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AMERICAN BAR ASSOCIATION

CODE OF PROFESSIONAL
RESPONSIBILITY AND
CANONS OF JUDICIAL ETHICS
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LEGAL PROFESSION

V
Preface
On August 14, 1964, at the request of President Lewis F. Powell, Jr., the House of Dele-
gates of the American Bar Association created the Special Committee on Evaluation of
Ethical Standards to examine the current Canons of Professional Ethics and to make
recommendations for changes. Your Committee has been at work since that time with
the extremely competent assistance of its Reporter, Professor John F. Sutton, Jr., of the
University of Texas School of Law. Since August of 1967 we have been aided by Mrs.
Sarah Ragle Weddington, a member of the Texas Bar, who has served as Assistant to Mr.
Sutton. The supporting research work was conducted under the supervision of Mr. Sutton
in his capacity as Director of a research project for the American Bar Foundation. We
also acknowledge with thanks the effective help of Frederick R. Franklin of the American
Bar Association Division of Professional Service Activities, who served as Staff Assistant
in the crowded latter months of our work.
After substantial study and a number of meetings, we concluded that the present Canons
needed revision in four principal particulars: (1) There are important areas involving the
conduct of lawyers that are either only partially covered in or totally omitted from the
Canons; (2) Many Canons that are sound in substance are in need of editorial revision: (3)
Most of the Canons do not lend themselves to practical sanctions for violations; and (4)
Changed and changing conditions in our legal system and urbanized society require new
statements of professional principles.
The original 32 Canons of Professional Ethics were adopted by the American Bar As-
sociation in 1908. They were based principally on the Code of Ethics adopted by the
Alabama State Bar Association in 1887, which in turn had been borrowed largely from the
lectures of Judge George Sharswood, published in 1854 under the title of Professional
Ethics. Since then a limited number of amendments have been adopted on a piecemeal
basis.
The thought of studying the Canons of Professional Ethics with a view of possible re-
vision is not a new one,. In 1928, 1933 and 1937 special committees of the American Bar
Association, appointed for the purpose of investigating the subject, made reports recom-
mending overall revisions, but nothing came of these efforts. In 1954 a distinguished com-
mittee of the American Bar Foundation made extensive studies of the Canons and recom-
mended further work in the field, but the subject lay fallow for ten more years until the
creation of our Committee.
As far back as 1934 Mr. Justice (later Chief Justice) Harlan Fiske Stone, in his
memorable address entitled The Public Influence of the Bar, made this observation:
Before the Bar can function at all as a guai.dian of the public interests committed to its
care, there must be appraisal and comprehension of the new conditions, and the changed
relationship of the lawyer to his clients, to his professional brethren and to the public.
That appraisal must pass beyond the petty details of form and manners which have been
so largely the subject of our Codes of Ethics, to more fundamental consideration of the
way in which our professional activities affect the welfare of society as a whole. Our canons
of ethics for the most part are generalizations designed for an earlier era.
Our studies led us unanimously to the conclusion that the need for change in the state-
ments of professional responsibility of lawyers could not be met by merely amending the
present Canons. A new Code of Professional Responsibility could be the only answer.
While the opinions of the Committee on Professional Ethics of the American Bar As-
sociation have been published and given fairly wide distribution with resulting value to the
bench and bar, they certainly are not conclusive as to the adequacy of the present Canons.
Because the opinions are necessarily interpretations of the existing Canons, they tend to
support the Canons and are critical of them only in the most unusual case. Since a large
number of requests for opinions from the Committee on Professional Ethics deal with the
etiquette of law practice, advertising, partnership names, announcements and the like,
there has been a tendency for many lawyers to assume that this is the exclusive field of in-
terest of the Committee and that it is not concerned with the more serious questions of
professional standards and obligations.
The present Canons are not an effective teaching instrument and they fail to give guid-
ance, to young lawyers beyond the language of the Canons themselves. There is no
organized interrelationship of the Canons and they often overlap. They are not cast in
language designed for disciplinary enforcement and many abound with quaint expressions
of the past. The present Canons, nevertheless, contain many provisions that are sound in
substande, and all of these have been brought forward in the proposed Code.
In our studies and meetings we have relied heavily upon the monumental Legal Ethics
(1953) of Henry S. Drinker, who served with great distinction for nine years as Chairman
of the Committee on Professional Ethics (known in his day as the Committee on Profes-
sional Ethics and Grievances) of the American Bar Association.
We have had constant recourse to the opinions of the Committee on Professional Ethics.
These opinions were collected and published in a single volume in 1967; since that time we
have been favored with all opinions of the Committee in loose-leaf form.
Recent decisions of the Supreme Court of the United States have necessitated intensive
studies of certain Canons. Among the landmark cases in this regard are NAACP v. Button,
371 U.S. 415, 83 S. Ct. 328, 9 L.Ed.2d 405 (1963), Brotherhood of R. R. Trainmen v.
Virginia, 377 U.S. 1, 84 S. Ct. 1113, 12 L.Ed.2d 89 (1964), and United Mine Workers v. Ill.
State Bar Ass'n, 389 U.S. 217, 88 S. Ct. 353, 19 L.Ed.2d 426 (1967). It is not here neces-
sary to comment in detail on these far-reaching rulings since they are familiar to all lawyers.
CODE OF PROFESSIONAL RESPONSIBILITY
Table of Contents
Also in recent years the Supreme Court of the United States has made important pro-
nouncements in the areas of admission to the bar and discipline of lawyers. Without Page
PREAMBLE AND PRELIMINARY STATEMENT
attempting an exhaustive catalogue in this regard, we refer to Sehware v. Bd. i
of Bar Exam- CANON i. A LAWYER SHOULD assist: IN MAINTAINING THE nzranarrz
iners, 353 U.S. 232, 77 S. Ct. 752, 1 LEd.2d 96 (1957), Spevaek v. Klein, 385 U.S. 511, 87 A. COMPETENCE
S. Ct. 625, 17 L.Ed2d 754 (1967), and In re Ruff OF ma LEGAL PROFESSION
alo, 390 US. 544, 88 S. Ct. 1222. 20 3
L.Ed.2d 117 (1968). Ethical Considerations
Our Committee has held meetings with 37 major units of the profession and has cor- Disciplinary Rules 3
responded with more than 100 additional groups. The entire Committee has met a total 3
of DR 1-101 Maintaining Integrity and Competence of the Legal Profession
71 days and the editorial subcommittee of three members has met 28 additional days. DR 1-102 Misconduct 3
Geoffrey C. Hazard, Jr., of Chicago, Illinois, Director of the American Bar Foundation, DR 1-103 Disclosure of Information to Authorities 3
John G. Bonomi, of New York, New York, a member of the A.B.A. Special Committee 3
on CANON 2. A LAWYER SHOULD ASSIST THE LEGAL PROFESSION IN FULFILLING rrs DUTY
Evaluation of Disciplinary Enforcement, and Paul Carrington, of Dallas, Texas, a member
of the A.B.A. Special Committee on Availability of Legal Services, attended many of our TO MACE LEGAL COUNSEL AVAILABLE
5
meeting, and each made invaluable suggestions in the course of our deliberations. Ethical Considerations
Lawrence E. Walsh, of New York, New York, served as a member of our Committee Recognition of Legal Problems 5
in
the first two years of its existence and rendered distinctive service in that period. Selection of a Lawyer: Generally
Selection of a Lawyer: Professional Notices and Listings ,
5
Financial Ability to Employ Counsel: Generally
Financial Ability Sc Employ Counsel: Persons Able to Pay Reasonable Fees
Financial Ability to Employ Counsel: Persons Unable to Pay Reasonable Fees
6
2
Acceptance and Retention of Employment
6
Disciplinary Rules
DR 2-101 Publicity in General 7
"The Code of Professional Responsibility vies adopted by the House of 7
DR 2-102 Professional Notices, Letterheads, Offices, and Law Lists
Delegates of the American Bar Association on August 12. 1969 to become 7
DR 2-103 Recommendation of Professional Employment
effective for American Bar Association members on January 1, 1970." DR 2-104 Suggestion of Need of Legal Services 8
DR 2-105 Limitation of Practice 9
DR 2-106 Fees for Legal Services 9
DR 2-107 Division of Fees Among Lawyers 9
DR 2-108 Agreements Restricting the Practice of a Lawyer 9
DR 2-109 Acceptance of Employment 9
DR 2-110 Withdrawal from Employment 9
9
0 Copyright 1969 by American Bar Association CANON 3. A LAWYER SHOULD ASSEST IN PREVENTING THE
UNAUTHORIZED P•ACTICE OF LAW 15
Ethical Considerations
Disciplinary Rules 15
DR 3-101 Aiding Unauthorized Practice of Law IS
DR 3-102 Dividing Legal Fees with a Non-Lawyer IS
DR 3-103 Forming a Partnership with a Non-Lawyer 15
15
CANON 4. • mwrint SHOULD PRESERVE me CONFIDENCES
AND SECRETS OP A crime 16
Ethical Consideration
Discipfinary 16
ules
DR 4-101 RP reservation of Confidences and Secrets of a Client 17
17
CANON 5. A LAWYER SHOULD EXERCISE mmenemarrr PROFESSIONAL JUDGMENT
ON
BEHALF OP A CLIENT
18
Ethical Considerations
18
Interests of a Lawyer That May Affect His Judgment
Interests of Multiple Clients 18
Desires of Third Persons 19
20
Disciplinary Rules
20
DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair
His Independent Professional Judgment
20
DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness
DR 5-103 Avoiding Acquisition of Interest in Litigation 20
DR 5-104 Limiting Business Relations with a Client 21
DR 5-105 Refusing to Accept 21
or Continue Employment if the Interests of
Another Client May Impair the Independent Professional
Judgment of the Lawyer
DR 5-106 Settling Similar Claims of Clients 21
DR 5-107 Avoiding Influence by Others Than the Client 21
21
CANON 6 A LAWYER SHOULD REPRESENT a CLIENT COMPETENTLY
23
Ethical Considerations
Disciplinary Rules 23
DR 6-101 Failing to Act Competently 24
DR 6-102 Limiting Liability to Client 24
24
CANON 7. • LAWYER SHOULD REPRESENT A CLIENT ZEALOUSLY
WITHIN THE BOUNDS
OF L. LAW
24
Ethical Considerations
Duty of the Lawyer to a Client 24
Duty of the Lawyer to the Adversary System of Justice 24
26
HI
Page
Disciplinary Rules 27
DR 7-101 Representing a Client Zealously 27
DR 7-102 Representing a Client within die Bounds of the Lew 27
DR 7-103 Performing the Duty of Public Prosecutor or Other Government Lawyer 27
DR 7-104 Communicating with One of Adverse Interest 28
DR 7-105 Threatening Criminal Prosecution
DR 7-106 Trial Conduct
28
28
CODE OF PROFESSIONAL RESPONSIBILITY
DR 7-107 Trial Publicity 28
DR 7-108 Communication with or Investigation of Jurors 29
DR 7-109 Contact with Witnesses
DR 7-110 Contact with Officials
29 PREAMBLE AND PRELIMINARY STATEMENT
29
CANON 8. A LAWYER SHOULD ASSIST IN IMPROVING TILE LEGAL SYSTEM Preamble three separate but interrelated parts: Canons, Ethical
33
Ethical Considerations The continued existence of a free and democratic Considerations, and Disciplinary Rules.' The Code is
33 ociety depends upon recognition of the concept that
Disciplinary Rules designed to be adopted by appropriate agencks both as
34 justice is based upon the rule of law grounded in re- an inspirational gdis embers of the Proffissio.
DR 8-101 Action as a Public Official 34
DR 8-102 Statements Concerning Judges and Other Adjudicatory Officers spect. for the dignity of. the individual and his capacity and as a basis for ciplinaryaction when the conduct
34 tthough reason for enlightened self-government.' Law of a lawyer falls below the required minimum standards
CANON 9. • LAWYER SHOULD AVOID EV. THE APPEARANCE OP PROFESSIONAL IMPROPRIETY 35 so grounded makes justice possible, for only through stated in the Disciplinary Rules.
Ethical Considerations such law does the dignity of the individual attain respect Obviously the Canons, Ethical Considerations, and
35 and protection. Without it, individual rights become
Disciplinary Rules . 35 Disciplinary Rules cannot apply to non-lawyers; how-
DR 9-101 Avoiding Even the Appearance of Impropriety subject to unrmtrained power, respect for law is de- ever, they do define the type of ethical conduct that the
35
DR 9-102 Preserving Identity of Funds and Property of a Client stroyed, and rational self-govmnment is impossible. public has a right to expect not only of lawyers but
35
Lawyers, as guardians of the law, play a vital role in also of their non-professional employees and associates
DEFINITIONS 37 the preservation of society. The fulfillment of this role in all matters pertaining to professional employment
IND. requires an understanding by lawyers of thek relation- A lawyer should ultimately be responsible for the con-
39
ship with and function in our legal system.. A conse- duct of his employees and associates in the course of the
quent obligation of lawyers is to maintain the highest professional representation of the client.
standards of ethical conduct. The Canons are statements of axiomatic norms, ex-
In fulfilling his professional responsibilities, a lawyer pressing in general terms the standards of professional
necessarily assumes various robes that require the per- conduct expected of lawyers iu their relationships with
formance of many difficult tasks. Not every situation the public, with the legal system, and with the legal pro-
which he may encounter can be foreseen,' but funda- fesmon. They embody the general concepts from which
mental ethical principles are always present to guide the Ethical Consideration and the Disciplinary Rules
him. Within the framework of these principles, a law- are derived.
yer must with courage and foresight be able and ready The Ethical Considerations are aspirational in charac-
to shape the body of the law to the ever-changing rela- ter and represent the objectives toward which every
tionships of society' member of the profession should strive. They consffi
The Code of Professional Responsibility points the tute a body of principles upon which the lawyer can
way to the aspiring and provides standards byewhich to rely for guidance in many specific situations.'
judge the transgressor. Each lawyer must fid within The Disciplinary Rules, unlike the Ethical Considera-
his own conscience the touchstone against which to test tions, arendatory in character. The Disciplinary
the extent to which his actions should rise above mini- Rules statethethe minimum level of conduct below which
mum standards. But in the last analysis it is the desire no lawyer can fall without being subject to disciplinary
for the respect and confidence of the members of his action. Within the framework of fair trial,' the Dis-
professionand of the society which be serves that ciplinary Rules should be uniformly applied to all law-
should provide to a lawyer the incentive for the highest yers,' regardless of the nature of their professional
possible degree of ethical conduct. The possible loss of activities.. The Code makes no attempt to prescribe
that resp.ect and confidencè
onfidence is the ultimate sanction. So either disciplinary procedures or penalum^ for viola-
long as its practitioners are guided by these principles, tion of a Disciplinary Ruin,. nor does it undertake to
the law will continue to be a noble profession. This is define standards for civil liability of lawyers for profes-
its greatness and its strength, which permit of no com- sional conduct. The severity ofjudgment against one
promise. found guilty of violating a Disciplinary Rule should be
determined by the character of the offense and the at-
Preliminary Statement tendant circumstances.. An enforcing agency, in ap-
plying the Disciplinary Rules, may find interpretive
In furtherance of the principles stated in the Pre- guidance in the basic principles embodied in the Canons
amble, the American Bar Association has promulgated and in the objectives reflected in the Ethical Con-
this Code of Professional Responsibility, consisting of siderations.
NOTES
I. The footnOteS are Intended merely to enable the reader social calms that are Its reasons for being." Cheatham,
to relate the provisions of this Code to the
Professional Ethics ABA Canons of
adopted in 1908, as amended, the Opin-
Availability of Legal Services: The Responsibility of the
Individual Lawyer and the Organized Bar, 12 U.C.L.A.
ions of the ABA Committee on Professional Ethics, and • Ray. 438. 440 (1965).
limited number of ofother thesources; theybyarethenotABA intended
be an annotation views taken Specialto 6.The
Judicial Supreme
and lulu.Ethics
Court"The
In 1967. of Wisconsin adopted a Code of
Committee on Evaluation of Ethical
Bing ABA Canons refer to the ABA Canons of Prof.-
Standards. Footnotes
eral the standards
desirable beingcode Is divided
statements of into
tenet of conduct should be, the rules being
whatstandards
dm gen-
donal Ethics, adopted In 1908, as amended. particular canons,
2. C f. ABA CatioNa, Preamble.
3. Il lhe lawyer individual judgeEthicstothe Notation ofInwhich
aanMions." shall subjectofan•
m Promulgation
understanding hisstands
ofobligations today in special need of • clear
obligations and of the vital connection
Code of Judicial
573, 874 (1967). , 36 Wis. 2d 252, 255, In N. W. ad
inbetween
society."thoseProles.onal and the role his profession plays The portion of the Wisconsin Code of Judicial Ethics en-
titled "Standards" slates That of"MU following standards set
4."No generalA.B.AJ. 1159,
Responsibility: Report of the Joint
1160 (1958). forth
W..the24significant qualities the ideal Judge . en-
Conference,
statement of the responsibilities
rofusion can encompass Si! the situations in which the
of the legal 16 at 256,tea153 N. W. 241 at 875. The portion Id.,
Phstewyer ailed "Rules" that "Mho court promulgates the fol-
own may
peculiarbe placed.
demands.Each Theseposition
demands heldthebylawyer
him make
must lowing
embodied rules because the requirements of judicial conduct
clarity
he for
serves." himself In the light of the paOicstae role in which tIons if theytherein
259, 153 N. W.am are of sufficient gravity to warrant sanc-at
24 not
at obeyed
876. . ." Id., 36 Wis. 2d
Conference, 44 A.B.A.J. 1139. 1215 (1958).
Professional Responsibility: Report of the Joint
5."The law and 7. "Under the conditions of modern practice it Is pecu-
Utions change. Theyitsmust
Institutions
changeand change
If they ereastorabies
social con-
preserve, liarly necessary h
merely dm lawyer should understand. not
much
which less advance. the political social from but dmthe established
reasons standards
underlying thugofstandards.
professional conduct,
Today the
true
famine ofthey
the derive
most
of taw.
their
important
The
purposes and their life. This is
of legal
too,institutions, the prw lawyer
many plays
developing • changing
fields theand Increasingly
precise contributionvaried
of therole.
legalIn
conditions change inprofession,
order to preserve mustandchange
advancewhen the e
rt iUnt Stffie",:driCe.. IPS"Z.111"..1".11159 (1958).
iv
AMERICAN BAR ASSOCIATION
"A true sense of professional responsibility nom derive Bar
Bar r It
If we are to maintain public confidence in the ...thy
understanding of the reasons that lie back of ape-
Bo
eihc restraints. such as those embodied in the Canons. The
Qround. for the lowycc's peculiar obligations areto be
of the administration of justice." In re
Meeker. 76 N. M. 354, 357. 414 PIO 862. 864 (1966), ap- CANON 1
peal dismissed, 385 U.S. 449 (19671.
found to the nature of his calling. The lawyer who seeks 10. See ABA Canoe 45.
t
clear understanding of his Maks will be led to reflect on
he specie/ services his profession renders to society and the
"The Canons of this Association govern all its members,
irrespective of the era
A Lawyer Should Assist in
of' their practice. and the ann.-
services it might render if its full capacities were realized.
When the lawyer fully underst.ds the nature of his ofhm.
cation of Me Canons is not affected by statutes or regu
lations governing certain activities of lawyers which may
Maintaining the Integrity and
he will then discern what restraint. are nemssary to keep
that office wholesome and effective." Id.
prescribe less stringent standards." ABA Comm. no Pan-
s Beaten, OPINIONS. No. 203,1940) [hereinafter Competence of the Legal
8. "Disbarment, designed to protect the public, ls a pun-
Op inion' ).
ishment or penalty imposed on the lawyer.. . . Ile Is
accordingly entitled to procedural due proces.,which in-
e"Cl?). 0
,1174'grtit e 15r( .1';'3'1')i. Profession
"There is generally no prescribed discipline for any
cludes fair notice of the charge." In re Moffat°. 390 U.S. Particular type of Improper conduct. The disciplinary
544, 550, 20 L. Ed. 2d 117, 122, 88 S. Ct. 1222, 1226 0968). measures taken are discretionaseen y with the entitle. which ETHICAL CONSIDERATIONS
rehearing denied, 391 US. 961, 20 L. Ed. 2d 174, 88 S. CI. may disbar, suspend, or merely sure the attorney m the EC 1.1 A bane tenet of the professional
1833 (1968). nature of the offense and past Indicts of cheraCler may responsibility Disciplinary Rules is brought to the attention of the
"A State cannot exclude • person from the practice of warrant." Note, 43 Coansti L.Q. 489. 495 (1958). f lawyers is that event Person in our society should proper officials. A lawyer should reveal voluntarily to
law or from any other occupation in a manner or for reasons 12. The Code seeks only to specify conduct for which • have ready access to the independent professional ser-
that contravene the Due Process or Equal Protection Clause those officials all unprivileged knowledge of conduct of
lawyer should be disciplined. Recommendations as to the vices of a lawyer of integrity and cotopetence. Main- lawyers which he believes clearly to be in violation of
of the Fourteenth Amendment. . . . A State can require procedures to be used in disciplinary actions and the groanty taining the integrity and improving the competence of
high standards of qualification . . . but any qualification of disciplinary memurm apprOpriele for violations of the the Disciplinary Rules! A lawyer should, upon request
must have • rational connection with the applkant's fitness the bar to inlet the highest standards is the ethical re- serve on and assist committees and boards having re-
Code are within the jurisdiction of the American Bar Associ- sponsibility of every lawyer.
or capacity to practice law." Schware v. Ed. of Bar Ex- ation Special Committee en Evaluation of Disciplinary En- sponsibility for the administration of the Disciplinary
aminers. 353 U.S. 231, 239, 1 I.. Ed. 2d 796, 801-02, 77 S. orcement. EC 1.2 The public should be protected from those who ues.'
Ct. 752, 756 (1957). 13. "The severity of the Judgment of this court should be am not qualified to be lawyers by reason of a deficiency
"(Ale accused lawyer may expect that he will not be In proportion to the gravity of theoffenses, the moral in education` or moral standards' or of other relevant EC 1-5 A lawyer should maintain high standards of
condemned out of a catniciousself-riohteousnen or denied turpitude Involved, and the extent that the defendant's acts professional conduct and should encourage fellow law-
the essentials of a fair hearing. .. Kingsland v. Doney, 338 factors' but who nevertheless seek to practice law. To
and conduct affect his professional qualifications . practice yers to do likewise. He should be temperate and digni-
U.S. 318, 320, 94 L. Ed. 123, 126, 70 S. CO. 123, 124-25 law." Louisiana State Bar Assn v. Steiner, 204 La. 1073, assure the maintenance of high moral and educational
(1949). standards of the legal profession, lawyers should af- fied, and he should refrain from all illegal and morally
1092-93, 16 So. 34 843, 850 (1944) (Higgins, J., concurring
"The attorney and counsellor being, by the solemn indecree). firmatively assist courts and other appropriate bodies in reprehensible conduct.° Because of his position in so-
Oklal act of the court, clothed with his office, does not hold "Certainly an erring lawyer who has been disciplined and promillgating, enforcing, and improving reqoirements ciety, even minor violations of law by a lawyer may tend
It as • matter of grace and favor. The right which It con- who having paid the penalty has given mdsfactory evicknce for admission to the bar' In like manner, the bar has a to lessen public confidence in the legal profession. Obe-
fers upon him to appear for suitors. and to argue causes. of repentance and has been rehabilitated and restored to Mt positive obligation to aid in the continued improvement
dience to law exemplifies respect for law. To lawyers
Is something more than • mere indulgence, revocable at the place et the bar by the court which knows him best ought especially, respect for the law should be more than a
pleasure of the court, or at the command of the legialature. not to have what amounts to an order of permanent dis-
of all phases of pre-admission and post-admission legal
education. platitude.
It is a right of which he can only be deprived by the judg- barment entered against him by a federal court solely on
ment of the court, for moral or professional danguenc," the basis ot an earlier criminal record and without regard EC 1-3 Before recommending an appliunt for admis- EC 1-6 An applicant for admission to the bar or a
Ex pane Garland, 71 U.S. (4 Walt.) 333, 378-79, 18 L. Ed. to Ida subsequent rehabilitation and present good char- lawyer may be unqualified, temporarily or permanently,
366, 370 (1866). sion, a lawyer should satisfy himself that the applicant is
ater . We think, therefore, that the district won of good Initial character. Although a lawyer should not for other than moral and educational reasons, such as
cht,e—rig;,11„,.`;°,7„-1,;1.4=1,71,517:.!'r.`gf,,.1^4
(1963).
shotild reconsider the appellant's aPPlicatioo for sfirnimion
and grant it unless the court finds it tor. be facto thatat.
he
become a self-appointed investigator or judge of appli-
an for admission, he should report to proper officials
cts
mental or emotional instability. Lawyers should be dili-
gent in taking steps to see that during a period of dis-
CIul
9. The can of professional ethics must be enforced
by the Court. and must be respected by members of the
ghee;a"cl
1958).
r:'W42, 151 F.`1,14.1 69-70 ( lot
(`7,1' all unfavorable information he possesses relating to the
character or other qualifications of an applicant'
qualification such person is not granted a license or, if
licensed, is not permitted to practice.' In like manner,
when the disqualification has terminated, members of
EC 1-4 The integrity of the profession can bemain-
the bar should assist such person in being licensed, or,
tained only if conduct of lawyers in violation of the
if licensed, in being restored to his full right to practice.
DISCIPLINARY RULES
DR 1.101 Maintaining Integrity and Competence of (4) Engage in conduct Involving dishonesty, fraud,
the Legal Profession.
deceit, or misrepresentation.
(A) A lawyer Is subject to discipline if he has nude a (5) Engage In conduct that is prejudkffil to the ad-
tuaterially false Slaininent la, or if he bas dab.
ministration of justice.
erately failed to disclose a material fact requested (6) Engage la any other conduct that adversely re-
In connection with, his application for admission to
the bar.. flects on his illness to practice law..
(B) A lawyer shall not further the application for ad- DR 1-103 Disclosure of Information to Authorities.
mission to the bar of another person known by him (A) A lawyer possessing unprivileged knowledge of a
to be unqualified In respect to character, education, violation of DR 1-102 than report such knowledge
or other relevant attribute:. to a tribunal or other authority empowered to In-
vestigate or act upon melt violetion..
DR 1-102 Misconduct
(A) A lawyer shall nos (B) A lawyer possessing unprivileged knowledge or
(1) Violate evidence concerning another lawyer or a judge shall
a DisciplitsikY
(2) reveal fully such knowledge or evidence upon
Circumvent a Disciplinary Rule through actions
of another.. proper request of a tribunal or other authority em-
(3) Engage In Illegal conduct involving moral Wrath. powered to Investigate or act upon the conduct of
tude.. la wiser or lodge..
•. NOTES
1. (Me cannot conclude that all educational restrictions
[on bar admission] are unlawful. We assume that few would fit because of bad charaner, evidenced by their course of con-
duct, tO participate In the administrative law, would seem to
deny that a grammar school education requirement, before
taking the bar examination, was reasonable. Or that an ap- be unquestioned In the matter of preservation of judicial
plicant had to be able to read or write. Once we conclude dignity and integrity." In re Monaghan, 116 VI. 53,122 A.2d
that some restriction Is proper, then It becomes • matter of 665, 670 (1966).
degree—the problem of drawing the line. "Fundamentally, the quernion involved In bath situation.
admission and disciplinary proceedings] is the same—la
;We conclude the fundamental question hem is whether the appikent for admisston or the attorney sought to be dis-
ciplined a fit and proper person to be permitted to
Rule IV, Section 6 of the Rules Pertaining to Admishon of
taw, and that usually turns upon whether he has committedpractice
A pplicants to the State Bar of Arizona is 'arbitrary, capricious
or is Moly to continue to commit acts of moral turpitude.
sod unrea.nabie, We conclude an educationai requimment
of graduation from an accredited law school is not." Hackln At the time of oral argument the attorney for respondent
Lockwood, 361 P.2c1 499. 503-4 (9th Cir. 1966), cur. denied, frankly .oceded that the lest for admission and for discipline
385 U.S. 960, 17 L. Ed.24 305, fil S. Ct. 396 (1966). is and should be the now. We agree with Mb concession."
2. "Every state in the United States, es a prerequisite for allinan v. Comm. of Bar Examiners, 65 Ca1.2d 447, 453, 421
admission to the practice of law, requires that applicants P.ad 76. 81, 55 Cal.Rptr. 228, 233 (1966).
Pokms 'good moral character.' Although the redldreinein is 3. "Proceedings to gain admission to the bar are for the
urpose of protecting the public and the courts from the
of judicial origin, it is now embodied in legislation In most
states." Comment. Procedural One Process and Character
pministration. of persons unlit to practice the profession. Al'
Hearing. for Bar Applicant, 15 Smn. L. Rev. 500 (1963). are officers of the court appoinmd to assist the court
"Good character in the members of the bar Is essential to in the administration of Justice. Into their hands are com-
the premrvation of the Integrity of the courts. The duly and mitted the property. the liberty and sometime. the lives of
power of the court to guard its portals against intrusion by their clients. This commitment demands a high degree of
men and women who are mentally and morally dishonest, en intelligence. knowledge of the law, respect for its function In
society, woad and faithful judgment end, above all else,
4 AMERICAN BAR ASSOCIATION
The attorney should not adv.< or sanction acts
In en :::37",11716;g'n'tZ; by his client which he himself should not do.' Opinion 75." CANON 2
(Holden. dissenting). 13."The most obvious non-professional ground for dis-
4. "A bar composed of lawyers of good moral character barment is cOrniction for a felony. Most stales make eon-
Is a worthy objective but it is unnecessary to sacrifice vital
freedoms in order to obtain that goal. It is also important vktion for a felony grounds Inc automatic disbarment. Some A Lawyer Should Assist the
of these states, including New York. make disbarment manda-
both to society and the bar Itself that lawyers be unintirni.
dated-free to think, speak, and act as members of an In- tory upon conviction for any felony, while others require
disbarment only for those felonim which involve moral
Legal Profession in Fulfilling
dependent Bar." Konigsberg r. State Bar, 353 U.S. 252. 273,
1 L. Ed. 2c1 810, 825. 77 S. Ct. 722, 733 (1957). turpitude. There are strong arguments that some felonies.
such as Involuntary manslaughter, relied neither on an at.
Its Duty to Make
5. See ABA CASON 29. torney's fitness, trustworthiness, nor competence and, there-
6. ABA CAN. 28 designates certain conduct as unprofes-
ional and then states that: "A duty to the public and to the fore, should not be grounds for disbarment. but most states Legal Counsel Available
profession devolves upon every member of the Bar harlot tend to diary rd these arguments and, following Me common
knowledge of such pond«s upon the pan of any practitioner law rule, male disbarment mandatory on convictMn for ton
felony." Note, 43 Commu L.Q. 489. 490 (1928). ETHICAL CONSIDERATIONS
Immediately to inform thereof, to the end that the offender
may be disbarred... ABA Canon 29 states a broader ad- "Some states treat conviction for misdemeanors as grounds EC 2.1 The need of members of the public for legal
EC 2-7 Changed conditions. however, have seriously
monition: "Lawyers should expose without fear or favor be- for automatic disbarment .... However, the vast maiorit, services' is met only if they recognise their legal Ma-
accepting the common law rule, require that the misdemeanor restricted the effectiveness of the traditional aelection
fore An proper tribunals corrupt or dishonest conduct in the ims, appreciate the importance of seeking assistance,•
involve moral turpitude. While the definition of moral turpi- proems. Often the reputations of lawyers are not suf-
profession." tude rmaY Prove ,
and are able to obtain the services of acceptable legal
ficiently known to enable laymen to make intelligent
7. "It is the obli.tion of the organized Bar and the in- ilicfficult, It teems only mope; :halt:hose counsel.. Hence. important functions of the legal pro-
101)0 lawyer to give unstinted cooperation and .sistance choices!. The law has become increasingly complex
ZinuenInt,.-„ples■or:hgfr Ittc'errro'undantforstd: fession are to educate laymen to recognize then' prob-
to the highest court of the nate in discharging its fonction and barmen, A good ex is an assault and battery con- lems, to facilitate the process of intelligent selection of
and specialized. Few lawyers are willing and competent
duty with reaped to discipline and in purging the profmsion to deal with every kind of legal matter, and many lay.
of the unworthy." Report of the Smcial Committee on Dis- viction which would not Involve moral turpitude unless done lawyers, and to assist as making legal servicees fully
with heeler and deliberation... Id. at 491. available.' men have difficulty in determining the competence of
ciplinary Procedures, 80 A.B.A. REP. 463, 470 (1955). lawyers to render different types of legal services. The
8. Cf. ABA Canon 32. "The term `moral turpitude. has hero used in the law foe
unturies. It h. been the subject of many decisions by the Recognition of Legal Problems selection of legal counsel particularly difficult for
9. "We decline, on the present record, to disbar Mr. Sher- coons but has never been dearly defined became of the na- transients, persons moving into new areas, persons of
ma. or to reptirnand him-not became we condone his ac- EC 2-2 The legal profession should assist laymen to
tions, but because. as heretofore indicated, we are concerned ture of the term. Perhaps the best general definition of the limited education or means, aid others wh o have little
with whether he Is mentally responsible for what be has done. term 'moral turpitude' is that It imparts an act of haunts., recogni. legal problems because such problems may
or no contact with lawyers."
vileness or depravity in the duties which one person owes to I be self-revealing and often are not hirtely noticed..
"The logic of the situation would scorn to dictate the con- EC 2-8 Selection of a lawyer by a layman often is the
dmion that, if he was mentally responsible for We conduct another or to society In general which Is contrary to the usual, Therefore, lawyers acting under proper auspices should
we have outlined,be should be disbarred; and, If he was not accepted and customary rule of right and duty which a person encourage and participate in educational and public result of the advice and recommendation of third parties
mentally responsible, he should not be permitted to Pradim
law.
should follow. 58 CJ.S. at page 1201. Although offense.
