OJornHl Slam i'rliaol Hitbrarg Cornell University Library KF 306.A97 Ethical obligations of the lawyer / 3 1924 018 780 498 Cornell University Library The original of tinis bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018780498 ETHICAL OBLIGATIONS OF THE LAWYER ETHICAL OBLIGATIONS OF THE LAWYER GLEASON L ARCHER, LL.B. Dean of the Suffolk School or Law Author of " Law Office and Court Procedure ' BOSTON LITTLE, BROWN, AND COMPANY 1910 Copyright, 1910, By Glbason L. Archer. All rights reserved THE UNIVERSITY PRESS, CAMBRIDGE, U.S.A. TO the memoky of My Mothek PREFACE The great movement for the uplifting of the morale of the profession of law that is sweeping the country has brought prominently to the front the subject of Legal Ethics, It has become recognized among lawyers that the old custom of leaving professional ethics to the untutored ethical instincts of the individual lawyer must now give place to a definite and positive codifi- cation of ethics. The reform movement has manifested itself in the adoption of codes of ethics by various bar as- sociations throughout the country. The present volume is a treatise explanatory of the principles underlying the rules of professional conduct adopted by the bar associations, together with such other principles of legal ethics as would confront the lawyer in his everyday practice. Legal Ethics include not only an intelligent watchfulness to do right but also a knowledge of long established customs and traditions of the profession. Hence, good intentions and high moral ideals do not always safeguard the lawyer against 8 PREFACE violations of legal ethics. Even were it a plain moral issue he may suddenly be confronted by an ethical problem that demands instant decision. In the hurry of the moment he is unable to ponder it well and determine his conduct wisely. He may overlook a significant feature of the problem, or, if the point is nicely balanced and technical, his first judgment may be erroneous. Thus arises an unintentional violation of the ethics of the profession that stamps the doer as a practitioner of questionable character. Regret however sincere and protestations of innocent intent however vehement can reach but a small fraction of those to whom the original damaging evidence has gone. It behooves the practitioner, therefore, to take thought of ethical questions in the time of quiet when they can be regarded as abstract proposi- tions to be decided impartially, without the rights of an injured client to warp the judgment or temper it with pity. The mission of this book is to present the great multitude of ethical prob- lems to the reader and to cause him to think them througli and, whether the author's reason- ing be convincing or not, to decide each question and thus be forearmed against all probable emer- gencies. PREFACE 9 Scope of the Book. This volume enters into every question of professional deportment that can ordinarily confront the lawyer. It does not lay down platitudes and commands without the reasons therefor, but discusses each proposition, pointing out the why and wherefore of the rule. It is practical. It enters into details. It takes up each detail concretely and solves it, instead of passing it over with a flourish of general language that means nothing definite to the reader. The first chapter deals with the change of status from layman to lawyer and points out briefly the newly acquired obligations of the legal practitioner. Chapter two takes up in detail the various considerations that should govern a lawyer in choosing his ofiice, together with suggestions as to conditions of the ofiice after it has been opened for practice. Chapters three, four, five and six deal with the lawyer's obligations and duties to his clients. Chapter seven considers in detail his duties to the adverse party. Chapter eight discusses his duties and obligations to other lawyers. Chapter nine deals with the lawyer's duties to the courts. Chapters ten and eleven discuss his various duties to the State and Nation. Chapter twelve treats the very difficult and 10 PREFACE elusive topic of legal fees, and contains some very practical information concerning the customary charges of the profession for ordinary legal ser- vices. Chapter thirteen considers such general duties as do not readily admit of classification in previous chapters. Chapter fourteen discusses the advisability of lawyers entering politics. Chapter fifteen treats of the growing demand for lawyers in business enterprises. Chapter sixteen contains a detailed statement of the lawyer's legal liabilities to his clients for professional mis- conduct; while chapter seventeen treats of dis- barment and suspension of lawyers, with an interesting collection of illustrative cases of dis- barment. An Appendix containing the American Bar Association Canons of Ethics, Hoffman's Resolutions and a schedule of legal fees as adopted by a prominent bar association follow chapter seventeen. Throughout the book will be found extracts from the Canons of Ethics and Hoffman's Reso- lutions, quoted in connection with the topic to which they refer. Although contained in full in the appendix it has been deemed wiser to quote from them directly than to put the reader to the necessity of looking up the reference each time in the appendix. PREFACE 11 The inter-relation of topics has made necessary in some instances a sunmiary or forecast of a topic treated more fully elsewhere, but the plan of the book has been to avoid repetition, unless for the purpose of clearness or to impress the principle by reiteration. The same duty will be seen to exist in some instances in several aspects, as, for example, the lawyer's duty not to slander or disparage others. In chapter one, section five, the duty is mentioned as one of the newly acquired obligations of the lawyer; in chapter seven, section sixty-five, it is treated as a duty owed to the adverse party, and in chapter eight, section seventy, as a duty to other lawyers. In each connection it is necessary, since the plan of the book demands a separate treatment in each connection. FoK Lawyek or Layman. Although this book is intended primarily for lawyers, yet much of its contents should be of vital interest to laymen, especially to those who are obliged to employ the services of lawyers. Chapters three, four, five, six, seven, twelve, thirteen, sixteen and seven- teen, nine chapters out of seventeen, directly concern the layman. They set forth in plain non-technical language precisely what duties his 12 PREFACE lawyer owes him, what rights he has against the lawyer, and what the range of fees for ordinary legal services may be. It is confidently believed that such information coming to the knowledge of the lay public would do much to purify the profession of law by rendering it more difficult for unscrupulous lawyers to impose upon their clients. G. L. A. Suffolk School op Law. Boston, Oct. 1, 1910. Sec. 1. Sec. 2. Sec. 3. CONTENTS CHAPTER I CHANGE OF STATUS PKOM LAYMAN TO LAWYER PAGH Assumption of New Duties . . 31 Hazy Ideas of Legal Ethics ... 32 Ignorance of Legal Ethics common alnong Lawyers . . . . . 33 Sec. 4. Movement to elevate Ethical Standards . . 34 Adoption of Canons of Ethics . . 35 Study of Ethics advised 35 Seo. 5. How Lawyer differs socially from Layman . . 35 Duty of Silence as to Client's Confidences . 36 Duty to uphold Dignity of the Profession . 37 Personal Appearance . .... 37 Personal Conduct . ... 38 Not to disparage other Lawyers ... 39 Not to joke about Rascality of Lawyers 39 Duty of Loyalty to the Courts ... . 41 Duty not to acquire Interest in Litigation . 43 Sec. 6. Summary of Chapter . . . 44 CHAPTER II LOCATION OP LAW OFFICE Sec. 7. Its Bearing upon Ethical Development .... 46 Sec. 8. What must be Considered 47 Sec 9. Large City or Small 48 Locating in Small Community Temporarily 49 Sec. 10. Clerkship or Independent Practice ... 50 Length of Apprenticeship 50 Sec. 12. Sec. 13. Sec. 14. Sec. 15. Sec. 16. Sec. 17. 14 CONTENTS FAGB Sec. 11. Deskroom or Independent Office 51 Sharing Expenses of Office 52 The Office Site 52 Conditions of Office 52 Showy, Luxurious-appearing Office . ... 53 Office not a Lounging Place 54 Office to be constantly in Business Trim .... 55 Pollution of Air by Smoking 55 Leaving the Office Door Ajar 56 Summary of Chapter 57 CHAPTER III DITTIES TO THE CLIENT Sec. 18. Is it a Duty to accept any Client? 58 Not Policy to refuse Case unless for Good Reasons 59 Undesirable Clients 59 Sec. 19. Freedom of Choice 60 Freedom of Choice a Valuable Asset of Lawyer 60 Effect of Choosing CUents Wisely 61 Sec. 20. Duty not to accept Case if a Party in Adverse Interest 62 Sec. 21. Duty not to accept if representing Adverse Party 63 Duty where both contending Parties are Clients 65 ''Sec. 22. Not to accept if recently Counsel for Adverse Party 67 Sec. 23. Duty in Case of Divorce Sought by Friends . . 68 Sec. 24. Duty to Accept Case against Fellow Attorney . 70 Sec. 25. Duty to defend Criminals 72 Sec. 26. Duty as to the Retainer 76 Amount of Retainer 77 Sec. 27. Advance Costs 77 Amount of Advance Costs 78 Sec. 28. Summary of Chapter 79 CONTENTS 15 CHAPTER IV DUTIES TO CLIENT (CONTINUED) PAGE Sec. 29. Duty not to Hastily Advise 81 Hasty Decisions dangerous to Lawyer ... 82 An Illustration 82 Another Illustration 84 ''Sec. 30. Not to make Positive Assertions of Outcome of Suit 86 Holding out Delusive Hopes 86 Preparing for Unpleasant Surprises .... 87 Sec. 31. How much Advice should be given . 87 An Illustration of the Evils of too much Advice 88 Sec. 32. Duty that Advice should be Clear . ... .89 An Illustration of the Results of a Client's Misunderstanding 89 Seo. 33. Duty in Respect to Over-inquisitive Client . . 91 Sec. 34. Duty to advise against Illegal Acts 92 Sec. 35. Duty not to take a Hopeless Civil Case . . 93 An Illustration of the Headstrong Persistence of a CUent 94 Effect of suing upon Hopeless Cases . 95 Sec. 36. Unjust or Inequitable Smts 98 An Illustration of Effect upon Lawyer's Career . 98 Sec. 37. Is it a Duty to advance Money to Client? ... 99 No Duty ordinarily 100 Sec. 38. Summary of Chapter 100 CHAPTER V duties to client (continued) Sec. 39. Duty of Unswerving Loyalty 102 Sec. 40. How far should Loyalty extend 103 Sec. 41. Not a Duty to do all of CUent's Biddings . . . 105 When Act requested is not Illegal .... 105 16 CONTENTS PAQB ''Sec. 42. Duty to sever Relationship for Cause .... 106 Basis of Duty . 106 Sec. 43. Duty to Client in ascertaining Facts . . 107 •^ Danger of Over-confidence in Clients . 108 An Illustration . ... 109 Sec. 44. Duty in Attempts to Settle . . . . .110 An Illustration of the Danger of Hasty Settlement . . . Ill Every Element to be considered . . . . Ill Amount of Preliminary offer as Compared with Actual Damage . . . Ill Sec. 45. Negotiating for Settlement with the Adverse Party . ... . . 112 When the Adverse Party attempts Cajolery 112 Effect of Lessened Vigilance for Client . . 113 Not to be overawed by BrUhant Opposing Lawyer ... . 114 Sec. 46. Duty in Court . . 114 To avoid putting Leading Questions to Client 115 Lawyer's Duty not to forfeit the Good Will of Court or Jury . 115 Bullying ... 116 Duty to protect Witnesses from Vicious Cross-examination 116 Sec. 47. Summary of Chapter 116 CHAPTER VI DUTIES TO CLIENT (CONTINUED) • Sec. 48. Duty not to Overcharge 118 Charges to Wealthy and to Poor Clients . . 119 How an Avaricious Lawyer regretted a Small Charge ... 119 Sec. 49. Not to drive Sharp Bargain with Client . . 120 Procuring the signing away of Client's Rights 122 An Illustration . 122 "^ Sec. 50. What should be considered in fixing Charge . 123 CONTENTS 17 PAGE Sec. 51. Bringing Suit for Fee 124 When Compromise is Wiser than Suit . . 125 When Suit for Fee is Advisable 125 Honest Misunderstandings to be settled in Court 126 Sec. 52. Duty not to mix Trust Funds 126 Trustee Accounts in Banks 128 An Expedient for Lawyer whose Practice is Small 128 Method of keeping Trust Funds a Question for the Individual 129 Sec. 53. Duty to Account 130 Sec. 54. Return of Documents and Papers 131 Sec. 55. Duty to respect Confidences 131 Sec. 56. Summary of Chapter 132 CHAPTER VII DUTIES TO ADVERSE PABTT Not to procure Employment against 134 Not to confer with except in Presence of Counsel 135 If Adverse Party has no Counsel 136 Not to advise Adverse Party as to the Law ... 138 Not to procure the Signing Away of Rights of Adverse Party 139 Not to procure Opponent's Evidence by Trickery 140 Not to circulate Slander concerning Him . . 141 Duty in reading Adversary's Pleading in Court . *43 — Duty to the Adversary when on the Witness Stand 142 Not to slander or disparage for Mere Effect in Plea to Jury 143 Sec. 66. Summary of Chapter 143 CHAPTER VIII DUTIES TO OTHEH LAWTEE8 Sec. 67. Not to take Case belonging to another Attorney 145 Sec. 68. If Lawyer has proved Unworthy 147 Sec. 57. Sec. 58. Sec. 59. Sec. 60. Sec. 61. Sec. 62. Sec. 63. Sec. 64. Sec. 65. 18 CONTENTS PAGE Sec. 69. Competition among Lawyers 149 Commercialism among Lawyers . . . . 150 Duty of Older Lawyers to Young Practi- tioners 150 Sec. 70. Not to disparage Other Lawyers ... . 151 ' Caustic Comments have Boomerang Effect 152 Caustic Comments cause Evil Results . 152 Sec. 71. Not to deal with the Adversary without Knowl- edge of his Lawyer ... ... . 154 (1) Duty to the Opposite Lawyer . . . 154 (2) Duty to the Profession of Law . . . 155 (3) Duty to the Adverse Party .... 156 (4) Duty to One's Own Reputation 157 Sec. 72. Duty to prosecute or sue Fellow Attorney for Cause . . 167 Sec. 73. Right to defend an Accused Attorney . . . 159 Sec. 74. Not to force Trial when Opposing Lawyer is 111 or under Bereavement 160 Sec. 75. Not to lay Undue Stress upon Technicalities . 162 Sec. 76. Not to try to overreach the Other through Ques- tionable Practices . .163 Sec. 77. Duty as to Agreements 164 Sec. 78. Not to abuse Fellow Attorney for Mere Effect . 164 Sec. 79. Summary of Chapter 166 CHAPTER IX DUTIES TO THE COURTS Basis of the Duty 167 The Duty of Loyalty to the Courts 168 Duty of Loyalty to the Judges 169 Duty of Respect to the Judges in Court ... 170 Duty not to delay Trial 172 The Duty of PunctuaUty 174 Duty not to prolong Trial 175 Duty not to offer Improper Evidence . . . 