The Agelessness of Abraham
Lincoln’s Advice to Attorneys
By Steve Theesfeld
Partner, Yost & Baill, LLP
“I am not an accomplished lawyer”i
Abraham Lincoln wrote these candid words in
1850 as he was preparing to give a lecture on the
law. Lincoln’s White House secretaries, John
Nicolay and John Hay, found the fragment of
notes among Lincoln’s manuscripts after his
death.
Lincoln went on to admit:
“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.”
It is not known if Lincoln ever delivered this
lecture.
However, the notes give us a chance to see
not the icon, but the lawyer that practiced for
decades before becoming President. While the
notes prove that Lincoln’s “Honest Abe” moniker
was well deserved, they also reveal an attorney
deeply concerned about the reputation of the legal
profession and calling for a re-dedication to ethics
and professionalism. Lincoln wrote:
“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.”
He reasoned that this impression was caused
by certain dishonest and unscrupulous members
of the bar, calling them “fiends” and “knaves.” To
address the public’s distrust of lawyers, Lincoln
urged attorneys to, above all else, simply be
diligent:
“The leading rule for the lawyer, as for
the man of every other calling, is
diligence. Leave nothing for tomorrow
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.”
Almost two centuries later, this advice is still
followed. The American Bar Association’s Model
Rule of Professional Conduct Rule 1.3 provides:
“A lawyer shall act with reasonable
diligence and promptness in
representing a client.”
What’s so surprising about Lincoln’s call for
diligence is not the call itself, but the list of
examples he offers and how such examples still
resonate even 165 years later. Lincoln urges
attorneys to promptly respond to correspondence
and quickly write declarations of suit.
Today it is the foolish attorney who fails to
promptly respond to emails or fails to promptly file
an action which is ready for suit. Most ethics
complaints stem from a failure of communication
or a missed deadline.
This article appeared in the Fall 2015 issue of the NASP Subrogator
©NASP
A prompt response to a client email or phone
call can prevent failures of communication – even
if the response is simply to tell the client
something is not yet done, but will be taken care
of promptly. Clients are much more willing to
forgive a problem if they know they are dealing
with an “Honest Abe” than if they are simply being
ignored.
For example, Lincoln had no real bookkeeping
system other than to keep papers in his famous
stove pipe hat. On one occasion he bought a new
hat, and in doing so, misplaced a client’s letter
and failed to make a prompt response. Rather
than ignore his mistake, Lincoln apologized in
writing for his delay in answering:
“When I received the letter I put it in my
old hat, and buying a new one the next
day, the old one was set aside, and so,
the letter lost sight of for a time.”ii
Losing sight of filing deadlines is another way
in which even modern-day attorneys can prompt
an ethics complaint. Yet the threat of a delay
which causes a missed deadline is avoided the
sooner an action is put into suit. The structure
provided by scheduling orders and court rules can
assist an attorney in moving a case forward and
ultimately resolving an action. Lincoln wrote of the
danger posed when an attorney spends too much
time making speeches and engaging in delay
rather than working a file and moving the case
along:
“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.”
However, just because Lincoln urged the
prompt filing of actions, does not mean he would
encourage a rush to the courtroom. To the
contrary, Lincoln was very concerned about the
cost of litigation and urged attorneys to discuss
restraint and compromise with their clients. He
wrote:
“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.”
Again, today these words are echoed in the
American Bar Association’s Model Rules of
Professional Conduct Rule 1.3 which provides
that an attorney “must abide by a client’s decision
whether to settle a matter.” Further, an attorney
must also assist the client in making decisions by
:
“…discussing the legal consequences of any
proposed course of conduct…and assist a
client to make a good faith effort to determine
the validity, scope, meaning or application of
the law.”
As Lincoln stressed, “there will still be
business enough” even for the attorney who
advocates restraint. Indeed, when the client is
given an honest assessment of their case, that
client is more likely to trust his or her attorney with
future business.
Further, no client wants to spend money on
taking a case to trial where the risk is greater than
the reward. Attorneys must explain such risk fully
so that a client can truly weigh whether
compromise and settlement are appropriate. This
includes explaining to a client that juries are
unpredictable. Juries do not always decide a case
on the law or facts, but often can apply unknown
This article appeared in the Fall 2015 issue of the NASP Subrogator
©NASP
or disjointed reasoning to reach a decision. It must
also be stressed that Juries can award insufficient
or inexplicable damages. Further, as Lincoln
urges, an attorney must point out that even
“winners” at trial may lose after the costs, fees
and expenses are considered.
“Mr. Lincoln was an honest lawyer.
He
carried his personal and individual
honor to the bar. He kept his integrity
and individuality through his
professional career.”
After Lincoln’s death, his law partner of 17 years,
William Herndon, stressed: “It is this enduring
sense of honor and integrity which modern
lawyers must also strive to carry throughout their
careers.”
i
Lincoln’s writings are public domain. A well-curated
collection of his writings can be found at Abraham
Lincoln Online © 2015,
www.abrahamlincolnonline.org. Quotations from that
collection have been used with permission.
ii See; Charles B. Strozier, Lincoln’s Quest for Union:
Public and Private Meetings p. 141-4, Paul Dry Books,
(1982, 2001).