Baal. revenue laws have been held to be crimes of moral
relations programs concerning our legal system with
particular reference to legal problems that frequently
-relatives, friends, acquaintances, business associates,
or other lawyers. A layman is best served if the recom-
"However, the flaw In the logic Is that be may have been urpitude, it bail also been held that the attempt to evade the mendation is disinteresmd and informed. In order that
mentally Irresponsible fat the time of his offensive conduct) payment of taxes due to the government . subdivision arise. Such educational programs should he motivated
thereof. while wrong and unlawful, does not involve moral by a desire to benefit We public rather than to obtain the recommendation be disinterested, a lawyer should
, and, yet, have sufficiently improved in the almost two not seek to influence another to recommend his employ-
and one-half years InMrverdng to be able to capably and Comm. publicity or employment for particular lawyers" Ex-
competently represent his clients. ... nc.11,Z, AC9VVI. 9471'.1722.ci, . 7. 1
7414r,"M amples of pessible activities include preparation of ment." A lawyer should not compensate another
(scr-
een for rcommending him. for influencing a prnpective
(1965). institutional advertisements' and professional articles
'We would make clear that we are satisfied that a case has "The right and power to discipline an attorney, as ore of Its for lay publications. and participation in seminars. lec- cli.t tonmploy
e him, or to encourage future recom-
been made against Mr. Sherman, warranting a refusal to officers, is inherent in the non. . . . This power is not tures, andcivic programs. But a lawyer who partici- mendations."
permit him to further practice law In this state unless he can limited to thme Instancesof misconduct wherein he has been pates in such activities should shun personal publicity..
establish his mental irresponsibility et the time of the Mime= employed, or has acted, In a profemional capacity: but. on Selection of a Lawyer: Professional Notices
charged. The burden of proof is upon him. the contrary, this power may be menised where his mis- and Listings
EC 2.3 Whether a lawyer acts properly in volunteer-
"If he establishes each mental irresponsibilitYlthe burden conduct outside the scope of his professional relations shows EC 2-9 The traditional ban against advertising by
Is then upon him to esMblish his present capability to ing advice to a layman to seek legal services depends
prac- him to he an unfit person 10 practice law." In re Wilson, upon thecircumstances." The giving of advice that
lawyers, which is subject to certain limited exceptions, rs
tice law.' In In Sherman. 58 Wash. 2d 1, 6-7, 354 P.24 888, 391 S.W.2d 9)4. 917-18 (Mo. 1965).
one should take legal action could well be in fulfillment
rooted in the public interest. Competitive advertising
890 (1960). cert. denied. 371 U.S. 951, 9 L. Ed. 2d 499, 83 S. 14. "It is a fair characterization of the lawyer.. resonant- would encourage extravagant, artful, self-laudatory"
Cl. 506 (1963). lanky In our society that he stands as a shield; to quote of the duty of the legal profession to assist laymen in
brashness in seeking business and thus could mislead
10."TMs Court has the inherent power to revoke a license Devlin, J., In defense of right and to ward off wrong. From recognizing legal problems." The advice is prope
r the hymn! Furthermore,
to practice law in Mis State, where such license was issued a profession charged with these responsibilities there must be only if motivated by a de ire to protect one who does it would inevitably produce
by this Court, end its issuance was procured by the fraudulent exacted those qualities of truth-speaking, of a high sense of unrealistic expectations in particular eases and bring
not recognize that he may have legal problems or who
concealment, or by the false and fraudulent representation honor, of granite discretion, of the strictest observance of is ignorant of his legal rights or obligation. Hence, the
about distrust of the law and lawyers... Thus, public
by Me applicant of a fad which was manifestly material to fiduciary responsibility. that have, lheeogboul centuries, cOnfidence in our legal system would be impaired by
the issuance of the license... North Carolina ex rel. Attorney been unnpendiously described as 'moral character.'" advice is improper if motivated by a desire to obtain
such advertisements of professional services. The at-
General v. Corson 209 N.C. 320, 326, 183 S.E. 392, 395 Schware v. Bd. of Bar Examiners, 353 U.S. 232, 247 1 L. personal benefit," secure personal publicity, or cause
litigation to be brought merely to harass or init. torney-client relationship is personal and unique
.S133t1)4, 171. denied. 298 U.S. 662, 80 L. Ed. 1387, 56 S. Ct. Ed. 2d 796, 806, 77 8. Ct. 752, 761 (1957) (Frankfurter, 2. an- should not be established as the result of pressores and
coucurrinid. other. Obviously. a lawyer should not contact a non- and
client, directly or indirectly, for the purpose of being deceptions." History has demonstrated steal public con-
894;.°Z,.ALP.7:;,"76°L.V.'4.1rPL3.1 'Particularly apifficable here is Rule 4.47 providing that 'A fidence in the legal system 4 best preserved by Strict.
P. irs.(21: lawyer should always maintain his integrity; and shall not retained to represent him for compensation.
795 (1958). willfully commit my act against the interest of the Public: tam self-imposed controls over, rather than by unlimited,
11. See ABA CAN. 29. EC 2-4 Since motivation is subjective and often dif- advertising.
shall he violate his duty to the coons or his clients; nor
12. In ABA Opinion 95 (1933), which held that a municipal shall he, by any misconduct, commit any offense mai ,. Pm ficult to judge, the motives of a lawyer who volunteers
attorney could Vol permit police officers to interview persons advice likely to produce legal controversy may well be EC 2-10 Methods of advertising that are subject to
laws of Missouri or the United Mates ol AINATICN, which
with claims against the municipality when the attorney know amounts to a crime involving acts done by him contrary to suspect if he receives professional employment or other the objections stated above" should be and are pro-
the claimants to be represented by counsel, the Committee 00 Maim. honesty, modesty or good morals; nor shall he be benefits as a result." A lawyer who volunteers advice hibited." However, the Disciplinary Rules recognize
Professional Ethics said: guilty of any other misconduct whereby, for the protection the value of giving assistance in the selection process
"The law officer is, of course, responsible for the acts of that one should obtain the services of a lawyer generally
of the public and those charged with the administration of should not himself accept employment. compensation, through forms of advertising that furnish identification
Chol
nrrol7 '5'41 justice, he Would no longer be entrusted with the duties and or other benefit in connection with that matter. How- of a lawyer while avoiding such objections. For ex-
responsibilities belonging to the office of an attorney.'" In re ample, a lawyer may be identified in the classified sec-
(amnned 209 N.eY V. 354-1912) held that It was • matter of Wilson. 391 S.W .2d 914, 917 (bin 1965). ever, a 4 not improper for a lawyer to volunteer such
disbarment for an attorney to adopt a general coarse of a, lion of the telephone directory," in the office building
proving the unethical conduct of employees of his client, even
though he did not actively participate therein.
15. See ABA CArion 29; 0. ABA CANON 28. adv. and render resulting legal services In close
friends, relatives, former clients (in regard to matters
directory, and on his letterhead and professional card..
16. CI. ABA Canons 28 and 29. But at all times the permitted notices should be dignified
germane to former employment), and regular clients."
and accmate.
EC 2.9 A lawyer who writes or speaks for the purpose
EC 2-11 The name under which a lawyer conducts
of educating members of the public to recognize their
his practice may be a factor in the selection process...
legal problems should carefully refrain from giving or
The use of a trade name or an assumed name could mis-
app.ring to give a general solution applicable to all
lead laymen concerning the identity, responsibility, and
apparently similar individual problems," since slight
status of those practicing thereunder." Accordingly,
changes in feed situations may require a material vari-
a lawyer in private practice should practice only under
ance in the applicable advice; otherwise, the public may
his own name, the name of a lawyer employing him, a
be misled and misadvised. Talks and writings by law-
yers for laymen should caution them not to attempt to partnership name composed of the name of one or more
of the lawyers practicing in a partnership,
solve individual problems upon the basis of the in-
formation contained therein." mitted by taw, in the name of a professionalor. if Per-
legal cor-
poration, Which should be clearly designated as such.
Selection of a Lawyer: Generally For many years some law firms have used a firm
retaining on or more names of deceased or name
EC 2-6 Formerly a potential client usually knew the partners aides retired
reputations of local lawyers for competency end integ- uch practice is not improper if the firm is
rity and therefore could select a practitioner hi whom a bona fide successor of a firrn in which the
Or retired person was a member, if the use of deceased
he had confidence. This traditional mlection process the name
4 authorized by law or by contract. and if the publi
worked well because it was initiated by the client and not misled thereby." However, the name c is
the choice was an informed one. of a partner
who withdraws from a firm but continues to practice
6
6 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 7
l
aayw ould.
oirm b,e
r.o
.n;iii tep
d. . the firm name in order to
fam Nugent. A lawyer should be mindful that many persons of the bar to make legal services fully available, a law- ciously injuring another... Likewise, a lawyer should
who desire to employ him may have had little or no yer should not lightly decline proffered employment. decline employment if the intensity of his personal
expellernce with fee charges of lawyers, and for this The fulfillment of this objective requires acceptance by feeling, as distinguished from a community attitude,
EC 2-12 A lawyer occupying a judicial, legislative, or reason he should explain fully to such persons the a lawyer of Ins share of tendered employment which may impair his effective representation of a prospective
public executive or administrative position who has the reasons for the particular fee arrangement he own... may be unattractive both to him and the bar generally... client. If a lawyer knows a client has previously ob-
right to practice law concurrently may allow his name
to remain in the name of the firm if he actively con- EC 2-20 Contingent fee arrangements" in civil caws EC 2.27 History is replete with instances of distin- tained counsel, he should not accept employment m the
tinues to practice law as a member thereof. Other wise. have long been commonly accepted in the United States guished and sacrificial services by lawyers who have matter unless the other counsel approves. or with-
his name should be removed from the firm name,and . in proceedings to enforce claims. The historical bases represented unpopular clients and causes. Regardless draws, or the client terminates the prior employment."
he should not be identified as a past or present member of their acceptance are that (lj they often, and in a of his personal feelings, a lawyer should not decline EC 2-31 Full availability of legal counsel requires
of the firm; and he should not hold himself out as being variety ofcircumstances, provide the only practical representation because a client or a cause is unpopular both that persons be able to obtain counsel and that
a practicing lawyer. m eans by which one having a claim against another can or community reaction is adverse.. lawyers who undertake representation complete the
economically afford, finance, and obtain the services of EC 2-28 The personal preference of a lawyer to work involved. Trial counsel for a convicted defendant
EC 2-13 In order to avoid the possibility of mislead- a competent lawyer to prosecute his claim, and (2) a should continue to represent his client by advising
ing persons with whom he deals, a lawyer should be scru- avoid adversary alignment against judges, other law-
successful prosecution of the claim produces a rer out yers,. public officials, or influential members of the whether to take an appeal and, if the appeal is prose-
puRus in the representation of his professional status.. of which the fee can be paid.. Although a lawyer cuted, by representing him through the appeal unless
He should not hold himself out as being a partner or community does not justify his rejection of tendered
generally should decline to accept employment on a employment. new counsel is substituted or withdrawal n permitted
associate of a law firm if he is not one in fact," and contingent fee basis by one who is able to pay a reasoff by the appropriate court.
that should not hold himself out as a partner or associ- able fixed fee, it is not necessarily improper for a law- EC 2-29 When a lawyer is appointed by a court or
ate if he only shares offices with another lawyer." requested by a bar association to undertake representa- EC 2-32 A decision by a lawyer to withdraw should
yer, where justified by the particular circumstances of be made only on the basis of compelling sire -
case, to enter into a contingent fee contract in a civil tion of a person unable to obtain counsel, whether for
EC 2-14 In some instances a lawyer confines his prac- financial or other reasons, he should not seek to be ex- stances", and in a matter pending before a tribunal be
tice to a particular field of law.. In the absence of caw with any client who, after being fully informed of must comply with the rules of the tribunal regarding
all relevant factors, desires that arrangement. Because cused from undertaking the representation except for
state controls to insure the existence of special compe- compelling reasons.. Compelling reasons do not in- withdrawal. A lawyer should not withdraw without
tence, a lawyer should not be permitted to hold himself of the human relationships involved and the unique considering carefully and endeavoring to minimize the
character of the proceedings, contingent fee arrange- elude such factors as the repugnance of the subject
out as a specialist° or as having special training or matter of the proceeding, the identity.. or position of a possible adverse effect on the rights of his client and
ability, other than in the historically excepted fields of ments in domestic relation cases are rarely justified. In the possibility of prejudice to his client^ as a result of
administrative agency proceedings contingent fee con- person involved in the ease, the belief of the lawyer
admiralty, trademark, and patent law.. that the defendant in a criminal proceeding is guilty," his withdrawal. Even when he justifiably withdraws, a
tracts should be governed by the same consideration as lawyer should protect the welfare of his client by giving
EC 2-15 The legal profession has developed lawyer in other civil cases. Public policy properly condemns or the belief of the lawyer regarding the merits of the
civil case.. due notice of his withdrawal," suggesting employment
referral systems designed to aid individuals who are contingent fee arrangements in criminal cases, largely of other counsel, delivering to the client all papers and
able to pay fees but need assistance in locating lawyers on the ground that legal set vices in criminal cases do EC 2-30 Employment should not be accepted by a property to which the client is entitled, cooperating with
competent to handle then particular problems. Use not produce a res with which to pay the fee. lawyer when he is unable to render competent service" counsel subsopently employed, and otherwise en-
of a lawyer referral system enables a layman to avoid EC 2-21 A lawyer should not accept compensation or or when he knows or it is obvious that the person seek- deavoring to nunimi. the possibility of harm. Further,
an uninformed selection of a lawyer because such a any thing of value incident to his employment or see- ing to employ him desires to institute or maintain an he should refund to the client any compensation not
system makes possible the employment of competent avices from one other than his clieot without the knowl- action merely for the purpose of harassing or math earned during the employment..
lawyers who have indicated an interest in the subject edge and consent of his client after full disclosure..
matter involved. Lawyers should support the principle
EC 2-22 Without the consent of his client, a lawyer
of lawyer referral systems and shouldencourage the should not associate in a particular matter another law- DISCIPLINARY RULES
evolution of other ethical plans which aids
id in the selec-
yer outside his firm. A fee may properly be divided be- DR 2-101 Publicity In GetteraL,
tion of qualified counsel. by name and as a lawyer, and giving his ad-
tween lawyers. properly associated if the division is in (A) A lawyer shall not prepare, came to be prepared, dresses, telephone numbers, the mine of his
EC 2-16 The legal profession cannot remain a viable proportion to the services performed and the responsi- use, or participate in the use of, any form of public law font, and any loformation permitted un-
force in fulfilling its role in our society unless its mem- bility assumed by each lawyer" and if the total fee is connounication that embalm professionagy self der DR 2-105, A professional cord of a law
bers remise adequate compensation for services an reasonable. laudatory stalanents calculated in attract lay firm may oho give the names of members and
dered, and reasonable fees" should be charged in EC 2-23 A lawyer should be zealous in his efforts to clients; as used herein, "public connimmicallon. In- associates. Such cards may be used fur idea-
appropriate cases to clients able to pay them. Neverthe- avoid controversies over fees with clients.' and should cludes, but is not limited to, communication by tifirolion" but may not
n ot be published in peri-
less, persons unable to pay all or a portion of a reason- attempt to resolve amicably any differences on the sub- means of television, radio, motion pkt are, news- odicals, .401431.71,
paper, magazine, or book. or other
able fee should be able to obtain necessary legal ser- ject.. He should not sue a client for a fee unless neves- media."
vims," and lawyers should support and participate in sary to prevent fraud or gross imposition by the client." (II) A lawyer shall not publicize himself, his parker, or (2) A brief professional announcement card stating
ethical activities designed to achieve that objective... associate as a lawyer through newspaper or maga- new or changed associations or addresses,
Financial Ability to Employ Counsel: zine advertisements, radio or television announce- change of firm MUM, or similar °tatters per-
Fins plat Persons Unable to Pay Reasonable Fees ments, display advertisements in city or telephone
directories, or other 111.1IS of commercial pub- taining to the professional office of a lawyer
EC 2-24 A layman whose financial ability is not suf- or law firm, which may be mailed to lawyers,
ficient to permit payment of any fee cannot obtain legal licity,^ nor shall he authorize or penal others to clients, former clients, personal friends, and
EC 2-17 The determination of a proper fee requires do an in his behalf^ except as permitted under DR
consideration of the interests of both client and lawyer.. services, other than in cases where a contingent fee is relatives.. It shall not state blographimi data
appropriate, unless the services are provided for him. 2-103. Ibis does sot prohibit sad digni-
A lawyer should not charge more than a reasonable except to the cabal reasonably necessary to
Even u person of moderate means may he unable to fied Identification of a lawyer as a lawyer as well
fee,° for excessive cost of legal service would dam lay- as by name": identify the lawyer or to explain the change hi
men from utilizing the legal system in protection of pay a reasonable fee which is large because of the com- bh association, bot it may stale the Immediate
, ity,..rovelty, or difficulty of the problem or similar
lex (1) In pofitical advertisements when his profes-
their rights. Furthermore, an excessive charge abuses past position of the lawyer." It may give the
F sional status is germane to the political cam- names and dales of predecessor fines In a con-
the profeuional relationship between lawyer and client. paign or to a polideal
On the other hand, adequate ComPeasittiou EC 2-25 Historically, the need for legal services of (2) In public notices when the name and profession tinuing line of succession. It shall not state
in order to enable the lawyer to serve his client ef- those unable to pay reasonable fees has been met in of a lawyer are required or authorized by law the nature of the practice except as permitted
fectively and to preserve the integrity and independence part by lawyers who donated their services or accepted under DR 2-105."
or are reasonably pertioent for a purpose other (3)
of the profession... court appointments on behalf of such individuals. The A sign on or near the door of the office and
than be attraction of potential clients..
basic responsibility for providing legal services for (3) In roodne reports and announcements of a in the building directory identifying the law
EC 2-18 The determination of the reasonableness of those unable to pay ultimately rests upon the individual
bona fide bness, civic, professional, or po- office. The sign shall not stale the nature of
a fee requires consideration of all relevant circum- lawyer, and personal involvement in the problems of the proclice, except as permitted under DR
stances," including those stated in the Disciplinary litical organization in which he serves as a
the disadvantaged can be one of the most rewarding director or officer. 2-105.
Rules. The fees of a lawyer will vary according to experiences in the life of a lawyer. Every lawyer, re-
many factors, including the time required, his experi- (4) In and on legal documents prepared by hint. (4) A letterhead of a lawyer identifying him by
gard)ess of professional prominence or professional name and as a Wryer, and giving his addresses,
ence, ability, and reputation, the nature of the employ- workload, should had time to participate in serving the
(5) In and on legal textbooks, treatises, and other
ment, the responsibility involved, and the results ob- legal publications, and in dignified advertise- telephone numbers, the name of his law firm,
disadvantaged. The rendition of free legal services to associates and any information permitted un-
tained. Suggested fee schedules and economic reports ments thereof,
those unable to pay reasonable fees continues to be an der DR 2.105. A letterhead of a law firm
of state and local bar associations provide some gaid- obligation of each lawyer, but the efforts of individual (C) A lawyer shall not compensate or give any thing of
ance on the subject of reasonable fees." It is a com- value to represenadva
e of the press, radio, tele- nay also give the names of members aud as-
lawyers are often not enough to meet the need.. Thus sedates," and names and dates relating to de-
mendable and long-standing tradition of the bar that it has been necessary for the profession to institute ad- vision, or other communkation medium in antici-
special consideration is given in the fixing of any fee pation of or la return for professional publicity in ceased and retired members." A lawyer may
ditional programs to provide legal services.. Accord- news If be designated "Of Counsel" on a letterhead if
for services rendered a brother lawyer or a member of ingly, legal aid offices,"lawyer referral services,. and he has a continuing relationship with a lawyer
his immediate family. other related programs have been developed, and others DR 2-102 Professional Notices, Letterheads, Offices, or law firm, other than as a punier or assod-
EC 2-19 Assoon as feasible after a lawyer has been will be developed, by the profession." Every lawyer and Law Lists ate. A lawyer or law firm may be designated
employed, it is desirable that he reach a clear agree- should support all proper efforts to meet this need for (A) A lawyer or law firm shall not use professional as "General Counsel or by similar profess
ment with his client as to the basis of the fee charges legal services." cards, professional announcement cards, office shoal reference on steamier, of a client if he
to be made. Such a course will not only prevent later signs, letterheads, telephone dirmtory listings, law or the firm devotes a substaodal amount of
misunderstranding but will also work for good relations Acceptance and Retention of Employment lists, legal directory listings, m sham professiorial professional time in the representation of dud
between the lawyer and the client. It is usually bene- EC 2-26 A lawyer is under no obligation to eel as notices or devices," except that the following may client." The letterhead of • law firm may give
ficial to reduce to writing the understanding of the adviser or advocate for every person who may wish to be used if they are in dignified form the names and dales of predecessor firms ha a
parties regarding the fee, particularly when it is con become his client; but in furtherance of the objective (1) A professional card of a lawyer identifying him continuing line of succession.
8 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 9
(5) A !bathe of the office of a lawyer or law finn jurtsdictionseu however, the more firm name may his stokes does so as a result of cooduct pro-
in the alphobetithl and classified writhes of be used In each jurisdiction. skill requisite to perform the legal service
hibited under this Disciplinary Rule. properly.
the telephone directory or directories for the (E) A lawyer who is engaged both in the practice of
geographical area or areas in which the lawyer DR 2.104 Suggestith of Need of Legal Services.. (2) The likelihood, if apparent to the client, that
law and another profession or business shall not or (A) A lawyer who has ghee unsolicited advice to • the acceptance of the particular employment
resides or mainedas offices or in which • sig. Indicate ou his letterhead, office sign, or profes-
nifiCant part of his clientele resides" and to the laymen that he Mould obtain counsel or lobe lege] preclude other employoreut by the lawyer.
sional card, our shall he identify himself as a (3) The
T fee customarily charged to the locality for
city directory of the city in which his or the lawyer in any publication la connection with his action shall not accept employment resulting from
firm.s office is located. but the listing may that odvice.^ except that: ahnithe legal services.
other profession or business. (4) The amount Involved and the results obtained.
give onO the mune of the lawyer or law firm, (1) A lawyer may accept employment by a close
(F) Nothing contained herein dull prohibit • lawyer (5) The time limitations lammed by the clieut or
the fact he is a lawyer, addrthses, and tele- from using or permitting the use, to connection friend, relative, former client (If the advice is
phone numbers.. The listing Moil not be In germane to the former employment), or one by the circumstances.
with his name, an earned degree or title derived whom the lawyer reasonably believes to be a (6) The nature and length of the professional re-
distinctive form. or type.. A law firm may therefrom indicating his Indidiag in the law. lationship with the client
have a listing In the tints name separate from chkoLm (7) The experience. reputation, and ability of the
that of Its members and associates.. The list- DR 2-103 Recouruithdaton of Professional Employ- (2) A lawyer nary accept employment that results
ing in the classified section shall not be under ment:. from his participalion In mashie. designed to lawyer or lawyers performing the services.
(A) A lawyer shag not recomothod employment, as a (8) Whether the fee Is fixed or contingent..
• heading or classification other than "At- edmale laymen to recognise legal problems, to
torthys" or .Lawyert. except that additional private practitioner,°• of himself, his partner, or make intelligent selecdon of counsel, or to (C) A lawyer shall not enter lulu as arrangthient for,
headings or classifications descriptive of the associate to a nos-lawyer who ins not sought his utilize available legal services if such activities charge, or coiled a contingent fee for represent-
advice regarding employment of a lawyer:. ing a defendant to n criminal case..
types of practice referred to in DR 2.105 are are couducted or sponsored by any of the
permitted... OD Except as permitted under DR 2-103 (C), a lawyer offices or organizations enumerated in DR DR 2-107 Division of Fees Anal./ Lawyers.
(6) A listing in a reputabk law list. et legal di- shall not compensate or give anything of value to 2-103(0)(1) through (5), to the extent and un- (A) A lawyer shall not divide a fee for legal serykes
rectory giving brief biographical and other in- a person or organisation to recommend or secure der the conditions prescribed therein. with another lawyer who is not a partner to or
formative data A law Wt or directory is not his employment.. by • client, or as a reward for (3) A lawyer who Is furnished on paid by any of associate of his law firm or law office, lurks=
reputable If its management or contents are haring made recommeudation resulting In his the offices or organizations enumerated In DR (1) The client consents to employithot of the other
likely to be misleading or Injurious to the pub- employment.^ by a client. 2-103(D)(1), (2), or (5) may represent a mem- lawyer after a full disclosure that a division of
lic or to the profession.. A law list to con- (C) A lawyer shallot request a person or organisa- ber or beneficiary thereof, to the extent and fees wM be made.
elusively established to be reputable if It Ls tion to recommend employment, as a private prac- under the conditions prescribed therd. (2) The division is made hi proportion to the ser-
certified by the American Dar Association as titioner, of himself, his partner, or agar:dote,. (4) Without affecting hi. right to accept employ- vices performed and rmpousibility assumed by
being In compliaece with Its rules and stan- except that he may remmi referrals from • lawyer ment, a lawyer may speak publicly or write for each:.
dard. The published data may Include only referral service operated, sponsored, or approved pubilthlion on legal topics. so long m he does (3) The lend fee of the lawyers does not clearly
the following: mum including some of law by a bar associatho representative of the general not emphasize his own professiothl experience exceed reasonable thmpensation for all legal
firm and names of professional amoclatea; ad- bar of the geographical area In which the associ- or reputation and does not understand to give services they rendered the client..
dresses.. and telephone numbers; one or more ation exists and may poy its tem Incident thereto.. Individual advice. (ID This Disciplinary Rule does not prohibit payment
fields of law to which the lawyer or law firm (D) A lawyer Mall not knowingly assist a person or or- (5) It 6110000 to asserting rights or defames of his to a former partner or associate pursthnt to a sopa.
concentrates.' a statement that practice is hauls:Atkin that recommends, thrashes, or pays for client in litigation in the nature of a class action ration or retkeintht agreement
limited to one or more fields of law; a state- legal services to promote the use of his services or dependent upon the joinder of others, a DR 2-108 Agreements Restricting the Practice of •
ment that the lawyer or law fine specializes those of his northers or associates. However, he lawyer may accept, but shalt not seek, employ- Lawyer.
In a particular field of law or law practice but may cooperate in a dignified matinee with the keel ment from those contacted for the purpose of (A) A lawyer shall not be a party to or participate In a
only U authorized under DR 2-105 (A)thh. service activities of thy of the following, provided obtaining their joinder:. partuership or employment agreement with another
date and place of birth; date and place of ad- that his independeut professional judgment is ex- lawyer that restricts the right of a lawyer to prac-
mission to the bar of stale and federal courts; DR 2-105 L011110000 of Practice..
ercised In behalf of ben cheat without interference tice law after the termination of a relationship
schools attended, with dotes of graduation, de- or control by any organinthou or other person: (A) A lawyer shall not hold himself out publicly as a created by the agreement, reel as • condition to
grees, and other scholastic distinctions; public (1) A legal aid office or public defender office: specialist'• or as limiting his practice,. except as paynient of retirement benefits.'"
or quasi-public offices; military service; posts permitted under DR 2-102 (A) (6) or as follows
of honor; legal authorships; legal teaching po- (a) Operated or sponsored by a duly accredited (1) A lawyer admitted to practice before the (11) In roomed:1ln with the settlement of • controversy
law school. United States Potent Office may use the desig- or suit, a lawyer shall 001 enter Into au agreement
sitions; memberships, offices, thmmillee amiant-
us:rots, and section memberships in bar associ- (b) Operated cc sponsored by a bona fide non- nation Patent Attorney, Patent Lawyer, Trade- that restricts his right to practice law, but he may
profit community orgianithlioh enter into an agreement not to accept aey other
ations; memberships and offices In legal fra- (c) Operated or spothored by a governmental mark Attorney, or Trademark Lawyer, or any
ternities and legal socletim; technical and pro- combination of those terms, on his letterhthd representation arising out of a transaction or meet
embraced in the subject matter of the coaleovoray
fesskmal licenses; memberships in scientific,
technical and professional associations and so-
O
(d) Operated,
perated, sponthred, or improved by a bar and office sign, end a lawyer actively engaged
In the admiralty practice may use the desig- or suit thus settled.
association representative of the general DR 2-109 Acceptance of Employment
cieties; foreign language ability; names and ad- bar of the geographical area In which the nation Admiralty or Admiralty Lawyer on his
dresses of references, and, with their consent, lettethead and office sign.. (A) A lawyer shall not accept employment on behalf of
associotion exists:.
names of clients regularly represented.. (2) A military legal assistance office. (2) A lawyer may permit his name to be listed in o persou ff be know or it Is obvious that ouch per
(B) A lawyer to private practice Mall not practice un- (3) A lawyer referral service operated, sponsored, lawyer referral service offices according to the whiles to:
der • trade name, a name that Is misleading as to or aproved
p b a bar association representa- fields of kw in which he will occept referral. (1) Bring a legal action, conduct a defense, or as-
the Ideality of the lawyer or lawyers practicing tive of the general bar of the geographical sea (3) A lawyer available to act as a consellant to or sert a prwIllon In litigation, or otherwise hove
under such mine, or a firm mere containing nooks to which the association exists... as an asoodate of other lawyers In • particular steps taken for hint merely for the purpose of
other thon those of one or more of the lawyers to (4) A bar association represeutotive of the general bf...ch of law or legal service may distribute horn:ohm or malidously Injuring say person:.
the firm, except that the name of • professional bar of the geographical area in which the as- to other lawyers and publish in legal journals a (2) Present a claim or defense 10 litigation that is
corporalion or professionalassociation may con- sociation exists.. dignified announcement of such availability,. not warranted under existing law, 11111081111 can
tain .P.C.. or °P.A.. or similar symbols Indi- (5) Any other non-profit organisation that recom- but the announcement shall not contain a rep. be supported by good faith argument for an
cating the nature of the orgadmtioe, and if other- mends, furnishes, or pays for legal services to nth:dation of special competence or experi- extension, modification, or reversal of existing
wise lawful a firm may use as, or continue to in- Its members or beneficiaries, but only in those ence.. The announcement shall not be dis- law.
clude In, Its name the name or nanies of one or Mentor. and to the extent that controlling con- tributed to lawyers more frequently than once
more deceased or retired members of the firm or DR 2-110 Withdrawal from Employment:.
stitutional interpretation at the lime of the Iv a calendar year, but It may be published (A) In general
of a predecessor firm In e confining line of suc- rendition of the services requires the allowance periodically In legal journals.
cession:. A lawyer who assumes a judicial, legis- (4) A lawyer who Is certified as • specialist to a (1) If permission for withdrawal from employment
of such legal service activities,. and Only if is required by the rules of a tribunal, a lawyer
lative, or public executive or administrative post or the following conditions, unless prohibited by particular field of low or law practice by the
office shaft not permit his name to remain hi the such interpretation, are met: authority having jurisdiction under stale law shall not withdraw from employment In a pro-
name of a law firm or to be used in profethional (a) The primary purposes of such organiration over the subject of specialization by lawyers ceeding before that tribunal without its wr-
node. of the firm during any significant period in oth/do.
do not include the rendition of legal oth- may hold himself out as such specialist but only (2) In any event, a lawyer shall not withdraw from
which he it not actively and regularlY practicing vices.
he la accordance with the rules prescribed by that
law as a member of the firm:• and during such (h) The furnishing, or pirybitt authority.. employment until he has taken reasonable steps
period other members of the firm shall not use his for legal services to its members Is incl. to avoid foreseeable prejudice to the rights of
name In the firm name or in professional notices DR 2-106 Fee. for Legal his client, lucluding giving due notice to his
dental and reasonably related to the pri- (A) A lawyer shall not eater into an agreement for, client •Ilowing lime for employment of other
of the firm.. mary purposes of such orgindmIlon.
(C) A lawyer shall not bold himself out as having a charge, or collect an illegal or clearly excessive counsel, delivering to the client all papers and
partnership with one or more other lawyers unless (c) Such organization does not derive a fine.- fee.. property to which the client Is entitled, and
they are In fact partners.'" dal benefit from die re:Wilke of legal (It) A fee is clearly excessive when, after a review of complying with applicable laws and rules.
(D) A partnership shall not be formed or coutinued services by the lawyer. the facts, a lawyer of ordinary prudence would be (3) A lawyer who withdraws from employmeet
between or among lawyers licensed in different (d) The member or beneficiary for whom the left with a definite end firm conviction drat then shall refund promptly any part of a fee paid
jurk.dicfiona unless all enumerations of the mem- legal services are rendered, and out such
organization to recognised as the client of
fee is in excess of a reasonable fee. Factors to be la advithe that has not been earned.
bers and associates of the firm on Its letterhead and considered as guides In determining the reasonable- (It) Mandatory withdrawol.
in other Issible Iktlnga makelear the juris- the lawyer in that matter. ness of a fee Include the followirth A lawyer thpresentIng a client before tribunal,
dictional limitations on those members and asso- (E) A lawyer shall not accept employment when he (1) The thne and labor required, the novelty and with its permlthon if required by a ts rules, shall
ciates of the firm not licensed to practice In all listed knows or it Is obvious that the person who seeks difficulty of the quo:dons Involved, and the withdraw from employment, and l lawyer repro.
10 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 11
seining a client in other natters shall withdraw (c) holds that the lawyer pursue a course of
"There Is no ethical or307other
9. Cf. ABA Opinions
torney may not write articles
(1962)valid
on
andreason
leg
179 (1938).
why an a dotswhich
by this, 'sitelf-laudation'
is 'reprehensible.' This seems
is measured... to be
State the test
v. Nichols,
from employment, if; conduct th is ill et s proIbed
alms al subjects for maga- 151 So. 2d 257, 259 (Fla. 1963).
trade and newspapers. The fact that the pub lication is •
(1) Ile knows or it Is obvious that his °Bent Is under the D sci pl nR ulha
22. Were It not for the prohibitions of ... /Canon 27]
journal or magazine, to tEL difference as to the lawyers could, and no doubt allwould be forced
bringing the leant action, conducting the de- (d) By other conduct renders it unreesonably
ethical questk.n involved. On the other hand, it would to engage
be competitively
to explainin 10advertising the publicofwhy kin. in which serveea. mould
fense, or asserting a position hi We litigation, difficult for the lawyer to carry net his em-
or It otherwise having steps taken for him, ployment effectively. unethical
theother and
attorney tocontrary
allow his.to theas precepts of
toa befreecarried the Cano m for
the magazine
seek he could better and
merely for the purpose of harassing or ma- (e) insists, in a natter not pending before a orsubscribera
publication legal Inadviser for theto accomplish
"Susceptible more as than
we his brothers al the Bar.
liciously injuring any persons. tribunal, that the lawyer engage in conduct lo the publication Such would be contrary thenhbehaencouraged
whic to are
choose to advertisin
an arytorney g the publicbasis
ovhe would
os programof
rather thand the on hishet..
(2) lie knows or it is obvious that his continued
employment swill result in violation of a Dis-
ciplinary
that Is contrary to the judgment and advice
of the lawyer Ind not prohibited meder the
Disciplinary Rules. Opinions 31..1742P.
," rt'd
ess.9
i ;a
and
s,711Wr e0v0=7 4
b.17t1 re'
Opinion
1
'162 (1936).S00 reputation wham
mono
This would certainly main, if not destroy. the dignity
e arborti
for professional „Witty.
ThisABA
56)."
(3) Ito menial or physical condition renders It on- CANON 28.
reasonably difficult for him to carry out the em-
(0 Deliberately disregards an agreement or
"We 11.
10. See
question can the licontention
me constitutional dimensions: f•ritlhIrlIrnSt. tr.257! he 01r110?119t1S'aLms.x.r.;
whollymeet al thetheoutset that 'solicitation' the Firstis
obligation to the ffiwyer as to expenses or
ployment effectively.
(4) He is discharged by his Client.
fen.