177 Duty not to argue upon Matters not in Evidence 178 Duty not to offer Garbled Law 179 Summary of Chapter igi Sec. 91. Sec. 92. Sec. 93. Sec. 94. Sec. 95. Sec. 96. Sec. 97. CONTENTS 19 CHAPTER X DUTIES TO THE STATE FAGB Basis of Duty to the State 483 — Duty not to bring a Groundless Suit 183 Duty in respect to Inequitable Claim that is Legally Sound 185 Illustrations 187 Duty not to acquire Interest in Litigation . 189 Duty as to Contingent Fees 189 Duty of Punctuality in Court . . .... 193 Duty not to be Unduly Influenced by Wealthy CUents ... 194 Sec. 98. Duty not to assist in circumventing the Law . 196 An Illustration 196 Sec. 99. Duty to restrain Client from doing Unlawful Acts 197 Sec. 100. Summary of Chapter 199 CHAPTER XI duties TO THE STATE (CONTINUED) Sec. 101. Not to discuss Pending Cases through the Newspapers 200 Sec. 102. Not to attempt to procure Perjured Testimony 203 Sec. 103. Duty not to attempt to influence Jury .... -204 Sec. 104. Duty not to try to influence the Court .... ^285 Sec. 105. Duty not to prolong Litigation 206 Appeals .206- Sec. 106. Duty in respect to Questionable Practices of the Profession 207 Sec. 107. Summary of Chapter 208 -^Sec. 108. Sec. 109. Sec. 110. Sec. 111. i/'SEC. 112. Sec. 113. Sec. 114. Sec. 115. 20 CONTENTS CHAPTER XII LEQAL FEES PAGE An Unfair Charge 211 The Law not a Mere Money-getting Trade . . 212 The Lawyer should not overestimate the Value of Services rendered 214 Actual or Implied Agreement as to Fees ... 215 Circimistances should govern Charges ... 217 The Time and Labor involved 218 Novelty of the Question involved 221 Whether taking Case will deprive Lawyer of Other Business 222 Sec. 116. Customary Charges of the Profession .... 223 Minimum Fee 223 Drawing Deed or Mortgage 224 Charge per Day for Court Service .... 224 SettUng a Case involving less than $100 . 226 Settling a Case involving more than $100 226 Organizing a Corporation 227 Fees for Bankruptcy Cases 228 Drawing Wills . ; 228 Written Legal Opinions 229 Fees for Examination of Title 229 Fees for Divorce Proceedings 229 Sec. 117. Amount of Money involved 229 i/Sbc. 118. Whether Fee is Contingent or Certain .... 230 Sec. 119. Casual or Regular Employment 231 Sec. 120. Should a Lawyer sue a Client for a Fee .... 231 Sec. 121. Summary of Chapter 231 CHAPTER XIII GENERAL DUTIES Sec. 122. Should a Lawyer take Acknowledgments over the Telephone 233 Sec. 123. The Lawyer as a Witness for his Client .... 235 CONTENTS 21 PAQH Sec. 124. Duty to answer Letters promptly 236 Sec. 125. The Duty of Diligence .......... . 237 Sec. 126. Lawyer should cultivate a Passion for his Profession 238 Sec. 127. Advertising 239 Sec. 128. Advertising — Professional Cards 239 Sec. 129. Advertising — Circulars 240 Sec. 130. Newspaper Advertising — Cards 241 Sec. 131. Newspaper Advertising — Divorce 242 Sec. 132. Advertising — Newspaper Discussion .... 244 Sec. 133. Advertising — Politics as an Advertising Medium 245 Sec. 134. Advertising — Social Acquaintance and Club Life - . . . . 246 Sec. 135. Advertising — Employment of Runners . . . 247 Sec. 136. Summary of Chapter 248 CHAPTER XrV THE LAWYER IN POLITICS Sec. 137. Its Bearing upon Ethics 260 Sec. 138. Why Lawyers are attracted to Politics .... 250 Honor of PubUc Office 251 Public Office leads to Extensive Acquaint- ance 252 The Emoluments of Public Office .... 253 Apparently BriUiant Opportunity . . . 253 Sec. 139. The Real Situation ^5l Campaign Expenses, etc . ^4 The Political Treadmill 2B3 Hopeless Prospects 255 Temptation 255 Sec. 140. Evolution of the Grafter 256 Sec. 141. Need of Lawyers in PoUtics 258 Sec. 142. Summary of Chapter 259 22 CONTENTS CHAPTER XV THE LAWYER IN BUSINESS FAOB Sec. 143. Is the Legal Profession overcrowded 260 Sec. 144. Broadening of Lawyers' Duties 261 Sec. 145. Business becoming more complex and hazardous 262 The Advent of Railroads 263 The Rise of Trusts 263 Sec. 146. Abuse of Power by Trusts 264 The Independant Dealer a Check upon the Trusts 264 The Trusts supplanting Independent Operators . 265 Sec. 147. National Welfare demands a Strengthening of the Hands of Independent Dealer 265 Sec. 148. Business Problems 266 Sec. 149. Lawyers needed in Business 268 Sec. 150. The Result of a Further Broadening of the Lawyer's Duties 269 Sec. 151. Summary of Chapter 270 CHAPTER XVI LIABILITIES OP A LAWTEB TO HIS CLIENT Sec. 152. Liability for disregarding Instructions or ex- ceeding Authority 271 Illustrations 272 Sec. 153. Liability for Failure to exercise Reasonable Care and Skill 273 Sec. 154. Errors in Law or Judgment 274 Sec. 155. Negligence in collecting Moneys 276 Sec. 156. Negligence in Trial of an Action 277 Sec. 157. Negligence in drawing Legal Documents . . . 278 Illustrations 278 Sec. 158. Liability for Money collected on Clients' Account 279 Sec. 159. Summary of Chapter 279 CONTENTS 23 CHAPTER XVII DISBARMENT AND SUSPENSION FAGB Sec. 160. Meaning of the Terms 281 Sec. 161. To inflict either, Discretionary with the Court 282 Sec. 162. Reinstatement of Disbarred or Suspended At- torney ... .... 282 Sec. 163. Causes for Disbarment or Suspension .... 283 Sec. 164. Violation of Oath of Office ... .... 283 Analysis of Attorney's Oath ... . 284 Attorney's Oath in the various States of the Union .... . 285 Sec. 165. Offenses recognized by the Common Law as Causes for Disbarment 287 Sec. 166. Offenses especially designated by Statute as Causes for Disbarment 288 Illustrations . . 288 Sec. 167. Specific Examples of Causes for Disbarment . 291 Conviction of Crime 291 Embezzlement 291 Conversion of Funds of Client 292 If Crime is condoned 292 Dishonesty 292 Breach of Trust 292 Obstructing Justice 293 Abusing Judge 294 Slandering Fellow Attorney 294 Divorce Advertising 294 Bringing Unauthorized Suit 295 Sec. 168. Summary of Chapter 295 APPENDIX Appendix 297 American Bar Association Canons of Ethics . 297 Hoffman's Fifty Resolutions in Regard to Profes- sional Deportment 317 A Schedule of Legal Fees . 343 Index ... 349 TABLE OF CASES References are to sections Alpera v. Hunt, 86 Cal. 78, 24 Pac. 846, 21 Am. St. Rep. 17, 9 L. R. A. 483 167 Armstrong, Roberts v 158 Ashley, Palmer v 153 Baker v. State, 90 Ga. 153, 13 S. E. 788 167 Bank of New York v. Stryker, 1 Wheeler Cr. Cases 330 . . 167 Bates, Taylor v 158 Benne v. State, 22 Ark. 149 167 Berger, Tenney v 156 Boardman, Eggleston v 153 Brown, People v 167 Bulmer v. Oilman, 4 Man. & Grang, 108 154, 155 Burt, Kemp v 154 , Chapman v 158 Cavanaugh, Reilly v 153 Caverly v. McOwen, 123 Mass. 574 153 Chapman v. Burt, 77 lU. 337 158 Chase v. Heaney, 70 111. 268 153 Cole, People v 152 Costen, United States v 167 Cox V. Livingston, 2 Watts & S. 103, 37 Am. Dec. 486 . . 152 V. SulUvan, 7 Ga. 144, 50 Am. Dec. 386 155 Dalton, Godelfroy v 154, Delano's Case, 58 N. H. 5, 42 Am. Rep. 555 167 De Roufigny v. Peale, 3 Taunt. 484 156 Dillon V. State, 6 Tex. 55 167 Eggleston v. Boardman, 37 Mich. 14 153 Elkington v. Holland, 9 M. & W. 658 154, 155 26 TABLE OF CASES References are to sections Ellis, Swannell v 156 Evans v. Watrous, 2 Port. (Ala.) 205 156 Ex parte Burr. Fed. Cases No. 2186, 2 Craneh C. C. 379 . 167 Ex parte Cole, Fed. Cas. No. 2973 167 Fairfield County Bar v. Taylor, 60 Conn. 11, 22 Atl. 441, 13 L. R. A. 767 167 Fitch V. Scott, 3 H. &. W. (Miss.) 314, 34 Am. Dee. 86 . . 153 Gilbert v. Williams, 8 Mass. 51, 5 Am. Dec. 77 . . 152, 155 Oilman, Bulmer v. . . 154, 155 Godelfroy v. Dalton, 6 Bing. 460 164 V. Jay, 5 Moo. & P. 284 156 Goodman v. Walker, 30 Ala. 482, 68 Am. Dec. 134 . 153, 155 Goodrich, People ;; 167 Gorham, Taylor v 157 Graham, Morrill v 153 Green, People v 167 Hand, State v 167 Harrison, Scott v 157 Heaney, Chase v 153 Holding, State v 167 Holland, Elkington v 154, 155 Holmes v. Peck, 1 R. I. 242 153 Hunt, Alpers v 167 In re Burris, 101 Cal. 624, 36 Pao. 101 167 In re Davies, 93 Pa. St. 116, 39 Am. Rep. 729 167 In re E., 65 H. & W. Prac. 171 167 In re McCarthy, 42 Mich. 71, 51 N. W. 963 167 In re Newton (Mont.) 70 Pac. 510 162 In re Simpson (N. D.) 93 N. W. 918 162 In re Treadwell, 67 Cal. 353, 7 Pac. 724 167 Joy, Godelfroy v 156 Jeffreys, Montriou v 154 Kemp V. Burt, 1 Nev. & Mon. 262 154 Lamborn, People v 167 Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388 .. . 153 Livingston, Cox v 162 TABLE OF CASES 27 References are to sections MoCabe, People v 131, 167 McOwen, Caverly v 153 Mardis v. Shackford, 4 Ala. 493 .• . 153 Montriou V. Jeffreys, 2 Car. & P. 113 154 Morrill v. Graham, 27 Tex. 646 153 Palmer v. Ashley, 3 Ark. 75 153 Parker v. Rolls, 14 Com. B. 691 157 Peale, De Roufigny v 156 Peck, Holmes v 153 Pemiington v. YeU, 11 Ark. 212, 52 Am. Dec. 262 ... . 153 People V. Brown, 17 Colo. 431, 30 Pac. 338 167 V. Cole, 84 111. 327 152 V. Goodrich, 79 lU. 148 167 V. Green, 7 Colo. 237, 3 Pac. 65, 45 Am. Rep. 351 . . 167 V. Lamborn, 2 111. (1 Scam.) 123 167 V. McCabe, 18 Col. 186, 32 Pac. Rep. 28, 36 Am. St. Rep. 270 '. 131, 167 V. Ryalls, 8 Colo. 332, 7 Pac. 290 167 ». Spencer, 61 Cal. 128 167 Reilly v. Cavanaugh, 29 Ind. 435 153 Rice V. Rigby, 4 B. & Aid. 202 156 Rigby, Rice v 156 Roberts v. Armstrong, 1 Bush (Ky.) 263, 89 Am. Dec. 624 158 Rolls, Parker v 157 Ryalls, People v 167 Sargent, Leighton ti 153 Scott, Fitch V 153 V. Harrison, 73 Ind. 17 157 Shackford, Mardis v 163 Shumway, Walsh v 156 Spencer, People v 167 State, Baker v 167 , Benne v 167 , Dillon V 167 V. Hand, 9 Ohio, (9 Ham.) 42 167 V. Holding, 1 McCord, 379 167 28 TABLE OF CASES References are to sectiona Stevens v. Walker, 55 111. 151 153 Stryker, Bank of New York v 167 Sullivan, Cox v 165 Swannell v. ElUs, 1 Bing. 347 156 Taylor v. Bates, 5 Cowan (N. Y.) 376 158 Fairfield County Bank v 167 V. Gorham, 4 Ir. Eq. 550 157 Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263 ... . 156 United States v. Costen, 38 Fed. 24 167 Walker, Goodman v 153, 155 Stevens v 153 Walsh V. Shumway, 65 111. 471 156 Watrous, Evans v 156 Williams, Gilbert v 152, 155 Yell, Pennington v 153 ETHICAL OBLIGATIONS OF THE LAWYER ETHICAL OBLIGATIONS OP THE LAWYER CHAPTER I CHANGE OF STATUS FROM LAYMAN TO LAWYEE Sec. 1. Assumption of New Duties. Sec. 2. Hazy Ideas of Legal Ethics. Sec. 3. Ignorance of Legal Ethics Common Among Lawyers. Sec. 4. Movement to Elevate Ethical Standards. Adoption of Canons of Ethics. Study of Ethics Advised. Sec. 5. How the Lawyer Differs Socially from the Layman. Duty of Silence as to Client's Confidences. Duty to Uphold Dignity of the Profession. Personal Appearance. Personal Conduct. Not to Disparage Other Lawyers. Not to Joke About Rascality of Lawyers. Duty of Loyalty to the Courts. Duty not to Acquire Interest in Litigation. Sec. 6. Summary of Chapter. § 1. Assumption of New Duties. In entering upon the professiqn of law one acquires not only new powers as an individual and a new standing in society, but with the addi- tional powers and the newly acqiiired station in life come also new duties and increased responsi- biUties. The layman has changed to the lawyer. 32 ETHICAL OBLIGATIONS OF THE LAWYER Whether he will prove himself an honor to his new station in life depends upon whether he conducts himself as an honorable man should who duly appreciates the responsibilities upon which he has entered. § 2. Hazy Ideas of Legal Ethics. Too often it occurs that the newly admitted lawyer enters upon his profession with hazy ideas of the ethics of the profession and without due appreciation of the responsibilities to the public that go with the practice of law. That this condition is due partly to the indif- ference of teachers of law, or of the law schools in not providing positive instruction in legal ethics, cannot be denied. The prospective lawyer is generally so intent upon the mastery of legal principles that he very naturally fails to pause and take thought, of his own volition, of what may be expected of him by the public when he becomes a lawyer. He is aware, of course, of the verdict of the thoughtless multitude that all lawyers are rascals. He does not investigate whether this has a basis in fact, but, if he has the element of true manhood about him, he approaches the day of admission to the bar with a strong feeling that, whether other lawyers are honest or not, he at least will stand out from the multitude as a lawyer scrupulously CHANGE FROM LAYMAN TO LAWYER 33 devoted to the ethical and moral side of the pro- fession. But his difficulty is that when he enters the profession he has no definite conception, other than his instinctive knowledge of right and wrong, of what the ethics and morals of the profession may be. He may do an act innocently, or at least with negligent thoughtlessness of its char- acter, that may offend the ethical standards of the best lawyers. The thing is unprofessional, and the stigma resting upon him is as blackening in the minds of those whose fellowship he su- premely desires as if he had done it in deliberate contempt of the ethics of the profession. Hence arises a cloud on his reputation that may require years of irreproachable conduct to efface. § 3. Ignorance of Legal Ethics Common Among Lawyers. This lack of knowledge of legal ethics is by no means peculiar to the younger lawyers, but is found among the older practitioners as well. Without definite instruction, each lawyer grad- ually evolves a code of his own. If his percep- tion of what is right and what is wrong is particu- larly acute, and he desires to choose the right, he acquires after a few years of practice a high standard of ethics. His law office is permeated with his own high ideals. 