October 2000

Ethics and the Law
Honest Abe's Guide to Practicing Law

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Barrie: Abe, many students seem to think that becoming a lawyer is beyond them. I tell them that if they have a passion for justice, they can and should become a lawyer. What would you say to them?

Abe: If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already.…Always bear in mind that your own resolution to succeed, is more important than any other one thing. [Reavis]

Barrie: Today, a person wanting to become a lawyer in Washington state must go to law school or read law with an experienced lawyer. When you became a lawyer, you simply read law books on your own. As I understand it, a lawyer encouraged you to study law, loaned you some of his law books, which you then took home and "went at it in good earnest." After you "studied with nobody," you obtained your law license, and then entered into private law partnership with that lawyer. [Autobiography] What would you tell a person who wanted to read law with you?

Abe: I am from home too much of my time, for a young man to read law with me advantageously. [Reavis] My partner … controls our office in this respect, and I have known of his declining at least a dozen applications like yours within the last three months. [Grigsby] I am absent altogether too much to be a suitable instructor for a law student. [Thornton]

Barrie: How important do you think it is to study with someone else?

Abe: It is but a small matter whether you read with any body or not. I did not read with any one. [Reavis]

Barrie: Abe, I know you didn't read with anyone, but today that is not a choice. Should training be different for someone who, like you, comes to law after having experienced the "real" world, for example, by running a business?

Abe: When a man has … already been doing for himself, my judgment is, that he reads the books for himself without an instructor. That is precisely the way I came to the law. [Thornton]

Barrie: What is the best way to get a thorough knowledge of the law?

Abe: The mode is very simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully. [Brockman]

Barrie: What books?

Abe: Begin with Blackstone's Commentaries, and after reading it carefully through, say twice, take up Chitty's Pleadings, Greenleaf's Evidence, & Story's Equity &. in succession. Work, work, work, is the main thing. [Brockman; also see Thornton]

Barrie: It's as simple as that? Get the books and work?

Abe: Get the books, and read and study them till you understand them in their principal features; and that is the main thing. [Reavis]

Barrie: Practicing law is tough. There is so much to learn and to remember. We tend to look to successful lawyers for help in understanding how to do it. What can you tell us from your practice?

Abe: 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. [Notes]

Barrie: Abe, we appreciate your modesty and honesty, but we think of you as a very accomplished lawyer. Today some law students seem to think that to get good experience in law they need to go to big cities or work with a famous lawyer. But if you are studying under the direction of another lawyer, does it matter who the lawyer is or where that lawyer practices?

Abe: It is of no consequence to be in a large town while you are reading. I read at New-Salem, which never had three hundred people living in it. The books, and your capacity for understanding them, are just the same in all places. [Reavis] If you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself. That will make a lawyer of you quicker than any other way. [Grigsby]

Barrie: Abe, as I understand it, what you mean is that whether or not you become a good lawyer really depends on you, and not on your teachers or others. But other than read law books, what else should a person do to practice law?

Abe: Get a license, and go to the practice, and still keep reading. That is my judgment of the cheapest, quickest, and best way for … [a person] to make a lawyer of himself. [Thornton]

Barrie: Abe, it sounds to me like you're saying that becoming a lawyer is just a lot of plain, old-fashioned hard work. If you could tell lawyers only one thing to do in their practices to be successful, what would it be?

Abe: 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. [Notes]

Barrie: At the Bar's Office of Disciplinary Counsel we get a lot of complaints from clients saying their lawyers do not answer their letters or communicate with them, and that the lawyer seems to take much too long to do what the lawyer has promised to do. What is your advice?

Abe: 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. [Notes]

Barrie: That's fine for cases going to trial. What advice do you have for other cases?

Abe: 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. [Notes]

Barrie: Today with so many lawyers in private practice there is fierce competition for clients. If a lawyer wants to become a rainmaker and bring in the clients, what should the lawyer learn to do, and what should the lawyer look out for?

Abe: Extemporaneous speaking should be practiced 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. [Notes]

Barrie: If a client comes to a lawyer and wants to sue someone, what should the lawyer do?

Abe: 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. [Notes]

Barrie: Abe, its easy to say you should discourage litigation. You don't understand what it's like to have just graduated from law school with $120,000 in student loans to repay, and no clients at the door. For example, why can't a lawyer check out public filings and solicit business?

Abe: 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. [Notes]

Barrie: Suppose your client won't compromise and you conclude the only way your client can get resolution of the dispute is to sue. Do you have any advice on pleadings?