(2) His continued employment is likely to result Amenchnent. outside To this area contention
of freedomsthere protected
are twobyanswers. "p n7C1.'AL"CI,V,
24. 'Ile prohibItIon of advertisins by lawyers deserves
'"
(C) Permissive witholawal.'" to a violation of a Disciplinary Rule. The first
constitutional Is that
rightsalaSlate
by mere .nnot foreclose
labels. The .0.50 the exercise
Is that ab-of some examination. All agree Nat advertisin g by an indi-
If DR 2.110 (I3) Is not applicable, a Integer moll (3) His inability to work with co-counsel Indkates
stract vidual lawyer, if permitted
the materwillgoes detract horn the dignity
this. Per-of
which discussion not the only species
the ThatofAmendmentcommunication the professMn, but and deeper than
not request permission to withdraw in matters
pending before a tribunal, and may not withdraw
that the best inderesis of the client likely will be
served by withdrawal. protect the ConstitutMn
vigorous advocacy. protects:certainly of lawful ends, ...aim(
also haps
reasons the most understandable
we have found are stated by acceptable
one commentator additional as
In other matters, Imams such request or such with-
drawal Is because: (4) His mental or physical toreador. renders it
difficult for him to carry out the employment
governmental s intrusion. . . . follows:
" '1.That advertisements, unless kept within narrow
the"However validillegmayal bepractice
VirgMlahl interestmaintenance
in regulating limits like anyandother ouchtone of solicitation, tendpublicto it
(1) His cHaab
(a) Insists upon preseeneg a claim or defense
ettecfiyely.
traditionally of barratry, up litigation, tendency is against the
li " '2.ineet.
that is not warranted under existing law (5) His client knowingly freely assents to ter-
and cannot be supported by good faith red
ainatioe of his employment. Orfulthc.hwas
Intent rz,P,','01:2tig:7,tidord
of the essence of the l'41.tr. common-law ,Vcct.Praatiel
offensesibeof Thal if there were no restrictions on advertisement,
(6) He believes le good faith, in a procmdIng
fomenting the least publishand theleast mosthonorable
“travag lawyers would
or may haveor been stirring
argument for an extensions, modification,
pending before a tribunal, that the tribunal will
trueupoflilWation.
suits awinstAndgovernments
whatever may
in 01900 be apt
material tocapable
about themselves, largand Mat ant
ate and
harm alluring
fall onwhich
or reversal of existing law:"
aides, the cwrcise in our own, as in this case of First
find the existence of other good cause for with-
(b) Personalty seeks to pursue an illegal course
Amendment rights to would result would, in e measure, the
ofenforce Constitutional rightsmalicio.."
through
of conduct. drawai
NOTES litigation,
NAACP v.asHutton,
a matter law,015, cannot429,be439-40,
deemed ...3.Inducements
rallht TeMi,rat""Z. 0,5J assurances of success 04, car
they atutional of a will; of lawyer referral
draftingadvertising and 227 per mitting insti- 405. 415-16. 422, 83371 S. 27.U.S.
Cl. 328, 336, MI (1963).
9 L. Ed. 2d
or of satisfaction for employment,
to the
I. "Menhave
eed need forofoforelawNan
lneyforhavea system whicha system
functions, of law;
and that holding that
Opinions 205
advertising by lawyer members plans; ofThenionMinas
Opinion
Opi 191 12. See
13. ABA Canon
-The Canons of Professional Ethics of the American could not be realized, andclient, which assurances
That the siring of soch
meansneed need for lawyers." Cheatham,
23 RocaT Me. L. A.. 405
The Law-
ted sponsored plan violated
Ethicsdainstitutional sustained bar Bar
erallyAssociation
prohibit theand the decisions of
ofthe courts fornonegaingen- toassuran.s
use ill means would materially
to secure increase
the end the
desired temptation
by the
. awwi-of
Canon 27.
yer's Role and Surroundings,
Committee, in its of • check-apt direct solicitation business by client.
theplan
Opinion 201,
(1.534.aw Is not self-applying; men must apply and utilize ation "This Committee advertising squarely inonconnection
has panedadvertising question an attorney
munication; either
and alsothroug
condemn h advertisement
the procuring or ofpersonal
businesscom- by "'In other
conclusion words, the reasons for the rule, and for the
I1 in concrete cases. But the ordinary man is incapable.
He cannot know the principles of law or the rid. guiding thelegal
propriety of institutional
checkup plan. Informal Decision C-ill quotes
with indirection throug tohbreed
touters of any bykind.
seeking isoutdisreputable Itentirely,
will notoradmit tothatlimit it Is d.irable
It within aresuch
to prohibit
narrow advertising
bounds that
the machinery
how to1010
formulate of law desires
writing;his
administration;
he is ineffective
he doesand
with inprecision
the presentation
nottoknow putof awith
ollos: expr.s approval the Michigan Ethics Committee as for anclaim
inhaveorder
attorney
to secure them
litigation
s for personal injuries or other grounds of action
as client. , or to employ agents or
those who and
mitted, probability
will * abused.'
ofthat
abuse,thisHarrison
means bawd of on
Dewitt publicity,
Ina comment
if per-
Inc possibility
hishemclaims." As a public service, the bar has in the past addressed ropers, ofor business
to reward tothose who bring or influence the IS
by3.Association,
."This need Ito provide legal services] was recognized the public as to the hnportance of making with, pons,
Id.
counsel in connection with bringing Ms office. . Moreover, it tends 14‘;1'.."4,4,1.1dT,r).r.77.1cdr.".;,=".311
Bar . . Mr. [Lewis
1963-64],F.1 Powell
who said; (Jr..President, American
'Looking at content- In the same way, thealways bar, noreal
such,estate
maytransaclions,
itrecommend
this
this quite easily
quite to the institution
of perjured testimony.
of baseless litigation and the Ed., 1955).
"Of course, competition
M
p . 525. is at the root of the abuses
porary America realistically, we must admit
beenthat despite all program.
mat there is
eel
provided suggestion that
of itsolicitation
does to such
on behalf of
a way
ofordangthe
ercrime
has been recognized in the orlawFromby theearl) times,
condemnation this advertising
pete .
withdoubt If
his the individual
fellows lawyer were ghpermitted to com-In
our efforts
undertoolaw. manyto dale
Thispersons
(and these
usuallyarcresultsnothave
able not
to obtain insignificant),
theirequal Justiorce ABA any individual307lawyer."
(15.62)• Ades,quarrels6 F.Supp.
of common
between barratry,
467. individuals at lawtheorstirrin g up of suits
otherwise... In re have
would no that Mr. InHewpiddle. throu advertising.
ht's three points, quoted above,
we
because poverty 474-75 (D. Mary. 1934).
n v.accorately
Wilson, 102forecast the result" Jacksonville
1958). Bar
for
their ignorance has byprevented
E. Clintonthem from obtaining legal 6. "We recognize
Opinion
a distinction between teaching the lay 14. "Rule Ass'
25. ABA So. 2d 292, 294-95 (Fla.
ofcounsel.' " Address Bomberger, Association 27.
2.
American Law Schools 1965 Annual Meeting, Dec. 28, rerubciltcarlige:"=':ogi="nol Perri' '1O.. i fferfian7= ] memberbyof the Stale Bar shall not solicit profes-
• •• 26. See CANON
309 (1964)
(063) and and 284 284 (1951).
(1951).
PART II, 1965, 61, 63-64 (1965).
and by theorpublic
fur a interest
partimilarandlawyer. nThethe former tends to promote sional •employment 27. Cl. ABA Opinions
1965, "Ainwide
PRocamonca, 313
needreveal.legalLooked services The latter isenhance public the publicofand the Cf. ABA Opinions
gapasseparates
numerousthestudies prolcsilim. calculated to injureestimation "(I) Volunteering tr st or advice except where ties CJe
23.1
its satisfaction, et from ABA C6'51=52733.103 (1961).
for
the side of layman , one reason for the gap is poverty degrade th e profession. ofB blood relationship or trust
u make it appropriate."
Can 1W76 (West 1962).
CAL.
inability to pay legal fees. Another set USI xeaa 30. See
ofandreasons
the consequent
Inc AND PlIOFESSIONS CANON
which Is calculated to teach layman the A member her of the StatethroughBar shallor in
"Adverlisins legaltheservices
31. Id.
is wnoran a of the need for and the value of advise inquirera or r.der continued use of a firm name by one orofmore sur-
15. "Rule lb . . .
of where to find a dependable benefits andlayadvantages Mil to them not
andofenable
preventive viving
The
legal services. and ignorance 10 render • connection with a newspaper. radio or other publicity whose.rtners isafter
in thethefirmdeath title isoffor a member thebyfirm
lays
chargingof the law, and there h fear of overrea.ing and °vet- benefitdesirable
lawyer. There is fear of the mysterious pr.esses and de-
by lawyers, a fear stimulated by the .casio.1
the pubtic
179 (1938).and beneficial the lawyer
professional service... .ABA
=s","Till'Zflirr'ornlath 'sur:IraVrc5e'yh'Ilriatrrc= PrI7c1 Canon. nameof Ethics.by theirThe Mintr.son
expressly
and severalthisefforts
permitted
I,that all of the
the
,,,,`1401a lional7. "IA
Opinion
bar
educationalassociation]
campaign moy socnsage asinItwith
longlaw., adoesdi gnified /alike- for his servic.."
16076 (West 1962). Boson. win
CAL. PROFESSIONS Coo. of yearslnhave .ntributed ofto athefirm haood will attached over a period
to the firm
""T c""nm.,,terri.4 the Identification of a particular thenotcout
involve M. "In any case where a member might well apply the name. Ow
will lecase ving widespread connection,
rie.1;.is„,114', not only the right but the dot, of44. the0;40). Mice given In the ;minion to his individual agate, the this good disturbed bya change In firm
a oflossname eve.
heck-op
program. Such educational material may point the
as4.a "Itwhole tolawyer rendering the opinion anon ruing problems common lime a nameof thepartner dies,toand theNat reflects in some
profession
to utilize ouch methods as may be developed to value of the annual check-up and maY be Printed in new.-
members of an association degree good will building which the
brine
so longtheasaerviccs
this320canof(M.).
its
be members
done ethically to those who need
, and with Wank),"
them, E! °'.;••c".Tra,_°,11P9, 1ill21..;r00br:"."17; or pro The
through a periodic bulletin] and distributed tomember
should specifically the members
state that• survivins
labor partners
through have contributed their up,
time.
this skidlassofand
"Mhere is a responsibility printe'
through r'materials may ore
the offices of personsdismouted othea rdisnifieu with
having close dealings way this opinion
basis for handling should hisnotindividual
be relied on by
affairs, any
butpublication
that in every as firm name is a periodandof toyear, mat To theavoid
requirements the
theto
to those who on the bar 10Themake legal ser- Canon aredielisted."
individuals constituting
ABA Opinion continued.
as, for example, banks, real estate agents, insur- case he should consult his counsei. In the of firm from Woe
vices
lege
elusive
available
brings responsibilities,' need
can bethem.expanded to teed,IBM.
maxim, cx- lawyers
ance agents
ofh.s. The barandassociation
others. Theymaymayprepare be available
andannual in lawyer.'to
distribute
the opinion the association 273 should make
(1946). a similar stem-
time
name "Ac.ptedof a law localfirm custom
ABA Opinion
doe not
267the0945).
to New York recognizes that the
to assureprivilege
that thetoservice render is public sent. brings inresimnsitnn
ma.... ABA Opinion
necessarily identify the Indi-
Cheatham, available to those need of it. lawyers materials and forms for
307 (1961), ow In the legal on17.the"Aavailability
group of recent of legal interrelated
services.. chang. !One! eschange
bean directly
andis the
vidual members of the firm, and hence the continued use of
8.. "A- lawyer may propriety rile articles for pubh.,
with information .astantly acceleratins urbanization the country the aadweased
firm name one,* death of one or more partners useisofbya
Availability of Legal Services: The Responsi- check Up.. ABA Opinion
decline deception and sisname
permissible.... firmThe OMcontinued
nob
he gives upon the law to retainofasperaonal and neighborhood knowledg e of whom partner' in thewithdraws
bility of the Individual Lawyer and of the Organized Bar,
12 "The L. Rev. 438. 443 (1965).
obligation to provide legal services for those actually ABA a professional man." Cheatham, the fact that Another partner is nottheaffected
from firm nd a
caught up in litigation carries with It the obligation to The
alleged newslnwrs, by means theirof wares,
which respondents are s
of Legal Services: The Reponsibility
Availability
of the ndivdua
Bar, 12 U.C.L.A. L.I 000.i 438,l
ofnounion
have advertised bywere theirsentfirm.to•the a. 1:407f
dropped. rte
make
those preventive
unaccustomed legaltoadvice
business accessibk
affairs toandall.fearful
It is among
of the clients represented •• 440 (1965).
Lawyer and the Organizedof
1crof.sional Etnics, thAp.7.707. go.'t.ng 100100,
skillfulIf They contain no reference to any cases tohandled
rulings ofbycoboards,
the re- 111. Cheatham, N.Y.SLE.J. 455 (1967).New yolk State Bar 'risen, 39
itways of the law that insuch
time,advice is often most needed. Cf.
received the most valiant and spondents. Their contents are confined A Lawyer When Needed.- Legal Ser-
63 Cosow L. Rev. 973, 974
is 01.4 (1963). ABA Canoe Cf. ABA Croton25833(1943).
vices /or the Middle Classes,
representathm in court may come too late." commissMns and with its on problems of interest hbor 27. 32.
Cl. ABA Opinion
and 315 (1965).
44 A.B.A.J. union,
Projectional
together proposed andandother
completed legislation
ght 19. See
ABA 283 (1950)
ABA Opinion
and 51 (19371.
period of years institutional advertising of Important to theandBrotherhood, Theitems which mieite is28.acourse
Responsibility: Report al the Joint Conference, 33. Ct. ABA Opinions
1159, 1216 (1958). affect unions their members. r.pondents 21.
20. See
" 'Self-laudation.
CANON
very flexible concept; Canon 27 316 (1967).
forathe
34. See ABA Opinion
5. does not define It. so awhat W. "The word 'associates' has a variety of eanings.
otherbenefit of the public have been asapproved Opinion 213 of the Committee on Professional Ethics and given stateofof facts would wouldnobedoubt Principally
letterheadsthrough custom has the comeword to bewhen used on
as the
"Over
by this and Ethics Commit.. as well the Grievances as permitting tirmh practice. After studying this to constitute
vary it under conduct said
of law firms regarded de-
opinion. we agree that does notof offend
sending newsletters Canonof the 27."above judgeas Itsaid
the opinions of wren vary. As
,it would vary as the length of the chancellor's
a famous English scribing hasthoseofwho are employees ot the firm. Became the
by
"To the wme effect areradio opinions of this Committee: type to 194 egular
ars`clients fn re wordmach.
Ran. 362. 371, 399 P.2d 865, 872-73 (1965). foot. must andbeowe, in wordstoneandoftone that will 'offend WI..theIt thethis special Menth.... in to describe
regul
dealing
legalwith advice isprograms .nnectiona with
...Ned presenting
situ- Ratner, Required
ation in which
Opinion 179
92 (1933). traditions our profcsaion.. the
lawyer relationships law
otherthethusc of the word
an employer-employee
11th
C). ABA Opinion the
is like's'
12 AMERICAN BAR ASSOCIATION CODE OF PROFESSIO NAL RESPONSIBILITY 11..
53
8.
to be misleading" In re Sussman and Tanner, 241 Ore. trade. .. . Suite to collect fees should be avoided. Only allon, Oct. 30, 1946, 71 A.B.A. Red 103, 109-10 (19
246, 248, 405 P.2d 355, 356 (1963). wHere hem rcurtistan.s imperatively require, should resort 46). 77. Q. ABA Canon 27; see generally ABA OPINION 293
61. "The defense of indigent citizens, without compensa-
According to ABA Opinion 310 0963). use of the term be had to a suit to compel payment. And where • lawyer tion, is carried on throughout the country by lawyers repre-
. associal." would be misleading in two silmtions: (I) does resort to a suit to enforce payment of fees which In- 117085.7)C
./. ABA Opinions 133 (1935), 516 (1931). 107
where two laWYet9 are partners and they share both re- volve. a dimlosure, he should carefully avoid any disci... senting legal aid societies, not only with the approval, but (19341, 73 (1932). 59 0931), and 43 (1931).
sponsibility and liability for the partnership; and (2) where ,
n.oilAcirl2r,orecgsoary143 obtaining or defending his rights." th the commendation of those acquainted with the work. 79. "There can be no justification for the participation and
two lawyers practice separately, altering no responsibithe A N
NCI infrequemly services are rendered out of sympathy or
acquiescence by an attorney in the development and pub-
liability, and only share a suite of offices and some costs. But O ct. BA Oploiion 33)10 (19611. tot other philanthropic reasons, by Individual lawyers who lication of an article which, on Its face, plainly amounts to
do not represent legal aid societies. There is nothing what-
36. "For a long time, many lawyers have, of necessity, 55. "As a society Increases in size, sophistication tad tech- ever in the Canons to prevent a lawyer from performing a self-interest and .ethical presentation of his achieve-
limited their practice to certain branches of law. The in- nology, the body of laws which is required to control that
cre.ing complexity of the law and the demand of the public society also incrmses In size, scope and complexity. With
such au act, nor should there he" ABA Opinion 198
(1935).
r67:141'.°2:7V.V.il'i; i',..64,118ofaTrb.. II App. Div. 341
for mom expertmas on the part of the lawyer has, in the this growth, the law directly affects more and mom facets 62. But cf. ABA Cmon 31. An announcement of dm fact that the lawyer had m-
past few years-particularly In the last ten years-brought of individual behavior, creating an expanding need for legal 63. "One of the highest services Me lawyer can render to aimed and the name oir the person to soccad him, be take
about specialization on an increasing male." Report of Me services on the part of the Individual members of the weiety. causer lam Pe th'
Special Committee on Speciellmtlon and Specialized Legal . As legal guidance in social and commercial behavior a o cent whom official communication to thorie
bm em'
p'
io'
yn'
ed 139. e
'r con
'nee
causes are in disfavor with the general public.. Profes- with the administrative agenur .te
'"
d
Service, 79 A.B.A. Rem. 582, 584 (1954). increasingly becomes necessary, there will come • concur- (..::41,,
,,o.,,,, a orstrumentahty [that had
37. ''In varying degrees specialization has become the rent demand from the layman that such guidance be made
sional Responsibility, Report of the Joint Conference. 44 ,;‘"%:
,,,,,,,,bsi,), on.
.fcal
i,..z(?4,
modus operandi the the legal profession... AnIera- available to him. This demand will not conic from those
A.B.AJ. 1159, 1216 (1958). 1tirg:.:211
.,.4.(1,
...
71
C111 OCely is specialimtion on... The present Canoe,. who are able to employ the best of legal talent, nor from
One author proposes the following proposition to be In- perience In and acquaintance with the ., ..f21
,0
h..1:1:s
various *parlor=s
cluded in "A Proper Oath for Advocates. : "I recognise that and agencies of the governmmt, and • laudation
however. do not show lawyers to make known to the lay those who can obtain legal assist.ce at little who cost. It it is sometimes difficult for clients with unpopular e I
public the fact that they cottage in the practice of a specialty.
Tucker, The Large Law Firm: Considerations Corn
will come from the large 'forgotten middle income class.'
who can neither afford to pay proportionately large fees cam to assure that the client with the unpopular cause Is
use
to obtain proper legal representation. I will do all that I laV, 1:
'It
br2yLT:t.T.Maa, I tit, %V.1„:'
,. --h 08
the
or qualify for ultra-low-cost mrvices.The legal Prole.n "It can have but one primary purpose or or. to ate
Mc,‘raz,;'! P"'""°"°' properly represented, and that the lawyer representing such the lawyer In securing professional employment In private
£713'c'
sf I tts must recognise this inevitable demand and Conaider methods a client receives credit from and support of the bar for
38. See ABA CANON 27. whereby it can be satisfied. If the Profession fails to pro- handling such a matter." Thode, The Ethical Standard for
39. See ABA CANON 12. vide suchmethods, the laity Comment, Providing the Advocate. 39 Texts L. Rev. 575, 592 (1961).
:ggcl
,r.ar,V.YA7A60„717i°
. ,..1,
71 .5. 7fir --'''''
40. Cf. ABA CANON 12. Legal Services for the Middle Class in Civil Matters: The Cf. ABA OpinMns 285 . and mu'ilyst).
41. "I( there is any fundamental proposition of govern- Problem, the Duty and a Solution, 26 U. Pere. L. Rev. 811,
16068.... It is the duty of an attorney: 80. "The question is always .. . healer under the cir-
ment on which all would agree, It is that one of the highest 1111-12 (1965). cumstance the furtherance of the professional employment
goals of society must be to achieve and maintain equality The issue Is not whether we shall do something or do "(h) Never to Mee, for any consideration personal to of he lawyer is the primmy purpose of the advertisement,
before the law. Yet this Ideal remains an empty form of nothing. The demand for ordinary everyday legal jusdce himself. the cause of the defenseless or the oppressed.. or is merely a necmsary INCIdOnl of • propm and legitimate
CAL Busits.s AM Palaces.. Coma 86068 (W. 1962).
words unless the teas) profession Is ready to provide ade- mi great md the moral nature of the demand is so strong Virtually the same language is found in the Oregon statutes objective of the client which does not have the effect of
quate representation for those unable to pay the usual fees.. that the issue has become whether we devise, maintain, and at Om. Rev. Stara. Ch. 9 89.460(8). unduly advertising him." ABA Opinion 290 (1936).
Professional Representation: Report of the Joint Conference, support suitable agencies able to satisfy the demand or. by See Rostow, The Lawyer and Ilia Client, 48 A.B.AJ. 25 See ABA Opinion 285 (1951).
44 1159, 1216 (1958). our own default, form the government to take over the lob. and 146 0962).
42. See ABA Carron 12. supplmt us. and ultimately dominateus.. Smith. Local 64. See ABA Canons 7 and 29.
43. Cf. ABA CANON 52. Service Offices for Persons of Moderate Means, 1949 Wis. "We ere the opinion Mat it is not professionally Ini- 82. "Rule T.
44. ..When members of the Bee are Maimed to render L. Rm. 416, 418 (19491. oft
legal services for inadequate compensation, as a consequence 56. "Lawyers have peculiar responsibilitim for the just Erhelrlat.?;ei t=or' th:7Zt' cl=sTrnagi "lAt member of the State Bar shall not solicit pro-
the quality of the service rendered may be lowered, the wel- administration of the law, and these responsibilities include the f esslonal employmmt by ....
contrary, it is highly prop:0 that he do so. Unfortunately.
fare of the profession injured and the administration of providing advice and representation for needy persons. To "(9) The making of gifts to representatives of the
justice mark less efficient." ABA Opinion 302 (1961). a degree not always appreciated by the public at large, the iti' irs'dirx press, Sidi, tekvision or any medium of commonly
CI. ABA Opinion 307 (1962). bar has performed these obliaations with zeal and devotion. have claims against members of the Bar because other law-
45. See ABA CANON 12. The Committee Is persuaded, however, that a system of yers will not accept employment to mooted against them. .'.1. 1.?".
11'.:".VP.V.01
,4:1ILVta.fof,6446117;;;
46. Id. justice that mcmpts, in mid-twentieth century America, to The honor of the profession, whose inembms proudly style
"(Ulnder . (Canon 12), this Committee has consistently mee,. the .needs of the financiallyincapacitated accused themselves officers of the court, must surely be sullied if its 83. CI. ABA Opinions 233 (1941) and 114 (1934).
held that mirffmum fee schedules can only be sugg.ted or members bind Memselves by custom to refrain from N. : III Opini n,10
175
o
(
recommended andcannot be made obligatory ... ABA rnrTdoth
se s Orcllasel ZiV' prOeve'lti ccc:sefli'
l'at.o'
dc9rieTti■Ve.
system of adequate representation, therefore, should
forcing J. claims of laymen against lawyers.. ABA
Opinion 144 (19351.
;„
q (1938)
Bu of. ABA auion 216 (1942)anE256(194
.
Opinion 302 (1961). d l 2 3).
"[A] compulsory minimum fee schedule Is contrary to be structured and financed in a manner reflecting ha public 65. ABA Cmon 4 uses a slightly different test, saying. 87. See ABA Opinion 301 (1M).
Canon and raeated, 4zronouncements of thin commit... Importance. We believe that fees for private appointed "A lawyer .signed as counsel for an indigent prisoner ought 88. "[lit has become conunouplace for many lawyers to
counsel should be set by the court within maximum limits not to ask to be excused for any trivial reason participate in government service; to deny them the right.
Cf. AB.7117pinionit 771 )1.1937) and 28 (1930). .ablithed by Me nat... REPORT or THE ATV"( Gm's 66.C1. ABA Canon 7.
47. See ABA CANON 13, see also MACKINNON, Corenn- COMM. LIN POVINITY OO x is ASMINISTYTION OP CPAIMINAL 67. See ABA Canon 5. :rio;itr ‘%"‘;',2ciratVdirggZ`L,17.::,` ":..7 : t.
piece '
Am
r Fees mot Least. Semmes (1961) (A report of the
erican Bar Foundation).
JUSAICII 41-13 (1963).
57. "At present thls representation [of those unable to
pay usual fees] is being supplied in some measure through
68. Dr. Johnson's reply to Boswell upon being asked
what he thought of -supporting • came which V. know r, 1141C, IM:IIIIII011 UNDO •
plain his al
l'
large clement of our profession.
ahe=ote i:r=r•hcIfice eweiTrIcta re. fif;
"A contract for s reasonable contingent fee where aanc- to be bad" was: "Sir, you do not know It to be good or bad
Honed by law is permitted by Canon LI, but the client must he spontaneous generosity of individual lawyers. through till the badge determines Id I have mid that you are to rimary
remain responsible to the lawyer for expenses advanced by legal aid societies, and-increasingly-through the °remolded ate facts faidy; so that your thinking, or what you call P e u''' t o° fthe
'h'p ''''
rio r ':Zero y*m
n‘eMb. ' . brief '"'d d4-
the latter. 'There is to be no barter of the privilege of efforts of the Bar. If those who stand in need of this midi. k nowing, a cause to be bad, must be from reasoning, must
prosecuting • cause for gain in exchange for the promise of
the attorney to prosecute at his own expense.' (Cardoso.
know of its availability and their and is in fact adequately
met, the precise mechanism by which MU service is pro-
vided becomes of secondary importance. It is of meat im-
be from supposing your arguments to be weak and 'neon-
cloilve. But, Sir, that Bnot enough. An argument which me s"cti=7:;nfIn ie rir yed
r b'
lon marle.Auen his leaving that position to enter
meet,
vntr■Me"grve'rlt7
private
C. I. in 1,4 of Gilman, 251 N.Y. 265, 270.271.).ABA does not convince yourself, may convince the Judge to whom
Opinion 246 (1942). ...nee. Sneerer, that both he Impulse to rend.,this you urge it: and it if does convince hint, why, then, Sir. P19.11ABA0°
X=253r (141)?
48. See Comment.. Providing Legal Services for the Middle service, and the plan for making that impulse effective, /i,x,:ro,a2owzniot NA beds r1:13t).'
.. 2 Boswerd., Tim Ltee OP lav9,0,471:;o:e law Kerf:: m
ut; ii
,serezi
oorokotgo for lin Individual
Class in Civil Matters, The Problem. the Duty and a Solu- should arise wit. the legal profession itself.. Proles-
tion, 26 U. PITT. L. Rev. 811. 829 (1965). rLrl.pexr. ,,,,,11,
1,4,i 1,
1 47 „ DI the Joint Conference, 44
5, 69. "The lawyer deciding whether to undertake a case and in other appropriate places as 'assoCiats).?'""11
49. See ABA Can. 38. MIN be able to jud. objectively whether he 4 capable of Opinion 310
Of course, as . . . (Informs) Opinion 6791 points out, 58. "Frey kgal clinics carried on by the organised bar era handling It and whether he can assume Its burdens without 33..
there must be full disclosure of the arrangement [that an not ethically objectionable. 0° Om contrary, they serve a 92. But see ABA Opinion 285 (1951).
v y worthwhile purpme and should be enmuratted." ABA prejudice to previous commitments... Professional Re- 93. See ABA Opinion 295 (1959).
entity other than the client pays the attorney's fee] by the sponsibility: Report of the Joint Conference, 44 A.B.AJ.
attorneyso the client ...." ABA Opinion .720 (1968). Opinion 191 (1939). 1158. 1218 (1958). 94. But see ABA Opinion 313 (1964) which says the
50. "Only lawyers may than in ... a division of fees, but 59. "We ate 01 Ile opinion that the [lawyer referrali Plan 70. "The lawyer must decline to conduct a civil inte Commit. "approves a listing in the clarified al b of
. . . it is not necessary that both lawyers be admitted to been presented does not fall Within the Inhibition of the odrisre,
cooi
torzofootiolatho
wyc000.o
rs only
oow wben
ooldhewl
ottoinoo
g inoo
cirodloes
o
practice in the same state, so long as dm division was based Canon. No solicitation for particular lawyer is involved. to make a defense when convinced that it is nded ?lie lawyers
merely to harem or to injure the opposite party or to work Is made therefor..
en the divisi. of services or responsibility.. ABA Opinion The dominant purpose of the plan is to provide as an ob- oppression or wrong." ABA Cm. 30. 95. "The listing should consist only of the lawyefaame,
316 (1967). ligation of the profession competent legal mei. to Per- 71. See ABA CANON 7.
51, See ABA CMom 34. sons in low-income groups at fees within their ability to pay. address and telephone number." ABA Opinion 313 (1964 ).
The plan is to be peaked and directed by the local Bar 72. Id. 96. "[Alddine to the regular classified listing • 'wood
"We adhere to our previous rulings that where a lawyer
merely brings about the employment of another lawyer Association. There is to he no advertisement of the nune From the face stated we assume that the client has Ile' In which a lawyer claims that be is engaged In •
but renders no service and assumes no responsibility in the of the lawyers co.ituting the panel. The general method discharged the first attorney and given notice of the dis- =lip:oli o:a undeforempt to make his name dMinctive..
atct:ri t,, Ivision of the latter's fee is improper. (Opinion, and purpose of the plan may is to he advertised. Person. charge. Such being the case, the mcond attorney may
7. seeking the legal services will be directed to members of yizerlyA gi
ce6=lo ,yorcni
t4,,, anon 7; Opinions 10, 130, ,o.:97,o.4o;r
,,, 0:
21fla
.1,1
1,!84
0],,A
hti)1.8 tha:. • lawyer could ono; o
w.fiti
'It is assumed that the bar, generally, understands what the panel by the Bar Association. Aside from the filing of
acts or conduct of a lawyer may comtitute 'services' to a the panel with the Bar Association, there is to be no adver- 73. See ABA Canon 44. hone directory or name listed '''
We'nefli
cth. "that
"* b initst
client within the intendment of Canon 12. Such acts on tisement of the names of the lawyers .nstituting the panel. "I will carefully consider, before MUng a case. whether
conduct invariably, if not always, Involve 'responsibility' on If these limitations are observed, we think there is no solici- it appears that I can fully represent the client within the See ABA Opinions 123 (1934) and 53 (1931)•
Ile part of the lawyer, whether the word 'responsibility' be tation of business by or for Pattie.,lawn.rs and no framework of law. If the decision is in the affirmative, then 98. "(1)f a lawyer is • member of a law firm, both the
constrmd denote the possible resultant legal or moral violation of the inhibition of Canon 27." ABA Opinion 205 it will take extreme circumstances to cause nie to decide .1
174 end hemlivillual lawyer may be listed separately..
liability on the part of the lawyer to the client or to others. (1940). later that I cannot so represent him." Thode, The Ethical
or the onus of deciding what should or should not be done 60. "Where. the American Bar Association believes that Standard for the Advocate. 39 Tex. L. Rev. 575, 592 99. See ABA Oplosion 2 ) 84 (1931).
in behalf of the client. The word hietvices' in Canon 12 it is a fundamental duty of the bar to see to it that all per- (1960 (from "A Proper Oath for Advocate' )• 100. See Silverm. , State Bar of Texas, 405 F.2d 410,
must be construed in this broad sense and may apply to the sons req.., legal advice be able to attain It, irrespectim of 74. ABA Opinion 314 (1965) held that • lawyer should (5th Cir. 1968); but see ABA Opinion 286 (1952).
selection and retainer of associate counsel as well . to other their economic status .... not disassociate himself from a cause when "it is obvious 101. Cf A CANON 43.
acts or conduct in the client's behal(." ABA Opinion 204 "Resolved, that the Association approves and sponsors that the very act of disassociation would have the effect of 102. Cf .. AB
AA Opinion 239 (1943).
(1940). the setting up by state and local bar associations of lawyer violating Canon 37." 103. "We are asked to define the word 'AddlyAllef. appear-
52. See ABA CANON 14. referral plans and low-cost legal mrvice methods for the 75. ABA CANON 44 enumerates instances in which ing in the second paragraph of Canon 27 . • .
53. Cf . ABA Opinion 320 (1968). purpose of dealing with cases of persons who might not the lawyer may be warranted in withdrawing on due notice ..,.:11,is Our .oPinioin that an address (other than a cable ad-
54. See ABA CANON 14. otherwise have the benefit of legal advice ... Proceed- drew) the
to the client. allowing him lime to employ another lawyer."
"Ours Is • learned profession, not a mere money-setting ings of the Home of Delegates of the American Bar Assoc, 76. See ABA CANON 44. '0": c.V1'1/1d=erfcc f . NZTZ eddtrhl goLti
. misleading. lf, foe example, an office addreas is given, it
14 AMERICAN BAR ASSOCIATION
Ifmum
placegiven,be that
should
of residence
of abebona fide office.
isidentified
not the same as suchThe residence
as thatif the city address,
in which ortheother 989,L.84Ed.S.2dCt.405,
124.
111383(1964);
S. Ct. 328 NAACP (1963). v. Button, 371 U.S. 415,
cam is located." 249 (1942). law ABA Canon 28.
229 (1941) end 173 0937)•advise CANON 3
to various parts of the country Committed
"EllOday his126, "It certainly
ABA Opinion
104. clients ofiswhich notstatutes,
125. Cf. ABA Opinion.
en Professional Ethics of local and state bar associations are regular new improper for
court a lawyer
decisions. to and ad- A Lawyer Should Assist in
authorizing
to thelistsBarasand lawyers to describe
in notice. legalthemselvm announcements ministrative therulings. mayisaffect client'tos interests.
law
the approved specialists
law lists orin in• great periodical.
variety of and approved
thing.. Dm. provided
formation.... communication strictlythelimited such In- Preventing the Unauthorized
appear,
ioners in connection
ot firms, such withprofessional
the namesannouncement.
of individual practi-
designations as 'International Law,
there other "When
guisedthan
eachregularcommunications go to concerns
clients of the lawyer. they are thinly dis-
or individuals Practice of Law
Public and Private' . 'Trial jury advertisements for Professional emPidirtems and sae
'sod Negligence Actions.; 'PPreparation
hilippine: 'TWar InDamage
PersonalClInaims'
; 'Negligence:
obviously ourimproper."