34 ETHICAL OBLIGATIONS OF THE LAWYER But, on the other hand, the lawyer who has not this keen faculty for perceiving what is right will drift along the lines of least resistance. He will accept questionable cases if he needs the money; he will copy the tactics of lawyers whose ethical standards are low, and gradually come to believe that no higher standards are practicable in the profession of law. His law office is in like manner permeated with his own questionable professional morals and becomes a menace to the community and a snare to the young lawyer who accepts an apprenticeship therein. § 4. Movement to Elevate Ethical Stand- ards. So great has been and still is the popular dis- trust of the integrity of lawyers, too often, alas, justified in individual cases, that the legal pro- fession as a whole is awakening to the necessity of elevating ethical standards and forcing out of the profession those guilty of discreditable prac- tices. It is coming to be realized that a single offen- sive lawyer may bring disrepute upon the pro- fession throughout an entire community and, even though there be scores of honorable and upright lawyers in the town, popular imagination pictures them all alike — black, even as the black sheep of the flock. CHANGE FROM LAYMAN TO LAWYER 35 ADOPTION OF CANONS TO ETHICS In pursuance of the policy of elevating the ethical standards of the profession, the American Bar Association has recently formally adopted rules of professional deportment known as Canons of Ethics. Numerous bar associations through- out the land have voted to adopt these Canons of Ethics substantially in the form decreed by the American Bar Association. STUDY OF ETHICS ADVISED The Association has gone further than the mere adoption of Canons of Ethics. It has rec- ommended to the law schools of the United States the teaching of legal ethics as a required subject; not as it has hitherto been taught, by a single lecture from some busy lawyer, but by systematic and definite instruction. § 5. How THE Lawyer Differs Socially from THE Layman. One of the first things to be impressed upon the young lawyer is the fact that upon admission to the bar he has stepped over the boundary line from the commonplace, everyday world, with its commonplace duties and responsibilities, into a new sort of life, wherein are greater duties and additional responsibilities. He has become a lawyer and, whether he brings 36 ETHICAL OBLIGATIONS OF THE LAWYER honor to the profession or not, the fact of his admission to the bar places him in a new relation to his fellow men. He has become an officer of the courts, a rep- resentative of the public, whose duty it is to assist in the working out of justice between indi- viduals of the public, should one of them seek his aid. THE DUTY OF SILENCE AS TO CLIENT'S CONFI- DENCES He is no longer the irresponsible layman who can betray a secret at will or gossip away the reputation of some unfortunate individual who has confided in him. Being a lawyer involves a positive duty to keep locked in his own bosom a secret confided to him by a client.^ He has no right to disclose confidential communications without the consent of the client himself. His professional honor demands that he keep silence. The courts safeguard this right of the client, and no man can by any process of law compel a disclosure. Here, then, is one of the duties that distinguishes a lawyer from a lajrman — the duty not to disclose confidential communications from those with whom he has business dealings. ' See also § 55. CHANGE FROM LAYMAN TO LAWYER 37 DUTY TO UPHOLD THE DIGNITY OF THE PRO- FESSION The lawyer should at all tunes bear in mind that he is a member of an honorable profession. He should see to it that he does not, by word or deed, cast discredit upon the profession. But even if he is not governed by regard for his station, self interest alone should prompt him to maintain a certain degree of professional dignity. Clients come to a lawyer if they respect him, but not otherwise. PERSONAL APPEARANCE A lawyer should maintain a neat and well- groomed appearance. This does not mean that he should dress flashily in flamboyant waistcoats, and rainbow-hued ties, but simply, with the care that betokens respect for himself and his profession. He should not appear in public in manifest need of the services of a barber, nor in soiled linen, nor in clothes that need to be brushed, or pressed free from wrinkles and bagginess. The use of a few minutes each day to attend to these little details is time invested in a way that will pay dividends. The prospective client is prone to judge a man from his personal appear- ance, and the neat, thrifty looking lawyer, will always be preferred to the "seedy" attorney. 38 ETHICAL OBLIGATIONS OF THE LAWYER The client has a sort of pride in exhibiting a well groomed attorney to his friends as "my lawyer." PERSONAL CONDUCT The lawyer's success depends upon his ability to win the approval of the public. This does not mean that he should on public occasions be given to loud talk or arrogate to himself the lion's share of the conversation, whether he knows much or little of the topic under discussion. He should not strive to be a jester, for so to do would be to invite the opinion that he is shallow- pated and really belongs in the calling whose badge of service is the cap and bells. Sobriety in conversation, neither drearily ponderous nor un- duly given to frivolity, but a happy medium between the two extremes is the ideal to be sought by the lawyer. There is perhaps no way in which a lawyer can ruin his prospects quicker than by allowing him- self to acquire a reputation for intemperance and licentiousness. Obviously there is but one way of preventing such a reputation, and that is to be neither the one nor the other. A drinking man is an unsafe man in any occupation, and especially so in the profession of law. People have no confidence in his dependability. It is true that even in the law men of this class some- times win a moderate degree of success, but it is CHANGE FROM LAYMAN TO LAWYER 39 due to their natural abilities triumphing over great obstacles. The success that is won under such circumstances must necessarily be insignifi- cant in comparison with what might have been accomplished if unhampered by appetite or passion. NOT TO DISPARAGE OTHER LAWYERS There are two reasons why a lawyer should not disparage fellow attorneys. The first is that listeners may attribute such disparagement to jealousy, and conclude that the lawyer referred to is perhaps a more success- ful attorney, and deservedly so, than his critic. The second is that even if the listeners do not reach such a conclusion, the criticism will lower the profession of law in their estimation. A profession is judged by the characters of those who compose it, and wilful disparagement of another attorney will inevitably have a sort of boomerang effect upon the critic. NOT TO JOKE ABOUT RASCALITY OP LAWYERS It too frequently occurs that lawyers make light of the alleged rascality of members of their profession, carelessly regarding this age-long slan- der as a text for innumerable funny stories. Not that a lawyer should -be so thin-skinned or so lacking in common sense as to take umbrage at 40 ETHICAL OBLIGATIONS OF THE LAWYER the half-joking, half-serious jibes of the layman, but in his own attempts at witticism or jest he should seek some other text. In the early days of the law, before legal prin- ciples grew so complex and the field of the law so extensive as is the case nowadays, the practitioners at the bar were doubtless regarded as unneces- sary. They were frowned upon, much as were the money-lenders who exacted interest. In our day the loaning of money, even at a considerable rate of interest, has become a perfectly legitimate enterprise. The profession of law has become a learned profession, and the lawyer nowadays is indispensable to the welfare of society. But the stigma that became embodied in the ancient joke concerning the epitaph of the lawyer who was referred to as an honest man, rests upon the lawyers of to-day, even as it did upon those of four centuries past. The lawyers are largely to blame for this con- dition of affairs; the dishonest lawyers by fur- nishing fresh causes of comment, and the thought- less but honest lawyers for making it a topic for jest. How long, may we ask, would the clergy be honored and respected by the public if the clergy- men were to admit generally, even for the sake of a false sense of humor, that as a class they were hypocrites and dissemblers? Yet we see such CHANGE FROM LAYMAN TO LAWYER 41 clergymen — a few of the bad among the many who are upright and honorable. Perhaps we may say that the proportion of good and bad in the clergy is scarcely higher than in the law. Yet the one profession is honored because of the majority of worthy members, while the other is reviled because of the existence of a minority of rascally practitioners. The lawyers of this generation who seek to bring about a change in the unjust attitude of the pubhc should start the reform in the ranks of the profession itself. When called upon to address a public gathering, and it becomes expedient to seek fimny stories to keep the Usteners good- natured, let them shake some other chestnut tree than that labelled "rascality of lawyers." Here, then, is another duty imposed upon the lawyer that did not rest upon him when he was a layman — the duty to uphold the dignity of the profession into which he has entered. This duty, as we have seen, includes not only that of irre- proachable personal conduct and honorable deal- ing with fellow attorneys, but also a jealous watch- fulness to protect the good name of the profession. DUTY OF LOYALTY TO THE COURTS One of the first duties confronting the newly admitted lawyer is that of loyalty to the courts. The subject of his general duties to the courts 42 ETHICAL OBLIGATIONS OF THE LAWYER will be treated hereafter in a chapter by itself,^ but there is one aspect of the subject that should properly be treated here; the reason for the duty. In the olden times, away back in the beginnings of the law in England, the administration of the crude justice then dealt out to litigants was accom- plished almost wholly, by the judges. The parties came before the magistrate, and their grievances and defenses were presented more or less infor- mally. But with the growing up of the Common Law, with its accumulation of legal principles and technical pleadings, the efficiency of the pre- siding judge as an arbitrator between the parties grew less and less. With the gradual evolution of law and order, the courts developed a dual character. The presiding justice passed upon the rights of the parties, but lawyers employed by the litigants became a necessary adjunct to the court. Justice demanded that each party should be represented by one specially trained in the law, who could present his client's case in its strongest aspects and call the attention of the presiding judge to the law that he claimed applied. With each party so represented, the judge could, with com- parative safety, decide the case. He could feel that the respective claims of the parties were fully before him, like two men standing at full ' See Chapter IX. CHANGE FROM LAYMAN TO LAWYER 43 height, back to back to be measured, and that he was simply to decide which stood the higher in the eyes of the law. Thus it came about that lawyers became an absolutely essential adjunct of the courts. They were officers of the courts, not in the sense that the judges were, but officers nevertheless. The same is true in our own day, though few people reaUze the full significance of the relation. The lawyer is under a duty to be loyal to the court, because both lawyer and court are com- ponent parts of our system of justice, and, to accomplish what society demands of them, are dependent one upon the other, even as partners in a common enterprise. Here, then, is another duty that distinguishes a lawyer- from a layman, — the duty of loyalty to the courts. DUTY NOT TO ACQUIRE INTEREST IN LITIGATION The ordinary citizen to whom an opportunity presents itself to purchase the right to book accounts or bills receivable of another can do so with impunity. If the book accoimts of a bank- rupt estate are being sold for a trifle, there is no valid reason why the layman may not purchase them if he so deskes. But the lawyer cannot do these things.^ His > See also § 94. 44 ETHICAL OBLIGATIONS OF THE LAWYER duty is to act for others and not for himself, unless in a cause in which he is an original party. Claims procured by gift, barter, or pur- chase, are not causes in which he is an original party, hence on such claims he cannot rightfully sue. The reason for this regulation is that if lawyers were allowed to purchase causes of action, it would greatly increase the voliune of litigation and perhaps result in suits that ought never to be brought. For instance, the owner of a doubt- ful claim might not care to sue if he were liable for lawyer's fees, whereas, if the lawyer himself owned the same claim, he could bring suit with- out risking anything but his own time and a trifling amount for actual expenditures. Hence, the lawyer is denied the right to acquire an interest in litigation, and herein he again differs from the layman. § 6. Summary of Chapter. Upon admission to the bar one acquires new duties and responsibilities. The question of how one should conduct himself in respect to these new duties and responsibihties is a difficult one to decide because of a lack of preliminary instruc- tion. A movement is now being made to over- come the difficulty. The lawyer differs socially from the layman in several important respects. CHANGE FROM LAYMAN TO LAWYER 45 He is under a duty of silence as to a client's con- fidences. He is under a duty to uphold the dignity of the profession. It is his duty to be loyal to the courts. He is under a further duty not to acquire an interest in litigation. CHAPTER II LOCATION OF LAW OFFICE Sec. 7. Its Bearing upon Ethical Development. Sec. 8. What Must be Considered. Sec. 9. Large City or Small. Locating in Small Community Temporarily. Sec. 10. Clerkship or Independent Practice. Length of Apprenticeship. Sec. 1L Desk Room or Independent Office. Sharing Expenses of Office. The Office Site. Conditions of Office. Showy, Luxurious-Appearing Office. Office not a Lounging Place. Office to be Constantly in Business Trim. Pollution of Air by Smoking. Leaving the Office Door Ajar. Summary of Chapter. § 7. Its Bearing upon Ethical Development. The professional ethics of a lawyer, like his general character, take form not wholly through mental and spiritual convictions at the beginning of his career, but to a large extent through the influence of his environment and the conduct of his associates and acquaintances. Many a young man has started out with high hopes and noble ideals, only to have these hopes and ideals, in the coiirse of a few years or months Sec. 12. Sec. 13. Sec. 14. Sec. 15. Sec. 16. Sec. 17. LOCATION OF LAW OFFICE 47 under adverse conditions, so completely fade out of his life that he iinblushingly pursues methods and policies that lead to eventual disgrace and ruin. His mental attitude has so greatly changed that he considers his former hopes and ideals as fantastic and impracticable. The trouble was largely in environment and association with men of lower standards of moral- ity. If a proper choice of environment had been made, granting that a choice were possible, and the young man could have had the influence of the right kind of associates for a few years he would have developed consistently with the ideals with which he started. With the yoimg lawyer, the question of a choice of environment and professional associates is especially important. Many subtle temptations from the path of rectitude and honor come into the life of every lawyer, and he needs, especially in the beginning, to be fortified by wholesome, elevatiag influences. § 8. What Must be Consideked. In making his choice of location of oflBce, he must needs consider whether he should locate in a large city, or in a comparatively small community; whether he should begin for himself, or seek a position in a lawyer's office, together with various other related topics. 