3 Haw. 240 | Haw. | 1870
By the Civil Code, practitioners of law “ shall be summarily amenable to the Courts of Record, and may be fined, imprisoned, or dismissed from the roll of practitioners for satisfactory cause, upon the complaint of any party aggrieved by their mal-praetice, or for non-payment of moneys collected by them, for private parties, or for any deceit or other gross misconduct.” Section 1066.
“Practitioners of law shall have control to judgment and execution of all suits and defences confided to them; provided, however, that no such practitioner shall have power to compromise, arbitrate and settle such matters confided to him unless upon special authority in writing from his client. ’ ’ Section 1069.
“ The parties to a civil suit may, with the consent of Court, waive the right to a trial by jury either by written consent, or by oral consent in open Court entered on the minutes.” Section 1137.
“No person shall be held to answer for any crime or offence, except in cases of impeachment or for offences within the jurisdiction of a Police or District Justice, or in summary proceedings for contempt, unless upon indictment fully and plainly describing such crime or offence, and he shall have the right to meet the witnesses who are produced against him, face to face; to produce witnesses and proofs in his own favor ; and by himself or his counsel, at his election, to examine the witnesses produced by himself, and cross-examine those produced against him, and to be fully heard in his defense.” Article 7, Const.
The delicate and responsible duties of an attorney-at-law correspond with the extent of the powers entrusted to him. He must exercise good faith in his dealings with Court, clients, and his legal brethren. He is responsible for the exercise of a reasonable degree of professional skill, and for proper diligence in attending to his causes, failing in which,
The respondent waived his client’s constitutional right to meet witnesses in open Court. There is a large class of agreements between counsel, which facilitate trials, are of mutual advantage, and by which clients are bound. Such agreements usually refer to matters of rules and practice, continuances, waivers of common law rules of evidence, of defects in pleadings, processes, rights of appeal, &c., in which counsel are .presumed to know, and to be duly authorized to represent, the client’s interests. But in criminal causes, it is unsafe to waive constitutional requirements. The maxim, “Quilibet potest renunciare juri pro se introducto,” — that any one may waive rights intended for his own benefit, — is restricted to the rights of the party himself, and can not affect the rights of others. The public are interested that criminal trials be conducted according to the forms of law. Hence, no one can waive the presentment and finding of an indictment for an indictable offence. Under our statute, clients in civil suits would no doubt be bound by agreements of counsel to waive jury, but it is doubtful whether a party himself could make a valid agreement to waive a jury in a criminal cause cognizable before a jury.
The result of the respondent’s agreement was that the prisoner escaped trial. He says he acted in good faith, and we see no reason to doubt his word. His motion to continue the cause was certainly inconsistent with an intention to rely on constitutional defects in the testimony. He should have lost no time, however, in notifying the Attorney General of his subsequent view of the law, and of the course he intended to pursue. No such agreement should in fact be made without reflection upon its validity, and without consulting the client. We-do not think that the responsibility assumed by the respondent, in jfchus accepting the proposition to make this agreement, is entirely removed by dividing it, nor can
Further than this, we attach no blame to the respondent, and the rule is accordingly discharged.