"It Ls that opinion 213 (1941). ETHICAL
that where the lawyer has no reason to
of lawCONSIDERATION S
ABA Opinion
Anti-Trust' , 'Domestic Relations' ax Law' believe heright,
hasbutbeen supplanted EC 3-1 The prohibition against the practice
Law'. It would teem that the ABA has Wren at least its It might even bebyhisanother
client of any change of fact or law which might defeat the
inn only his duty tolawyer,
adviseithisLI a layman is grounded in the need of the public for
integ competence of those who undertake to Police
ritylegandal services.
by mem is not involved,
officers, abstracters, non-lawyers,
and manysuch as court clerks,
governmental em-
"It1PI=Irttlhttrt
York permittedhisaso'rriTe=,. is not, ht New ell.M' S testamentary purpose as expressed In the will. render Because ployees, may engag e in occupations that require e
whereatexception
inleast,
communications on letterheads
laymen. Thorisshingles
suchtomnoodement le subjectortoelse- lawyer"Periodic notices might be sent to the client for whom
be wisea persomi character of the lawyer-client of the fiduciary
relationship and special knowledg e of law in certainin theareas. Oct the
single
mitted in the fear that traditional specialties, to laymen is per-
Admiralty. Patent,
the for
not the has
thereclient
drawn
has toofbeen
• will,
remanfine
any
sumesting
his will to that it might
determine Me inherently) complex nature of our legal system.and the services
wheneverofthea lawyer exerciseareof professional
e.ential legpublic
al judgment interes t
is
will."change In his situation
whether or
Copyright and Trade-mark." Rend( modification his28. regoiriM 17",ILdetV. `.`iirot'L confined required.
C). ABA Gen. 210 (1941)• toMc.arcr4,117.°
of the Special Com- ABA Opinion
Momimposedwho are subject to rise requirements and regu- EC 3-6 A lawyer often dele
79105. A.B.A. Rea 382, 5a6 ((954).
of the legal profession. lades, and other lay persons.gates Suchtasks to clerks,
ittee on Specialization and Specialized Legal Education,
168 (1937). lations upon members delegation
by the This ABAprovision is proper
seen,
House ofisDelegates included toatconform to action Mmt- taken 127. C). ABA Opinion
the Mid-Winter 128.
129. ABA C.. 43;228cf.Ill(1941)
But f ABA 0 '
See ABA1 34) CANONS 27, 43, and 46. EC
that3-2bear The sensitive variations in the considerations ifclient, the lawyer
supervisesmaintains a
the delegated direct relationship
work, and has with his
com-
ABA Cub. 43(1941). and 169 (1934);
and 194 (19)9/• for aonlawyerlegal todeterminations often make it difficult plete professional responsibility
130.
a lawyer toforrender
Cf. ABA Opinions
106. See
ABA Corson236Ti.
ABA Opinion 131.
ABA Colon 27;251 (1943) and 175286(1938).
See ABA Opinions
(1952). even
judgment, and it is exercise appropriate
therefore professional This delegation enables the work legalproduct?
ofessential
client andthatlawyer
the personal
bet see ABA Opinion
I1S3)4. ThisABA Opti
132. See
pre- more economically
<1. ABA Opinion
on 144 (1939).
nature of the and efficiently. service
267 6(1945),ABA 33; relationship
107. See
2(9 ((941), 208 ( (900), (92 (1939), 97 (1933 ,
319 091. served. Competent thebeprod- EC
ticing3-7lawThe doesprohibition
108. See CANON et. ABA °Pinion,
the ABAprovision House ofisDelegatesincluded toatconform to actionMeet- taken professional
with lawjudgandment a non-lawyer
and (1925). 318 (1967) held, "anything 10 the con-
by(35. the Mid-Winter auctdisciplined,
of a trained familiarity
analytical approach to legalis processes,
legal problems, himself, for then not preventagainst
he is a layman
ordinarily from representin
exposing
prac-g
trary in Formal Opinion 3(5 or In the other opinions cited i't361!"Sr'AB8 of the only him-
109. ABA Opinion
notwithstanding" A %L. on 2 and a firrn ethical commitment. self to possible injury. The purpose legalavail-
pro-
pearslocal
high M the namethat( of a"Wherelaw firma partner
, slate or federal office, which office he intends to
Is
whose name
or aplminkd ap-to 137i Th.
for discipline.
f. chart: 1 ;d a8".c il err. l
i
Nebraybei rska
eessiStateee; Jrk EC 3-3 A non-lawyer who undertakes
matters to handle leg al fession
able to is
theto make
public; but
`but anyone legal
who representation
isdoes
elected
occupy
tendshetoisonly temporarily, at the withendtheof firm,
which time he In- "An attorneyNcb!1-0,1078.4
has the right to contract 136143 y(19ri is
bynot governed as to integrity or legal com- avail
do so.himself of such representation not not
rehelp wish to
that return to his position
not precluded andfrom provided !I:: :.:,,=';:,,irt.°Tgxn, (90),
for kly ,offe he apetence
lawyer. the sante rules that govern the conduct of
but A lawyer is not only subject to that mania- bers of henpublic to recognize
e so, ffic coal profession
legalshould
quiredmem-to
of law byandholding
Inoosd se lung as
ing in the practice does notsuchIn office
fact sever Msenrelgag-a- ofIdstheuniesa
client'sos fundsexcessive m to cmstinne a misapproOnttMn0, and lion is committed to high standards
servedofintoethical
legal understandwhy it may be unwise problems andforto
legalforconsec
also
tionship with the firm but conduct. byThe public t ct
only takes a leave of absence , and (see Opinion 27)." 320 tedinterest is best themselves in matters having sequences
provided
contrary, that there Is en local law, statute or custom to the (19611). ABA Opinion
:natters a regula profession committed such
his term orlimterms
e name of may
office, be retained in the firmprecautions
but only if proper name daring ate and138. State 209 (1940), 190
Q.ex rel. 1-ec v. Buchanan,
CI. ABA Opinione (1939), and(Fl27a. (19 )01
instandards. The Disciplinary Rules protect the public EC 3-8 Since a lawyer should not aid or encoura ge a
taken thetofirm' mislead the .p ublic as to his degree of nankin.. ABA 13; (91 So. 241 33MACKINNoN, (966).
by that they prohibit
improper a lawyer from seeking employment layman to practice law, he should not practice law in
association
lion in001 s affairs.' CONTINGENT Fens roe Loom Seem. (1964) (A Report of
andovertures, from acting
to theincontrol
cases ofofdivided with a layman or otherwise
others with a layman.' This does not mean,share legal fees
CANON see generally
143 Opini (1935).onsNew York798;County Opinion the American Bar Found loyalties, from submitting
in the exercise of his judgment. Moreover, a person the pecuniary however, that
67, and New York City value of the interest
36 and are139. "Contingent be ofpaid
a deceased lawyer
CI. ABA Opinion
192 (1939) fete,ofation).
whether
the law....In civil or criminal caste, who entrusts legal models to a lawyer is protected by specified
and Michigan Opinion 164. a special concern t privilege and by ffie duty of the ill his firmpersons or practice suchmay as hisnotwidow or toheirs.
but cf. ABA
his estate
"In criminal the attorney-clien likeor
Opinion
ABA Caton 33. danger cases, the rule Theis stricter because of the In
andIII.(1934). 277 (19481, of theofa Restatement
corrupting justice. lawyer client.to hold inviolate the con fidences and secrets of law manner, profit-sharin
110. Cj.
c/. ABA Canon 33 second
106
See ABA Opinion
See.
ABA Opinion., 318 (1967). 126 ( (935). 115 (1934), cod 542
conduct criminal case [of ... InContracts]
consideration reads;part ofbargain
of 'aApromise
Section
Ofto his firm which includeg retirement
non-lawyerplans o ffi of a lawyerareor
ce employees
112. 318 (1967) and 316 (1967): el. fee contingent on successA. 2dinis865, Illegal. . . " inECa3-4 A layman to juwho dge seeks
whetherlegal is not not
oftenproper improper?
against sharing These limited exceptions to the rule
ABA CANON 33. Mamltti, 398 area Pa. 86, 156 which967the(1959). position do notlegal With laymen are permissible
Peyton v.
113. C/.
ABA Opinions
ABA "The third of practice use of the con- professional he services
will receive since they aid or
fees
encoura ge laymen to practice
114. "We it clear27thatanda28.lawyer's seeking MOB,
thinkCanons tin.nt is generally considered to be prohibited the matter may well attention. The entrustment of a legal law.
Prosecution and defense
and of criminal Garen. However, there theinvolve the orconfidences, the lifetheofreputation,
Ire Is
meat to an ordinary Mw office, eor appointment to a civil
7141 , ceasizi g on 6 71. 1 (r90, 19)probibit d by . [Canon 27)." are so few cases, are predominantly old, that itonis the property,
Proper freedom, even the client. EC plished3-9 Regulation of the practice of law is accom-
doubtful that there can be said ofto cams
be any oncurrent that no protection
person beofpermitted members toofacttheMpublic demands to engagprincipally by Meofrespective states.'in anyAuthority
Neu
the eubject.. In the absence the validitylaw the confidential e in the practice law conferred
the115. "[Al lawyertomayperform
opportunity not seek... from a Beganpersons not his clients
check-up." contingent
on fees for defense attorney, It Is =cedar),
such atoInc relyofis demanding capacity of a lawyer unless he is subject diction not perit isseheimproper
a grant of the right to juris-
practice
307 (1962). voidtheasconsensus among mmmentators
The naturethatof criminal tow the regulations of the legal profession. elsewhere,
practice and
ABA
against public policy. prac- for a lawyer to engage
EC 3-5 It is neither necessary nor desirable to attempt incourt where
Opinion
78 ( is not permitted by law
(932).
1(7. "'No financial connection of any kind between the
tice Itself makes unlikely the um of contingent fee con- order to do oforbusi-by
116. CI. ABA Opinion
Brotherhood and any lawyer is permissible. No lawyer can tracts." MecKnotem. Cownimene Fags the formulation of a single, specific de finition of what ness and so. However, the demands
cgs 52 (1964) (A Report of the American Bar Foundation). constitut in thethereg mobility
ulationofofourthesociety pose ofdistinct
law byprob-
POI LEGAL Sea-
Prone., soy amount whatsoever to the Brotherhood or ABA see CANON 34 and (1967) tice ofcalllawnforthe practice
relates to theofrendition
law? Functionally, the prac- lents practice the
any of Its pay
departments, officersororgratuity as compensatiwith
membersin connection on. and 294 (1958); judgofment
services for others
of a lawyer. states? In furtherance of the public interest, the legal
140. See
reimbursement of expenses
Ilse procurement of it case.'" In re Brotherhood of R. A.

ABA Opinions
206 (1940), 190 (1939), 171 (1937), 153 (19361,97 (1933),
generally ABA Opinions 2653(6 (1945), that the professional profession should discourag e regulation that unreason-
Trainmen,13 III. 2d 391, 398, (30 N .E. 2d 163, 167 (1958), 63 (1932), 28 (1930), 27 (1930), and 18 (1930). isThehisessenceeducated of the
of lawability
prof.sional
to relate judg ment of the lawyer ably imposes territorial limitations upon the rigorhtupon
of a
(1965). In Pane, (94 Kan. 362, 372, 399 P.2d 865, 873 not exceed uppli.,
141. "Canon 12 contemplete. that a fitwYm' fee aroold
philosophy to a specific legalthe general body and lawyer to handle the legal affairs of his client
problem of a clientif; lawyer
the opportunity of
quoted in re
and thus, the a client to obtain
in the before
services of a
whether .epublic interest Will
the value of she services
(47 ( (935). o
j int or separate
render.... .
are be better served
lied [by adociate allormys]
ofof ahisnot
choice inmatter
all matters
"Canon 12
." 204 only lawyers permitted to act the presen-
"This Court has thisinprofessional
nutters
fees
118.
See ABA Opinion
thecondemned the practise of ern.- involving
judg- tation cont.ted inadmitted
a tribunal
to practice*which
(h
InMom chasing through media
ABA Opinion
professional judgment. Where
thesimilar
practice fashion we have with eqOfualrunners
emphasisand touters.
condemned Yet1.12ef‘teltlegrlh:°:TZZ■Vin . Itt e.,: p. grclionrInhtZe.
the lawyer permanently
bothofoffenses
direct assolicitation by a lawyer. We haveof
seri o us breaches of the Canons community
be an unwarranted fora stated period, apdars to this Committee to
Ethics demanding severe treatment of the offending lawyer."
Ethics
State r. Dawson, 111 So. 2d 427, 43( (Fla. 1959). be re- choose
professional wherestatus. he willrestricdon
practiceonandthe right of a lawyerourto
theinconsistent
Committee with DR PracticeInDISCIPLINARY RULES
119.
quircd "Registrant.
to lo a
thelawyer referral Man] may Accordingly, Is of the (A) A3-101lawyerAiding Unauthorized
shall not oftheLaw.. (2) A lawyer who underfiskes to complete unfin-
reasonabl econtribute
of fees collected registration
by them."
totcharge expense of operating
or bye remarkabl 291 (e(perceMage
956).
It by a ,74'2:,Iitewn'oueina2b1 irnP. d'irceiviZ ra°!7:,?g,!77.70,`..;
10 agree to 300 (1961). (11) Athorized practice aid a non-lawyer
of law..
lawyer ahall not practice law In a jurisdiction
unau- ished
pay tolegtheal estate
b.iness ofofthe
a deceased lawyer may
ABA
It." AAA opinion
Conon 30. proportion of thethetotal
deceased lawyer that
ABA Opinion
competiation
rendered which
227 (1941). _ A member of the State ofwhere
the toprofe.ion
do so would be in violation of regulations
143. See
a caseBar shalloutnotofaccep falrly represents services
CI. ABA Opinion
R121 S'=:111 (g.n. employment
eolety fortotheprosecute
"Rule 13.. .
orofdefend solely spite.t in Mot larisdleti..." by the
120. purpose harassing (3)Adeceased
lawyer orlawyer.
on
orConedelwing86067another 1)11
(A) A3-102
lawyerDividing Legal
122. "If
Institutional a bar association
advertising forhas embarked
an annual ealoncheck-up
It Is notMImproper
a program andof 1. 962). CAL. BUSINESS (Wed or law
e • firm shallFe. with a Non-LawYee
that:not share legal fees with employees inlawa retirement
/inn may Include non-lawyer
in whole orplan,
AND Phoresstons
providd brochures
them available in and reprints,
the lawyer' s office to have Canon 44.Professional Rdponsibllity, DR (1)non-lawye
An except the plan Is baud In part on a profit- evert though
and take." 307 0962/• for persons to reed
144. CI. ABA
5-102 and DR 5-105.
145. See also Cock of ner,agreement
or associatebymay
a lawyer
providewithInchisthefirm, part- sharing arrangem ent.
ABA Opinion
121 (1934). 146. Ct. ABA 4. 386 U.S. 738, 18 L. Ed. 24 payment DR3.103 Forming a partnership with a Non-
death,to hisreemomble to one orof more
time
C).
U.S.123. United
ABA Opinion
Mine
Ed. 2dWorkers 88 v.S. III.Cr.Stale Bar Ass', 389 147. CI. Anders CANON
California, of money,
after his death, estate or pedod (A) A lawyer shall not form a partnership withLawyer.
a nn-
hood217, of R.R. 19 L.Trainmen 426, 353 0967);
e. Virginia, 371 U.S. 1, 12 L. Ed. 2d
Brothe, 18493.L.87Ed.S.2dCL1377, 13960.87(19671,
S. Ct. 2094 (1967). 388 U.S. 924,
rehearing denied. specified persons-. lawyer If any of the activities of the paituershlp
consist of the practice of I..."
15
16 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY
17
NO TES non-lawyer employees of the office. PernenlarlY secre
1. "The condemnation of the unauthorized practice of lifetime and providing for a fixed period over which the taries and those having access to the files; and this ob-- deavor to act ina manner which preserves the evi-
law Is designed to protect Om public from legal services by ligetes a lawyer to exercise care in selecting and train- dentiary privilege; for example, he should avoid profes-
Partner. are to be made, this is not the case. Under these sional discussions in the presence of persons to whom
persons unskilled in the law. The prohibition of lay inter- circumstances, whether the payments arc considered to be ing his employees So that the sanctity of all confidences
mediaries is blended to insure the loyalty of the lawyer to delayed payment of compensation earned but withheld day. the privilege does not extend. A lawyer owes an ob-
and secrets of his clients may be preserved. If the ob-
the client unimpaired by intervening awl pasSIY ...nine ing the partner's lifetime, or %%her they axe considered to ligation extends to two or more clients as to the same ligation to advise the client of the attorney-client privi-
Ifnr Availubttlt -J J red information, a lawyer should obtain the permission of lege and timely to assert the privilege unless it is waived
")n" Chril;r.
Wins I 1 1 Lawyer d thife stlarOnr ITtitaishiLtZIL,!" In isle` vent as by the client.
cited Bar, 12 U.C.L.A. L. Age. 430. 439 Henry S. Droner says in this book, LEGAL ETHICS. at Pei. all before revealing the information. A lawyer must
2. What constitutes unauthorized prmtie c of the law In a t89: It would A., however, that • reasomble agreement always be sensitive to the rights and wishes of his client EC 4-5 A lawyer should not use information acquired
Pfeil jurisdiction is a matter for determination by the to pay the estate • proponion of the receipts for a reason- and act scrupulously in the making of decisions which in the course of the representation of a client to the
mints of that jurisdiction." ABA Opinion 190 (1939). able period is a proper practical settlement for the lawyer.s may involve the disclosure of information obtained in disadvantage of the client and a lawyer should not use,
"In the light of the historical development of the lawyer's services to his retirement or death.'" ABA Opinion 308 his professional relationship.' Thus, in the absence of
01 it Is iMpossible to lay down an exhaustive defini-
functiom, except with the consent of his client after full disclosure,
(1963). consent of his client after full disclosure, a lawyer
tion 'the practice of law' by attempting to enumerate 6. CI
. ABA Opinion such information for his own purposes.. Likewise, a
every conceivable act performed by lawyers in the normal 311 (1964). should not associate another lawyer in the handling of lawyer should be diligent in his efforts to prevent the
7. the States have broad power to regulate the
course of their work." State Bar of Arizona v. Arizona a matter; nor should he, in the absence of consent, seek
Land Title & Trust Co., 90 Ariz., 76, 87, 366 P.24 I, 8-9
(1961), modified. 91 Atte. 293. 371 P. 2d 1020 (1962).
r,IV‘Wc■ficakrswv.I'll?.fSt‘:tuelerbTg,
(1967).
1.'
871.117 211-1,1g counsel front another lawyer if there is a reasonable
possibility that the identity of the client or his confi-
ci
misuse of such information by his emPlor. and
ates! Care should be exercised by a awyer to asso-
vent the disclosure of the confidences andsecrets of
pre-
3. "A lawyer Can employ lay secretaries. lay investigators, "It is a matter of law, not of ethics, as to where an dences or secrets would be revealed to such lawyer. one client to another,' and no employment should be
lay detectives, lay researchers, accountants, lay scriveners, .404
individual may practice law. Each slate has Its own rules." Both social amenities and professional duty should
nonlawyer draftsmen or nonlawyer researchers. fact, he Opinion 316 (1967).
accepted that might require such disclosure.
may employ nonlawyers to do any task for him except mum a lawyer to shun indiscreet conver.hons con-
I. "Much of clients' business crones maze lines. People cerning his clients. EC 4-6 The obligation of a lawyer to P.mve the
counsel clients about law matters. engage directly in the are mobile, moving
t from elate to state. Maw metropolitan ,
practice of law, appear in court` or appear in format Pro- have tinge EC 4-3 Unlms the client otherwise directs, it ' not confidences and secrets of his client continues after the
ceedings a part of the judicial prowls. so long as it is he cocoryml < unity Involving improper for a lawyer to give limited information from termination of his employment.. Thus a lawyer should
who takes the work and vouches for it to the client and be- state. The business of a.. sin t,Bent may involve legal not attempt to sell a law practice as a going business
problems rer outside
sczif977:11b:̀1■6'7■ 4iff'.:,..4t1.7'=" vigitella.Xe geA neral princUle'lha111'1:g721. set-
bookkeeping,
" files to ""'"'''Y
accounting,dole processing, banking,
minting, or other legitimate PurPoses. provided he ex
"afi'tiC't, because, among other reasons, to do so would involve
the disclosure of confidences and secrets.. A lawyer
Vices to cw Jersey residents with respect to New lenee
from several Uaei, he O mar delegate matters may ordinarily be furnished only by New loran ercises due carein the selection of the agency and- should also provide for the pro tection of the confidences
other states so long as he "Is the person Who, on behalf of counsel; but we pointed Out that there ma, be MOItistaN warns the agency that the information must be kept and secrets of his client following the termination of
the firm, vouched foe the work of all of the others and, transactions when strict adherence to this heels would not confidential. the practice of the lawyer, whet/ter termination is due
with the client and In the coon,, did he legal acts defined be in the public interest and that, under the circumstances, to death, disability, or retirement. For example, a
by that state as the practice of law." it would have been not only more costly to the client but EC 4-4 The attorney-client privilege is more limited
"A lawyer cannot delegate his professional responsIbilitY then the ethical obligation] of a lawyer to guard the lawyer might provide for the personal papers of the
alto 'grossly impractical and Inefficient' at have had the diem to be returned to him and foe the papers of the
to a law student employed In his office. He may avail him- settlement negotiations conducted by separate,),aryZa, from confidences and secrets of his client. This ethical pre-
self of Me assistance of the student in many of the fields of different slates." 0%6 j!'" Waring, cept, unlike the evidentiary privilege, exists without re- lawyer to be delivered to another lawyer or to be do-
the lawyer's work, such as examination of case law, finding 221 197 " gard to strayed. In determining the method of disposition, the
and interviewine witnesses, making collections of claims, 47 " nature or source of information or the fact
Cf. ABA Opinion 316 1967). that others share the knowledge. A lawyer should en- instructMns and wishes of the client should be a domi-
examining court records, delivering papers, conveying im- 10. Conduct Permitted by the Disciplinary Rules of nant consideration.
ortant messages. and other similar matters. But the student Canons 2 and 5 does not violate DR 3-101.
is not permitted, until he is admitted to the Bar, to PerNon II. See ABA C.% 47. DISCIPLINARY RULES
the professional functions of a lawyer, such as conducting 12. It should be noted, howenr, that is lawyer may engage DR 4-101 Preservation of Confidences and Secrets of
court trials, giving professional advice to clients or drawing
legal documents toe them. The student in ell his work must
act as amnt for the lawyer employing him, who moat super-
in conduct, OtherWire prohibited by this Disciplinary Rule,
where such conduct is authorized by preemptive federal
la,i.Ogo st!.ciSeacr&s . torida, 373 LI.S. 379, 10 L. Ed. 24
i)F

a Client.
(A) "Confidence^ refers to information protected by d
Bent or clients affected, but only after a full
isclosure to them..
(2) Confidences or secrets when permitted under
ise his work and be responsible for his good the attorney-client privilege under applicable law,
ABA Opinion 85 (1932). 13. See ABA CANON 34 and ABA Opinions 316 09671, and "secret" refers to other information gained Disciplinary Rules or required by law or court
in
4. toot aisle of fees for legal nrcices Miner, naceyt 180 (1938), and 48 (1931). the professional relatiouship that the client has re- order..
with another lawyer . ABA Cutow 34. Otherwise, ac- "The receiving attorney shall not tinder any Iluin or form. quested be held inviolate or the disclosure of which (3) The intention of his client to commit a mime.
cording to ABA Opinion 316 09671, "Illhe Canons of share his fee for legal services with a lay mono, Persona aud the information necessary to prevent the
would he embarrassing or would he likely to be
Ethics do not examine into the method by which such per- or corporate, without prejudice, however. to the right of the, detrimental to the client
sons are remunerated by the lawyer....
toe, They rnay be paid • lay forwarder to charge and collect from the creditor proper
salary, • per diem charee, a flat a contract price. etc." conmensadon for non4egal services rendered by the law (E) Execpt what permitted under DR 4-101 (C), a (4) Confidencm or secrets necessary In establish or
See ABA: Cations 33 and 47. Irk) forwarder which are separate and apart from the ser- lawyer shall not knowingly: collect his fee• or to defend himself or his em-
5. "Many partnerahip agreements provide that the active vices performed by the teeming atterney." ABA OPinien (1) Reveal a confidence or secret of his client. ployees or associates against as accusation of
Partners, on Me death of any one of them, are to make Pey- 294 (1958). (2) Use a confidence or secret of Ids client to the wrongful conduct.
ote. to the estate or to the nominee of a deceased ', antler 14. See ABA Opinions 309 (1963) and 266 (1945).
on a pre-deterndned formula. It Is only where the effect of disadvantage of the client.
15. CI. ABA Opinion 311 (1964)• (D) A lawyer shall esercise reasonable care to prevent
ouch an arranmment is to make the estate or nominee a (3) Use a confidence or secret of his client for the his employe., associates, and others whose services
16. See ABA Canon 33; cf. ABA Opinions 239 (1942)
member of the partnership along with the surviving partners and 201 (1940). advantage of himself. or of a third Perm.• are utilised by him from disclosing or using confi-
that it is prohibited by Canon 34. Where the payments are ABA Opinion 316 (1%7) states that lawyers licensed in unless the client consents after full disclosure.
made to accordance with a pre-existing agreement entered (C) A lawyer may reveal: dences or secrets of • client, except that a lawyer
different jurisdictions may. under certain conditions, enter may reveal the information allowed by DR 4-101
into by the deceased partner Milne his lifetime and provid- into an arrangement for the practice of law" and that • (I) Confidences or secrets with the consent of the
ing for then method for determining their amount based lawyer licensed (C) through an employe.
S. .
A is not, for such purpose, a lay-
upon the value of Der-vices rendered during the partner's man in State B. NOTES
I. See ABA CANONS 6 and 37 and ABA Opinion
287 Cf. ABA Opinions 314 (1965), 274 (1946) and 268
'The reason underlying the rule with respect (1945).
to confi- 2. "While it Is the meet purpose of law to ascertain the
CANON 4 dential communications between attorney and client Is well
rated in Macnose on Amwcy, 2d Ed., Vol. 2, 12297, as truth. there Is the countervailing necessity of Insuring the
f ollows: 'The purposes and rte ales of the relation
right of every person to freely and fully confer and confide
tween a client and his attorney require. In many cases,be- in one having knowledge of the law, end skilled in its
A Lawyer Should Preserve the on
the part of the client, the fullest and freest disclosures to OM a
nd s
atice, in order that the former may have adequate edvice
attorney of the client's objects, motives and acts. This a prop. defense. This amistance can be made safely
Confidences and Secrets of a closure is made In the strictest confidence. relying upon the
dis- and readily available only when the client is free from the
....Mem. of aPPrehension of disclosure he reason of the
attorney's honor and fidelity. To permit the attorney ...-
Client veal to others what is so disclosed, would be not only •
gross violation of a sacred trot upon his part, but it would
subsequent statements of the skilled lawyer. Baird v.
Koerner, 279 F.24 623, 629-10 (9th Cir. 19601.
grosstai Cf. ABA Opinion 130 M36/•
and prevent the usefulness and benefits to be 3. °Where .
derived from professional assiStance Based upon con- (a client] knowingly and after fun dis-
ETHICAL CONSIDERATIONS siderations of public policy. therefore, the law wisely declares closure participatm in a (legal feel finnming plan which re-
EC 4-1 Both the fiduclary rrelationship existing be- lawyer to hold unnolate the confidences and secrets of that all confidential communications and disclosures, made quires the furnishing of certain nformation to the bank.
tween lawyer and client and the proper functioning of by a client to his legal adviser for the purpose of obtaining clearly by his conduct he has waived any privilege as to that
his client not only facilitates the full development of information." ABA Opinion 320 (1968).
the legal system require the preservation by the lawyer facts essential to proper representation of the client but its professional aid or advice, shall be strictly privileged;-
that the attorney shall not be permitted, without the consent 4. "The lawyer must decide when he takes a case whether
of confidences and secrets of one who has employed also encourages laymen to seek early legal assistance. it is a suitable one for him to undertake and after this de-
or sought to employ him.' A client most of his client,-and much less will he be compelled-to re
feel free to EC 44 The obligation to prolect confidences and veal or disclose communications made to him cision is made, be Is not justified In turning against his client
discuss whatever he wishes with his lawyer and a lawyer secrets obviously dam not preclude a lawyer from re- cumstances."' ABA Opinion 250 (1943). under such cir- by moon, Injurious evidence entrusted to him.. • . IDloing
must be equally free something intrinsically regrettable, because the only alterna-
to obtain information beyond
volunteered by his client' A lawyer should be fully in-
that vealing information when his client consents after full "While it is true that complete revelation of relevant facts
should be encouraged for taut purposes, nevertheless an at-
tiv e Involves worn consequences, h necessity in even
disclosure' when necessary to perform his professional torney's dealings profession." WILLIsion. Doe Al. LAW 271 (1940).
formed of all the facts of the matter he is handling in with his client, if both are sincere, and if CI. ABA Opinions 177 (1938)
employment, when permitted by a Disciplinary Rule, the dealings involve more than mere technical matters. end 83 (1932).
order for his client to obtain the full advantage of our or when required by law. Unless the client otherwise 5. See ABA CMOs. It.
should be Immune to Ohms., prOCCedin.. There must be
legal system. It is for the lawyer in the exercise of his directs, a lawyer may disclose the affairs of his client to freedom from fear of revealment of matters disclosed 6. See ABA Coven 37.
independent professional judgment to separate the rele- to an 7. See ABA C.o. 6 and 37.
partners or associates of his firm. It is a matter of attorney because of the peculiarly intimate relationship mist-
vant and important from the irrelevant and unimpor- ing:.Ellis-Foster Co. v. Union Carbide & Carbon Corp., "IAN attorney must not accept professional employment
common knowledge that the normal operation of a law against a client or a former client which will. or even th
tant. The observance of the ethical obligation of a office exposes confidential professional information to 09 E.SuPP. 917, 919 (D.N.J. 1958).
require him to on confidential information obtained by the e
1
18 AMERICAN BAR ASSOCIATION
CODE OF PROFESSIO NAL RESPONSIBILITY
in the wane of chis prttafrull;a:::Zioogrt.sach, failing to disclose that Information to the proper authori- 19
all
'AV regarding `6731i ties... ." ABA Opinion 155 (1916). lawyer should explain the situation to his client and
.
8. See ABA CANON n.
We held in Opinion 155 that a communication by • client
to his attorney respect to the fUnife commission of an
should decline employment or withdraw unless the
client consents to the continuance of the relationship
tionslnp arise at different stages; they relate either to
whether a lawyer should accept employment or should
"Confidential communications between an attorney and unlawful act or to a continuing wrong Is not privileged from after full disclosure. A lawyer should not seek to per- withdraw from employment.. Regardless of
when the
his client, made because of the relationship and conmrning disclosure, Public policy forbids that the relation of attorney suade his client to permit him to invest in en under- problem arises, his decision is to be governed by the
the eubjecbmatter of the attorney'. emPlrymeM, ate ...- and client should be used to conceal wrongdoing on the part same basic considerations. It is not objectionable for a
.airy Privileged from disclosure without the consent of the of the chem. taking of his client nor make improper use of his Pro
- lawyer who is a potential witness to be an advocate
client, and this privilege outlasts the attorney's employment. fessional relationship to influence his client to invest in if it
Canon 37." ABA Opinion 154 (1936).
9. Cl. ABA Opinion 266 (1945).
"When an attorney representing • defend.t in a crim-
inal case applies on hie behalf for probation or suspension of
an enterprise in which the lawyer is interested.
EC 5.4 If, in the course of his representation of a
te
unlikely that he will be called as a witness because his
stimony would be merely cumulative or if his testi-
10. See ABA Canon 37; c/. ABA Canon sentence, he represents to the court, be implication at least, mony will relate only to an uncontested issue.. In the
6. cLent, a lawyer is permitted to receive from his client a
11. "46068... It is the duty of an attorney: that his client will abide by the tcrms and conditions of the exceptional situation where it will be manifestly unfair
coun's order. When that attorney is lutes advised of beneficial ownership in publication rights relating to to the client for the lawyer to refuse employment or to
"(e) To maintain inviolate the confidence, and at every violati011 of that order, it is his duty to advise his client of the subject matter of the mnp/oyment, he may be withdraw when he will likely be a witness on a contested
Cary the consequences of his act. and endeavor to prevent a con- tempted to subordinate the interests of his client to his issue, he may serve as advocate even though lie may be
B
cgt+;' ssraTintitooirg= tgogeroga.of(9t=i). own thticipated pecuniary gain. For example, a lawyer a witness.. In making such decision, he should deter-
the same provision is found in Me Oregon statutes. 1
' =1;114 ' tre ZaTtrati'&ani lvi .ntrXit:trio' n7111: in criminal case who obtains from his client television,
the duty or the attorney as an officer of the court to advise ne the personal or financial sacrifice of the client that
On. REV. Stuns. ch. 9 19.460(5). radio, motion picture, newspaper, magazine, book, or mayresult from his refusal of employment
mi
"Communication, between lawyer and client am privi- the proper authorities concerning his client's conduct. Such or with-
Information, even though coming to the attorney from the other publication rights with respect to the case may be drawal therefrom, the materiality of his testimony, and
leged (Wickman on Evnienca, 3d Ed., Vol. 8, 442290-2329). influenced, consciously or unconsciously, to a course of
The modern theory underlying the privilege is subjective and client In the course of his professional relations with respect the effectiveness of his representation in view of his
is to give the client freedom of apprehension in consulting his to other miters in which he mpresents the defendant, (5 not conduct that will enhance the value of kit publication personal involvement. In weighing these factors, it
legal adviser (ibid., 12290, p. 548) The privilege applies hr privileged from dimlosure... " ABA Opinion 156 (1936). rights to the prejudice of his client. To prevent these
16. ABA Opinion 314 (1965; indicates that a lawyer must should be clear that refusal or withdrawal will impose
communications made In seeking legal advice for ary Pry. potentially differing interests, such arrangements should an unreasonable hardship upon the client before the
pose (ibid., 4229, p. 563). The mere circurostanm that the disclose even the confidences of his clients if "Me facts In be scrupulously avoided prior to the termination of all
advice is given without charge therefor does not nullify the the attorney's possession indicate beyond reasonable doubt lawyer accepts or continues the employment..
aspects of the matter giving rise to the employment, Where
printer (ibid., 12303)." ABA Opinion 216 (1941). that a crime will be committed." the question arises, doubts should be resolved in favor
See ABA Opinion 155 (1936). even though his employment has previously ended. of the lawyer testifying and against his becoming or
It la the duly of an homey to maintain the confidenm
BOB preserve Inviolate the secrets of his client ." ABA 17. See ABA Canon 37 sod ABA Opinion 202 (1940). EC 5-5 A lawyer should not suggest to his client that continuing as an advocate..