48 ETHICAL OBLIGATIONS OF THE LAWYER § 9. Large City or Small. There is no subject of more vital importance to the lawyer than the choice of community in which he will practice. Were it a matter to be decided entirely with a view to the future, the large city with its great opportunities should unquestionably be the choice of the lawyer who has genuine ability and a capacity for work. But there are other considerations that demand thoughtful attention. Establishing a lucrative law practice in a large city demands not only ability and capacity for work, but a bull-dog tenacity of purpose that will not yield to discouragements, however great. But, further than this, the lawyer who seeks the great city at the outset of his career must have, for the first year or two, some means of support, aside from his law practice, imless he has wealthy clients at the beginning. Some lawyers enter the office of an estabUshed practitioner, on a salary basis. Others teach in the evening public schools. There are various ways, of course, according to his qualifications, in which the beginner may earn money, but in all there is the danger of being obliged to expend too great an amount of energy for a merely temporary purpose. If there are others dependent upon him for support the question of location becomes much the more a matter of concern. The increased LOCATION OF LAW OFFICE 49 expenses of city living, the more exacting demands of the landlord both at home and at the office, must all be considered. LOCATING IN SMALL COMMUNITY TEMPORARILY Many lawyers who have made their way to the front rank of their profession, but who were at the beginning without financial resources, have solved the problem by locating in a small com- mimity near a large city, and later, when financial circumstances warranted it, opening a city office. The relative advantages of the large city and the small community may be summarized as follows: The large city offers a limitless scope to the activities of an able lawyer. In the small com- munity the lawyer, however able, can never hope for an extensive and lucrative practice. In a large city the rents and living expenses are greatly in excess of those in the small com- munity. In the large city the period of struggle to estab- lish a practice is considerably longer than in the small community. The question after all, is for the individual to decide in view of his own peculiar circumstances. Others may advise, but unless their advice is based upon an intimate knowledge of his circum- 50 ETHICAL OBLIGATIONS OF THE LAWYER stances it is of little value to the iadividual in question. § 10. Clerkship or Independent Practice. A considerable number of newly admitted lawyers are taken into large law offices every year as assistants to busy practitioners. Copying legal documents, filing of papers in court or in the Registries, looking up witnesses and such small but necessary details of practice form the chief occupation of attorneys so employed. Such experience is valuable for the first year of prac- tice, but from a financial standpoint usually dis- appointing. Many lawyers serve such appren- ticeships either without compensation or at most for an insignificant weekly stipend. LENGTH OP APPRENTICESHIP Beyond the first year or two a continuation in such employment is prone to dwarf the individual by rendering him less confident of his ability to succeed in establishing a practice of his own. He becomes a hired man, with all the uncertainties and worriments as to his future that usually go with a salaried employment. Year by year, as expenses grow and perhaps marriage and a family increase financial burdens, the salaried lawyer finds himself more powerless to start for himself. He dares not give up a cer- LOCATION OF LAW OFFICE 51 tainty, even though it be a meagre one, for an uncertainty and the prospect of a struggle to build up an independent practice. Whether the lawyer begins soon or late, a practice comes slowly and painfully. So, unless there is a prospect of being taken into the fii-m, he should sever his office apprenticeship after the first year or two and make a start for himself. § 11. Desk Room or Independent Office. Many lawyers prefer desk room in an established law office to an independent office of their own, especially during the early years of their practice. From the standpoint of economy this arrange- ment is usually eminently satisfactory. The large office is always open during office hours, and the lawyer who rents a desk in the office may be sure that his clients will not be turned away by a closed office when he himself happens to be out on business. Telephone calls will also be attended to. Hence, for the lawyer to whom economy is an object, desk room in a first-class office, whether law office, real estate, or insurance, is preferable to an independent office. But under no consideration should a lawyer who values his reputation take desk room in an ofl^ce whose general reputation in the community is questionable. He will assuredly be adjudged of the same stamp as his office associates. 52 ETHICAL OBLIGATIONS OF THE LAWYER SHARING EXPENSES OF OFFICE Should it be impossible to secure desk room in a desirable office the independent office becomes a necessity. It frequently happens that several lawyers take an office together as partners or merely share office expenses but are otherwise independent of each other. The advantages of such an arrangement are obvious: a reduction of expenses, and the possibility of arranging office hours, if the associates do not employ an office boy or stenographer, so that the office may be kept open during business hours. THE OFFICE SITE Care should be exercised in choosing an office site. Disreputable sections of the city, or sections where questionable business houses are congre- gated, should be carefully avoided. If a particu- lar building has a reputation for harboring "get- rich-quick" concerns, or shyster lawyers, no amount of saving in rent can compensate for the loss in professional prestige occasioned by the location itself. § 12. Conditions of Office. The conditions of a lawyer's office are visible symbols by which the public are prone to judge the lawyer, unless he has already conclusively demonstrated his powers in court. Success as an LOCATION OF LAW OFFICE 53 advocate having been attained, clients are less disposed to be critical of office conditions. But the great multitude of lawyers are vitally con- cerned, whether they realize it or not, with the appearance of their places of business. A law office should be neat and attractive. A slovenly office conveys the impression that the occupant is slovenly in his work, and that a client would be taking chances of disaster in employing him. The office should bear witness to the pres- ence of a studious lawyer. Books should be in evidence. If the occupant's library is small, he should arrange what books he has in the most imposing array possible. It is not necessary that all books in the collection be the latest publications — shelf-fillers are quite as serviceable when the object is to fill up shelf space. Legislative re- ports, and especially the annuals containing the newly enacted statutes, can be procured at a slight expense or in many cases free of charge. All such may properly be found in a lawyer's library. Law books are all alike to the ordinary client, so far as his estimate of value is concerned. § 13. Showy, Luxukiotjs-Appeaking Office. Some lawyers fancy, that if by any possibility they can fit up a showy, luxurious-appearing office at the outset, prospective clients will jostle 54 ETHICAL OBLIGATIONS OF THE LAWYER one another in their haste to bring cases to them. But making a "great splurge," as it is sometimes called, usually carries with it a dire certainty of disaster. The prospective client is swift to per- ceive the real situation, to realize that the expenses for this lavish equipment must come out of some- body, and perchance fears that he himself might be a victim. So he goes elsewhere for legal assistance. The safe way is to present merely the best appearance that is consistent with one's circum- stances and reasonably certain prospects. A dig- nified, manly attitude toward the public is worth vastly more in the end than any amount of bluster and empty show. A law practice comes slowly, and expenditures should be regulated with that idea in view. § 14. Office not A Lounging Place. A law office should not be a lounging place for the attorney's idle friends and acquaintances. The presence of idlers not only disconcerts the lawyer, who would otherwise be (Jeeply engrossed in necessary work or study, but also tends to keep away prospective clients. Loud, boisterous conversation, especially during office hours, gives the law office and its occupants an unfavorable reputation in the neighborhood. LOCATION OF LAW OFFICE 55 § 15. Office to be Constantly in Business Trim. The law office should at all tunes during business hours be in readiness for the reception of possible clients. It is usually at the most unexpected moments that a seeker for legal services walks into the office. The lawyer should not be in his shirt sleeves unless the weather is so intolerably hot as to furnish him a valid excuse. Little things in appearance and deportment signify much to clients and especially to female clients. ' POLLUTION OF AIR BY SMOKING The air of the office should be fresh and whole- some. A person coming into an office from out of doors instantly detects any oppressiveness or improper condition of the office ventilation. This is true even when an odor in the air is so sUght that the occupant does not dream of its presence. The stifling fumes of tobacco smoke are espe- cially objectionable. It is at best an awkward expedient to open the windows and "air out" after the client arrives. The client is embar- rassed at being the cause of this sudden change in office conditions, and the occupant is discon- certed at being found in such an vuiwholesome atmosphere. But disagreeable as is the odor that saturates the office from cigars and ordinary tobacco, it is as 56 ETHICAL OBLIGATIONS OF THE LAWYER incense compared with the villianous aftermath of cigarette smoking. Many laymen, after visit- ing an office in which such conditions are found, express themselves of the opiaion that the lawyer or lawyers therein have little or no practice and beguile the time by deadening their senses with cigarette "dope." Whether this be a just criticism or not, the prevailing impression of the deleterious effect of cigarette smoking should prompt the lawyer to avoid the appearance of the habit, even though his natural sense of courtesy to prospective clients is not strong enough to accomplish the same result. § 16. Leaving the Office Door Ajar. A very good plan to pursue in striving to make the office attractive to prospective clients, if the office is off a corridor in an office building, is to leave the office door ajar or part way open so that a portion of the office interior can be seen. A stranger always hesitates to open a closed door but if the door is part way open the invitation to enter the office is suggestively cordial and em- boldening. If two law offices opening from the same corridor confront the person seeking legal assistance, and one office door is partly open and the other tightly closed, the chances are ten to one, granting that both lawyers are equally unknown, that the pros- LOCATION OF LAW OFFICE 57 pective client will choose the office with the open door. § 17. Summary of Chapter. The location of a law office has a profound influence upon the success or failure of the law- yer and hence upon his professional conduct. The large city with its manifold attractions and advantages is the goal of the ordinary lawyer, yet, under some circumstances, the small com- munity is preferable as a location diu-ing the early years of practice. The question of apprenticeship in the office of an older lawyer with its advantages and disad- vantages is often difficult of solution. Desk room or independent office is usually a matter to be regulated by circumstances. The office, when once established, should bear evidence of the presence of a studious lawyer. The appearance of the office, the presence of loungers, atmospheric conditions, especially with reference to tobacco smoking, are each discussed. Leaving the office door ajar is a commendable practice. CHAPTER III DUTIES TO THE CLIENT Sec. 18. Is it a Duty to Accept any Client? Not Policy to Refuse Case unless for Good Reasons. Undesirable Clients. Sec. 19. Freedom of Choice. Freedom of Clioice a Valuable Asset of Lawyer. Effect of Choosing Clients Wisely. Sec. 20. Duty not to Accept Case if a Party in Adverse Interest. Sec. 21. Duty not to Accept if Representing Adverse Party. Duty Where Both Contending Parties are CHents. Sec. 22. Not to Accept if Recently Counsel for Adverse Party. Sec. 23. Duty in Case of Divorce Sought by Friends. Sec. 24. Duty to Accept Case against Fellow Attorney. Sec. 25. Duty to Defend Criminals. Sec. 26. Duty as to the Retainer. Amount of Retainer. Sec. 27. Duty as to Advance Costs. Amount of Advance Costs. Sec. 28. Summary of Chapter. § 18. Is IT A Duty to Accept any Client? One of the questions confronting a lawyer, especially after the waiting period is over and new clients begin to come in more frequently, is whether to accept or decline a proffered case. Were it a matter affecting merely the case offered, the question would be less difficult, but the entire future with this particular litigant hangs DUTIES TO THE CLIENT 59 in the balance. If he is turned away and goes to a different attorney, the chances are ten to one that he will never return to the lawyer first con- sulted. The ordinary client will continue with a lawyer once, employed, if he gives satisfaction, rather than take his chances with a stranger. It is human nature so to do, and it is upon this cer- tainty of return of a satisfied client that a lawyer's practice is based. Hence, the subtle temptation of the lawyer to accept a case of doubtful nature rather than lose his chances of future employment with the prospective client. NOT POLICY TO REFUSE CASE EXCEPT FOR GOOD REASONS It is seK evident, of course, that a lawyer who wishes to build up a large practice should not tiH-n away any cUent unless for good and sufficient reasons. The mere fact that the case is small and insignificant is not a sufficient warrant for declin- ing it. UNDESIRABLE CLIENTS If the Utigant himself is an undesirable client, or there is a practical certainty that no business of any consequence can ever come from him or his acquaintances, the busy lawyer need not hesitate in advising him to go to some less busy attorney. 