Abe: In law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not. Reflect on this well before you proceed. [Linder]

Barrie: Abe, you act as though fees are not important for a lawyer. Lawyers have big student loan debts to pay off, they have office rent and staff to pay. It costs a lot to run a business. What do you really think about legal fees?

Abe: 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. [Notes]

Barrie: Sometimes, unfortunately, clients do not pay. What do you think about getting your fees paid in advance?

Abe: 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. [Notes]

Barrie: Sometimes clients give a note to a lawyer promising to pay. What do you think of financing those notes to get the cash you need to run your practice?

Abe: 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. [Notes]

Barrie: It sounds to me like you would not approve of nonrefundable retainers. I recently came across an old letter of yours in which it looks like you are returning money to a client. That's unusual. Since your handwriting is as bad as mine and I can't read it, would you read the letter to me?

Abe: I have just received yours of 16th, with check … for twenty-five dollars. You must think I am a high-priced man. You are too liberal with your money. Fifteen dollars is enough for the job. I send you a receipt for fifteen dollars, and return to you a ten-dollar bill. [Floyd]

Barrie: That's what I thought – you are actually returning money to a client because you think the client paid you too much for your legal services. That's not a situation we see very often. Is there any general principle you use in establishing and collecting legal fees?

Abe: As to fees, it is impossible to establish a rule that will apply in all, or even a great many cases. We believe we are never accused of being very unreasonable in this particular; and we would always be easily satisfied, provided we could see the money — but whatever fees we earn at a distance, if not paid before, we have noticed we never hear of after the work is done. We therefore, are growing a little sensitive on that point. [Irwin]

Barrie: Did you ever sue a client for a fee?

Abe: The Railroad Company employed me as one of their lawyers in the case.… I was not upon a salary, and no agreement was made as to the amount of the fee. The Railroad Company finally gained the case. The decision, I thought, and still think, was worth half a million dollars to them. I wanted them to pay me $5,000, and they wanted to pay me about $500. I sued them and got the $5,000. [Carthage]

Barrie: Abe, I hate to say it, but you should have had a written fee agreement with the Railroad Company. You were lucky to get paid in that case. Honesty in legal fees raises interesting questions about our core values as lawyers. I believe, for example, that absolute honesty must be one of those values. Since your day we've included some of those values in our ethical codes, clearly proclaiming that it is misconduct for a lawyer to engage in any deceit or dishonesty, or to make misrepresentations to the court or to others. Yet somehow the public still often views us as being dishonest. Why is that?

Abe: 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. [Notes]

Barrie: The public seems at times to think that most lawyers inflate their hourly bills and cheat their clients. I know from experience that the overwhelming majority of lawyers are very hard working and honest. What would you say to a person who is thinking of becoming a lawyer, who knows that lawyers handle a lot of their clients' monies, but who may be tempted to pad a few bills here and there at the expense of the clients?

Abe: 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. [Notes]

Barrie: Abe, you are saying some people should simply not be lawyers. If a person has larceny in his or her heart, if a person is unwilling to be an ethical lawyer, what is your advice to them?

Abe: Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave. [Notes]

Barrie: Abe, I don't think we lawyers start out intending to be knaves. But some of us, when we forget that we are here to serve our clients, become knaves by putting ourselves ahead of our clients.

1. All of the Lincoln responses are from texts in the two volumes of Abraham Lincoln: Speeches and Writings 1832-1858 and 1859-1865 (The Library of America, 1989 and 1994, respectively). Those volumes, in turn, are based on The Collected Works of Abraham Lincoln, edited by Roy P. Basler (Rutgers University Press, 1953 and 1974).

The specific writings used in this article are:

• Autobiography: Autobiography Written for Campaign, July 1860;
• Brockman: Letter to John M. Brockman, September 25, 1860;
• Carthage: Speech at Carthage, Illinois, October 1858;
• Floyd: Letter to George P. Floyd, February 21, 1856;
• Grigsby: Letter to William H. Grigsby, August 3, 1858;
• Irwin: Letter to James S. Irwin, November 2, 1842;
• Linder: Letter to Usher F. Linder, February 20, 1848;
• Notes: Notes for a Law Lecture, written in the early 1850s, unclear if ever delivered as a lecture;
• Reavis: Letter to Isham Reavis, November 5, 1855;
• Thornton: Letter to James T. Thornton, December 2, 1858.

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