Opinion 155 (1936). 18. Cf. ABA Opinion 250 (1943). a gift be "made to himself or for his benefit. If a lawyer
19. See ABA CANON 37 and ABA Opinions 202 (19401
EC 5-11 A lawyer should not permit his personal in-
12. See ABA Canon H. accepts a gift from his client, he is peculiarly susceptible
and 19 (1930). mrests to influence his advice relative to a suggestion by
"The provision respecting employment Is In accord with "ITIhe adjudicated cases recognize an exception to the to the charge that he unduly influenced or over-reached
the general rule announced in the adjudicated eases that a his client that additional counsel be employed!.In like
rule Phat a lawyer Mall not reveal the confidence of his the divot. If a client voluntarily offers to make a gift manner, hh personal interests should not deter him from
law,. May not make use of knowledge or information ac- to his lawyer, the lawyer may accept the gift, but before
ratred by, him through his professional relations with his client], where disclosure is necessary to protect the attorney's suggesting that additional counsel be employed; on the
di nt, or in the conduct of his client's business, to his own
interests arising out of the relation of attorney and chant doing so, he should urge that his client secure disin-
In which disclosure was made. contrary, he should be alert to the desirability of recom-
advantage or profit (7 C.I.S., 4121, p. 958, Healy v. Gray, terested advice from an independent, competent person mending additional counsel when, in his judgment, the
184 Iowa 111. 168 N.W. 222; Baumgardner I. Hudson, D.C. exception stated In Mecrtess rat Ammcv, 2d Ed., who is cognizant of all the circumstances." Other than
App., 277 F. 552; Goodrum v. Clement, D.C. APP., 277 F. Vol. 2, 12313, as follows: 'But the attorney may disclose proper representation of his client requires it. However,
intorMation received from the client when it becomes neces- in exceptional circumstances, a lawyer should insist that a lawyer should advise his client not
586)." ABA Opinion 250 (1943). sary for his own protection, as if the client Mould bring an an instrument in which hh client desires to name him to employ d
13. See ABA Opinion 177 (1938). fional counsel suggested by the client if the
action against the attorney for rtegligence or misconduct beneficially be prepared by another lawyer selected by lawyer be-
14. "[A lawyer] may not divulge confidential communica- and it became necessary for the attornry to show what hIs lievm that such employment would be a disservice to the
the client.'
tions, Information, and secrets Imparted to him by the client instructions were, or what was the nature of the duty which client, and he should disclose the reasons for
EC 5-6 A lawyer should not consciously influence a his belief.
or acquired during their professional relations, unless he Is the client expected him to Perform. So if it became 0m007. EC 5-12 Inability of co-counsel to agree on a matter
the Clint the to bring an action ignirito the lien, client to name him as executor, trustee, or lawyer in an
,12,t5r147 1"J T
448, 10'1 ." instrument. In thosecases where a client wishes to vital to the representation of their client requires that
Opinion of this ,ommittee. Na. 91)." ABA name his lawyer as such, care should be taken by the their disagreement be submitted by them jointly to their
diseltaliVwgZ"vT essentlaras'
' a":entants oof'obrt=ingrog
Opinion 202 (1940). defending his own rights.' lawyer to avoid even the appearance of impropriety.' client for his resolution, and the decision of the client
Cf. ABA Opinion 91 09131. "Mr. Jones, in his CoeasteNTANTEE on Eau:mama, 2d Ed., shall control the action to be taken..
15. "A defendant in a criminal case when admitted to Vol. 5, 12165, states the exception thus, 'It has frequently EC 5-7 The possibility of an adverse effect upon the
bail is not only regarded as in the custody of his bail, but exercise of free judgment by a lawyer on behalf of his EC 5-13 A lawyer should not maintain membership in
been held that the rule a. to privileged communications or be influenced by any organization of employees that
he Is also in the custody of the law, and admission to bail apply when litigation onus betwmn attorney and client during litigation generally makes it undesirable
does not deprive the court oft ifs inherent power to deal with client
fluent tai
to the extent that their ommuniation. are relevant for the lawyer to acquire a proprietary interest in the undertakes to pre-scribe, direct, or suggest when or how
the person of the prisoner. Being In lawful custody, the to the Issue. In such cases, If the disclosure of privileged cause of his client or otherwise to become financially he should fulfill his professional obligations to a person
defendant is guilty of an escape when he gains his liberty communications bemmes necessary to Protect the Mtnmry'a interested in the outcome of the litigation.. However, it or organization that employs him as a lawyer. Al-
before he is delivered in due process of Irav, and is guiry rights. he Is released from those obligations of secrecy though it m not necessarily improper for a lawyer
offense for which he may he punished. In fail- which the law places upon him. He Mould not, however, is not improper for a lawyer to protect his right to col- em-
inn
ing to disclose his clicra's whereabouts as a fugalae under
these circumstances the attorneyld wou not only be aiding
disclose more than is necessary for his own protection. It
would be a manifest injustice to allow the client to take
lect a fee for his services by the assertion of legally
permissible lkns, even though by doing no he may ac-
ployed by a corporation or similar entity to be a
ber of an organization of employees, he should be
mem-
his client to escape trial on the cha rge for which he was in- advantage of the rule of exclusion as to profmnonal confi- quire an interest vigilant to safeguard his fidelity as a lawyer to his em-
the outcome of litigation. Although ployer, free from outside influences.
dicted, but would likewise he aiding himin evading promos. dence to the prejudice of his attorney, or that It should be a contingent fee linengement' gives a lawyer a financial
don for the additional offense of escape. carried to the extent of depriving the attorney of the means interest in the outcome of litigation, a reasonable con-
"It is the opinion of the committee that under such cir- of obtaining or defending his own rights. In such cases Interests of Multiple Clients
cumstances the attorney's knowledge of his disci tingent fee is permissible in civil cases because it may
where- the attorney Is exempted from the obligations of secrecy.'" EC 5-14 Maintaining the independence of professional
abouts Is not privileged, and that he may be plined for ABA Opn 250 (1943). be the only means by which a layman can obtain the
thrvicm of a lawyer of his choice. But a lawyer, be- judgment required of a lawyer precludes his acceptance
came he is in a better position to evaluate a cause of or continuation of employment that will adversely affect
action, should enter into a contingent fee arrangement his
c judgment on behalf of or dilute his loyalty to a
CANON 5 only in those instances where the arrangement will be tient." This problem arises whenever a lawyer is asked
beneficial to the client. to represent two or more clients who may have differ-
ing interests, whether such interests be conflicting, in-
A Lawyer Should Exercise EC 5.8 A financial interest in the outcome of litiga-
tion also results if monetary advances are made by the consistent, diverse, or otherwise discordant..
Independent Professional lawyer to his client.Although this assistance generally
is not encouraged, there are instances when it is not
EC 5-15 If a lawyer is requested to undertake or to
continue representation of multiple clients having
Judgment on Behalf of a Client improper to make loans to a client. For example, the
advancing or guaranteeing of payment of the costs and
potentially differing intermts, he must weigh care-
fully the possibility that his judgment may be im-
expenses of litigation by a lawyer may be the only way paired or his loyalty divided if he accepts or con-
ETHICAL, CONSIDERATIONS a client can enforce his came of action! but the ulti- tinues the employment. He should resolve all doubts
EC 5.1 The professional judgment of a lawyer should mate liability for such costs and expenses most be that against the propriety of the representation. A lawyer
right or assuming a position that would tend to make of the client.
M exercised, within the bounds of the law, solely for should never represent in litigation multiple clients with
his judgment less protective of the interests of his client. differing intermts;ry and there are few situations in
the benefit of his client and free of compromising in- EC 5-9 Occasionally a lawyer is called upon to decide
EC 5-3 The self-interest of a lawyer resulting from his in a particular case whether he will be a witness or an which he would be ossified in representing in litigation
fluences and loyalties. Neither his personal intermts, ownership of property in which his client also has an
the interests of other clients, nor the desires of third per- advocate. If a lawyer is both counsel and witness, he multiple clients with potentially differing interests. If
s.m should be permitted to dilute his loyalty to his
interest or which may affectperty
pro of his client may becomes more easily impeachable for interest and thus a lawyer accepted such employment and the interests did
interfere with the exercise of free judgment on behalf may be a less effective witness. Conversely, the oppos- become actually differing, he would have to withdraw
client. of his client. It such interference would occur with ing counsel may be handicapped in challenging the credi- from employment with likelihood of resulting hardship
respect to a prospective client, a lawyer should decline bility of the lawyer when the lawyer also appears as an on the clients; and for this reason it is preferable that
Interests of is Lawyer That May Affect HIS Judgment employment proffered by him. After accepting employ- advocate in the case. An advocate who becomes a wit- he refuse the employment initially. On the other hand,
EC 5-2 A lawyer should not accept proffered employ- ment, a lawyer should not acquire property ffilhis that there are many instancesin which a lawyer may
ness 's in the unseemly and ineffectim position of argu-
ment if his personal interests or desires will, or there would adversely affect his professional judgment in the roperly serve multiple clients having potentially differ-
ing his own credibility. The roles of an advocate and
is a reasonable probability that they will, affect adversely
the advice to be given or services to be rendered the
representation of his client. Even if the property in-
terests of a lawyer do not presently interfere with the
of a witness are inconsistent; the function of an advo- p g interests in matters not involving litigation. If the
cate is to advance or argue the cause of another, while interests vary only slightly, it is generally likely that the
prospective client.After accepting thmloyment, a law- exercise of his independent judgment, but the likeli- that of a witness is to state facts objectively. lawyer will not be subjected to an adverse influence and
yer carefully should refrain from acquiring a property hood of interference can reasonably be foreseen by him, that he can retain his independent judgment on behalf
EC 5-10 Problems incident to the lawyer-witness relit-
of each client; and if the interests become differing,
20 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 21
withdrawal in less likely to have a disruptive effect upon a position to exert strong economic, political, or social (A) If, after undertaking employment in contemplated
the causes of his clients. pressures upon the lawyer. These influences are often or pending litigation, a lawyer learns or it In obvi- In behalf of • client will be or is likely to be ad.
subtle, and a lawyer must be alert to their existence. A versely affected by the acceptance of the proffered
EC 5-16 In those instances in which a lawyers justi- ous that he or a lawyer lu his firm ought to be
lawyer subjected to outside pressures should make full employment,. except to the extent permitted under
fied in repruenting two or more clients having differing called as a witness on behalf of his client, he shall DR 5-105(C)..
interests, it is nevertheless essential that each client be thselosure of them to his client?* and if he or his client withdraw from the conduct of the trial and his firm, (B) A lawyer shall not continue multiple employment
given the opportunity to evaluate his need for repre- believes that the effectiveness of ha representation has If any, shall not continue repte.nlation in the WWI, lf the exercise of his independent professioual judg-
sentation free of any potential conflict and to obtain been or will be impaired thereby, the lawyer should take except that he may continue the representation and
proper steps to withdraw from representation of his steal in behalf of a client will be or k likely to be
other counsel if he so desires." Than before a lawyer he or a lawyer In his firm may testify in the de,
adversely affected by his representation of another
maY represent multiple clients, he should explain fully stances enumerated In DR 5-101(B) (1) through
to each client the implications of the common reptx- (4). client, except M the extent permitted under DR
EC 5-21 Economic, political, or social pressures by 5-105(C)..
sentation and should accept or continue employment third persons are less likely to impinge upon the inde- (B) 11, after undertaking employment in contemplated (C) In the situations covered by DR 5.105 (A) and (11),
only if the clients consent." If there are present other pendent judgment of a lawyer in a matter in which he is or pending litigation, a lawyer learns or it Is obvi- a lawyer may represent multiple clients if II Is ob-
circumstances that might cause any of the multiple compensated directly by his client and his professional ous that he or a lawyer in his firm may be called
as a witness other than on behalf of his client, be vious that be can adequately represent the interest
clients to question the undivided loyalty of the lawyer, work is exclusively with his client. On the other hand, if
of each and if each consents to the representation
he should also advise all of the clients of those circum- a lawyer is compensated from a source other than Ns may continue the representation until it isap-
after full disclosure of the possible effect of such
stances." client, he may feel a sense of responsibility to someone parent that his testimony is or may be prejudichd
to his client.. representation on the axe Ise of his independent
EC 5-17 Typically recurring situations involving po- other than his client. professional judgment on behalf of each.
tentially differing interests are those in which a lawyer EC 5-23 A person or organization that pays orfur- DR 5.103 Avoiding Acquisitim of Interest In Litiga- (3) R a buyer is required to decline employment or M
is asked to represent co-defendants m a criminal case, nishes lawyers to represent others Possesses a Potential tion. withdraw from employment under OR 5-105, no
co-plaintiffs in a personal injury case, an insured and power to exert strong pressures against the independent (A) A lawyer shall nal acquire a proprietary ilitigation partner Ot associate of his or Ws firm may accept
his insurer," and beneficiarim of the estate of a de- judgment of those lawyers. Some employers may be or continue such employment.
cedent. Whether a lawyer can fairly and adequately )judgment in furthering their own economic, political, or he Is conducting fur a client; except that he mop DR 5-106 Settling Similar Claims of Clients..
protect the interests of multiple clients in these and social goals without regard to the professional responsi- (1) Acquire a lien granted by law in secure his fee (A) A lawyer who represents two or more clients shall
similar situations depends upon an analysis of each bility of the lawyer to his individual client. Others may or expenues.
(2) Contract with a client for a reasonable con- not make or participate In the makiug of an aggre-
case. In certain circumstances, them may exist little be far InOre concerned with establishment or extension gate settlement of the chains of or against his
chance of the judgment of the lawyer being adversely of legal principles than in the immediate protection of tingent fee in a civil case..
clients, unless each client has consmted to the
affected by the slight possibility that the interests will the rtghts of the lawyer's individual client. On some (B) While representing a client In connection with con- settlement after being advised of the existence and
become actually differme in other circumstances, the occasions, dmisions on priority of work may be made tentIMMd or Pending litigation, a lawyer shall not nature of all the claims involved in the proposed
chance of adverse effect upon his judgment is not un by the employer rather then the lawyer with the result advance or guarantee financial assistance to his settlement, of the burl amount of the settlement,
likely. that prosecution of work already undertaken for clients client,. except that a lawyer may advance or guar- and of the participation of each person
is postponed to their detriment. Similarly, an employer antee the expenses of htigation, including court settlement- in the
EC 5-IS A lawyer employed or retained by a corpora- may seek, consciously or unconsciously, to further its
tion or similar entityowes his allegiance to the enuty cosIs, expenses of investigation, expenses of medi-
own economic interests through the actions of the law- cal examination, and cosis of obtaining and pre- DR 5-107 Avoiding Influence by Other. Than the
and not to a stockholder, director, officer, employee, Client
representative, or other person connected with the en- yers employed by it. Since a lawyer must always be sentin g evidencerovided
, rental. ulti- (A) Except with the consent of his client after full dis-
titY. In advising the entity, a lawyer should keep pare-
mount its interests and his professional judgment should
free toexercise his professional judgment without re-
gard to the interests or motives of a third person, the
mately liable for such expense.
otsea c
DR 5-104 Limiting Business Relations with a Client.
closure, a lawyer
(1) Accept
com shall salt
lawyer who is employed by one to represent another penwtion for his legal services from
not be influenced by the personal desires of any person (A) A lawyer shall not enter into • business transaction one
other than his client.
must constantly guard against erosion of his profes-
or organization. Occasionally a lawyer for an entity is with a client if they have differlog interests therein (2) Acc ept from one other than his client any thins
sional freedom?'
requested by a stockholder, director, officer, employee, and if the client expects the lawyer In exercise his of value related to his representation of or Ws
representative, or other person connected with the en- EC 5-24 To assist a lawyer in preserving his profes- professional judgment therein for the protection of employment by his client..
tity to represent him in an individual capacity; in such sional independence, a number of courses are available the cleat, nukes the client has consented after full Oil) A lawyer shall not penal' a person who recom-
case the lawyer may serve the individual only if the law- to him. For example, a lawyer should not practice disclosure mends, employs, or pays him to render legal set,
yer is convinced that differing interests are not present. with or in the form of a professional legal corporation, (B) Nior to conclusion of all aspects of the matter giv- vices for auother to direct or regulate Ws proles-
even though the corporate form is permitted by law,"
EC 5-19 A lawyer may represent several clients whose
interests are not actually or potentially differing.
if any director, officer, or stockholder of it isa non-
lawyer. Although a lawyer may be employed 'by a
m
g rise to his employment, a lawyer shall not enter
ito any arrangement or understanding with a
client or a prospective client by which he acquires

slow! judgment in rendering such legalservices..


(C) A lawyer shall not practice with or in the form of a
professional corporation or association authorized
Nevertheless, he should explain any circumstances that business corporation with non-lawyers serving as di-
might cause a client to question his undivided loyalty." an interest in publication rights with respect In the to practice law far a profit, th
rectors or officers, and they necessarily have the right (1) A noo-lawyer owns any interest therein," ex-
Regardless of the belief of a lawyer that he may subject matter of his employment or proposed em-
to make decisions of business policy, a lawyer must ployment
properly repremnt multiple clients, he must defer to a cept that a fiduciary representative of the estate
decline to accept direction of his professional judgment
client who holds the contrary belief and withdraw from from any layman. Various types of legal aid offices are DR 5-105 Refusing to Accept or Continue Employ- of a lawyer may hold the stock or Interest of
representation of that client. ment if the Interests of Another Client May the lawyer for • reasonable time during admin.
administered by boards of directors composed of law- WratIon;
yers and laymen. A lawyer should not accept employ- Impair the Independent Professional Judg-
EC 5-20 A lawyer is often asked to serve as an im- ment al the Lawyer. (2) A non-lawyer le a corporate director or officer
partial arbitrator or mediator in matters which 'involve ment from such an organization unless the board sets thereof:. or
present or former clients. He may serve in either ca- only broad policies and there is no interference in the (A) A lawyer shall decline proffered employment if the
(3) A non-lawyer has the right to direct or control
exercise of his Independent profession.' Judgnswl
pacity if he first discloses such present or former rela-
tionships. After a lawyer has undertaken to act as an
relationship of the lawyer and the individual client he
serves. Where a lawyer is employed by en organization,
the profession.' judginent a lawyer..a
impartial arbitrator or mediator, he should not there- a written agreement that defines the relationship be- NOTES
after represent in the dispute any of the parties involved. tween hint and the organization and provides for his I. C/. ABA CANON 35.
/awyer' sl fiduciatY duty Is of the highest order and knee
952 of hisVa.
client.. Johnsmortified.
v. Smyth, 176 F.States
Supp.ex949,
not represent Wilkins(E.D. 1959), United rel.
independence is desirable since it may smve toprevent
must intermits adverse to those of the client.
he
v. Banmiller, 205 F. Supp. 123, 128 n. 5 (E.D. Pa.
andisthe true that because of his professional responsibility
misunderstanding
u as to their rupective roles. Although
II
confidence 1%2), ord. non F.2c1 514 (3d Cn. 1963), cert. denied, 379
in him, and trmt which his
Desires of Third Persons
EC 5-21 The obligation of a lawyer to exereise
other innovations in the means of supplying legal coun-
sel may develop, the responsibility of the lawyer to mately repose adhere a client
hig h may
standardleen-
of U.S. 147, 13 L. Ed. 2d 51, 85 S. Ct. 87 (1964).
femional judgment solely on behalf of his client requires maintain his professional independence remains con- honesty,
He is not Integrity
permitted and Ire must
good faith In dealin
to
g with his chest. 2. 9Attorneys
mnflict with those mustof nottheirallow their. private
clients. . Theyinterests
owe theirto
that he disregard the desires of others that might impair
his free judgment." The desires of a third person will
stant, and the legal profession must insure that chang-
ing sire stances do not result in loss of the profes- superior
ceal factsknowledg e totoinimpose
or law,e there
nor
take advantage of his position
any wayupon the chim
deceive lient: nor to con-
or entire
States devotion
v. to
Anomalous, the interests
215 of their clients, United
113 (E.13. Tenn.
held possibl v. Lund,without being 1963).
lie adversely affect a lawyer unless that person is in sional independence of the lawyer. P. Supp.
13 Utah 2d
"When a client engages the service. of a lawyer In • given cept"[Meany court
repremntiog action[below/
evenagainstcOneleeed
thoug ha person whom
there Ls
that athey
no
firmammaypresently
relationship
not ac-
piece of business he is entitled to feel that, until that
thebetween
DISCIPLINARY RULES
DR 5.101 Refudng Employment When the Interests (1) If the testhnony will relate solely to an uncon- nms
divided is finally disposed of in some manner, he has thebush
loyalty of the one mo n whom un- the twoancases.
cited opinion ofInarriving at this conclusion,which
the Committee on Professional court
Ethics
he looks as his
advocate and champion. inofbepart:
the New York County Ageociation
of the Lawyer May Impair His Independent tested matter.
In thh ease, he sued
Professional Judgment. (2) If the testirnany will relate solely to a matter a and his him home attachedmatter,by ir,hisallasownfeelin
attormy, who Lsla repre- 'While under theLawyers'
circumstances • " therestated
may
(A) Except with the consent of his client after full die-
closure, a lawyer shall not accept employment If
formality and there Is no reason to believe that
substantial evidence will be offered in opposi-
senting rein another
tr) tsT Yit d 152 Conn. 59,OA;65,Pr—tz",!?egle'
g of loyalty sects-
the charge publicno confidence
actual conflict
in theofBarInterest
requires• •an• 9maintemnee
attorney who hasof
the exercise of his professional lodgment ao behalf tion to the testimony.
Rattner, 203 A.co 82,sad.ntcoe 84 tr964).'n's ;:tctfCdsurg=“1.1; Ugcl„Il.t,17'.1':=""=";
in any matter even though wholly unrelateu
in "One of the cardinal principles to the original
of his client will be or reasonably map be affected by (3) If the testimony will relate solely to the nature
everyofidiom.,
the repremntation of • client is the requirement L.retainer." See Question and Answer No. 350, N.Y. County
and value of legal services rendered In the ease
his awn fimacial, business, properly, we P.m..'
by the lawyer or his firm to the client. corn- Asen. Questions and Answer Na. 450 (June 21, 1956).''
Interests..
(B) A lawyer shall not accept employment in contem- (4) As to any matter, I/ refusal would work a sub.
Mongol hardship on the client became of the
atrial,
llftyl."Vriss'Atn=':ate. talfe'dclicer/:c,:a.t.ger, of hie
but not a perfect one. These are fundamental re-
Glievance
82, 84, Comm.
(1964). v. Rattner, 112 Conn. 59. 65, 203 A.2d
lated or pending litigation If be knows or it Ls
p distinctive value of the lawyer or his firm as quirements
ment. . . . of
The dos
ga ped nee.
same the Fourteenth Amend- 3.
(notprinciples am applicable nm be heldvriinvalid,
cao'n's
obvious that be or a lawyer in his firm ought M be
counsel in the particularcase.
Amendment cases pertinent in Sixth toward each other.by. the grantor
A dee:5.11'
conflictherein) and suggest thatdim
called as a witness, except that he may undertake
an attorney however, if Vedc
made usemotofwith toll knowledge of its
devoteshouldhis fullhave
andnofaithful of interest andMe he
the employment slid he or a lawyer in Ws firm may DR 5-102 Withdrawal s Counsel When the Lawyer
ztjizaitidv :,,hrt.ndo, bj,.ca.
must efforts toward r.the... Where
deliberate, volmtery
testify: Becomes a Witness..
de-
a IldmiarY
22 AMERICAN BAR ASSOCIATION
CODE OF PROFESSIONAL RESPONSIBILITY 23
relation exists, the burden of proof is on the grantee or adopted by the American Bar Association on September 30,
beneficiary of an instrument executed during the existence 1937, and by the Pennsylvania Bar Association on January to the client. See Informal Opinions 469 and 679. Of
course, as the Otter decision points mt. there must be full 34. See BA Canon 42; c ABA Opi nion 281( 195.
of such relationship to show the fairness of the transaction, 7,9 1938, provides in pan that 'It n unprofessional to repre- 35. See ABA Canon 6; 0/.f (BA
that itequitable
was and Just and that it did not proceed sent conflicting interests, except by express consent of all disclosure of the arrangement by the attorney to the client OPMMes 167 (19374) ). 60
." ABA Opinion 320 (1968). (1931), and 40 (19)1).
from undu e influence.. , The same rule has aPPlication concerned given after a full disclosure of the fads. Within 36. ABA Opinion 247 (1942) held that an attorney
where an attorney engages in a tr.sa.ion with a client Me 111.11ing of this Canon, a lawyer represents conflicting "(Al third pang May PM the cost of legal services as could
lone as control remains in the client and the responsibility not investigate a night dub shooting on behalf of ono of
during the existence of the relation and a benefited thereby. interests When, in behalf of one client, It is his duty to the owner's liabffity insurers, obtaining the cooperation of
• • Conversel, an attorneY re net prohibited from deal- contend for that which duty to .other died requites him of the lawyer Ls solely to the client. Informal Opinions
469 ad Lsic] 679. See also Opinion 237." Id. the owner, and later represent the Mimed patron in an
ing with his client or buying his property, and such con- to oppose.' The full disclosure required by this eanon
28. ABA Opinion 303 (1961) recognized that .ffidiatu- action against the owner and a different insurance company
tracts. if open, fah and honest, when deliberately made, contempt.s that the possibly adverse effect of the unless the attorney obtain the "express consent of all con-
are as valid as contracts between other parties.... Him- Biel be fully explained by the attorney to the client to°Obe tory provisions now exist in several slat. which are de-
signed to make (the practice of law in • form Nat will be cerned given after • full disclosure of the facts," since to do
portant factors in determining whether • transaction is fair affected and by him thoroughly understood.. sowould be to
classified as a corporation for federal income tell purposes] represent conflicting interests.
Include a showing by the fiduciary (1) that he made a "The foregoing canon apple: s to eases where the cir- See ABA Opinions 247 (19421, 224 (1941). 222 (1941),
full and frank disclosure of all the relevant in(ttvmetioo cumstances are such that poesibly conflicting interests may legally possible either m a result of lawyers incorporating
or fornung assodations wits various corporate character- 218 (1941), 112 (19341, 83 (19321, and 86 (1932).
that he had; (2) that the consideration was adequate. and 37. Cf. ABA Opinions 231 (19411 and
(3) that the principal bad Mdepernient adrice before com- stics." MO (1936).
29. Cf. ABA Canoe 6 and ABA OpluMne 181 (1931, 38. CI. ABA Opinion: 243 (1942) and 235 (1941).
pleting the transaction." McFall v. Braden, 19 2d 108, BO riti.11y adverse m not to admit of one all repre 39. See ABA Canon 38.
117-18, 166 N. E. 24 46, 52 (19601 senting both eider. co ol is the situation which this record 104 (1934), 103 (193)1 72 (1932). 50 (1931), 49 (1931 ,
and 33 (1931). "A lawyer who receives a commission (whether delayed
4. See State ex rel. Nebraska Stale Bar Ass's v. Richards. presents. No one could conscionably contend that the
"New York County /Opinion) 203.... IA lawyer] should or not) from a title insurance company of guaranty fund
165 Neb. 80, 94-95, 84 N. W. 241 136, 146 (1957). same attorney may lepresent both the pinion/I and de-
not advise a client to employ an investment company in for recommending or selling the insurance to his client, ut
5. See ABA CANON 9. fend.t in an adversary action. Yet, that Is what Is being for work done for the client or the company, without either
6. See ABA Canon 10. done in this case." Jedsvabny v. Philadelphia Tramp.' which he is interested, without informing him of this."
Demme, LEGAL ETHICS 956 11953). fully disclosing to the client his financial interest in the
7. See Cons PitovessIoNAL RESPONatiokrelf, EC 2-20. lotion Co., 390 Pa. 231, 235. 135 A. 2d 252, 254 Cl. 35 transaction, or crediting the client's bill with the amount
8. See ABA CANON 42. r denied. 355 U.S. 966, 2 L. Ed. ad 541, 78 S. "In Opinions 72 and 49 this Committee held: The re-
557 thus received, Is guilty of unethical conduct... ABA Opinion
9. "Rule 3a. . . . A member of the State Bar Mall not (1958). Wiens of partners in • law firm are utch that =Min the 304 (1962).
directly or Indirectly pay or agree bo pay. or Marc.. or 20. "Glasser wished the benefit of the undivided assistance firm our soy member or associate thmeof, may accept my
40. See ABA Citron 35; ef. ABA Opinion 237 (1941).
sanction the representation that he hew of counsel of his own choice. We think that such a desire professional employmmt which any member of the firm
phut or nursing bills or other personal expenses Incurred cannot properly accept. when the lay forwarder, as agent for the creditor, for-
on the pan of an accused should be respected. Irmspective wards a claim to an attorney. the direct relationship of
by or for a client prospective or existing; provided this rule of any conflict of interest, the additional burden of repre- "In Opinion 16 this Committee held that a member of a
law firm could not represent a defendant in a criminal case attorney and client shall then exist between the &herrn,'
shall not prohibit 5 member: senting another party may conceivably Impair counsel's and the creditor, and the forwarder shall not Interpose it-
"(1) with the conmnt of the client. from paying or agree- which was being prosecuted by another member of the self as an Intermediary al control the activities of the at-
ing to pay to third persons such expenses from fmds col- Lfg;,,,ne alt of degree of prejudice sustained bY firm who was public prosecuting attorney. The Opn torney... ABA Opinion 294 (1956)•
lected or to be colleded for the client; or Glasser as a result of the «aura annoiMment of Stewart staled that it was clearly unethical for one member of the e 41. "Permanent beneficial and voting rights in the or-
(2) after he has been employed, from lending money to o as counsel for Kretske Is rit once difficult and unnecessarY. firm to oppose the Interest of the state while another mem-
ber represented those intmests .... Since the prosecutor g nization set up to practice law, whatever its form. must
Actor upon the client's promise in writing to repay such The right to have the assistance of connect is too funda- be restricted to lawyers while the org.imtion is engagO1
loan;
tan; or mental and absolute to allow courts to Indulge in nice hiinseif could not represent both the public and the de-
in the practice of law." ABA Opinion 303 (1961).
(3) from ladlancint the costs of Ermecuting or defending calculations as to the amount of prejudice arising from its fendant, no member of his law firm muld either." ABA
42. "Canon 33 . . promulgates underlying principles
denial." Glasser v. United States, 315 U.S 60, 7516, 86 Opinion 296 (1959).
30. Cf. ABA Canon 19 and ABA Opinions 220 (19411, that must he observed no matter In what form of organi-
:ulaparnmaphc'Xinclne h ablItane on' isnItIsco
r df nfienV. L. Ed. 680, 702 S. Ct. 457, 467 (1942). zation lawyers practice law. Its requirement that no person
costs or investigation and costs of obtaining and presenting 21. See ABA CANON 6. 185 (1938), 50 (19311, and 33 (1931): but el. Erwin M.
shall he admitted or held out as a Praditimier or member
evidence." CAI. Bustness non InsessIoeS Cotta 16076 22. Id. Jennings Co. v. DiGenova, 107 Conn. 491, 498-99, 141 A.
866, 868 who is not a member of the least profession duly authorized
(West Supp. 1961). 23. Cf. ABA Opinion 282 (1950). to practice, and amenable to professional discipline, makes
10. "When a lawyer knows, prior to trial, that he will be "When counsel, although paid by the casualty companY, 31. This Canon 119] of Ethics needs no elaboration to be
applied to the fads here. Apparently. the object of this It dear that any centralized management must be in law-
a necessary witness, mew as to merely formal matters undertakes to represent the policyholder and files his notice
precept is to avoid putting a lawyer in the obviously em- yers to avoid a violation of this Canon." ABA Opinion 303
such at Identification or custody of a document or Me like, of alfficarance, he owes to his client, the assured, an un- (1961).
neither he nor his lim a associates
s should conduct the deviating and single allegiance. His fealty embraces the barrassing predicament of testifying and then having In
argue the credibility and effect of his own tmtimony. It was 43. "There is no Intervention of any lay agency bctwmn
trial. If, during the trial, he discovers that the ends of requiretnent 10 produce in court all witnesses. fact and er-
not designed to permit a lawyer to .11 opposing counsel as lawyer and client when centralized management provided
Justice require his testimony, he should, from that point on, n., who areailable and nmessmy for the proper pro-
a witness and thereby dim ualify him as counsel." Gala- only by lawyers may give guidance or direction to the ser-
if feasible and not prejudicial to his client's case. leave tection of the rights of his client. . . .
'cs v. Ward, 119 Utah 611, 620, 230 P.2d 576, 580 vices beina rendered by a lawyer-member of the organization
further conduct of the trial to other counsel. If circum- . . The Canons of Professional Ethics make it pellucid to a client. The language in Canon 35 that a lawyer should
stances do not permit withdrawal from the conduct of the (1951
that there are not two standards, one smiling to counsel avoid all relations which direct the performance of his duties
trial, the lawyer Mould not argue the credibility of his own privately retained by a Client, and the other to counsel paid 32. ABA Canon 10 and ABA Opinions 279 (1949),
245 by or in the interest of an intermediary refers to lay in-
testimony." A Code of Trial Conduct, Promulgated by the by an insurance carrier." American Employers Ina. Co. v. (1942), and 176 (1938).
33. See Coon tip PeOCESSIOn. Enseonsnoury, DR termediaries and not lawyer intermediaries With whom he
American College of Trial Lawyers, 43 A.B.A.1. 223, 224-25 Goble Aircraft Specialties, 205 Misc. 1066, 1075, 1)1 N. Y is associated in the practice of law." ABA Opinion
957 ). S. 2d 391 401 (1954), motion to withdraw appeal granted, 2-106(C). 303
(1961).
()11. Cf. CANON 19: "When a lawyer is a witnem for his 1 App. Div. 2d 1008, 154 N. Y. S. 24 835 (1956)•
client, e«ept as to formal matters, such as the at-
testation or custody of
of an instrument and the like, he should W;IIT'ssmeti f' O'rkad ,000ydattmFw alm
a a ppdtsfe'
to dnd
byD;g1Pel
leave the trial of the case to other counsel... earlier version of the acci'dent'was 'untrue and that
11 "It is Mc general rule that a lawyer may nat testify
in litigation in which he is an advocate unless circum-
actually the accident occurred because he lost control of CANON 6
his car In passing a Cadillac just ahead. At that joint,
stances arise which could not bc anticipated and It is neces- Walker's counsel should have refused to participate further
sary to prevent a miscarriage of Ionic. In those rare
cases where the testimony of an attorney is needed to pro-
in view of the conflict of interest between Walker and State
Farm.. . . Instead he participated in the ensuing depo-
A Lawyer Should Represent a
tect his client's interests, it is not only proper butman-
datory that it be forthcoming." Schwartz r. Wenger, 267
sition of the Walkers, even took an ex parte sworn state-
ment front Mr. Walker In order to advise Stale Farm what
Client Competently
Minn 40. 43-44, 124 N. W. 2d 489, 492 (196)). action it should take, and later used the statement against
13. "The great weight of authority in this country holds Walker in the District Court. This action appears to
that the attorney who acts as minuet and witness. In behalf contravene an Indiana attorney's duty 'at every.peril to him- ETHICAL CONSIDERATIONS
of Ms client, in the same cane on a material matter, not self, to preserve the secrets of his client' . EC 6-1 Because of his vital role in the legal process,
State Farm study and investigation, as long m such preparation
of a merely formal character. and not in an emergency, but Mm. Auto Ins. Co. v. Walker, 382 F.2‘1.548, 552 (1967), a lawyer should act with competence and proper care in
having knowledge that he would be required to be a witness cert. denied, 389 U.S. 1045, 19 L. Ed. 2d 837, 88 S. Ct. 789 representing clients. He should strive to become and would not result in unreasonable delay or expense to
in ample time to have secured other counsel and given up (1968). his client Proper preparation and representation may
his servim In the case. violates a Mehl, irnPortnnt Pre- remain proficient in his practice' and should accept em-
24. See ABA Canon 6. require the association by the lawyer of professionals in
vision of the Code of Ethics and a rule of professional ployment only in matters which he is or intends to he-
25. See ABA CANON 35.
competent to handle. other disciplines. A lawyer offered employment in a
Gonduct, but does not commit a legal error in ao testifying. "Objection to the Intervention of • lay intermediary. who
as a result of which a new trial win be granted." Erwin matter in which be Is not and does not expect to become
M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 14IA.