60 ETHICAL OBLIGATIONS OF THE LAWYER Nothing is lost by so doing. In fact, there is a distinct gain of time for more important work, both at the present and in the future, for such a client will continue to bring small cases, and friends with similar cases, to pester the busy lawyer. § 19. Freedom of Choice. Some lawyers declare that it is the duty of a lawyer to accept any and every case offered, irrespective of his own personal opinion as to its ethical standing. Such arguments are usually heard by way of justification of the particular lawyer for being engaged on the side of knavery. Nothing could be farther from the lawyer's duty to the public. To be sure, he is an official author- ized by the public to represent any individual who may apply to him for legal services, but he has a freedom of choice. He is at liberty to decline a case, with or without reason. He may retire from active practice, even, whenever he chooses, without any violation of the rights of the public in respect to his services. FREEDOM OP CHOICE A VALUABLE ASSET OF LAWYER Freedom of choice among litigants who come to him for legal assistance is an invaluable asset to the lawyer. By it he shapes his own future career as a lawyer. He may specialize in a par- ticular branch of the law and decline all cases DUTIES TO THE CLIENT 61 except from clients whose business affairs are lilcely to require expert services in his special line. For example: If a lawyer wishes to confine his practice to admiralty cases or patent htigation or corporation law, his proper course is to decline cases that involve different branches of the law. Whether it would be expedient for him to begin this specializing process at the beginning of his practice is a matter largely to be decided from a financial point of view. If he can afford to turn away cases in other than in his chosen field, that is his own affair. Some lawyers, however, declare, and with con- siderable force of argument to support it, that every lawyer, whether he is to be a specialist or not, should first be trained in general practice. Specializing is to a certain extent narrowing in its effect upon the intellectual outlook of the individual. The lawyer should, above all others, cultivate a broad-minded view of life and of his profession. EFFECT OF CHOOSING CLIENTS WISELY Freedom of choice among litigants enables the lawyer to determine whether his practice shall be active com-t practice, or otherwise. If he desires com-t practice, he may still determine 62 ETHICAL OBLIGATIONS OF THE LAWYER whether he will handle contract cases, or accident cases, or defend clients accused of crime. If he desires to confine himself to the quieter, and oftentimes more profitable, practice outside of the courts, his freedom of choice enables him gradually to develop into a corporation lawyer, or to become a salaried counsel of large business enterprises. § 20. Duty not to Accept Case if a Party IN Adverse Interest. No lawyer with a sense of honor would hesitate for a moment in declining to take a case if his own personal interests were adversely concerned. It would be a positive wrong to the chent. It sometimes happens, however, that a lawyer who has no actual interest in the dispute has a remotely apparent interest. It may be that he is closely related to the adverse party, but has no greater interest in his relative's welfare than he would have in that of an absolute stranger. It is his duty, nevertheless, even under these circumstances, to absolutely decline to act. His own reputation demands it. If the case were lost, the client, for clients are sometimes ungrateful, might ascribe the result to the lawyer's secret interest in the welfare of the adversary. Such a charge would be hard to refute, owing to the unfortunate circumstances. DUTIES TO THE CLIENT 63 If the case were won, it might be that the chent would be dissatisfied with the amount of recovery and in like manner ascribe the result to a lack of zeal in his behalf because of his lawyer's relation- ship to the adversary. Thus one horn of the dilemma might be as dangerous to the lawyer's reputation as the other. The safe course to pursue is to decline to serve at all, even though the client knows the facts before the employment begins, and even though he expresses himself as satisfied therewith. He may change his mind later. § 21. Duty not to Accept if Repeesenting Adverse Party. Another situation in which no honorable lawyer would ordinarily hesitate to decline the case is where he has already been retained by the adverse party. Obviously he could not represent both contending parties if court proceedings were resorted to. But such a pronounced situation of affairs would not come at first. Suppose, for instance, Lawyer Blank has been engaged by A to help him adjust his differences with B. Later, B, without knowing of the fact of Blank aheady having been engaged by his adversary, attempts to state his case to him — with a view of engaging his services. The ques- tion immediately confronts Lawyer Blank: "Shall 64 ETHICAL OBLIGATIONS OF THE LAWYER I tell him not to continue with his story or let him go on until I can know both sides of the case and then try to adjust matters?" This may seem at first thought a very com- mendable purpose, but the lawyer's duty is fixed and definite. He is not a judge, but a paid advo- cate for the adverse party. Hence, he has no right to hear a word of B's story until he has acquainted him with the fact that^he is represent- ing the other party. B comes to him in confi- dence, a confidence that should be held sacred by every lawyer who is worthy of his profession. B should immediately be put upon his guard. If, after knowing the facts, B is willing to tell his story and to attempt to secure a settlement with the lawyer before him, well and good, so far as the lawyer's duty to him is concerned. A settlement out of court is always desirable, if it can be made without sacrificing the rights of one's clients. But it should constantly be borne in mind that dealing directly with the adverse party has its dangers. The lawyer by superiority of training and greater technical knowledge has an advantage over the layman, and a sharp bargain with the layman in settling a client's case against him often breeds pubhc distrust of the lawyer's professional ethics. On the other hand, an agreement unsatisfac- DUTIES TO THE CLIENT 65 tory to the client may raise a suspicion that there was collusion between the lawyer and the adverse party. The safer way, if he has no lawyer, is to deal with the adverse party in the presence of one's client or of witnesses. If he has a lawyer, then the lawyer is the proper party to deal with. DUTY WHERE BOTH CONTENDING PARTIES ARE CLIENTS An embarrassing situation may arise in the following way: A has a grievance against B. He goes to his lawyer C for legal assistance. C is hnmediately aware that B is also a regular client of his. What is his duty in the matter? Should he act as counsel for A in an action against B, or does he have a choice between the two parties, provided B also desires his assistance? But the fiirther question arises: Is it proper for him to act at all for either party, in view of his professional relation to each? It is easier to propound these questions than to answer them. Choosing one or the other will alienate the future business of the rejected party, and even though the relative importance of the two clients may simplify the matter of choice, yet a doubt as to the ethics of choosing at all must trouble the conscientious lawyer. Theoretically, all cUents should stand on ex- actly the same basis. Each should command the 66 ETHICAL OBLIGATIONS OF THE LAWYER absolute loyalty of counsel, and financial con7 siderations should not cause a varying degree of vigilance or devotion. But in the practical world of affairs we must recognize that theory and practice are often totally different things. The lawyer will naturally devote more attention and vigilance to the legitimate claims of a client who can pay handsomely than he will to the service of an impecunious client. It is human nature. So perhaps the average lawyer would choose between the clients on the basis of financial worth. The client who customarily gave him the greater volume of business would be preferred. Of course he would try to placate the other and excuse him- self as best he could for the choice he had made. If the case could not be settled without court pro- ceedings, he would doubtless offer to suggest a lawyer who would satisfactorily handle the case for the rejected client. But a severer code of ethics would dictate that the lawyer remain absolutely neutral. If he could not accomplish a compromise out of court by getting the adversaries together and by counselling a moderation of the extreme claims of each, he should leave the parties to fight it out without further services from him. A firm stand and a frank explanation to both parties of why he could not serve either should increase their respect for DUTIES TO THE CLIENT 67 him as a lawyer and do much to bring about a harmonious adjustment of differences. § 22. Not to Accept if Recently Cotjnsel FOR Adverse Party. If one has recently been counsel for a party against whom a stranger seeks to bring suit, he should decline the offered case. The relation of attorney and client may not then exist, but there is nevertheless a duty to the former client. Every man who employs a lawyer has a right to demand that knowledge of him and of his affairs, gained by the lawyer under circumstances of trust and confidence, should not be used against him at a later time in behalf of an adversary. A lawyer in properly handhng a client's case, especially if it concerns his private affairs, gains a more intimate knowledge of the client and his vulnerable points than, anyone else save his immediate relatives. Justice demands that this should be so and that the confidential relation between lawyer and client should be unhampered by any fear that the lawyer will afterward make a wrongful use of the knowledge thus acquired. The familiar principle of the law of evidence that the lawyer cannot voluntarily nor under compulsion testify in court to confidences from his client except with the cUent's consent is one phase of this general subject of the lawyer's duty 68 ETHICAL OBLIGATIONS OF THE LAWYER to his client. The topic under discussion is not governed by positive law, but the well-being of the profession of law demands that a lawyer should implicitly keep faith with former clients. This duty remains, even though the client has ill-used his lawyer and wrongfully severed rela- tions with him. The fact of ill-usage, or of refusal to pay fees rightfully due, does not release the lawyer from his professional obligations to the client. The client may have proved himself a mean and contemptible creature, but the lawyer should not, in passion or spite, forget his own high obligations and duties, and shame himself and his profession by taking a mean and contemptible revenge. § 23. Duty in Case of Divorce Sought by Friends. It sometimes occurs that a lawyer who is a friend of both parties is asked to act in behalf of one party desiring to institute divorce proceedings against the other. The situation is a delicate one. The first duty of the lawyer so consulted, and in fact of any lawyer, even though a stranger to the unhappy couple, is to endeavor to effect a recon- ciliation. The marital ties of husband and wife should not be set aside except for grave causes. An angry husband or wife is prone to distort and magnify the present causes of disagreement. DUTIES TO THE CLIENT 69 An unprejudiced lawyer to whom the story is told should be a calmer judge of the grievance. He should make due allowance for exaggeration and, if there is a possibility even remote of a harmonious settlement of the matter without divorce, it is his duty to do his utmost to effect a reconciliation. To advise divorce proceedings and to encourage the resentful feelings of the aggrieved party merely for the sake of the legal fees that will result from such proceedings is a positive breach of duty to the public. A lawyer who will do this is imworthy of his profession. The lawyer who is a friend to both parties is under a double obligation to effect a reconciliation : a duty to the public, and an additional duty aris- ing from friendship to the estranged couple. Of course the cause of divorce may be of so aggravated a natxu-e that the offending party forfeits all claims of friendship of the lawyer. It may be that justice demands that the injured party should no longer be compelled to bear the shame that the other has brought upon their common name. Adultery, confirmed drunkenness, or persistently brutal conduct toward the other should justify any lawyer in taking the side of the innocent party, even though he has been a lifelong friend of the wrongdoer. 