitation to protest if the evidence seemed unfairly damaging to his client. In a murder prosecution in 1859, the court had ruled against the admission of the victim’s dying declaration that was critical to Lincoln’s defense of his client. Before going to his reward, the deceased had stated that he had “brought [the situation] upon myself, and I forgive [the defendant].” Lincoln denounced the court’s ruling keeping the statement out of evidence. He advised the judge that he “had never heard of such law.” Further on the offensive, he called the ruling “absurd and without precedent in the broad world.” The force of Lincoln’s remonstrance caused the judge to retract his ruling and allow the statement into evidence. Lincoln’s client was acquitted.92
One of Lincoln’s closest observers on the county courthouse circuit was Judge David Davis, who traveled and lodged with the attorneys while presiding over their cases. He was later appointed by President Lincoln to the United States Supreme Court. Judge Davis came to respect that Lincoln “never took advantage of a man’s low character to prejudice the jury. Hence [even] the meanest man at the bar always paid great respect and deference to him.”93 But when Lincoln smelled a skunk or a fibber, his high sense of moral principle could be merciless in heaping ridicule or challenging the credibility of a witness. Circuit rider attorney Whitney said that “If a witness told the truth without evasion, Lincoln was respectful and patronizing to him, but he would score a perjured witness unmercifully.”94
Lincoln’s ethical message
Abraham Lincoln did not gain a professional reputation for honesty by simply sermonizing on virtue. He endeavored to maintain high professional values in every aspect of his personal life and law practice. For this reason, he had this sage admonition for lawyers: “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 dishonest 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 cannot be an honest lawyer, resolve to be honest without being a lawyer. Chose some other occupation, rather than one in the choosing of which you do in advance consent to be a knave.”95
Lincoln undoubtedly believed that if more lawyers heeded this ethical advice, there might be fewer in trouble with their own clients, the bar or judges. While recent years have seen a huge increase in emphasis on ethical conduct and practices for attorneys, Lincoln’s example remains the gold standard for lawyers to follow.
Judge Michael L. Stern has presided over civil trial courts since his appointment to the Los Angeles Superior Court in 2001. He is a frequent speaker on trial practice matters. As an attorney, he tried cases throughout the United States. He is a graduate of Stanford University and Harvard Law School.
Copyright © 2020 by the author.
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