W control litigation or otherwise Interfere with the render- EC 6-2 A lawyer is aided in attaining and maintain- so qualified should either decline the employment or,
ing of legal mrvices in a confidential relationship, . . ing his competence by keeping abreast of current legal with the consent of his client, accept the employment
866, 869 (1928). derives from the element of pecuniary gain. Fearful of
14. "[Closes may arise, and in practice often do arise, in literature and developments, participating a COntitiolng and associate a lawyer who is competent in the matter.'
dangers thought to arise her that element, the courts of
which there would be a failure of justice should the- at several Stales have sustained regulations aimed at these legal education programs,' concentrating in particular
torney withhold his hmen, In such a case it would be areas of the law and by utilizing other available means. EC 6-4 Having undertaken representation, a lawyer
tre es. We intimate no view one way Or the Other as
vicious professional sentiment which would deprive the to the merits of those decisions with respect to the He has the additional ethical obligation to assist in im- should use proper care to safeguard the interests of his
client of the benefit of his attorney's lestimony... Connolly arrangeme. against which they are directed.P client. If a lawyer has accepted employment in a mat-
v. Straw, 53 Wis. 645, 649, 11 N. W. 17, 19 (1881). It is proving the legal profession, and fie may do so by par-
enough that the superficial resemblance in form between ticipatingin bar activities intended to advance the ter beyond bin competence but in which he expected to
But see Cation 19: "Except when essential to the ends of those arrangements and that at bar canmt obscure the
those become competent, he should diligently undertake the
justice. a lawyer should avoid testifying in court In behalf vital fact that here the entire arrangement employs constilu-
quality and standards of members of the profession.
Of particular importance is the careful training of his work and study necessary to qualify himself. In addi-
tionagy privileged means of expression to secure constitu-
'f Ti;A CAN 7. tionally guaranteed civil rights." NAACP v. Button, 371 younger associatm and the ng of sound guidance to tion to being qualified to handle a particular matter,
16. See ABA CANON7. U.S. 415, 441.42, 9 L. Ed. 24 405, 423-24, 83 S. Ct. 328. all lawyers who consult him. III short, a lawyer should his obligation to his client requires him to prepare ade-
17. See ABA CANON 6; cf. ABA Opinions 261 (1944). 342.43 (1963). strive at all levels to aid the legal profession m advanc- quately for and give approprude attention to his legal
342 . 142 (1935), and 30 (1931). 26. ABA Canon' 38. ing the highest possible standards of integrity and com- work.
18. The ABA Canons speak of "conflicting interests" 27. "Certainly it is true that 'the professional relationship petence and to meet those
rather than "differing in but make no attempt to between an attorney and his client is highly personal, in- standards himself. EC 6-5 A lawyer should have pride in his professional
define such other than the statement in Canon 6: "Within . intimate appreciation of each individual client's EC 6-3 While the licensing of a lawyer is evidence endeavors. His obligation to act competently calls for
the meaninh of this canon. a lawyer represents conflicting particular problem.' And this Committee does not condone that he has met the standards then prevailing for admis- higher motivation than that arising from fear of civil
interests when. in behalf of one client, It Is his duly to practices which interferewith that relationMip However, liability or disciplinary penalty.
contend for that which duty to another client renoirm aim
sion to the bar, a lawyer generally should not accept
the mere fact the lawyer is actually paid by some emirs
to oppose." other than the client does not affect that relationship, so employment in any area of the law in which he is not EC 6-6 A lawyer should not seek, by contract or other
19. "Canon 6 of the Canons of Professional Ethics. long as the lawyer is selected by and is directly responsible qualified! However, he may accept such employment means, to !knit his individual liability to his client for
if i4 good faith he expects to become qualified through
his malpractice. A lawyer who handles the affairs of his
24 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 25
client properly has no need to attempt to limit his lia- in or is associated with a Professional legal corporation EC 7-6 Whether the proposed action of a lawyer is
bility for his professional activities and one who does the client is capable of understanding the matter in
may. however, limit his liability for malpractice of his within the bounds of the law may be a perplexing question or of contributing to the advancement of his
not handle the affairs of his client properly should not associates in the corporation, but only to the extent per- question when his client is contemplating a course of
be permitted to do so. A lawyer who IS a stockholder regaidless of whether he legally disqualified
mitted by law.. conduct having legal consequences that vary according from performing certain acts. the lawyer should obtain
to the client's intent, motive, or desires at the time of front him all possible aid. If the disability of a client
DISCIPLINARY RULES the action. Often a lawyer is asked to assist his client and the lack of a legal representative compel the lawyer
DR 6-101 Failing to An Competently. (2) Handle a legal matter without preparation tide- in developing evidence relevant to the state of mind of to male decisions for his client, the lawyer should con-
(A) A lawyer shall Dolt qsste In the circumstance. the client at a particular time. He may properly assist sider all circumstances then prevailing and act with care
(1) Handle a legal matter which he knows or (3) Neglect a legal matter entrusted to kb.. his client in the development and preservation of evi- to safeguard end advance the interests of his client. But
DR 6-102 Limidng Liability to Client. dence of existing motive, intent, or desire; obviously, he obviously a lawyer cannot perform any act or make any
should know that he Is not competent to may not do anything furthering the creation or preserve.
(A) A lawyer shall not attempt to exonerate himself decision which the law requires his client to perform or
handle, without associating with him a lawyer from or limit his liability to his client far 13111 per- tion of false evidence. In many cases a lawyer may not make, either acting for himself if competent, or by a
who is competent le handle IL soled malpractice. be certain as to the state of mind of his client, and in duly constituted representative if legally incompetent.
those situations he should resolve reasonable doubts in
EC 7.13 The responsibility of a public prosecutor
NOTES favor of his client.
differs from that of the usual advocate his duty is to
I. "19ffilien a citizen Is tared with the need for a lawyer, 2. "The Whole purpose of continuing legal education, so EC 7-7 In certain areas of legal representation not seek justice, not merely to convict." This special duty
he wants, and is entitled to, the hest informed counsel he enthmianimilly supported by the ABA, is to male it affecting the merits of the cause or substantially preju-
can obtain. Changing times produce changes in our laws exists because: (I) the prosecutor represents the sover-
Possible for lawmen to make themselves better lawyers. But dicing the rights of a client, a lawyer is entitled to make
and legal procedures. The natural complex.. of law re- there are no nostrums for Proficiency in the law; eign and therefore should use restraint in the discre-
mun decisions on his own. But otherwise the authority to tionary exercise of governmental powers, such as in the
q.,* continuing intemsive study by • lawyer If he is to
render his clients a maximum of efficient service. And, in
so doing. he maintains the high sissdards of the lessi
the
theextent
the hard work of the lawyer himself. To
extent that that work, whether it be in attending insti-
tutes or lecture courses, In studying after hours or In the
make decisions is exclusively that of the client and, if
made within the framework of the law, such decisions
selection of cases to prosecute; (2) during trial the
prosecutor is not only an advocate but he also may
mofession,• and he also increases respect and conf idence actual day in and day out Practice of NS Profession, ca are binding on his lawyer. As typical examPles le civil make decisions normally made by an individual client,
the general public." Rochelle & Payne, The Struggle for be concentrated within a limited field, the treater the pm. cases, it is for the client to decide whether he will ac- and those affecting the public interest should be fair to
Pubis
Public Understanding, 23 Tetras Si. . 109. 160 (t 962). ficiency and expertness that Can be developed." Report of cept a settlement offer or whether he will waive his
"We have undergone enormous change. in the last fitly the Special Committee on SpeNalkation and Specialized all; and (3) in our system of criminal justice the accused
years within the lives of most of the adults living today who right to plead an affirmative defense. A defense lawyer is to be given the benefit of all reasonable doubts.
Legal Education, 79 A.B.A. It.. 582, 588 (1954).
may be seeking advice. Most of these changes have been 3. "If the tooth. h not competent to skillfully and in a criminal ease has the duty to advise his client fully With respect to evidence and witnesses, the prosecutor
accompanied by chime. and developments in the law.. .. properly. perform the work, he should not undertake the on whether a particular plea to a charge appears to be has responsibilities different from those of a lawyer
Every practicing lawyer encounters these problems and is desirable and as to the prospects of success on appeal, in private practice: the prosecutor should make timely
often perplexed with his own Inability to keep up, not onto Eft" 401, rt1 but it is for the client to decide what plea should be disclosure to the defense of available evidence, known
with changes in the law, but also with changes In the ayes N. E. 328 (19231 )1. entered and whether an appeal should be taken..
of his clients and their legal problems. 4. CJ. ABA Opinion 232 (1941). to him, that tends to negate the guilt of the accused,
"To be sure, no client has a right 10 expect that his lawyer 5. See ABA Opinion 303 (1961); coos os PROMS- EC 7-8 A lawyer should exert his best efforts to in- mitigate the degree of the offense, or reduce the punish-
will have all of the mswers at the end of his longue or 110001, Rasemistaittm, EC 2-11. sure that decisions of his client are made only after the ment. Further, a prosecutor should not intentionally
even in the back of his head at all tIm.. But the client 6. The anneal report too 1967-1968 of the Committee on client her been informed of relevant considerations. A void pursuit of evidence merely because he believes it
does have the right to expect that the lawyer will have de- Grievances of the AuociatIon of the Bar of the City of lawyer ought to initiate this decision-making process d will damage the prosecutor's case or aid the accused.
voted his dive and energies to maintaining and improving New York showed • receipt of 2,232 complaints: of Me
his competence to know where to look for the answers. to the client does not do so. Advice of a lawyer to his EC 7-14 A government lawyer who has discretionary
828 offenses .alost clients, 76 involved conversion, 49 In- client need not be confined to purely legal considera-
know how to deal with the problems, and to know how volved "overreaching,t and 452, or more than half of all power relative to litigation should refrain from Institut-
to advise to the beat of his legal talents and abilities." Leer such 01:tenses, Involved neglect. Annual Report of Me Com- tions.. A lawyer should advise his client of the pea- g or continuing litigation that is obviously unfair. A
& Sprague, Accounting and Lee; It Dual Practice in the ittee on Grievances of the Association of the Bar of the sible effect of each legal alternative." A lawyer should overnment lawyer not having such discretionary power
Public Interest?, 52 A.B.A.J. 1110, 1112 (1966). City of New York, Sept. 12, 1968, at 4, sot. 5. bring to bear upon the decision-making process the full- g
who believes there u lack of merit in a controversy sub-
ness of his experience as well as his objective view- mitted to him should so advise his superiors and recom-
point.. In assisting his client to reach a proper de- mend the avoidance of unfair litigation. A government
cision, it is often desirable for a lawyer to point out lawyer in a civil action or administrative proceeding has
CANON 7 those factors which may lead to a decision that is
morally just as well as legally permissible.. He map
the responsibility to seek justice and to develop a full
and fair record, and he should not use his position or
emphasize the possibility of harsh consequences that the economic power of the government to harass Moiles
A Lawyer Should Represent a Client might result from assertion of legally permissible posi- or to bring about unjust settlements or results.
tions. In the final analysis, however, the lawyer should
• Zealously Within the Bounds always remember that the decision whether to forego
EC 7.15 The nature and purpose of proceedings be-
fore administrative agencies vary widely. The proceed-
legally available objectives or methods because of non-
of the Law legal factorsn ultimately for the client and not for him-
ings may be legislative or quasi-judicial; or a combina-
tion of both. They may he ex parte m character, in
self. In the event that the client in a non-adjudicatory which event they may oflgtness either at the instance of
matter insists upon a course of conduct that is contrary the agency or upon motion of an interested party. The
ETHICAL CONSIDERATIONS to the judgment and advice of the lawyer but not pro- scope of an input-, may be purely investigative or it
EC 7-1 The duty of a lawyer, both to his client' and assists his client in determining the course of future con- hibited by Disciplinary Rules, the lawyer may withdraw may be truly adversary looking toward the adjudiss-
to the legal system, is to represent his client zealously duct and relationships. While serving as advocate, a from the employment.. lion of specific rights of a party or of classes of parties.
within the bounds of the law? which includes Discipli- lawyer should resolve in favor of his client doubts as to u
EC 7-9 In the exercise of h professional judgment The foregoing are but examples of some of the types of
nary Rules and enforceable professional regulations.' the bounds of the law.. In serving a client as adviser, a on those decisions which are for his determination in proceedings conducted by administrative agencies. A
The professional responsibility of a lawyer derives from lawyer in appropriate circumstances should give his pro- the handling of a legal matter," a lawyer should always Moyer appearing before an administrative agency, re-
his membership in a profession which has the duty of fessional opinion as to what the ultimate decisions of the act in a manner consistent with the best interests of his gardless of the nature of the proceeding it is conduct-
assting
si members of the public to secure and protect courts would likely be as to the applicable law. client." However, when en action in the best interest ing, has the continuing duty to advance the cause of
available legal rights and benefits. In our government of his client seems to him to be unjust, he may ask his his client within the bounds of the law." Where the
of taws and not of men, each member of our society is Duty ol the Lawyer to a Client client for permission to forego such action." applicable rules of the agency impose specific oblige-
entitled to have his conduct judged and regulated in EC 7-4 The advocate may urge any permissible con- EC 7-10 The duty of • lawyer to mPres..t his ch.., fions upon a lawyer, it is his duty to comply therewith,
accordance with the law:a to seek any lawful objective struction of the law favorable to his client, without re- unless the lawyer has a legitimate basis for challenging
through legally permissible mearts;. and to present for with zeal does not militate against his concurrent obli-
adjudication any lawful claim, issue, or defense.
gard to his professional opinion as to the likelihood that Fallen to treat with consideration all persons involved the validity thereof. In all appearances before admin-
the construction will ultimately prevail." His conduct I nthe legal process and to avoid the infliction of need- istrative agencies, a lawyer should identify himself, his
EC 7-2 The bounds of the law in a given case are is within the bounds of the law, and therefore permis- less harm. client if identity of hs client is not privileged" and the
often difficult to ascertain! The language of legislative sible, it the position taken is supported by the law or is representative nature of his appearance. It is not im-
enactments and judicial opinions may be ...NM as supportable by a good faith argument for an extension, EC 7-11 The responsibilities of a lawyer may vary proper, however; for a lawyer to
according to the intelligence, experience, mental con- oseek from an agency
applied to varying factual situations. The limits and modification, or reversal of the law. However, a lawyer information available to the public without identifying
specific meaning of apparently relevant law may be is justified in asserting a position in litigation that dition or one of a client, the obligation of a public his client.
made doubtful by changing or developing constitutional is riotolus.. officer, or the nature of a particular proceeding. Ex-
amples include the representation of an illiterate or an EC 7.16 The primary business of a legislative body is
interpretatiotts, inadequately expressed statutes or ju- EC 7-5 A lawyer as adviser furthers the interest of he enact laws rather than to adjudicate controversies,
dicial opinions, and changing public and judicial atti- incompetent, service as a public prosecutor or other
his client by givesg his professional opinion as to what government lawyer, and appearances before administra. although on °cession the activities of a legislative body
tudes. Certainty of law ranges from well-settled rules he believes Would likely be the ultitnate decision of the tire and legislative bodies. may take on the characteristim of an adversary pro-
through areas of conflicting authority to areas without courts on the matter at hand and by informing his ceeding, particularly M investigative and impeachment
precedent. client of the practical effect of such decision.. He may EC 7.12 Any mental or physical condition of a client matters. The role of a lawyer supporting or oppssing
EC 7-3 Where the bounds of law are uncertain, the continue in the representation of his client even though that renders bun incapable of making a considered judg- proposed legislation normally is quite different from
action of a lawyer may depend on whether he is serving his client has elected to pursue a course of conduct ment on his own behalf casts additional responsibilities his role in representing a ',Mon under investigation Cor
as advocate or adviser. A lawyer may serve simultane- contrary to the advice of the lawyer so long as he does upon his lawyer. Where an incompetent is acting on trial by a legislative body. When a lawyer appears
ously as both advocate and adviser, but the two roles not thereby knowingly assist the client to engage in il- through a guardian or other legal representative, a law- in connection with proposed legislation, he seeks to
are essentially different" In asserting a position on be- legal conduct or to take a frivolous legal position. A yer must look to such representative for those decisions ffect the unmaking process, but when he appears on
half of his client, an advocate for the most part deals
with past conduct and must take the facts as he finds
lawyer should never encourage or aid his client to com- which are normally the prerogative of the client to
make. If a client under disability has no legal repre-
behalf of a client in investigatory or impeachment pro-
mit criminal acts or counsel his client on how to violate ceedings, he is concrned withthe protection of the
them. By contrast, a lawyer serving as adviser primarily the law and avoid punishment therefor.. sentative, his lawyer may be compelled in court pro- rights of his client. nIn
either event, he should identify
ceedings to make decisions on behalf of the client. If himself and Ms client, if identity of his client is not
26 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 27
privileged, and should comply with applicable laws and hn done so; but, having made such disclosure, he may nication by a lawyer with a juror is permitted by law, it
legislative rules.. tribunal by a writing unless a copy thereof is promptly
challenge its soundness in whole or in part. should be made considerately and with deference to the
EC 7-17 T. obligation of loyalty m his client applies delivered to opposing counsel or to the adverse party if
EC 7.24 In order to bring about just and informed personal feelings of the juror. he is not represented by a lawyer. Ordinarily an oral
only to a ffiwyer in the discharge of his professional
decisions, evidentiary and procedural rules have been EC 730 Vexatious or harassing in of vent communication by a lawyer with a judge or hearing °In-
duties and implies no obligation to adopt • personal
viewpoint favorable to the interests or desires of his established by tribunals to permit the inclusion of rele- rem. or jurors seriously impair the effmtiveness of our cer should be made only upon adequate notice to op-
client.. While a lawyer must act always with circum- vant evidence and arguent m and the exclusion of all jury system. For this mason, a lawyer or anyone on hh posing counsel, or, if there 0 none, to the opposing
spection M order that Ins in other considerations. The expression behalf who conducts an investigation of veniremen or party. A lawyer should not condone or lend himself to
will not advemely by a lawyer of his
affect the rights of a client in a matter hp 18 then han- personal opinion as to the halmsss of a cause, as to the jurors should act with circumspection and restraint. private importunities by another with a judge or hearing
dling, he may take positions on public %sum and credibility of a witness, as to the culpability of a civil EC 7-31 Communications with or investigations of officer on behalf of himself or his client.
espouse legal reforms he favors without regard to the litigant, or as to the guilt or innocence of an accused members of families of veniremen or jurors by a lawyer EC 7-36 Judicial hearings ought to be conducted
individual views of any client. is not a proper subject for argument to the trier of or by anyone on his behalf are subject to the restrictions through dignified and orderly procedures designed to
EC 7-18 The legal system in its broadest fact' It is improper as to factual matters became ad- inipomd upon the lawyer with respect to his communica protect the rights of all parries. Although lawyer has
sense func- missible evident possessed by a lawyer should be
lions best when persons in need of legal advice tions with or investigations of veniremen and jurors. the duty to represent his client zealously, he should not
ance are or assist- Presented only as sworn testimony. It is improper m
represented by their own counsel. engage in any conduct that offends the dignity and de-
For this
reason a lawyer should not communicate on the subject to all other matters because, EC 732 Because of his duty to aid in preserving the
were the rule otherwise, af proceedings.. While maintaining his inde-
matter of the representation of his client with a person the silence of a lawyer on a given occasion could be integrity of the jury system, a lawyer who learns of im- pendence, a lawyer should be respectful, courteous, and
he knows to be represented in the matter mimoroblY his client. However, a lawyer proper conduct by or towards a venireman, a juror, or above-board in his relations with a judge or hearing offi-
by a lawyer, may argue, on his analysis of the a member of the family of either should make a prompt
unless pursuant to law or rule of court or unless he has evidence, for any cer before whom he appears.. He shoud avoid undue
the cons.t of the lawyer for that person... If one posihon or conclusion with respect to any of the fore- report to the court regarding such conduct. solicitude for the comfort or convenience of judge or
k not represented by counsel, a lawyer representing an- going matters. EC 733 A goal of our legal system is that each party jury and should avoid any other conduct calculated to
other may have to deal directly with the unrepiemoted EC 7-25 Rules of evidence and procedure are designed shall have his case, miminal or civil, adjudicated by an gain special consideration.
martial tribunal. The attainment of this goal may be
Peron; in such an instance, a lawyer should pot under-
take to give advice to the person who
is attempting to
represent himself,. except that he may advise hint to ob-

to lead to just decisions and are part of the framework


of the law. Thus while a lawyer may lake steps in d efeated by dimemination of news or comments which
tend to influence judge or jury." Such new or corn-
EC 7-37 In adversary proceedings, clients are litigants
and though ill feeling may exist between clients, such ill
good faith and within the framework of the law to test feeling should not influence a lawyer in his conduct, at-
tain a lawyer. the validity of rules, he is not justified in consciously meats may prevent prospective jurors from being im- Mode, and demeanor towards opposing lawyers.. A
violating such rule and be should be diligent in his ef- partial at the outset of the trial. and may also interfere lawyer should not make unfair or derogatory Permnol
Duty of the Lawyer to the Adversary System of Justice forts to guard against his unintentional violation of with the obligation of jurors to base their verdict solely reference to opposing counsel. Haranguing and offeffi
EC 7-19 Our legal system provides for the adjudica- them.. As examples, a lawyer should subscribe to or upon the evidence admitted in the trial.. The release sive tactim by lawyers interfere with the orderly ad-
tion of disputes governed by the rules of substantive, verify only those pleadings by a lawyer of outssf-court stassments regarding an an- ministration of justice and have no proper place io our
that he believes are in con,
evidentiary, and procedural law. An adversary presen- pliance with applicable law and rules; a lawyer should ticipated or pending trial may improperly affed the im- legal system.
lotion counters the natural human tendency to judge too not make any prefatory statement before a tribunal in partiality of the tribunal.. For these reasons, standards
swiftly is terms of the familiar that which is not yet for permissible and prohibited conduct of a Wryer with EC 7-38 A lawyer should be courteous to errand
reBard to the purported facts of the case on trial unless
fully known;. the advocate, by his zealous preparation respect to trial publicity have been established. counsel and should accede to reasonable requests re-
he believes that his statement will be supported by ad-
and presentation of facts and law, enables the tribunal garding court proceedings, settings, continuances, waiver
missible evidence; a lawyer should not ask a witness a EC 734 The impartiality of a public servant in our
W conic to the hearing with an open and neutral mind of procedural formalities, and similar matters which do
question solely for the purpose of harassing or unbar- legal system may be impaired by the receipt of gifts or not prejudice the rights of his client.° lk should foi-
and to render impartial judgments.. The duty of a r.sing him; and a lawyer should not by subterfuge put loans. A lawyer. therefore, is never justified in making
lawyer to his client and his duty to the legal system l.. local customs of courtesy or practice, unless he
before a jury matters which it cannot properly consider. a gift or a loan to a judge, a hearing offi.r, or an offi- gives timely notice to opposing COUnsel of his intention
are the same: to represent his client zealously within the cial or employee of a tribunal..
bounds of the law.. EC 7-26 The law and Disciplinary Rules prohibit the not to do so.. A lawyer should be pundual in fulfilling
use of fraudulent, false, or perjured testimony or evi- EC 7-35 All litigants and lawyers should have access all professional commitments..
EC 7-20 In order to function properly, our adjudica- to tribunals on an equal basis. Generally, in adversary
dence.. A lawyer who knowingly participates in EC 7-39 In the final analysis, proper functioning of
tive process requires an inform., impartial tribunal introduction of such testimony or evidence is subject to proceedings a lawyer should not communicate with a
capable of administering justice promptly and ef- . the adversary system depends upon cooperation between
discipline. A lawyer should, however, present any ad-
ficiently-. according to procedures that
command public
confidence and respect... Not only must there be
missible evidence his client desires to have presented eiVror:gtr
i =rae,TTFL7altgrbttl ?le vpd
reV'
cless 1
circumstances which might have the effect or give the
i0
i1 par7.0-:eat
I d make their
uNess he knows, or from facts within his knowledge decisional processes prompt and just, without impinging
competent, adverse presentation of evidence and issues, hould know, that such testimony or evidence is false, appmrame of granting undue advantage to one party.. upon the obligation of lawyers to represent their clients
but a tribunal must be aided by rtiks oPProPriote so on
effective and dignified process. The procedures under
fraudulent, or perjured... For example, a lawyer should not communicate with a zealously within the framework of the law.
which tribunals operate in our adversary system have EC 7-27 Because it interferes with the proper admin-
DISCIPL[NARY RULES
been prescribed largely by legislative enactments, court istration of justice, a lawyer should not suppress evi- DR 7-101 Representing a Client Zealously.
rules and decisions, and administrative rules. Through dence that he or his client has a legal obligation to re- unwarranted under mignon WV, except that
(A) A lawyer shall out iotentlomily:. he may advance such claim or defense if it cap
the years certain concepts of proper professional veal or produce. In like manner, a lawyer should not (I) Fall to seek the lawful objectivm of Ms client
conduct have become rules of law applicable to the advise or cause a person to secrete hirnmlf or to leave he supported by good faith argument for an ex-
through remonably available means" permitted tension, modification, or reversal of existing law.
adversary adjudicative process. Many of these con- the jurisdiction of a tribunal for the purpose of making by law and the Disciplinary Rules, except as
cepts am the bases for standards of professional conduct him unavailable as a witness therein.. (3) Conceal or knowingly fall to disclose that hirleh
provided by DR 7-101 (M. A lawyer does not he is required by law to reveal.
set forth in the Disciplinary Rules. EC 7-28 Witnesses should always testify truthfully' violate this Disciplinary Rule, however, by ac- (4) Knowingly use perjured testimony or false evi-
EC 7-21 The civil adjudicative process is primarily de- and should be free from any financial inducements that ceding to reamnable requests of opposing coon- dence..
signed for the settlement of disputes between parties, might tempt them to do otherwise.. A lawyer should set which do not prejudice the rights of his (5) Knowingly make a false statement of law or
while the criminal process is designed for the protec- not pay or agree to pay a non-expert witness client, by being punctual lo fulfilling all profes-
all amount fact.
tion of society as a whole. Threatening to use, or using, in excess of reimbursement for expenses and financial sional commitments, by avoiding offensive tac-
the criminal process to coerce adjustment loss incident to his being a witness; however, a lawyer (6) Participate the is or preservation of
of private tics, or by treating with courtesy and considera- evidence when he kiwi. or It Is obvious that
civil claims or controversies is a subversion of that zertyfil,traLor pay an expert witness areasonable tion an persons Writhed In the legal process.
process;. further, the person against whom the crim- e evidence is false.
secrvi as an expert. But in no event should (2) Fail to carry out a contract of employment en- (7) Conosel or +mist Ids cll.t in .nduct that the
mal processis so misused may be deterred from assert- a lawyer pay or agree to pay a contingent fee to any tered into with a citeul fur professiowl services, lawyer knows to be Megal or fraudulent.
ing his legal rights and thus the usefulness of the civil witness. A lawyer should exercise reasonable diligence but he may withdraw as permitted under DR
process in settling private disputes is impaired. As in (8) Kwaingly engage in other Illegal ...duct or
to see that his client .d lay associates conform to these 2-110, DR 5-102, and DR 5-105. conduct contrary to a Disciplinary Rule.
all cases of abuse of judicial process, the improper use standards.. (3) Prejudice or damage his client during the course (B) A lawyer who receives information clearly estab-
of criminal process tends to diminish public confide..e EC 7-29 To safeguard the impartiality that is essential of the professional en-
in our legal system. as en- lishing that:
to the judicial process, veniremen and jurors should be quired under DR 7-102 us). (1) Hts client ha, In the course of the repreaco.
EC7-22 Respect for judicial rulings is essential to the protected against extraneous influences.. When im- (g) In his representation of a client a lawyer may: don, perpetrated a fraud upon a person me trib-
proper administration of imam: however, a litigant or partialityyis present, public confidence in the judicial (I) Where permissible, exercise his professional unal shall promptly call upon his client to rec-
his law)-er may, in good faith and within Ike framework system is enhanced. Them should be no extrajudicial judgment to waim or fall to assert a right or tify the same, and if his client refuses or is
of the law, take steps to test the correctness of a ruling communication with veniremen position of his client unable to do so, be shall reveal the fraud to the
prior to trial or with (2) Refuse to aid or participate In conduct that he
of a tribunal... jurors during trial by or on behalf of a affected person or tribunal."
lawyer connected believes to be unlawful, even though them Is
EC 7-23 The cornplexity of law often makes it difficult with the cam. Furthermore, a lawyer who (2) A person ether than his client has perpetrated
nected with the case should not communicate with
in not con- some support for as argument that the conduct
for a tribunal to be fully informed unless the pertinent or a fraud upon a tribunal shall promptly accost
law is presented by the lawyers in the cause. A tribunal cause another to communicate Is legal. the fraud to the tribunot.
with
juror about the case. After the trial,
a venirerrian or
that is fully informed on the applicable law is better able communication by DR 7-102 Representing a Client Within the Bounds of DR 7-103 Perfonsiog the Duty of Public Prosecutor
to make a fair and accurate determination of the matter a lawyer with jurors is permitted so long as he refrains the Law. or Other Goveroment Lawyer..
before it. The adversary system contemplates that each from asking questions or making comments (A) In his ripresentation of a client, a lawyer shall not
that tend to (A) A public prosecutor or other govenistient lawyer
lawyer will present and argue the existing harass or embarrass the juror' or to influence actions of (1) File a mit, mien a position, conduct a defense, shall .1 MUM. or cause to be Instituted criminal
law in the the juror in future cases. Were a lawyer 10 be prohib- delay a trial, or take other action an behalf of
light most favorable to his client.. Where a lawyer charges when he knows or it Is obvious that the
knows of legal authority in the controlling jurisdiction ited from communicating after trial with a juror, he his client when he knows or when It in obvious charges are not supported by probable cane.
directly adverse to the position of his client, he should could not ascertain if the verdict might be subject to that such action would serve merely to harass (B) A rabble prosecutor or other government lawyer In
inform the tribunal of its existence unless his adversary legal challenge, in which event the invalidity of a verdict or maiklously injure another.. erffitinul litigation shall make timely disclosure to
might go undetected... When an extrajudicial commffi (2) Knowingly advance a claim or defense (bat is counsel for Me defendant, or to the defendant if
28 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 29
he has nounsel,
co of the existence of evidence,
known to the prearcutor or other government law- arrest until the commencement of the trial or dig (5) Any other 'natter reasonably likely to Interfere the lawyer shall eel ask questions of or make com-
yer, that tends to negate the guilt of the accused, position without trial, snake or Pard.larte la nuk- with a fair idiot of the action. ments to a member of that jury that are calculated
p
utijte. t.
lbt degree of the offense, or reduce the ing an extrajudicial statement that a reasonable (II) During the pendency of an administrative proceed. merely to harass or embarrass the juror or to in-
person would expect to be disseminated by mean. lug, a lawyer or law firm associated therewith shall fluence his actions In future jury service..
of public communication and that relates to: not make or participate in making a statement, (E) A lawyer shall not conduct or cause, by financial
DR 7-104 Communkadng With One of Adverse In- (1) The character, reputation, or prior criminal other than a quotation fear or reference to public
terest.. support or othenvise, another to conduct a 'exa-
record (including arrests, indictments, or other records, that a re...noble perrsoo would expect to lt.. or harassing investigation of either • venire-
(A) During the course of his representation of a client charges of crime) of the accused. be disseminated by means of public communicatiou man or a juror.
a Low. y shall not: (2) The possibility of a plea of guilty to the offense if it is made outside the official course of the pro-
(I) Communicate or carte another to communicate W) All restrictions htmosed by DR 7-108 upon a lawyer
charged or to a lesser offense. reeding and relates to: also apply to coutmunkatious with or investigations
on the subject of the representation with a (3) The existence or contents of any confession, ad- (1) Evidence regarding the occurrence or Unman of member. of a family of a venireman or • juror.
party he knows to be represented by a lawyer mission, or statement given by the accused or don Involved. (C) A Dwyer shall reveal promptly to the court h.
In that matter moles he has the prior colonel of his refusal or failure to make a statement. (2) The character, credibility, or criminal record of proper conduct by a venire...an or a juror, or by an-
the lawyer representing such other party° or to (4) The perfornuance or results of any ...loath.s a party, witruns, or prospective witness. other toward a venireman or a 1.r., or • member
authorized by law to do so. or tests or the refusal or failure of the accused • (3) Physical evidence or the performance or results of his family, of which the lawyer has knowledge.
(2) Give advice In a person who is not represented to submit to examinadons or tests. of any examiaations or tests or the refits.' or
by a lawyer, other t han the advke to secure (5) The Identity, testimony, or credibility of a pros- DR 7-109 Contact with Witnesses.
failure of a party to submit to sods (A) A lawyer shall not suppress any evidence that he or
carnet.. if the interest, of such Pe..0 are or pective witness. (4) Ills opinion as to the merits of the claims, de-
have a removable possibility of being in con- (6) Any opinion w to the guilt or innocence of the his client has a legal obligate', to mow" or Pro"
fens., or positions of an larermted Person duce..
flict with the interests of his client.. se the evidence, or the merits of the case.
accud, (5) Any other matter reasoarbly likely to Interfere (11) A lawyer shall not advise or cause a person to se-
DR 7-105 Threatening Criminal Prosecution. (C) DR 7.107 (11) does not preclude a lawyer during with a far hearing. crete bbuself or to leave the juriadiction of a tri-
(A) A lawyer shall not present, participate In presenting, such_ 'period from announcinffi (1) The foregoing provisions of DR 7-107 do not pre- bunal for the purpose of waking tabu uarvallabie
or threaten to present criminal charges solely to (1) The name, age, residence, occupation, and fam- chide a lawyer from replying to charges of garcon- ae a *knew therein:.
obtain an advantage in a civil matter. ily statue of the accused. duct publicly made against bar or from participat- (C) A lawyer Audi not pay, offer to par, or acquiesce in
(2) If the accused has not been apprehended, any ing in the proceed.. of legislative, adminieartive, the payment of compearation to a witness cond.