70 ETHICAL OBLIGATIONS OF THE LAWYER § 24. Duty to Accept a Case against Fellow Attorney. It sometimes transpires that a prospective client brings a story of apparently unjust treatment at the hands of a member of the bar. The offend- ing lawyer has acted as counsel for him and, in some way, has been guilty of wrongful conduct toward him. It may be that he has refused to account for money paid to him in settlement of a suit, or that he has misappropriated trust funds, or grossly overcharged for services, or taken his pay from the client's funds before paying over the balance. There is a generally prevailing reluctance among lawyers to bring suit against other attorneys, especially if the wrongdoer is a prominent member of the profession. But it is the positive duty of a lawyer to rebuke in the most effective manner in his power the misconduct of a fellow attorney.^ Not only is his wrong-doing an injm-y to the public and to the individual, but it sullies the fair name of the profession of law. The basis for the popular mistrust of lawyers is, as we know, the misconduct of the few. The only effective way to reassure the public of the moral integrity of the profession in general is for honest lawyers to rise in indignation against rascals and knaves who wear the badge of the law and scourge them 1 See also § 72. DUTIES TO THE CLIENT 71 out of the profession. Assuredly it is not wise for an honest lawyer to shrug his shoulders and decline to undertake the case. The layman will misunderstand the act, and conclude that all lawyers are alike, and furthermore that they are banded together in a great fraternity to shield one another when accused of crime. Professional courtesy is due to brethren of the bar so long as they conduct themselves honorably, but no longer. When they show themselves to be criminals they should be treated as such and prosecuted with a severity due to their two-fold offense — the injury to the public and to the good name of the profession of law. A word of caution however should be added. Not every disgruntled individual who brings a story of ill-usage by his attorney has a real griev- ance. A layman who is accustomed to measuring the value of services by the standard of day labor with the hands cannot readily understand that professional services are worth vastly more than the toil of a day laborer. All stories of over- charging should be scrutinized carefully before condemning thel awyer against whom complaint is entered It .may be that, if both sides of the story were told, his charge was a moderate and proper one. 72 ETHICAL OBLIGATIONS OF THE LAWYER § 25. Duty to Defend Criminals. One of the most damaging evidences of the depravity of lawyers to the minds of many people who have never given the subject much thought is the fact that lawyers defend criminals. Such people do not pause to consider that a person accused of crime is not necessarily a criminal. The accused may be the victim of circumstantial evidence and entirely innocent of the crime charged. If one were not given the right to defend him- self and meet incriminating evidence with evi- dence of a contrary nature, no citizen, however law abiding, could be sure of his liberty. Take, for example, the indictments returned by the grand juries, and compare them with the acquittals that result from later trials. While not all persons acquitted are necessarily innocent, yet many of them are innocent. The proceedings before the grand juries are those in which the side of the accused is not repre- sented. Only the evidence against him is adduced. Hence, he is convicted, or would be if that were the only form of trial. Yet this is the sort of trial that many critics of the legal profession would impliedly advocate. The prosecution of an accused person is con- ducted by a skilful attorney who sees only the damaging evidence against him. The prosecu- tor's professional zeal prompts him to present to DUTIES TO THE CLIENT 73 the court and jury in an actual trial as strong a case against the accused as is possible under the circumstances. Hence, it becomes a necessity, if justice is to be done, that the prisoner have the services of a lawyer to present, in defence, all the favorable evidence. The United States Consti- tution guarantees this right of defence to all criminals. But the real basis of the provision is to protect the innocent from unjust convictions, and not merely to provide a form by which avowed criminals may be convicted. It is true that guilty persons do take advantage, undue advantage sometimes, of this right of defense. It is true also that some lawyers so far forget their duties to the public as to invent unworthy means of delay and throw all manner of obstacles in the way of justice. But the fact that a few guUty persons make a mockery of a humane provision does not impeach the justice of that provision, so far as the great mass of the people are concerned. Nor does the fact that a few lawyers go to unworthy extremes in the defense of notorious criminals impeach the honor and integrity of the great mass of the profession. It is necessary and right that all persons accused of crime, whether guilty or innocent, for in some cases there is no human means of determining either guilt or innocence to a certainty, should have the ablest defense possible. 74 ETHICAL OBLIGATIONS OF THE LAWYER The American Bar Association in the Fifth Canon of its Code of Ethics sets forth the lawyer's duty in this respect thus: "It is the right of the lawyer to imdertake the defence of a person accused of crime, regardless of his personal opinion as to the guilt of the accused otherwise innocent persons, victims only of suspicious circmnstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means to present every defense that the law of the land permits, to the end that no person may be deprived of life or Uberty, but by due process of law. "The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehen- sible." Again in Canon 15: "In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, DUTIES TO THE CLIENT 75 much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client." A lawyer who lived many years ago, David Hoffman by name, who was renowned for his professional integrity, embodied his idea of a lawyer's duty in this regard in the following manner : " When employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavors to arrest or to impede the course of justice, by special resorts to ingenuity, to the artifices of eloquence, to appeals to the morbid and fleeting sympathies of weak jm-ies, or of temporizing courts, to my own personal weight of character — nor finally, to any of the overweening influ- ences I may possess from popular manners, emi- nent talents, exalted learning, etc. Persons of atrocious character, who have violated the laws of God and man, are entitled to no such special exertions from any member of our pure and honorable profession; and, indeed, to no inter- vention beyond securing to them a fair and dis- passionate investigation of the facts of their cause, and the due application of the law. All 76 ETHICAL OBLIGATIONS OF THE LAWYEK that goes beyond this, either in manner or sub- stance, is unprofessional, and proceeds, either from a mistaken view of the relation of chent and counsel, or from some unworthy and selfish motive which sets a higher value on professional display and success than on truth and justice, and the substantial interests of the community. Such an inordinate ambition I shall ever regard as a most dangerous perversion of talents, and a shameful abuse of an exalted station. The parricide, the gratuitous murderer, or other perpetrator of like revolving crimes, has surely no such claim on the commanding talents of a profession whose object and pride should be the suppression of all vice by the vindication and enforcements of the laws. Those, therefore, who wrest their proud knowledge from its legitimate purposes to pollute the streams of justice and to screen such foul offenders from merited penalties, should be regarded by all (and certainly shall by me) as ministers at a holy altar full of high pretension and apparent sanctity but inwardly base, unworthy, and hypocritical — dangerous in the precise ratio of their command- ing talents and exalted learning." § 26. Duty as to the Retainer. Of the retainer itseK little can be said. It would not be a safe rule to adopt that every client must deposit a retainer before his case would be DUTIES TO THE CLIENT 77 accepted. Many perfectly honorable and fair dealing clients, deeming that their own word was sufficient assurance, might take offence at having thus to pledge their good faith. But were it possible to tell at the first interview with a client whether he was reliable or unreli- able, and if he were found to be the latter, a retainer should be insisted upon. A lawyer's time is his capital, and to be called upon to expend a portion of that time in research or endeavor for a cUent who might be financially irresponsible and refuse payment is a positive injustice to the lawyer. In this country the lawyers are few who demand a retainer, and those few are usually lawyers of eminence in the profession, whose services are much in demand. AMOUNT OF BETAINBR The amount of the retainer, when one is de- manded, depends, of course, upon the circum- stances. The size of the claim, the probable difficulty of preliminary investigations, and the financial responsibility of the client must all be considered. A larger retainer would be expected from a wealthy cHent than from a poor man. § 27. Duty as to Advance Costs. There is a topic, however, somewhat related to the retainer, that should properly be treated in 78 ETHICAL OBLIGATIONS OF THE LAWYER this connection — the subject of advance costs. The lawyer is under no duty to advance the money for the actual costs of proceedings, although in dealing with clients who are perfectly responsible financially this is often done and the amount is charged against the client's account. AMOUNT OF ADVANCE COSTS The amount to be exacted for advance costs depends upon the circumstances. A sum that would be ample in one case might be wholly inade- quate in another, so the lawyer must exercise foresight in determining the amount. In the author's recent work. Law Office and Court Procedure, this topic is treated. Some sug- gestions there given may be pertinent here: "In ordinary suits on bad bills, from five to ten dollars will cover actual expenditures. In considering the amount of advance costs, you should remember that you become personally liable for the officer's charges for service, and that such charges are likely to be anywhere from one dollar up, according to the difficulty of service. The entry fee is another item to consider; in the inferior courts it is usually one dollar, and in the Superior Courts three dollars. "Travelling expenses in interviewing witnesses must also be considered. It is often necessary to go to the house of a witness to secure an inter- DUTIES TO THE CLIENT 79 view, and car fares or carriage hire for such pur- poses may amount to a considerable sum. "It should perhaps be added in passing that the ordinary client is much more inclined to be liberal before suit is started than he will ever be afterward; especially if the suit is unsuccessful. If advance costs are obtained it may save embar- rassment to all concerned." ^ § 28. Summary of Chapter. The question of whether a lawyer should accept or decline a proferred case is a difficult one to decide, and a great deal depends upon the deci- sion finally made. The lawyer has a freedom of choice among those seeking his services. By this freedom of choice the lawyer regulates the branch of the law in which he will specialize, if he decides to specialize. The lawyer is under a duty not to accept a case if he is himself a party in adverse interest, and is perhaps under the same duty even if remotely connected with the case. He is under a duty not to accept if representing the adverse party, and this is true if both litigants are regular clients of his. In the latter case it may be a question whether he can conscientiously act for either. He is under a duty not to accept a cause if recently counsel for the adverse party. The lawyer's duty in case of divorce sought by 1 Archer's Law Office and Court Procedure, page 11. 