DR 7-106 Trial Conduct.
(A) A lawyer shall not diargard or advise Ids client to information necessary to aid in his apprehension or other investigative bodies. gent upoa the content of his testimony or the out-
disregard a standing rule of a tribunal or a ruling or to warn the public of any dangers he may (I) A lawyer shall exercise reasonable care to prevent come of the case.. But a lawyer may adore., V.'
present. his employe. and associates from making an extra- anlee, or acquiesce in the payment oft
of a tribunal made in the course of a proceeding, (3) A request for assistance In obtaining evidence.
but be may lake appropriate steps in good faith to judicial statement that he would be prohibited from (1) Expenses remonably incurred by a witness In
(4) The identity of the vicdmof the crime. waking under DR 7-107. attending or testifying,
teal the validity of such rule or ruling. (5) The fact, time, and place of arrest, redden..
(11) In presenting a matter to a tribunal, a lawyer shall DR 7-108 Conmarication with or Investigation of (2) Reasonable compensadoo to a witness for his
disclose:" Paruit, and use of weapons. Jurors. loss of time In attending
foe or testifying
(1) Legal authority In the cont. (6) The identity of investigating and arresfing of- (A) Before the trial of a case a lawyer connected there- (3) A rwsonable fee the professional services
-0,0.0 Jurivdtellov ficers or agencies and the length of the investi- with shall not tananunkate with or cause another of an expert witness.
known to blot to be directly adverse to the po gation.
Adoe of his client and which Is not disclosed to communicate with anyone he knows to be DR 7-110 Contact with Officials."
(7) At the tare of seizure, • description of the phys- member of the venire front which the jmy will be
by °pinning counsel." (A) A lawyer shall not give or lend any thing of value
(2) Unless privileged or irrelevant, the Identities of ical evidence seised, other than a confession, selected for the trial of the case. to a judge, official, or employee of a tribunal
the clients he represents and of the persons who admission, or statenten. (B) During the trial of a case:
(8) The nature, substance, or text of the charge. di) In au adversary proceeding, a lawyer alien not com-
employed him..
(9) Quotations from or references to public records (1) A lawyer connected therewith shall notcom- municate, or cause another to communicate, as to
(C) In appearing in his professional capacity before • municate with or cause another to communicate the merits of the cause with a judge or on official
tribunal, a lawyer shall not: of the court in the case. with any member of the jury.. before nhom the proceeding is pendlog, except:
(1) State or allude to any matter that he has no (10) The scheduling or result of any step In the ju- (2) A lawyer who is not connected herewith shad
dicial proceedings. (1) In the course of official proceedings in the cause.
reasonable basis to believe is relevant to the not coon lllll arcade with or cause another to com- (2) In writing if he promptly delivers a copy of the
(11) That the accused denies the charges made municate with a juror concerning the ease.
case or dud will not be supported by admissible against hint. writing to opposing counsel or to the adverse
evidence' (C) DR 7-108 (A) and (B) do not prohibit • lawyer party if he is not represented by • lawyer.
(2) Ask any quesdon that he has no reareanable (D) During the selection of a jury or the trial of a crim- from communicating xi. veniremen or juror. In
inal matter, a lawyer or law firm associated with (3) Orally upon adequate notice to opposing coun-
basis to believe is revelant to the case and that the course of official proceedings. sel or to the adverse party if be le not rein.
is Intended to degrade a witness or other per- the prosecution or defense of a criminal matter thud (D) After discharge of the jury front further considera- seared by a lawyer.
sou.. not make or participate in making an extra-judidal tion of a case with which the lawyer was connected, (4) As otherwioe au thorized by law..
(3) Assert his personal knowledge of the facts In statement that a reasonable person would expect
issue, except when testifying as a witness. to be disseminated by means of public communi-
cation and that relate. to the trial, parties, or Bares NOTES
(4) Assert his personal opinion as to the justnes. I. "The right to be heard would be, ht many cases, of does not decide what is ltut In this he would be
of • cause, an to the credibility of a witness, as In the trial or other matters that are reasonably little avail if it did not oamprehend the right to be heard usurping he function of the judge and Jury—he acts for
to the culpability of a civil litigant, or as to likely to interfere with a fair trial, except That he by counsel Even the intelligent and educated layman has and seeks for his client that which he is entitled to under the
the guilt or innocence of an accused.° but he may quote from or refer without comment to Pub- small and sometimes no skill in the science of law." Powell law. He. an do no less and properly represent the client."
may argue, on his analysis of the evidence, far do records of the coon in the cam. Alabama, 287 U.S. 45, 68-69, 77 L. Ed. 155, 170, 53 S. Ct. ]bode, The Sakai Standard for she Advocate, 39 Tams
L. Ray, 575, 584 (1961).
any position or conchudon with respect to the
matters stated herein.
(d) After the completion of a trial or diffiarition with-
out trial of a criminal 'natter and prior to the tow ".6t11,9,121-e,.... 4.
"Al times. . . /the tax lawyer] will be wins to discard
•The gems public opinion) survey indicates that distrust
of the lawyer can be traced directly to certain factors. Fore-
(5) Fall to comply with known local customs of position of sentence, • lawyer or law firm associated some arguments and he should exercise <Inaction m ern- most of them Is a basic misunderstanding of the function
courtesy or practice of the bar or a particular with the prosecution or defense shall not make or plasim the argumeas which in his judgment are most likely of the lawyer as an advocate in an adversary system.
tribunal without giving to opposing counsel participate in matting an extrajudicial abatement M, he Persuasive. But this process involves legal Judgment "Lawyers are accused of taking advantage of 'loopholes'
timely notice of his intent not to comply.. that a reasonable person would expect to be dis- ra her than morn attitudes. The tax lawyer should put and 'technicalities' to win. Persons who make this charge
seminated by public communication and that is aside private disagreement. with Congressional and Treasury are unaware, or do not understand, that the lawyer is bard
(6) vt(6chPisIndeg‘ reasonably likely to affect the imposition of sen. policiee. His own notions of policy, and his personal view to win, and if be does not exercise every legitimate effort
rtfinrt6tO) 6
;1;itrar6666 66666° of what the law should be, are Irrelevant. The kb en- in his cson's behalf, then he is betrAyin. a sacred trust."
(7) Intentionally or habitually violate ary estab- fence.
trusted to him by his client is to use so his team. and Rochelle & Payne, The Straggle for Public Understanding,
lished rule of procedure or of evidence. (F) The foregoing provisions of DR 7-107 also apply to ability to protect his client's right., not to help in 25 Texas H.J. 109, 159 (1962).
DR 7-107 Trial Publiary.. professional disciplinary proceedings and juvenile process of promoting a better tax system. The tax IliWYCI "The importance of the attorney's undivided pec ker
disciplinary proceedings when pertinent and cow need not accept his client's economic and social opinion., and faithful service to one accused of crime, Irrespective of
(A) A lawyer parlicipadng In or associated with the In- silest with other law applicable to such proceed- but the client Is panne for technical attention and undivided Me attorney'. nervouslopinion as to the guilt of his client
vestigation of a criminal matter shall not make or Ing. concentration upon his attars. He Is equally M Iles In Canon 5 of the American Bar Association Canon of
participate In making au extrajudicial statement (C) A lawyer or law arm associated with a civil action Performance unfettered by his attorney's is and Ethics.
that a reasonable person would expect to be dig aociel predilections." Paul, The Lawyer as a Tao Adviser. The diMalty lies, of course, In ascertaining whether
se-minated by means of public communication and shall not during its investigation or litigation make 25 Roc. MT. L. Rev. 412, 418 (1953). thenttorney has been guilty of an MO! of judgment, such
that does more than stale without elaboration: or parddpate in making an extraindidail ardente.l, 3. See ABA CANONS 15 and 32. as an election with respect to trial tactics, or has othcrwne
divot
(1) Informadon contained ha a public record. other than a quotation from or reference is public ABA Canon 5, although only on of one accused been actuated by his conscience or belief that his
records, that a reasonable person would expect to of crime, imposes a similar obligation on the lawyer: "fTlhe are All Um frequently courth
(2) That the Investigation is in progress. lawyer is bound, by ail heir a honorable means, to Pre- are called upon to review actions of defense counsel which
(3) The general wept of the Invarigation Including be disseminated by means of public communicadon ent every defense that the law of the land permits, le the
and that relates to: re, et the most, errors of Judgment, not properly review-
a description of the offense and, If permitted by end that no person may be deprived of life or Sane, but able on habeas corpus unless the trial is a farce and a
(1) Evidence regarding the occurrence or trap.. by tine proems of law." mockery of Justice which requires the court to intervene....
law, the identity of the victim. don involved.
(4) A request for assistance io apprehending a sus- "Any persuasion or pressure on the advocate which detere But when defense counsel, in • truly adverse proceeding,
pect or assistance to other matters and the in (2) The character, credibility, or ortolan.' record of him trona planning and carrying out the litigation on Inc iglxIts
. that his conscience veld not spe=dInc,lo nedlcmt
• PwtY, witness, or prospective witness. basis of 'what, within the framework of the law, is best
formation necessary thereto. (3) The performance or results of any examinations for my client's interest?' interfere* with the obligation to realm ocflt7d.n.=:'" 0.
ancr".sttarY..t
(5) A warning to the public of any dangers. hitigests no Man'. of
or test. or the refine' or failure of a pary to represent the Client fully within the law. constitutional rights." Johns Smyth. 176 F. Snap. 949,
(B) A lawyer or law firm associated with the prosecu- This obligation, in its fullest sense, Is the heart of the 952 (E.D. Va. 1959), modified. United States ex rel Wilkins
tion or defense of a criminal matter shag not, from submit to such. adversary process. Each attorney, as an advocate, acts for v. Beatnik, 205 F. Sapp. 123. 128, 0. 5 (E.D. Pa. U.S.
the time of the filing of a complaint, information, or (4) His opinion as to the merits of the claims or de- and weeks that which to his judgment is best for his client, srd, 325 F. 2d 514 (3d Cir. 1963), cert. denied, 379 U.S.
indictment, the lesuance of an arrest warrant, or f.... of a 'mar, except as required by law or within the bounds authoritatively established. the advocate 147, 132 Ed. 24 51, 85 S. Ct. 67 (1960.
administrative rule.
30 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 31
"The adversary system In law administration bears a
oletting resemblance to the competitive economic system. ftg.o7;iliiiiir,;4;t0on of the LaInt Conference, 44 A.B.AJ. does sot serve merely as a legal conduit for his client's de- true sianifieco of parthrt ad icy hasdeeper, ftrx hinig
In each we assume that the individual through partisanship
or through self-imerest will strive mightily for his side, and 10. "[A] lawyer who b asked to advise his client . .
may freely urge the statement of onsitions most favorable
r,
h'alr:Wentrts cctraTtirli 1r 1r;4 in order the l'saCfnirtIt'f ough"gintf t=riP■
t 11'flh: her; rin8
that kind of striving wn moat have. Rot nelthe,
0;,„":701::,
` ry theory: a ppublio
See ,Ar11.
to the client just as long es there Is reasonable basss for
would be tolerable without restraints and modificalom,
and at times without outright depart.
onl.m
Node positions." ABA Opinion 314 ( 1965).
(en bowl trial of the facts land ohoary,. Each ntentrate c thv
. from the system
Muff. Since the legal profession is entrmted with the system
of law administration, a part of its task is to develop in its
fl• "The lawYer • • • is not an umpire, but an advocate.
He is under no duty to refrain from making every proper
19. ABA rwtaOtt 8.
6 Vital as is the lawyer's role In adjudication, It should not
hearing prepared to present his proofs and argoments, know-
ing at Me same time that his mammon may foil to Minna.
that
members oppropriate restraints without impairing the values argument in support of any legal point because he is not be thought that it is only as an advocate pleading in open deciding tribmal, on the other harsh, comes to the hearing
convinced of its inherent soundness.... His personal be- coon that he contributes to the administration of the law.
of partisan striving. An accompanying task Is to aid in the
modification of the adversary System or departure from it in lief in the soundness of his cause or of the authorities suP- The most effective realintion of the law's aims often takes
uncommitted. It has not represented to the public that
any fact can be proved, thut my argument is sontid, or that
Lawyer., Role and Surroundings,
areas to which the system is unsuited." Cheatham, The ' Votriitsel"aiprP'arl eZ.; ."mislflgVirt
place in the attorney's otliss, where litigation is forestalled
by anticipating Its outcome. where the lawyer.a quIct couo- ler ■s.l'i."'It;;es0s=„il' rsp.,,TV-
405, 410 (1953).
25 Roc., Mg. L. Rev.
4. "Rule 4.15 prohibits, in the pursuit of a client's cause,
"
most favorable to his client. lostead he presumed to advise
I?'Was his
duty to honorably present his client's contention. In the light 1 takes the place of public force. Contrary to
ballet, the compliance with the law thus brought both s
is bilityt Report of the Joint Conference,
Xecgetp
1160-61
hrres=
(1958).
44 A.B.A.J. 1159,
'any manner of fraud or chicane': Rule 4.22 reqoires 'candor the court as to the validity and auffimency of prisoner's 1101 generally 11p-serving and narrow, for by teminding him 34.Cf. ABA CANONS 15 and 32.
motion, by letter. We therefore conclude that prisoner had of its long-run costs the lawyer often deters his client from 35.CI. ABA CAN."21.
Conference,Professional Responsibility: Report of the Joint
and fairness' in the conduct of the lawyer, and forbids the no effective assistance of counsel and remand this rase to a course of conduct technically perntissible under existing
2a s maintain tee g ,P tee that the District Court with instructions to set aside the ludo-
Profenional
36. See
44 Remonsibibni Report of the Joint
FAV.:Lkuralway law, though inconsistent with Its underlying spirit and mu-. 44 A.B.A.). 1159, 1216 (1958).
forbids all misconduct injurious to the interesta of the
public, the courts, or his clients, and acts contrary to los-
:
y.'
ekes 7.P.
P'gbrecrieol the'::to
', rPor"'
ee'd"a nheẁ d 'Anc .1'
United States, 343 P. 24 471, 472 (9thCir. 1965). 24 Conference,
Pose."
A.B.A.J. 1159, 1161 (1958).
20. "Mysummation of hid. Sharswood's view of the
37. "We are of the opinion Mat the Biter In question was
Improper, and that In writing and sending It respondent was
guilty of unprnfessionol conduct. Mir count has heretofore
tice, honesty, modesty or good morals.' Our COmmissioner 12. "Here the courLappnted
has accurately paraphrased these ti Counsel had the ttanscript advocates duty to the diem is that he owes to the client expressed its disapproval of using Crean of criminal prose-
as follows: 'An at- but refused to proceed with the appeal because he found legal means in support of the client's
torney does not have the duty or to do MI and whatever he the duty to use ution as • means of forcing settlement of civil claim....
can that may enable him to win his client's cause or to so mertt In it.. • . We cannot say that there was find- case. However, at the same time Judge Sharswood recog- "Rmpondent h. been guilty of a violation of a principle
ing of frivolity by either of the California courts or that nized that many advocates would find this obligation un-
further Iris client's Interest. His duty and efforts in these
respects, although they should be prOmpted by his "entire
devotion" to the Interest of his client, must he within .d
curiae
counsel acted In any greater camcity than merely as
which was condemned in Elite. supra. ...inn
Hence Cali-
beanble if applicable without exception. Therefore. the
individual lawyer is given the choice of reptesentIng his
which condemns any confusion of threats of criminal prose-
cution with the enforcement of civil claims. For this mis-
not without the bounds of the law.'" In re Wines, 370 fornia's procedure did not furnish petitioner withcounsel
acting in the role of an advocate nor Ad client that he cannot do so. or of telling his
client fully within the bounds set by the law
conduct he should be severely censured." Matter of Gel-
man, 230 App. Div. 524, 527, N. Y. S. 416, 419 (1930).
See
S. W. 24 328. 337 (Mo. 1963).
Note, 38 TEXAS L. ant. 107, 110 (1959). full .nsideration and resolution of the matter
tained when counsel is acting In that capacity..
provide that
is ob-
dard for the Advocate, The Ethical Stan-
so that theclient may obtain
another attorney if he wishes." Mode,
39 Togas L. REv. 575, 582 (1961).
his
38. "An attorney has the duly to protect die Interests of
Glenn. He has • rightto press legitimate argument and
SeCODE
3. "Under our system of government the process of ad- The constitutional requirement of substantial equality and to protest an erroneous ruling." Gallagher v. Municipal
if.
judication is surrounded by safegmrds evolved from cm- fair process can only be attained where counsel acts in the e OF PROFESSIONAL RESPONSINILIT, DR 2-110 (C). Court, 31 Cal. 2d 784, 796, 192 P.2d 905, 913 (1948).
fre-
I.. The Ethical Standard for the Advocate,
turies of experience. These safeguards are not designed ABA CANON 24. "There must be prOteCtion, In the for nuke
role of an active advocate in behalf of his client, as op-
merely to lend formMty and decorum to the dial of causes. Potted to that of anacus curiae. The
22. Thode, 39 quent case of the attorney who stands on Ids righIS and
They are predicated on the assumption that to secure fur
:11:1:" : "Tacut =71
ff,:;,fg."1,1 2̀,f'tr,thdollon
no-metieletter and
nuott =Ih v!i'Nl'ouli'en•trfficthe
the
"'scVf
23.
INNAS
24.Cl.
See ABA Opinions
Roy. 575, 592 (MO.
253 (1946) and 178 (1978)•
ABA CANON 5 and Berger v. United States, 293
combats the order In good faith and without disrespect be-
lieving with good cause that k is void, for It Is here that
the independence of Me bur becomes valuable." Note, 79
°, IV° AlttT"`,:t more assistance to his cheat and to the court. His role as U.S. 18, 79 I.. Ed. 1514, 55 S. Ct. 629 (1975). COMM. L. Rev. 473, 438 (1939).
` daVog'01,-111.:1
g 1 .1 rf tho
.f bliTeri■nrZ4led- best of fib:Vag, dkA; n:uriteP,'■ 101:4;.C
.The public prosecutor cannot take as a guide for the 39. "Too many do not miderstand that accomplishment
mcnts that have free play outside the courtroom. .P27. conduct of his office the standards of an attorney Mikado,
this goes for naught if the man with an unpopular
AU of
cause wholly frivolous, after a conscientious examination of it,
he should so advise the court .d request permission to
on behalf of an individual client. The frmdom elsewhere
of the layman abstract ideas of justice is the function of
the jllOs¢ and Cary. and that it is the lawyer's sworn duty to
is unable to find a competent lawyer courageous enough to
represent him. His chance to have his day in court to
much of Its meaning if his case is handicapped from the one
withdraw. That request must, however, be accompanied by
a brief referring to anything in the record that :night argu-
w; dry
ailedril'IL",,Tos'eLVP:nd:■rtng"brp=1;
charged. The public prosecutor must recall that he occupies
Rochelle and Vi= AnStrii
25 TES. B.f. 109, 159 (1962).
a
!' gt,lorgblr frail
: 1
7-.41.1;n;
set by the mry kind of prejudgment our rules of evidence ably support the appeal. A copy of counsel's brief should dual role, being obligated, on the one hand, to furnish 40. "We are of the opinion that this Canon requite. the
and procedure are Intended to panne... Professional Rai be furnished the indigent and lime allowed him to raise that advermry element essential to the informed decision of
spans/hill°, Repon of the Joint Conference.
1159, 1216 (1958). 44 A.B.A.I.
any poInts that he chooses; the court-not counsel--then
proceeds, after a full examination of all the proceedings. to
any controversy, but being possesmd, on the other, of in'.
Portant governmental po.rs that are pledged to the ac-
lawyer to disclose such decisions 'Ma) ate adverse lo
doing's contentions] to the court. He OHO, of cows. eft.
his
decide whether the case Is wholly frivolous. If it so finds doing wechallenge the soundness of the dechion9 or present
6. "DR Is complishment of one objective only, that of impartial justice. reasons which In believes would warrant the court in not
. "the tax lawyer's] positive duty to show
the client how to avail himself to the full of what the law
it may grant counsel's request to withdraw and dismiss the
appeal insofar ati federal requirements are concerned, or
Where Me prosecutor is recreant to the trust Implicit In his
Rice,he undetmines confidence, not only in his profession,
=rt. MOM in the pending case." ABA Opinion 196
permits. Henot
science." Paul,
is the keeper of the Congressional con-
The Lawyer os a Tax Adviser
Mr. L. Ray. 412, 418 (1951). , 25 Rocky
proceed to a decision on the merits, If state law so requires.
On the other hand, if it findsany of the kind points fessional Responsibility.'
but in government and the very Ideal of justice itself."
Report ai
Pro- Standard
Joie CaNie,,N,,, 44
Cf 1ABAforOpinion
the Advocate, 280 (190) and Mode, The Ethical
7.See ABA CatiOws 15 and 30.
8. "The fact that it desired to evade the law, as it is
arguable on their merits (and therefore not frivolous) it
mart, prior to &dojo., afford the indigent the assistance of
A.B.A.7. 1159, 1218 (1958).
"The prosecuting attorney is the attorney for the est.e, 41.See
(1961).
ABA CANON 15.
39 TEXAS L. REV. 575, 5115-86
U.S.11.!°-4. The traditional duty of an advocate is that he honorably
called, Is immaterial, because the very meaning of a line
in the law is that you intentionally mar go m rtme M 1400 (1967), rehearing dented,
".,'
1; 1.17.17,14;,,141,`77
388 U.S. 924. 18 L. Ed. 24
091.96-
2 Vgne..1V"Igald'4iag r507. 9176').hot " ‘"'
5, As to appearances before a department of guveru-
uphold the contentions of his client. He should not voitio.
as YOu can if cote do not pass . . It is a mailer of 1377, 57 S. Ct. 2094 (1967).
See Paul, The 1 Tax Adviser, meet, Canon 26 provides: "A lawyer openly . . may 373 F.See
tartly undermine them." Holders v. State of California,
42. 2d839, 842 (9th Cir. 1967).
See1
proximity and degree as to which minds will differ . ." 1110737 Asa 25 Rocas, Mr. render professional services . . In advocacy of claim.
13. See cf.
Justice Holmes. In Superior Oil Co. a. Mississippi. 280 U.S. 4 2. 432 ABA Canon 22.
before departments of government , upon the same prioctffi. 43. Id.; ABA Cono“ 41.
390, 395-96, 74 L. Ed 504, 508, 50 S. Ct. 169, 170 (1930).
9. "Today's lawyers perform two distinct types of
tions, and our ethical standards Mould, but in the main do
func- c egged in
ABA CANON 32.
14. "For • lawyer to represent a syndicate notoriously
of ethics which justify his appearance before the Court,
. . . . 44. generally ABA Opinion 287 (1953) as to a law-
Yees duty when he unknowingly participates in introducing
not, recognize these two functions. tudge Philbrick 26. "But asan advocate before a service which itself perjured Intim.,
c10
' st.he"lk„ w
the.41"11°17,eota"- represents the adversary point of view, where his client's
gn"'" 7„=',VILA
,..̀ TZ;t: rnsenr,11::cne end
distinct function of counselor, as distinguished from ad-
area see
link escape it, Is manifestly
to it that anyone accused of crime, while law., may
no matter how
serious and flagrant, has a fair trial, and present all avail-
cam is fairly arguable, a lawyer is under no duty to disclose
Its weakneses, any more khan he would be to make such
disclosure to a brother lawyer. The limitations within

45. "Under any standard of mopes ethical conduct an


attorney should not sit by silently and permit his client to
commit what miss hem been pedury, and which certainly
vocate, which today predominatee in the legal professMn. able defenses, he may not co-operate which hemust operate are best expressed in Canon 22 would mislead the court and the opposing Porta no a matter
". . . In the first place, any revision of the canons must
of the law. There is a sharp distinction, of planning Yllffetioss
course, between
advising what can lawfully be done and advising how un
ABA Opinion
O . 314 (1965).
vital to the issue under comideration....
take Into account and speak to this new and now pre-
domin.t function of the lawyer. . . Is beyond the
lawful acts can be done in a wily to scold rnnviction.
Where a be accepts a retainer from an organisstion,
See
27. See Baird Koerner, 279 F. 2d 623 (9th Cir. 1960).
28. ABA CANON 26.
29. "Lew should be so rem
"Respondent next urges that it was his duty to observe
the utmost rod faith toward his client, and therefore he
scope of this paper to discues the ethical standards to be known to be unlawful, and agree. in advance to defend its could not divulae any confidential information. This duty
'mothers when from time to time they am ..used of crime free to make up ht,owa nil he will 'foto_ what to the client of course
applkd to the counselor except to state that in my opinion does not extend to the poi. of
arising out of Its unlawful activities, this is equally ink authorising collabotatiOn with him in the commission of
for
such standards should require a greater recognition and ft=ly hLe WW111"Zreae.ntt OnrC! tred pthht
See Opinion
Protection bawl." In re Carroll, 244 S. W. 2d 474, 474-75 (Ky. 1951).
the interest of the public generally
presently expressed in the canons. Also, the counselorkt
than
obligation shouldextend to requiring him to inform and to
Is • "S. also
15. ABA Opinion
155." 281 (1952).
ABA Special Committee on Minimum Standards
Profession that it admits of tile freedom.
rs Distinguished
examples can he cited of Boyers whose views were M See
46. ABA CANON 5;
47.Cf. ABA CANON 39.
ABA Opinion 131 (1935).
Impress upon the client a just solution of th e problem. con- lating to Pleat of Guilty Standards Re-
for the Administration of Criminal Justice,
pp. 69.70 (1968).
variance from those of their olio., lawyers whoee skill and
wisdom make them valued advisers to those who had little
sympathy with
48. "The prevalence of perjury is a serious menace to the
administration of justice, to prevent which no means have
'rej j'a i e!nri= ,ThIC:5R,`,W14,477:
= 16. "Pi:at of all, a truly great lawyer Is • wise
"The man who has been called into court to answer for to all roamer of men In the varied crises of their Hoesnn for
when
as yet been satisfactorily amused. B. there certainly ca
1159. 1217 (19).58 be no greater Incentive to Perim, than
his own actions is entitled to fair hearing. Partisan ad- they most need disinterested advice. Effective counseling
necessarily involves a thoroughgoing knowledge of the "No doubt some tax lawyers feel constrained to abstain make payments to its opponents witneases under anyP. D. ,.
gimme
vocacy plays its essential part In such a h.ring, and the from activities on behalf of a better tax system bemuse the, on any excuse, and at least attorneys who are offirnss of
PtInciples of the law not merely as they appeal in the books
but as they actually operate In action.' Vanderbilt, The
lawyer pleading his client's case maY Moped), present it Think that their clients may object. Clients have no right the court to aid it In the administration of justice, must
the
in the most favorable light. A similar resolution of doubts
In one direction becomes inappropriate when the lawyer Five Functions
Public. 40 of the Lawyer: Service to Clients and the
A.B.3. 31 (19541.
to object if the tax adviser handller their affairs comPeteetlY
and faithfully and independently of his private vkws as to
keep themeelve, clear of am connection which in the
slightest degree lends to Induce witnesses to testify in favor
acts as counselor. The reasons that jusdfy and even re- 17. "A lawyer should endeavor to obtain full knowledge of their clients." In re Robinson, 151 App. Div. 589, 600,
quire partisan advocacy In the trial of s cause do not grant
awyer as a
of his client's cause before advising thereon. . .." ABA ta4,1,71%., b;!
o :% :Z7c,"o".:a11.1 ',
" ‘t,:iy":
,' LrthPed= 136 N. Y. S. 548, 55657 (1912), ord. 209 N. Y. 354, 103
any license to the lawyer to participate as legal advisor in a CANON 8. he interest." Paul'
, The l 25 ROCKT
Tao Adviser, N. E. 160 (1913).
line of conduct that is Immoral, unfair, or of doubtful MT. L. Rev. 412. 434 (1953).
legality. In analog himself from this unworillY inrnlvenknt, 18. 011)0 devising charters of collaborative effort the law-
yer often acts where all of the affected parties me Present 30.
31.See ABA CANON 9.
14.
49. "It will not do for an attorney who Becks to justify
himself against charges of this kind to show that he has
the lawyer cannot be guided solely by an unreflective Inner
sense of good faith; he must be at mina to preserve a
sufficient detachment from his client's Interests so that he
as participants. But the lawyer also perform. a similar
function in situations where this is not so, a, for example, IL See Professional Responsibility: Report of the 10101
Conference, 44 A.B.A.J. 1159, (160 (1958).
escaped criminal reSpOnsibillty under the Penal La, nor
can he blindly shut his eyes to a system which tends to
suborn witnesses, to produce ',mimed testimony, and to sup-
remains capable of In ntates and droning wills. Here the instrument 31. "Without the participation of sornssme who ran act
and and objective appraisal of the ed the truth. He has an octive affirmative duty to Pre.
OMpriety of what bls client proposes to do." Prolessional fin n the terms of collaboration may affect persona not
pacmot and often not horn. Yet here, too, the good lawyer
responsibly for each of the Portia,, Ibis essential narrowing
of the issues NV exchange of vrtilten Pleading. 01 atith1116
p
:itrgs?,r,:rg tit; fs.".451r.ra,firnt‘
lions of counsel] becomes impossible. But here
55510 the
sod gin't
and assistants to attempt to subvert justim and procure
32 AMERICAN BAR ASSOCIATION
results for his clients based upon false testimony 594 N.andY.per-
CODE OF PROFESSIONAL RESPONSIBILITY
S.States. 360 1173 U.S. 310, 312,13, 3 L. Ed. 20 1250, 1252, 79 33
atjured
351.witnesses." Id., 151 App. Div. at 116 S. Ct. 1171, (1959). permits, without giving 25. timely notice to the opposing ..-
"(INABAunfair to jurors 23. to permit a disappointed lifi- lic"Theopinion eXperienced
is a tremendoustrial lawYer
granddisadvantage
knows that toan adverse pub- .E. ABA
this85.Disdplinary
The provisions
51. RuleofIncorporate
Sections (A), 03), (C), and (D) of
50. See CANON CANON
tihisonsclient. Although jurors conduct their detiher. • The test In every case should be: the decision
the defense of
ent to pick over their private associations in tho fair trial-free presa
Andsearch of
totheyknow
arc .1ccled thefromgeneralthe body
publictoof kthePublic which apple
g
something
be unfair totothe discredit
public themtoo and their verdict. it would Th. arscarslikely whatTrials (nowsub.. a. thotd wt=17 gTriT:er h'ins ■'Ircrildwint hc0wwe
DAttkh
Is
which the
House to lawyers
House of Delegates, Feb. 19, 1968, upon the reconunenda-
as adopted by the ABA
IInquirycannot of thatconvict kiniS byapaid manifinvestigators.
jurors
of means should understand
without torisking
that
an to relied
and aroused Me public
public attitude.
opinion respectinare g theopen reasonabl lame sjuinproposi
aswas(inlacking dge properl feel that a lawyer who advanced,
tion yadverse totothehim?undisMight
closedthedecijusidge
on. tion
ofthe theof the
ABA Fan
SpecialTrial and Press Advisory Committee
merits of a legal, ofCommittee on Minimum Standards
Free
boot, the controversy candor
diatortions vocalcreates a court inroom atmosphere of thewhich,petit with- misledendby fair.. Administration Criminal Jubilee.
nquiry for
42 N.anJ. 9/,inquiry of that
A. 2c1kind630,can636Pr...." (1964).State 9.
with
LaFera, 107, 199 out
makes anyitself feltexpression
and has the presence
effect up. the action jury, tconsider himself
he itmr).kocer of no adverse authority?"
an implied Al that alOMlCf.
TrEN ABAow Fs.Can. TRIAL20;ANDFa.FREE Pass, ABA ADVISORhRaLAT. Cost-
courts today, and the3f9trend (1968) Points out that petit jury. Our fundamental of the see generally
STANDARDS
allow"[mi., concepts of TO FAIR
Its
52. ABA Opinion
is in this direction, the American sense of fair play Nati j(and our 80. "Theasauthorities
ABA Opinion
the casesAND coming Mre we(1966).
withrequire that the petit the substantially uniform against any "From TRIALT
testimony of jurors as to all irregularities In and oat of the be composed of persons
ce
11, shal
andl privilege applied to are
. Peels
note that unfair and
courtroom except onlythose irregularities thewhose .existence ofcan without andpreconceived views asfairtotheand impartial
theissues of minds
meritspresented the contr.. fact of retainer
tics. TM privilege Is limited to confidential communica-
or Identity of the prejudicial
Increasi n gly news comment
prevalent. Due on pending
process trials
requires has become
that Ow a.
be
singledetermined
Aidparticular juror, byNewexploring
ModelJersey CodeAofKociolek,
consciourness 92,a vers. that it shall determine to It tions, and a retainer is not a confidentialwithout conimunication, nosed receive a trial by an impartial u
j ry free from outside
118 812 (1955). Evidence20Rule N. J.301. r‘i'VhWe tingtowgfIrietljewttinroP7hril'ilar dj udw'w.wrdThW although
munication it cannot
betw come Into existence
een tt,effi:norstitearessTd gm-al.
son.
thadatcom-
,a7g.e influences.
tions and the Chen the
diffi.Ity ofpervasive..
effacing of modern communica-
Certainly
Jurors as to states in which the testimony and affidavitsforof
may received in support of or against a motion "Whilesway we`orMay biasdoubt Mal the effect
of theoftrial public theeasur.
minds of the jurors,
thethe trialprejudicial
courts
Is nevermust
publicity from
take against
strong
new trial, a he
lawyer, in his obligation to protect his client, eqwould way the judgment judge inupon an 602, 65 S. Ct.194, 86 09442. 323 U.5.75.2,8 89 r. Ed. 21 to ensure that balance weighed
to uityrun proceeding. antheindependent
accu.d.
cert. denied,
must
fur a have
new the
trial tools
existforandascertaining
it is not unethical whether or not
for himgrounds
to talk made that riskdifficult
more andthethedefendant
trial court should
shouldnot notbehave calledhis work -To be
Identification sure, ofthere May he circumstances under
mar amount to the prejudicial dis-
which And appellate
is nmhing evaluation
tribune have
of thethecircumstances.
ls the duty Ofto emu.,
make
that wouldbybeanycalculated a client that prescrib. press from reporting
abs
to and question dissemination of ammo. to
Jut..."
. CosoalTree Rata the public
mand to create a public de- cloeureofofaadisclosure
stance confidential hascommunication, as wherebutthenotsub- •events
there
that transpire in the courtroom. But where there is
Fees Puss, case." for a particular judgment In a prospective or pending already been revealed Its willreasonable
prevent alikelihoodfair trial, that the prejud icial neva prior to trial
53. Generally we ABA
ma"ITIhe
TRIAL AND
Fa. trialPuss 1966).
on
STANDARDS RELATING TO Foss TRJAL
Estes
ABA Opinion
v. State of199 (1940). sour Colton v. United
Cir. 1962). States, 306 F. 2d 633, 637 (.1 until the threat abates, judge should connaue the case
381 U.S. 532, 34445, 144dr-L. or transfer it to another county not
bycourt might
lawyer,wellparty, have proscribedor court extrajudicial ABA 22, ABA 17.
Cl.
statements any Ed.
illed,2d 543, 551. 85 S. Ct. 1628, 163486(1965),
Trans.
so permeated with publicity.... thatThe
willcourts
protectmust theirtake such
matterswitness, .... See State v.official The ruts allowing counsel when ...sing
latitude In discussing the evidence and presentijunryg the
81. See CANON
which divulged prejudicial Van 381 U.S. 875. 15 L. Ed. 2d 118, S. 18 (1965).
rehearing
widest
el. CANON
the from by rule and regulation
from prejudicial outside interferences. Neither prosecutors,
CanonABA3forobserves
protests
Dwyne,
which the43court N. J. 369, 389, 204 A.2d 20 of841,the852 1964), 20.that Cl.
BarIn bydieWs theories falls far short of authorifing tneetatement counsel for defense, the accu.d, wit
56. Sc.
Association' s interpreted
Canvas Canon American 57.
denunciation
CANON
any device ora orlawyer
attempt "deserves rebuke and counsel of matter aot in evidence, or Indulgingin argu- enforcement officers coming under the ju risdiction
co staff nor
of the
Natements. Being of
advised Professional
of
ofthethegreat
Ethics
public to prohibit
Interest insuch
the special personal consideration favor."to gain from a Judge ment ses.o,founded
111,ehr on so prooL or
Act:.ttleznt,, demanding verdicts
tf trh.euggle,t,; al ispur-
" fun sue court
laboration should be ', ermined to frustrate its function. Col-
case, the mass
prejudicial coverage press, and
couldthealso potential See ABA 32. M ,,
t
affecting thebetween
fairness counsel and
of • criminal the press
trial is asnotworthy
toonly
information
subj ect
01 ds-
theimpact
CANON
requested of publicity,
appropriate city andtheconey courtofficials to promul-have A judgeorshould
58. "Judicial Canon 32
not accept provides: The rule condi. w'counser argument"ingt to unary meal Is highly cemurable and
based on etiquette, but on justice. Its violation is not ciplinary measures."
gate a regulation with respect to dIsseminallOn of informa- litigants, from lawyers practicin
any
g beforeor him favorsr from from merel y ofoversteppi n a of the bounds of Sheppard v. Maxwell, 384 U.S. 333,
tion
porters beenwhowarned
shoal the case
wrote by their employees. In addition, re. others whose
Judgmen t. interests are likely to be submitted to for yiolation an
athepartyev s)dence.
rights. Room mustpropriety,
deterunnebut thea 362-63. 16 A . Ed. 2d 600,620, 86 S. Cl. 1507, 1522 (1966).
ABA beC..unethical
23. for a lawyer to harass, entice,
asortobroa.ast prejudicial stories, could Issues doupon Counsel' s address shouldCreek
help 87. "[fitor would
The 86. See
imve impropriety ofInpublishing ma- Th e l a nguag e of this Carton is perhaps, broad enough to them this, not tend& Cas.
terial not introduced
right gitovenina added
the
trialproceedings.... this manner, to cad Co.,them207astray.'
App. DivCherry Induce exert influence on at juror to obtain his testimoff.''
MC
Sheppard' rh:h2. i Nat.
20282.Bank v. Fidelity . 787, 790-91 ABA319 (1968).
d haves been free from outside interference l rftTxtug,',Ctifzi r precllcing before
V. S. 611, 614 (1924). CANON
, ABA See
woulcurtailment 5.5. of the Stale Bar shall not advise
It
protection without or
hr"
force ofcc?rsi wtrgrr CI. ABA Cation 18.
N.
"Rule ABA CANoN
88. See
%tot,. news,media.. Had rneludge, the other thandowhen
stances
ens think
over the candidate
which is obligated,
control.thatbyto which cis hould 16068. • .. It is the duty of an attorney: 89. Cf.
A ntember
ofhewhich
has no conduct cam- 15... . •
jZiwce'fiwwith istrtitewneWS
the task wioftIddiehw„Xtlin.V::,° .=17,; in pain..
i;. titAthe ti413.expense exceeds
content reporting thefromcaseextrajudicial
as it unfolded be expected to personally beast" ABAheshould vance noTo Met
"( f abstainprejudicialall tooffensive
from
the honor personality, and toofad-a
yr reputation himself, al
ordotherwise to make his testimony gcgT.d''s21V'n
the courtroom-not
ments." Sheppard v.pieced Maxwell, together 384 U.S. 333, 361-62,state- 16 L. ABA CANONSlft.I1and and 32.
Opinion
CAL. BuSINESS AND PROVESSIoNS Co. 86076unavailable."
(West 1962).
moss ZiCoon i‘ch"hwe' c=gewd,'"Ii.
isw0(West 1962).at17. 'Irdiwasrr4Tsilent
lathAtwo'rTsw- ln
party
Ed. 2d 600, 619-20, 86 S. 59. See
9ff re O' K eefe, 49 Mont. 369, 142 638 (1910).
areCt.held1507, for1521-22 (1966). §6068
with See P.
"Court proceedings the solemn purpo. of
60. Cl.
ABA CANON
17, 3. "'The record in the case of the deceased. isconcerning
91.
endeavoring 61. See
ABA mSember of the State Bar shalwithl not,orIn
of a fair trial.tocareful ascertain the truth which is CANONS
Over the centuries the 62. See
ABA 24. Me qualities
131.
a character bar
especiathel y the absence
4a1
Aehlt
of opposina counsel, command..
byAnglo-AmerIcan
CANON
have
slue qua non
63.
ABA Canon improper, Innd
addressing the jury in • murder ft
cam, argue a judge or judtcial officer except M open court
protectdevised
See
safeguards rule andhigh otherwisef.ction.to
is CANow
25. prosecuti
the goodInnthe g oftobearing
themake reference hisMere
knowledge
la no .evi-Aof upon the merits ofofliCer,
a contested matter
foe
he.pending
without .fore such
/0
and facilitate the performance of this
64. See
ABA 21. deceased
qualities unonohiWhere or judicial
limey In
65.
ABA nor shall
Asa result, at this time Mo. safeguards do not permit the
ABA Canon
See
Canons15.5 and 15; cf, ABA
CANON
and photographing of a criminal trial. save In two 3,67.
66. See
4 and dence
Presecutor recordnever
should m in hiss CharaCter.
argument evi.dence
Judge
opposing, counsel with a copy thereof,
furnishing
of address • written
Stat. and there only under restrictions. The federal courts
See
CANONS
not introduced at the trial." People v. Dukes, 12111. 2d 334,
M el Pane met-Or
communmation to a judge or Judicial
State
prohibit o WeIt by specific rule. This is weighty evidence that 68. ABA 24. 4!, 146 N. E. 21 14, (7-18 (1957).
concerning the
tem" CAL.officer.
merits woe nth
our 69, ThisAND rule PRODESSIONs
shall not applyCoon
contested matter pending before such Judge
genre.concepts haveofalof•wfair triald that ABA
Cf.
tolerate such an 1.01- CANON
30. 3
lice84.of"AthelawyerBar orshould not ignoreCourt,koownevencustoms
when ortheprac- BUSINESS
Judicial
the preservation ays
a fairheltrial-the
dal
the1most
atmosphere
fundamental essenti ofalallto 70.See
Cf. ABA CANO
22et.andHinds 29. of a particular law 16076 (West
87, 92-93.ABA
CANONS
134,41137 (1941)iv. State Bar. 19ov.h.
1962).
T ema-most be maintained al an costs." Estes v. State 119 Cal. 2d
andP.M
71. See CANON
ffiof2Texas,
Ed. 8,2d1631-32 381 U.S. 532, 540, 14 L. Ed. 2d 393, 549. 83 S. ClL..
118, M 1(063), S. Cl. 18 (1965).
rehearing dotted, 382 U.S. 873, 15 287 (1953) Texas Canon 38.
rEsSiON. RERADNSMILIV, DR 4-10I(C)(2). Coon op MO-
hut eee ABA
.4Iro see CANON 8
Piecision Mfg. Co. v. Automotive M.M. Co.,
Inst.
a34.criminal
"Pretrial Min crea. a major problem for the defendant 324 U.S. 806,
72. See
inpublicity
opinionatasduring
case.
the orIndeed, for ititmay
trialinnocence. may be more harmful than ABA89 L. Ed.5.1381, 65 S. Ct. 993 (19431. A Lawyer Should Assist in
.well set the
trialcommunity
73. Cl. CANON
Pre.nt thetohearing.
undoubtedly
guilt
madedasashwell
. . The
wa as the original jury panel,
tt the peculiar
witnesses
pub. im. e'sent
74."Role
urjrcCr
12. . .
gmr=rnbr,=:d.;11',
A member of the Stale Bar shall not
r,gmli arcworia-
Improving the Legal System
nose
rmanee of Me ca. by the Press
nelng Provided, the fact that theytelthemselves
andtheirby pictures e vi s i o n coverage munications of such counsel. This rule shall
with a public officer, board, not apply
committee to com-
televised
und
were or ETHICAL CONSIDERATIONS
show."
Cl. at 1629-30.
M..Rye381andU.S. at 336-37, 14rebroadcast L. Ed. 2d aton596-47,85
the evening S. 1962). ABA Cm. 9; Peorffisstons Cam 86076 (West
body." CAL. BUMF. AND EC 8-1 Changes in human Ones and imperfections EC 34 The fair administration of justice re ones the
0934), 95 (19331, and 73 (1932); o 179
in human institutions make necessary constant efforts to
In re(19Schwabe,
)41. 108
availability of competent lawyers. Members of the pub-
55. "The tusilevIating rule of this Court was expressed byv. 242
75. See el. ABA Opinion, maintain and improve our legal system.' This system lic should be educated to recogniu the existence of legal
Justice Holmes over half a century ago in Patterson "ltOr.is dear
169 , 174-75, 408 P.2d 922. 924 (1965).
alt see should function in a manner that commands public re- problems and the resultant need for legal services, and
Colorado,
Mn.
205 U.S. 434, 462 is(1907): isfrom
to betheconstrued opinions of does
this committee spect and fosters the use of legal remedies to achieve intelligent
aMatcommunication
should be provided methods for
The
reached theory in aofopen our system that theonlyconclusions toandbe Canon 9
with
earlier
an OPPosinD literally
party,.dwithout nottheallow redress of grievances. By reason of education and ex-
selection of
counsel. Those persons unable to pay for legal services
andinduced by evidence con- perience, lawyers are especially qualified to recognize should be provided needed services. Clients and lawyers
argument
whetherv.ofInMaxwell, privatecourt,
case will be
talk not by any outside influence, ■! thlars-b,Zout 111, P9J,Ww/r5,.wcw4rt hCV/7a1VM
Ito'(7938). deficiencies in the legal system and to initiate corrective
384or public print."
should not be penalized by undue geographical sstrasttts
Sheppard
614. S. Ct. 1507, 1516 U.S. 333, 351, 16 L. Ed. 2d 600, measures therein. Thus they should participate in pro- upon representation in legal matters, and the bar should
a(1966). 102 (19 ) .• posing and supporting legislation and programs to im- address itself to improvements in limning, reciprocity,
issue"Thearticles trial judgeresulting
has large discretion 77. Cf. ABA 38 TamsBand
76. Cl. ABA Opinion
readingIn ruling on theof 58 (1931). prove the system,' without regard to the general inter.ta and admissMn procedures consistent with the needs of
preludice thefrom theGeneralisations by puors "In Note,
CANott
news concerning trial.... be- 79.
78. Cl.
thes decisions
brief summary L.
ABA Opinion
REV.
in 107,
the 108-09
1947 (1959).
edition
or desires of clients or former clients! modern commerce.
yond that statement are not profitable was thusoftosum- the EC 8-2 Rules of law are deficient if they are not just,
, because each case Committee' (p. 17), EC 3-4 Whenever a lawyer seeks legislative or admin-
must turn on its special
ion offacts. We havewhich herethethetrial exposure marized: lawyerto should
understandable, and responsive to the needs of society,
his client'disclose
Opinion 146
s case thattheis
istmtive changes, he should identify the capacity in which
of jurors
ruled wastosoinformat prejudicial a character
it could not be directly offeredjudge as court a decision directly adverse
°Nato.: I46-A If a lawyer believ. that the existence or absence of a
he appears, whether on behalf of himself, a diens, or the
unknOwn to his adversary. rule of law, substantive or procedural, causes or contrib-
utes to an unjust result, he should endeavor by lawful public.' A lawyer may advocate such changes on behalf
Vtraws. grIr as when TviTo`ncdo' cl".°41'11.11:`,TZ:Zig "Wc would 1. confine theof Opinion to 'controlling of a client even though he does not ageee with them.
news accounts case-but,authori-
means to obtain appropriate changes in the law. He
is is a part of the prosecution's tics.-1.9, those the simplification
thedecisive the pending But when a lawyer purports to act on behalf of the pub-
evidence. in ac-
'b.y.protective
may indeed should encourage
tempered be greaterMarshall
procedures... for it is v.then United not cordance
to a decision withdirectly testy hereafter suggested, would apply it
of laws and the re-
peal or amendment of laws that are outmoded! Like- lic, he should espouse only those changes which he con-
adverse to any proposition of law on nix, legal procedures should be improved whenever
experience indicates a change is needed.
scientiously believes to be in the public interest.
EC 3-5 Fraudulent, deceptive, or otherwise illegal con-
34 AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY 35
duct by a participant in a proceeding before a tribunal officials publicly,' he should be certain of the merit of
or legislative body is inconsistent with fair administra- 385 U.S. 449, 17 L. Ed. 2d 310, 87 S. Ct. municipality Is a party. Decisions made at such hearings
his complaint, use appropriate language, and avoid petty 61) al Blu,olwed, are usually subject to administrative by the courts
tion of justice, and it should never be participated in or
condoned by lawyers. Unless constrained by his obliga-
criticisms, for unrestrained and intemperate statements . 'Opinions 16, 30, 34, 77, 101 and 134 relate to Canon upon the record there made. It would be esinconsistent to say
tend to lessen public confidence in our legal system.. 6, and pass on questions concerning the prOltrt../. the 0- that a lawyer-member of a legislative body could not par-
tion to preserve the confidences and secrets of his client, Criticisms motivated by reasons other than a desire to duct of an attorney who is a public Office, in meresenOng ticipate In • hearing at which the record is made, but could
lawyer should reveal to appropriate authorities any private interests adverse to Mom of the public body which he appear thereafter when the muse is heard by the mums on
improve the legal system are not justified. represents. The principle applied In those opinions is that
knowledge he may have of such improper conduct. administrative review. This is subject to an important ex-
EC 11-7 Since lawyers are a vital part of the legal sys- an attorney holding public office should avoid all conduct ception. He should not appear as munsel where the mat-
EC 8-6 Judges and administrative officials having ad- which might lead the layman to mmiude that the attorney is
tem, they should be persons of integrity, of pr tensional ter Is subject to review by the legislative body of which he
judicatory powers ought to be persons of integrity, com- utilizing his public motion to farther his professional suc- is a member.... We are of Me opinion that where a lawyer
skill, and of dedication to the intprovetnent of the sys-
petence, and suitable temperament. Generally, lawyers cess or personal Interests." ABA Opinion 192 (19391. does so appear there would be conflict of its/crests beracen
tem. Thus a lawyer should aid in sstablishing, as well as "The neat question is wMther a lawyer-member of It Int.
ate qualified, by personal observation or investigation, enforcing, standards of conduct adequate to protect the his duty as an advocate for his client on the one hand and
to evaluate the qualifications of persons seeking or being WV. hod,' appear m counsel or co-counsel at hearings the obligation to his governmental unit on the other." In re
public by insuring that those who practice law are quali- before a zoning board of appeals, or similar tribunal, created Becker. 16 III. 2d 488. 494-95, 158 N. E. 2d 753, 756-57
considered for such public offices, and for this reason fied to do so. by the legislative group of which he h a member. We ore (1959).
they have a special respossibility to aid in the selection of the opinion that he MY PtteliCt before fact-finding of- C). ABA Opinions 186 11938), 136 (1935), 118 (1934).
of only those who are qualified! It is the duty of law- EC 8-8 Lawyers often serve as legislators or as holders ficers hearing bodies and conunimioners, since under our and T7 (1932).
yers to endeavor to prevent political considerations from of other public offices. This is highly desirable, as law- view he may appear as counsel in the mums where his 12. Cf. ABA Canons I and 2.
outweighing judicial fitness in the selection of judges. yers are uniquely qualified to make significant contribu-
Lawyers should protest earnestly against the appo tions to the improvement of the legal system. A lawyer
ment or election of those who are unsuited for the bench who is a public officer, whether full or part-time, should
and should strive to have elected' or appointed thereto not engage in activities in which his personal or profes-
only those who are willing to forego unisons, whether sional mterssts are or foreseeably may be in conflict with
his official duties."
CANON 9
of a business, political, or other nature that may inter-
fere with the free and fair consideration of questions
presented for adjudication. Adjudicatory officials, not
EC 8-9 The advancement of our legal system is of vital
importance in maintaining the rule of law and in facili-
A Lawyer Should Avoid
being wholly free to defend themselves, are entitled to
receive the support of the bar against unjust criticism..
tating orderly changes; therefore, lawyers should en-
courage, and should aid in making, needed changes and
Even the Appearance of
While a lawyer as a citizen has a right to criticise such improvements. Professional Impropriety
DISCIPLINARY RULES
DR 8-101 Action as a Public Official. when the lawyer knows or II Is obvious that
(A) A boiler who holds public office shall not: ETHICAL CONSIDERATIONS
the offer Is for the purpose of billuenelog his
(1) Use his public position to obtain, or attempt to action as a public official EC 9-1 Continuation of the American concept that we cent employment would give the appearance of ha-
obtains, aspecial advantage in legislative mat- are to be governed by niles of law requires that the promiely even if none exists.'
ters for himself or for a client under dream- DR 8-102 Statements Concerning Judges and Other
people have faith that justice can be obtained through EC Out Because the very essence of the legal system
Menem where he knows or it Is cantons that Adjudicatory Officers:. our legal system.. A lawyer should promote public
such action Is not in the public Interest. is to provide procedures by which matters can be pre-
(A) A lawyer shall not knowingly make false statements confidence in our system and in the legal profession..
(2) Use his public position to influence, or attempt mnted in an impartial manner so that they may be de-
of fact concerning the qualifications of a candidate cided solely upon the merits, any statement or sugges-
to lialluence, a tribunal kr act In favor of him- for dection or appointment to a judicial office. EC 9.2 Public confidence in law and lawyers may be
self or of a client. eroded by irresponsible or improper conduct of a law- tion by a lawyer that he can or would attempt to
(1) A lawyer shall ant knowingly make false accusa- yer. Onoccasion, ethical conduct of a lawyer may circumvent those procedures is detrimental to the legal
(3) Accept my thing of value front any person
tions agairat • judge or other adjudicotory officer. appear to laymen to be unethical. In order to avoid system and tends to undermine public confidence in iL
misunderstandings and hence to maintain confidence, a EC 9-5 Separation of the funds of a client from those
NOTES lawyer should fully and promptly inform his client of of his lawyer not only serves to protect the client but
1. 9.. [Another] task of the great lawyer is to do his em
s material developments in the matters being handled for aIsla avoids even the appearance of impropriety, and
BUSINESS AND Paragesmons Coos 16076
Port r;t1.;',nemd...,..,L As
dent Theodore Roosevelt aptly put It, 'Every man cars
6. See ABA CANON 2.
the client. While a lawyer should guard against other-
wise proper conduct that has a tendency to diminish
therefore commingling of such funds should be avoided.
EC 9-6 Every lawyer owes a solemn duty to uphold
•'L yens are better able than laymen M aPPratsc ate public confidence in the legal system or in the legal pro-
some of his time to the upbuilding of the profession to curately the qualifications of candidam for Judicial office. the integrity and honor of his profession; to encourage
which he belongs.' Indeed, this obligation is one of the fession, his duty to clients or to the public should never
It is proper that they should make thm appraisal known to respect for the law and for the courts and the judges
great things which distinguishes a sprofession from a buta- be subordinatemerely because the full discharge of his
nes. The soundness and the necesity of President Roose- Ito voters in a proper and dignified manner. A lawyer may thereof; to the Code of Professional Responsi-
with propriety endorse a candidate Inc judicial office and obligation may be misunderstood or may tend to subject
vell's admonition Insofar as it relates to the leml profession bility; to act as
asa member of a learned profession, one
seek like endorsement from her lawyers. But the lawyer him or the legal profession to criticism. When exglint
canmt be doubted. The advances in natural science and ethical guidance does not exist, a lawyer should deter- dedicated to public service; to cooperate with his
technology are so startling and the velocity of change in who endorses a judicial candidate or seeks that endorse-
me r froin other lawyers should be actuated by a sincere mine his conduct by acting in a manner that promotes brother lawyers in supporting the organized bar through
business and in social life is m great that the law Mang with be- the devoting of his time efforts, and financial support
the other social mime., and even human life itself, is in lief in the superior qualifications of the candidate for M- public confidence the integrity and efficiency of the
UM. service and not by personal Or selfish motives; and a as his professional standing and ability reassmably per-
legal system and the legal profession!
cg,ftnrilso,una tstizthov by gods f
The Fire Functions of the Lawyer: Service to Clients and

war lawyer should not use or attempt to use the power or prestige
of the Judicialoffice M secure such endorsement. On the EC 9.3 After a lawyer leaves judicial office or other
mit; no conduct himself so as to reflect credit on the
legal profession and to inspire the confidence, respect,
other hand, the lawyer whose endorsement is sought, he public employment, he should not accept employment
the Public, 40 A.B.AJ. 31, 31-32 (1954).
believe the candidate lacks she emential gratificationsif for connection with any matter in which he had sub-
and trust of his clients and of the public; and to strive
2. See ABA CANON 29; Cf. Cheatham, The Lowyee'r Role the offim or believes the opposing candidate is better quali- to avoid not only professional impropriety but also the
and Surronndinss. 25 Rocm Ms. L. Rm. 405, 406-07 (1953). fied, should have the courage and mood stamina stantial responsibility prior to his leaving, since to ac- appearance of impropriety.'
"The lawyer tempted by repose should recall the hmvy to mfuse
the request for endorsement.. .413A Opinion 189 (1938).
c
casts paid by his profession when needed legal reform had
be mcomplished through the initiative of public-spirited 7. "[Wje are of the opinion that, whenever a candidate
for judicial office merits the endorsement and support of DISCIPLINARY RULES
laymen. Where change must be thrust from without upon
an unwilling Bar, tM public's least flattering picture of the ■OVraceP r theh:sistVgefif 11'sopmsTtiren''sTaso DR 9-101 Avoiding Even the Appearance of Lops. firm must be deposited therein, but the par-
lawyer seems confirmed. The lawyer concerned or the n'i'lliabTeTn=" d! priety.• don belonging to the lawyer or law firm may
standing of his profession will, therefore, interest himself exceeds that which the candidate would be expected to bear
Personally.. ABA Opinion 226 (1941). (A) A lawyer shall not accept private employment in a be withdrawn when due unless the right Of the
actively ln the improvement of the law. In doing so he will 8. See A BA CANON I. matter upon the merits of which he acted In a lawyer or law firm to receive 11 Is disputed by
tole blip to maintain confidence in the Bar, but will 9. 'Citizens have a right under our constitutional system judicial capacity.'
have the satisfaction ot meeting a responsibility inhenng In the client, In which event the disputed poron ti
to criticizervdernmental officials and agencies. COM s are (B) A lawyer shall not accept primte employment In a shall not he withdrawn until the dispute Is
the nature of his calling." Professional Responsibility: Re- 1.
port of the Joint Conference, 44 A.13A.J. 1159, 1217 (1958)• loaner in which he had substantial remondffility finally resolved.
li!dSttela;''n'
tb j4lUrnif 'ii..c2T2t1E5'. (191 1Ti.'-
3. See Stayton. Coin Honore Officlion, 19 Tex. R.J. 765, wIdle he was a public employee! (B) A lawyer shall:
766 (1956); Professional Responsibility: Report of the Joint 11t. "[Elvery lawyer, worthy'of respect. realizes that pub-
lic mnfidence in our courts is the cornerstone of our overn- (C) A lawyer shall not stale or Imply that he k able to ()) Promptly notify a °Bent of the receipt of his
Conference, 44 A.BA.J. 1159, 1162 (1958); and Paul, The intimnce haproperly or upon irrelevant grounds
Lawyer as a Tax Adviser. 25 woman Mr. L. Rev. 412, 431-
mental structure, and will tefrain from unjmtified attack on funds, securities, or other ProPeribre•
the character of the judges, white teeottlizillp the any tribunal, legislative body,. or public officiaL
34 (1953). dump tei (2) Identify and label securities and properties of a
4. .There are few great figures In the history of the war denounce and expose a corrupt or dishonest fudge." Ken- DR 9-102 Preserving Identity of Funds and Property
l
it;c5k,y).State Bar Assn v. Lewis, 282 S. W. ad 321, 326 (Ky. client promptly upon receipt and place thefts In
Mu, have not concerned themselves with the reform and of a Client.. a safe deposit box or other place of safekeep-
11.°77:11h" '17.‘'1",; .

00
117 t7f,c•i'' "T"''Tolth`,ff- "We col he the last to deny that Mr. Meeker has the
right to uphold the honor of the profemion and to expose
(A) All foods of clients paid to a lawyer or law firm,
other than advancer for costs and expenses, shall ing as moo as practicable.
yer who has both the butdance to knew when the law is
lasnvt without fear or foyer corrupt or dishonest conduct in the be deposited in one or more ideudfiable bank ac- (3) Maintain complete recorths of all funds, securi-
profession. whether the conduct be that of a whir or not. counts maintained In the Slate in which the law ties, and other propertlea of a client condos
working badly and the special competence to put it in order." ... Howr. this Canon 1291 does not permit one to make
Professional Responsibility: Report of the Joint office Is situated and no funds belonging to the law- into the possession of the lawyer ante d render
ma ss's h are false and untrue and unfomded inling appropriate accounts to hh client garding
44 A.E.A.1. 1159, 1217 (1950. When onfancy leads him to make false charges, attacking yer or law firm shall be deposited therein except
5. "Ride 14. . . . A member of the Sta. Bar shall not the character and is as follows. them.
of others, he does so at his peril.
.3. 9,9^icate with, or Mikes before, a public officer, board, lie should not do so without adequate proof of his chargm (1) Fonds reasonably sufficient to pay bank charges (4) Promptly pay or deliver to the client as re-
committee or body, in his professional capacity, without first and he is certainly not authorized to mat carekss, untruth- may be deposited therein.
disclosing that he is an attorney representing interests that quested by • client the fonds, securities, or
may be affected by action of such officer, board, committee ful and vile charges against his professional brethren.. In (2) Funds belonging in part to • client sad In part other properties In the possession of the law-
re Meeker, 76 N. M. 354, 364-65, 414 Pfd 862, 869 (1966). presendy or potendally to the lawyer or law yer which the client is entitled to receive.
36 AMERICAN BAR ASSOCIATION
Naas
1. "Integrity i• the very breath of justice. Confidence in
Judge from actin. as attorney for the defendants upon such
our law, our courts, and in the administration of justice is
trial, Whether they were examined by him or by some
our suprnme interest. No practice must be permitted to pre- other
vail which invites towards the administration of Justice • judge. Such • practice would not only diminish public con-
fidence in the administration of Justice in both courts, but
doubt or distrust of he Wearily." Erwin M. I owing. Co. v.
DiGenova, 107 Conn. 491. 499, 141 A. 866, 868 (1928). would produce serious conflict between the private interests
of the judge asa lawyer, and of his clients, and his doles
2. lawyer should never be reluctant or too proud to as a Wise in adjudicating important phases of criminal
answer uffiutailied criticism of his profession. of himself, or processes in other cases. The public and private duties
of bin brother lawyer. He should guard the repurntion of his would be incompatible. The prestige of the Judicial office
we.
profession and of his brothers as zealously as he guards his
o ' Rochelle and Payne, The Struggle for PuMc would be diverted to private benefit, and the Judicial office
Under- would be demeaned thereby." ABA Opinion
standing. 23 Tams B. J. 109, 162 (1962). 242 (1942).
"A lawyer, who haspreviously occupied a judicial
3. See ABA Canon 29. tion or acted In a judicial capacity, should refrain posi-
from
4. See ABA CANON 36. accepting employment in any matter involving the same facts
5. "As mid In Opinion 49, of the Committee on Profes- as were involved in any specific question which he acted
sional Ethics and attorney of the American
than, page 134: 'An attorney should not
arty Bar Assoc'.
Primp but should avoid the appearance of impro-
avoid impro-
zo
o° ZArgt, c=nrd..:` `7,47,:n=1:7,1,1
reasonably appear to involve the same facts." ABA Opinion
priety.'" State ex rel. Nebrka 49 (1931).
N.W. State Bar Ass, v See,,ABABOpinion 110 (19341.
lUchards, 165 Neb. 80, 93, 84 . 2d 136, 145 (1957).
"It would also be preferable that such contribution (to
the campaign of • candidate for Judicial office] be made to a
committee rather than to the candidate personally.
ABA Gxox 32painnink:
(1930). But see ABA Opinion
b1,92.122^A 113;',31:193126
37 (1931).
In
Innsso doing. possible appemances of impropriety would be 9. "(A statement by a governmental department or agency
reduced to a minwom." ABA Opinion 226 (1941). with regard to a lawyer resigning from its staff that Includes
"The lawyer Names high duties, and has imposed upon a laudation of his legal ability)carries Implication. prob-
ably not founded in fact, that the lawyer's acquaintance and DEFINITIONS.
him grave responsibilities. He may be the means of much
good or much mischief. Interests of vast magnitude are au previous relations with the personnel of the administrative As used In the Disciplinary Rules of the Code of Pro- (4) .Professional legal ••••••••10." 55555• • colyora-
trusted to him; confidence isreposed in him; life, liberty, agencies of the government place him in an advantageous fesdosal ResgondbiRty tion, or a■I association treated no a corporatioo,
character and property should be protected by him. Ile Position in practicing before Such agencies. So to un (1) .Diflenng Interest?' Include every interest that authorized by law to practice law for profit
would not only represent whet probably is untrue, but tumid ply
should guard, with melons watchfulness, his own reputation, Ill adversely affect either the Judgment or the (5) "State.includes the District of Columbia, Puerto
Ford Well as that of his profession." People an rel. Cutler v.
54 111. 520. 522 (1870),and also quoted in State
be highly reprehensible." ABA Opinion 184 (038).
10. See ABA CANON 11. loyalty of • lawyer to • chest, whether It be a eon-
Mean& loonsisteat, divose, or other interest
Rico, and other federal territories and posses-
stoat
Board of Law Examiners v. Sheldon. 43 Wyo. 522, 526. 7 .1We 9. . . . A member of the State Bar shall not com-
P.ffil 226. 227 (1932). mingle the money or other property of a client with his own; (2) .Law firm.includes a profesdosal legal corpora- (6) uTribunal" Includes, 1,11 courts sad all other ad-
See ABA Opinion 150 (1936). and he shall promptly report to the client the receipt by him don. Judicatory bodies.
6. C). Coos op Paorassroask. Respowsmu.rrn, EC S-6. of all money and other properly belonging to such client. 'Tenon" include a corporadon, an association,
7. See ABA CANON 36. Unless the climt otherwise directs in writing, he shall (3) a trust, a partnership, and any other organization
promptly deposit his client's funds in a bank or trust com- • "Confidence" and "secret" are defined to DR 4101 (A).
"It is the duty of the judge to rule on questions of law or legal entity.
and evidence In misdemeanor cases and examinations in p., ... in a bank account separate from his own account
felony cases. That duty calls for impartial and uninfluenced and clearly designated as 'Clients' Funds Account'•or 'Trust
Judgment. regardless of the eft. on those hilmediately in- Funds Account' or words of similar import. Unless the
volved or others who may, directly or indirectly, be af- client otherwise directs in writing, securities of • client in
fected. Discharge of that duty might be greatly interfered hearer form shall be kept by the attorney In a safe deposit
with if the Judge, InarroMer capacity, were permitted to boa at a bank or trust company, ... which safe deposit box
sHall he clearly designated as 'Clients' Account'or
hold himself out to employment by those who are to be, or 'Trust
Account' or words of similar import, and be separate from
who may be, brought to trial in felony cases, even though be
the attorney's own safe deposit box Cm. BUNKO. sem
did not conduct the examination. Ills private interests as a
lawyer in building up his clientele, his duty as such zealously Prnsmsiorts Com 86076 (West 1962).
to espouse the cause of his private clients and to defend "(Cjommingling Is committed when • client's money Is
Intermingled with that of his attorney and its separate iden-
g:te:1 f,tr,rof. tity lost so that it may be used for the attorney's personal
cr:mpeseZro:if:Al htZreb'ent
n',1;r eTn"ge:r4. expenses or subjected to claims of his creditor. . . . The
that unbiased judiclid Judgment whichvis so essential in the
administration of Justice. rule against commingling was adopted to oide against
"In our opinion, acceptance of a Judgeship with the the probability in some cases, the possibilityInv many cams,
duties of conducting misdemeanor trials, and examinations and the danger in all cases that such commingling will result
In felony cases to determine whether those accused should in the loss of clients' money." Black v. Slate Bar, 57 Cal.
(d 21). 225-26, 368 P.2d 118, 122, 18 Cal. RM. 518,
be bound over for trial in a higher court, ethically bars the (1962). 522
37
CODE OF PROFESSIONAL RESPONSIBILITY INDEX 39
Index attorney-client privilege, 15. 17 Defense of those accused of crime, 7
commin g of funds of, 35 Delegation by lawyer of tasks, 15
confidengclie no f, 17 Desires of third parties, duty to avoid influence of,
A textbook, 7
counselling, 24, 25, 27-28 20, 21
treatises, 7 property, protection of, 35 Differing interests, 19, 37. See Also Adverse effect on
Acceptance of Employment. See Employment, accept-
.. of. Advice by lawyer to secure legal services, 5, 9 restraint of, 26 professional judgment of lawyer.
client, former or regular, 5, 9 secrets of, 17 Directory fisting. See Advertising. directories.
Acquiring interest in litigation. See Adverse effect on close friend, 5, 9
professional judgment, interests of lawyer. employmont resulting from, 5, 9 Co-counsel. See also Association of counsel. Disciplimry procedures, 1
Address change, notification of, 7 division of fee with, 8-9 Disciplinary rules,
motivation, effect of, 5 inability to work with, 9 application of, 1
Administrative agencies and tribunals. other laymen parties to class action, 9
former employee, rejection of employment by. 35 Commercial publicity. See Advertising, commercial purpose sancta f unction of, 1
relative, 5, 9 Disciplinary n, 1
improper influences on, 26, 27, 29 publicity.
volunteered, 5, 9 Commingling of funds, 35 Discipline of lawyer, grounds for
represent