80 ETHICAL OBLIGATIONS OF THE LAWYER friends forbids him to do anything except to try- to effect a reconciliation, unless one of the parties has so acted as to forfeit the ties of friendship. He is under a duty to accept cases against erring lawyers. He has a right to defend criminals, although he is not always under a duty so to do. General suggestions are also made as to lawyers, rights and duties respecting retainer and advance costs. CHAPTER IV DUTIES TO CLIENT (Continued) Sec. 29. Duty not to Hastily Advise. Hasty Decisions Dangerous to Lawyer. An Illustration. Another Illustration. Sec. 30. Not to Make Positive Assertions of Outcome of Suit. Holding Out Delusive Hopes. Preparing for Unpleasant Surprises. SEa 31. How Much Advice should be Given. An Illustration of the Evils of too Much Advice. Sec. 32. Duty that Advice should be Clear. An Illustration of the Result of a Client's Mis- understanding. Sec. 33. Duty in Respect to Over-Inquisitive Client. Sec. 34. Duty to Advise against Illegal Acts. Sec. 35. Duty not to Take a Hopeless Civil Case. An Illustration of the Headstrong Persistence of a CUent. Effect of Suing upon Hopeless Cases. Sec. 36. Unjust or Inequitable Suits. An Illustration of Effect upon Lawyer's Career. Sec. 37. Is it a Duty to Advance Money to CHent? No Duty Ordinarily. Sec. 38. Summary of Chapter. § 29. Duty not to Hastily Advise. The client has a right to the carefully considered judgment of his attorney. The chent must shape his conduct in accordance with the advice given him, and if that advice be ill-considered the client's 82 ETHICAL OBLIGATIONS OF THE LAWYER rights may be jeopardized or lost. He has a right to assume that the lawyer is doing his best in so advising and will conclude that if his best advice is so disastrous when followed a change of law- yers is desirable. HASTY DECISIONS DANGEROUS TO LAWYER The longer the experience of the lawyer, the more thoroughly ddes he understand the danger of snap judgments and the more carefully does he avoid them. Caution and deliberateness of judgment are characteristics of successful lawyers, for no man can acquire any degree of success in his profession if he gains the reputation of "going off at half cock." Clients are afraid to entrust cases of any importance to such a lawyer and run the risk of a fatal blunder. AN ILLUSTRATION How truly this result works out in everyday life may be seen from the following: In a certain New England State, not many years ago, a young lawyer, an ardent temperance worker, was elected prosecuting officer for the county. The liquor traffic was under the ban of the law in the State, and the county which the young lawyer was to serve was particularly odious for the illegal liquor traffic carried on in its prin- cipal towns. DUTIES TO CLIENT 83 "Kitchen bar rooms" and disorderly houses had become so shamelessly prevalent that the good people of the county rose up in might to stamp out all such evUs. A campaign was waged to elect a county attorney who would enforce the law. The successful candidate was a brilliant young man, witty, eloquent, and resourceful in debate. Everyone predicted a brilliant future for him, for the ofl&ce of county attorney was regarded as a stepping-stone to the bench or to a large and lucrative law practice. In spite of the young man's wit, eloquence, and undoubted zeal, nearly every prosecution that he brought resulted in a discharge of the accused. His indictments were frequently defective, his evidence was often imperfectly prepared, and the lawyers for the defence found it easy to check- mate him at every turn. The real difficulty lay in the fact that the county attorney was addicted to snap judgments. In his zeal to convict, he failed to verify first im- pressions and went to court unprepared. The result was that the young man met with dis- aster on every hand and, strangely enough, never seemed to realize where the fault lay. His former supporters deserted him in disgust, and when his term of office expired he had shown himself to be the most inefficient prosecutor that the county had seen for many years. 84 ETHICAL OBLIGATIONS OF THE LAWYER He returned to private practice, but his repu- tation as a blunderer followed him, and he was soon obliged to leave the county and try his for- tunes in a distant part of the State. ANOTHER ILLUSTRATION Another illustration quoted from a work al- ready cited ' may serve to further impress the moral upon the reader. "As an illustration of the ease with which the young attorney may fall into error through attempting to apply common-law principles with- out investigation of possible statutory changes, let us assume the following: X is a young lawyer who has recently graduated from a law school in a State other than the one in which he is now beginning his practice. A client comes to him with an assignment of wages upon which he desires legal advice. X learns from his client that the assignor has left the employ of the firm for whom he was working at the time of the assign- ment. He remembers the common-law principle that an assignment of wages can apply only to wages earned under a contract existing at the time of the assignment. He thereupon concludes, without further consideration, that the assign- ment does not apply to the present employment and informs his client that he has no remedy. ' Archer's "Law Office and Court Procedure." DUTIES TO CLIENT 85 "The client demurs to this conclusion and declares that he has known many cases where an assignment was enforced under just such circum- stances. X, in his perplexity, looks up the Re- vised Laws of the State and finds there is a statute which provides that assignments of wages are operative against contracts of employment subsequent to the original one, provided the assignment has been recorded. His client's assign- ment has been duly recorded, so X reverses his opinion and promises to immediately institute the proper legal steps to enforce payment. "The client goes away joyfully, and X hastens to consult an older attorney as to how he shall proceed in the matter. To his dismay he is informed that the assignment is after all valueless, because a stat- ute, more recent than the Revised Laws, which was in force at the time of the assignment, provides that a married man who assigns his wages under the circumstances related must procure the written assent of his wife in order for the assignment to be valid. No such written assent had been obtained by X's client from the wife of the assignor. "When the client learns the true situation and how httle X knew about the law of assignments, X's reputation for legal knowledge sufifers con- siderably in his estimation, and he is Ukely to consult a different lawyer the next time he desires legal information^ 86 ETHICAL OBLIGATIONS OF THE LAWYER "The cause of this unfortunate experience of X was not that the law school he attended failed to give him the latest law; for law schools teach general principles, and cannot, ordinarily, concern themselves with statutes outside of their own State. The real cause was X's failure to properly investigate the law before giving his opinion, and a similar experience may come to any young lawyer unless he guards against a tendency to hasty opinions and ill-considered actions." ^ § 30. Not to Make Positive Assertions of Outcome of Suit. Another duty that every lawyer owes to his client is to refrain from positive assertions of a favorable outcome of litigation. Surprises of one sort or another are sure to occur, and some unex- pected evidence or legal obstacle raised by one's opponent may give the victory to the adversary. HOLDING OUT DELUSIVE HOPES If the lawyer of the defeated party has held out delusive hopes and the client, in his natural enthu- siasm for his own side of the controversy, has accepted these assurances as foregone conclusions, defeat will come to him as a rude awakening. He is likely to feel a bitter resentment toward his lawyer and to regard him as in a measure respon- ' " Law Office and Court Procedure," page 2. DUTIES TO CLIENT 87 sible for the result, either through lack of ability or through insufficient preparation. The client still believes his own case to have been unassail- able if properly handled. PREPARING FOR UNPLEASANT SURPRISES The lawyer, therefore, should prepare for un- pleasant surprises by assuring the client that even though his case may appear certain, yet there is always a possibility of disappointment through a witness' testimony being shaken or unexpected evidence being introduced by the other side. American Bar Association Code of Ethics, Canon 8 : "The miscarriages to which justice is subject by reason of surprises and disappointments in evidence and witnesses, and through mistakes of juries and errors of courts, even though only occa- sional, admonish lawyers to beware of bold and confident assurances to clients, especially where the employment may depend upon such assurance. Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end litigation." § 31. How Much Advice should be Given. Some lawyers make the mistake of explaining too fully to the client the exact legal steps to be taken and the law governing the case. Such 88 ETHICAL OBLIGATIONS OF THE LAWYER explanations serve no useful piu-pose and, if made to some clients, cause positive embarrassment to the lawyer. The client who plumes himself on his ability to grasp any point, however intricate, usually carries away erroneous recollections of the explanation. He is over-ready to explain, in his turn, to less sophisticated mortals, or to dispute, even with lawyers, and quote his own lawyer as authority for the most absurd propo- sitions. AN ILLUSTRATION OF THE EVILS OF TOO MUCH ADVICE For example: A lawyer had explained to his client who wished to pin-chase some land that if a sealed agreement of sale were given him this would be sufficient to bind the bargain. The lawyer then went on, without reason other than to air his knowledge, to explain to the client the difference between the provisions of the fourth and seventeenth sections of the Statute of Frauds and how a bargain for the purchase of personal property under the seventeenth section could be made binding by a simple payment of money without a writing. The client apparently absorbed this knowledge but promptly went to the owner of the land and made a part payment, assuring him, when he offered to give him an agreement of sale, that he DUTIES TO CLIENT 89 could not wait for it, and besides his lawyer had told him that a part payment was sufficient. The piu-chaser received a simple receipt acknowl- edging the payment of money. The owner of the land later refused to convey and tendered back the money. The client lost the land and blamed his lawyer for misinforming him. No amount of explanation could convince him that he had misunderstood the instructions. It is easy to see that if the lawyer had confined his explanations to the really necessary proposi- tion the client would have acted properly. § 32. Duty that Advice should be Cleak AND Intelligible. Whatever advice or explanation is given to the client should be made perfectly clear and definite. The client is sure to blame the lawyer for his own mistaken ideas of the explanation, and perhaps, after all, the lawyer is to blame for not ascertain- ing by questioning whether the chent really understood. AN ILLUSTRATION OF THE RESULTS OF CLIENT'S MISUNDERSTANDING A client had a claim for necessaries against a certain party. Under the statute in the State it was provided that, by an equitable process after judgment, a debtor could be ordered by the 90 ETHICAL OBLIGATIONS OF THE LAWYER court to pay the judgment in weekly or periodical installments. The client wished to take advantage of this law. Her lawyer explained the steps to be taken and added that the amount of payments ordered by the court would depend upon how much the debtor was earning, for he would always be allowed to retain enough to support his family. From this it might readily be inferred that unless the debtor were earning more than enough for famUy needs no payments would be ordered. But the lawyer did not make this point explicit. He assumed that the client understood. Suit was brought, and an attachment was attempted. The attachment failed, so there was nothing to do but rely upon the statutory remedy of equitable process after judgment. The client met the lawyer on the street shortly after suit was entered and asked about the attach- ment and its cost. When they parted the client asked anxiously: "But I am sure of getting my money from him finally?" "No. The court will order him to pay if he is earning more than enough to support his family, but he may not be doing that." "What? You told me the court would make him pay, anyway." "Pardon me, madam. You have made a mis- DUTIES TO CLIENT 91 take. I never told you such a thing as that. I told you the court would always allow him to retain enough of his wages to support his family. I thought you understood from that that unless we could prove that he was earn- ing more than enough for his family, the court would not order him to pay, and we would have to wait and try again when he was earning more money. "I think you're just horrid! I'd rather lose that money than spend any more when I'm not sure of getting it back. You did tell me the court would make him pay anyway, so there!" So there it was. The lawyer could not con- vince her of her error and, although he had shortly before won an important case for her, she went away in "a huff " over this trivial matter, told him not to do any more on the case, and never brought him any more business. She did not even offer to pay the expenses that she knew had been incurred. The lawyer paid these bills and charged them up to "experience." § 33. Duty in Respect to Ovek-Inquisitive Client. A garrulous, over-inquisitive cUent, if given any encouragement, will pester his lawyer with innumerable questions. He will "drop in for a talk on the case" when there is no necessity of 92 ETHICAL OBLIGATIONS OF THE LAWYER a conference and disturb his lawyer when his time should be free for important work. The better plan is to give the client merely the explanations that are necessary to an intelligent understanding of his duties and liabilities with respect to any part he may be called upon to per- form in connection with the case. He will respect his lawyer more if dealt with at arm's length in a thoroughly business-like manner than if taken into confidence in respect to things that are immaterial to his own conduct in the case. The lawyer will also be spared the nuisance of unso- licited calls from his client. There is another phase of the subject that should not be overlooked. The client who knows precisely the amount of work and the time spent by the lawyer on his case, is likely to estimate the value of his services on the basis of day labor and to dispute a perfectly legitimate charge when settling time comes. § 34. Duty to Advise against Illegal Acts. Clients sometimes disclose to their lawyers an intention to do an illegal act. Not necessarily do they ask the lawyer to participate in the act, or to take any active part even remotely connected therewith, but they come for advice as to the probabilities of conflict with the authorities and the extent of their liabilities if caught. DUTIES TO CLIENT 93 What is the lawyer's duty? Should he make a simple explanation of the law and its manner of enforcement? Is it his duty to intrude himself into the client's affairs to the extent of exhorting him to give up his illegal piu-pose? Perhaps the client wishes to commit an assault and battery upon an enemy and desires to know if there is not a way of evading the law by provok- ing the enemy to strike the first blow. Or, per- haps he has committed embezzlement and desires to know where he can flee to escape punishment; or, perhaps he wishes to burn his property to secure the insurance and desires to know certain technicalities of insurance law. It is the lawyer's duty in all such cases to advise the client against the intended act. It is his further duty to absolutely refuse to give him any information on the desired point. If the client still persists in his evil purpose he should be shown the door and dismissed summarily. A lawyer never loses but gains by severing his relations with a client who turns out to be a rascal. § 35. Duty not to Take a Hopeless Civil Case. Clients are constitutionally inclined to feel that they are sure of winning a ease. They see their own side of the controversy and can not under- stand the points favorable to their adversary. 94 ETHICAL OBLIGATIONS OF THE LAWYER They are therefore optimists of the most pro- nounced type. The lawyer has a two-fold temptation to advise favorably; the temptation to secm-e business if the client is willing to take the chances of suit, and the temptation to please the chent by coin- ciding with his views. But there is a duty that should be stronger than self-interest and the desire to please. To disregard the duty would be a most short-sighted and fatal policy. The client may be pleased by favorable advice at the time, but his anger against his adversary will not endure for long. When the possibility of defeat and heavy costs loom up before him, he will bitterly repent his rashness and will blame the lawyer for not advising against it. AN ILLUSTRATION OP THE HEADSTRONG PERSIST- ENCE OF A CLIENT The headstrong persistence of a client may be illustrated by the following: A and B fell out, as neighbors sometimes do. A fierce quarrel ensued, and A unjustly charged B with injuring a cow that had been found with a broken leg near the line between the pastures owned by the two men. A threatened to sue B for the value of the cow, which had to be killed in consequence of the injury, and B met the threat with defiance. A's regular lawyer refused to bring suit, because DUTIES TO CLIENT 95 of insufl&ciency of evidence. Not satisfied to let the matter drop, A sought out another lawyer, who readily agreed to sue. After many expensive delays, the trial was held, and B proved by witnesses that the cow fell and broke her leg when jumping the fence into B's pasture. B won the case. After A had paid the costs of suit and reluctantly given up a huge fee to the lawyer who had acted for him, he returned, Uke the prodigal, to his regular lawyer and besought him to defend him in a suit for malicious prosecution brought by his victorious neighbor. EFFECT OF SUING UPON HOPELESS CASES So it is unwise for the lawyer to take a case unless he has a reasonable chance of success. He has no right to his retainer or to fees in such a case unless the client, understanding all the proba- bilities, voluntarily assiunes the risk. Even then the lawyer owes a duty to his own reputation as an attorney not to take cases in which he must inevitably fail. If it can be said of a lawyer that he frequently loses his cases, the public will not inquire what the causes are but will conclude that he is an incompetent practitioner. "You should not be over-hasty, however, in deciding that a case is hopeless. It is a very important matter to your client and deserves your most careful attention. If, upon mature 96 ETHICAL OBLIGATIONS OF THE LAWYER consideration, there remains a doubt in your mind as to whether your chent has a good case, that doubt should be resolved in his favor. There are instances on record where lawyers have won enduring laurels by winning cases, equitable and just in themselves, but so apparently hopeless that many other lawyers had previously declined to undertake them. "Ordinarily a lawyer is over-confident as to the outcome of his case, but it sometimes happens that a jury are more liberal in their verdict than the plaintiff's attorney had dared hope. A case came under observation not long ago where the plain- tiff's counsel had offered to settle for about three hundred dollars, and his offer was refused. Later a jury awarded the plaintiff two thousand dollars, and the com-t refused to set aside the verdict as excessive. "But it should be said in passing that no law- yer ever won enduring laurels by successfully con- ducting an unjust or unequitable suit. He may be called upon to defend a guilty person who is in the toils of law, and it is his duty under such cir- cumstances to see that his client's constitutional rights as to trial and defence are safeguarded, but that is a very different matter from actively aid- ing the questionable endeavors of a dishonest client in a civil suit." ^ 1 Archer's " Law Office and Court Procedure," pages 14, 15. DUTIES TO CLIENT 97 In Hoffman's Resolutions we find the following statements as to a lawyer's duty in this particular. Resolution Eleven: "If, after duly examining a case, I am persuaded that my client's claim or defence (as the case may be), cannot, or rather ought not to, be sustained, I will promptly advise hun to abandon it. To press it further in such a case, with the hope of gleaning some advantage by an extorted compro- mise, would be lending myself to a dishonorable use of legal means in order to gain a portion of that, the whole of which I have reason to believe would be denied to him both by law and justice." Resolution Nineteen: "Should my cUent be disposed to compromise, or to settle his claim, or defence, and especially if he be content with a verdict or judgment that has been rendered, or, having no opinion of his own, rehes with confidence on mine, I will in all such cases greatly respect his wishes and real interests. The further prosecution, therefore, of the claim or defence (as the case may be), will be recommended by me only when, after mature ..dehberation, I am satisfied that the chances are decidedly in his favor; and I will never forget that the pride of professional opinion on my part, or the spirit of submission, or of controversy (as the case may be), on that of my client, may easily mislead the judgment of both, and cannot justify 98 ETHICAL OBLIGATIONS OF THE LAWYER me in sanctioning, and certainly not in recom- mending, the further prosecution of what ought to be regarded as a hopeless cause. To keep up the ball (as the phrase goes) at my client's expense, and to my own profit, must be dishonorable; and however willing my client may be to pursue a phantom, and to rely implicitly on my opinion, I will terminate the controversy as conscien- tiously for him as I would were the cause my own." § 36. Unjust or Inequitable Suits. Dangerous as it is to the lawyer's reputation to bring suits hopeless in law but which have a moral basis to support them, it is infinitely more dangerous to bring suits that are unjust or inequit- able in themselves. If a client wishes to extort money from a victim by trickery and fraud, the lawyer should not be a party to the attempt. He cannot excuse himself by any claim of professional obligation to do a client's bidding. Such obliga- tion does not extend beyond legitimate and proper tasks. The pubhc will condemn the lawyer long before he is aware that he has been found out. AN ILLUSTRATION OF EFFECT UPON LAWYER'S CAREER A certain young lawyer who started out with a reputation for intellectual ability and oratorical attainments was once reproached by an acquaint- DUTIES TO CLIENT 99 ance for bringing suit on a note the consideration of which had utterly failed. The holder of the note was notoriously unscrupulous and evidently hoped, by bringing suit, to frighten the defendant into paying the note or offering to compromise. The young lawyer who was acting for the plaintiff rephed that it was not his affair, and whether he approved or disapproved he was under obligation to his client to do what the chent asked him to do. Such philosophy as this led to the attorney's undoing. It has been seven years since the instance related and now, for a number of iniqui- tous transactions, the attorney and his client, together with a dozen others, are under indictment. A part of them have been convicted, and the others are to stand trial for the second time. If the lawyer referred to had started out with a different code of morals, he would doubtless have been successful and happy to-day, instead of being a ruined and discredited man facing another harrowing ordeal of trial for crime. § 37. Is IT A Duty to Advance Money to a Client? Occasions sometimes arise when it is necessary to advance money in a moderate amount to pro- tect a client's rights. The lawyer's duty is then clear — he should advance the money and look to his client for reimbursement. 100 ETHICAL OBLIGATIONS OF THE LAWYER For example: A client had left advance costs with his lawyer, but the fund had been exhausted. The defendant filed a demurrer to one count of the declaration. The count was an immaterial one, and the counsel of the absent plaintiff decided to withdraw it. A statutory right existed where- by the defendant could demand a term fee if he chose to oppose the granting of amendment. In a spirit of vindictiveness, the defendant's lawyer insisted upon the term fee, and the plaintiff's law- yer was obliged to pay it out of his own pocket in order to save his client's case from being dismissed. NO DUTY ORDINARILY But under ordinary circumstances the lawyer is under no duty to advance money to his client for personal use or to further his cause. It would be contrary to the best interests of the public to permit such a practice, even when the lawyer is actuated by the highest of motives, for it would open the way for less scrupulous individuals to act in the same manner with a far different motive. I 38. StJMMARY OF Chapter. The lawyer is under a duty not to hastily advise his client. Aside from the duty to the client, hasty decisions are dangerous to the lawyer's repu- tation. He is under a duty not to make positive DUTIES TO CLIENT 101 assertions of the outcome of suit. The lawyer should not give unnecessary advice to the client, but such as he does give should be clear and intel- ligible. He is under a duty to advise his clients against illegal acts. He should not take a hope- less civil case, for so to do would be a wrong to the chant and to his own professional reputation. He should not sue upon an unjust or inequitable cause. He is under no duty ordinarily to advance money to cUents. CHAPTER V DUTIES TO CLIENT (Continued) Sec. 39. Duty of Unswerving Loyalty. Sec. 40. How Far Should Loyalty Extend. Sec. 41. Not a Duty to do All of Client's Biddings. When Act Requested is not Illegal. Sec. 42. Duty to Sever Relationship for Cause. Basis of Duty. Sec. 43. Duty to Client in Ascertaining Facts. Danger of Over-Confidence in Clients. An Illustration. Sec. 44. Duty in Attempts to Settle. An Illustration of the Danger of Hasty Settlement. Every Element to be Considered. Amount of Preliminary Offer as Compared with Actual Damage. Sec. 45. Negotiating for Settlement with the Adverse Party. When the Adverse Party Attempts Cajolery. Effect of Lessened Vigilance for Client. Not to be Over-Awed by Brilliant Opposing Lawyer. Sec. 46. Duty in Court. To Avoid Putting Leading Questions to Client. Lawyer's Duty not to Forfeit the Good Will of Court or Jury. Bullying. Duty to Protect Witnesses from Vicious Cross- Examination. Sec. 47. Summary of Chapter. § 39. Duty of Unswerving Loyalty. Once engaged in behalf of a client, the lawyer is under a duty of unswerving loyalty to the client DUTIES TO CLIENT 103 SO long as he proves himself worthy of loyalty. The client becomes for the time being the prin- cipal and the lawyer an agent, subject to a con- siderable extent to the will of the principal. It is his duty to follow his cUent's instructions as to temls of settlement and to bend his will to that of the chent in respect to general dealings, al- though his discretion as to specific details exceeds that of ordinary agents. Having a legitimate object to attain, it is the lawyer's duty to put forth every legitimate effort to win that object for his client. The skill and fidelity with which he discharges his duties as a lawyer give to the public the evidences upon which it will measure his worth and assign him a stand- ing in the community. Hence, there is no case so trivial and no client so insignificant as to be unworthy of the best endeavors of a lawyer. He is working not for a trivial temporary success merely but for the future. Self-interest therefore should prompt the lawyer, even if an abiding sense of duty to the client did not, to do his very best for each and every cUent. § 40. How Far Should Loyalty Extend. It has been said by lawyers, even by some who have attained eminence at the bar, that one's duty to a client supercedes all other obligations 104 ETHICAL OBLIGATIONS OF THE LAWYER that might conflict with it, even that of one's duty to the State and Nation. But it is recognized nowadays that such an attitude results from a fantastic and distorted idea of duty, or from a guilty desire to excuse criminal conduct in behalf of a client. Nothing is clearer among ethical obligations than that of the lawyer's duty to keep the solemn oaths which he has taken upon admission to the bar. His duties to the State and Nation are para- mount, for it is by virtue of authority vested in him by them that he acts as a lawyer. Any act that it would be unlawful for him to do as an individual, or as a lawyer, would be unlawful for him to do in behalf of a client, however urgent the case might be. Even though the lawyer may personally believe in the justice of his client's cause and feel sure that available legitimate proof is insufficient to convince the jury, this does not justify him in procuring, or allowing to be procured, manufac- tured evidence. The end will not justify the means, especially when professional honor is in- volved. The client will not respect the lawyer, nor will the lawyer respect himself, however great the victory that may result from trickery and fraud. So it remains a fixed duty of the lawyer, in choosing ways and means of conducting the client's case, to conscientiously refrain from violating any DUTIES TO CLIENT 105 law, or outraging any unwritten ethical obligation to the public. § 41. Not a Duty to do All op Client's Biddings. The lawyer's duty, even when positively ordered by his client to do a thing, remains the same as when he is choosing voluntarily. The client has no right to demand an illegal service, and the lawyer stands strictly upon his rights in refusing to obey. No circumstance, however distressing or pitiful, that moved him to act, will justify the lawyer if brought to account for his misconduct. WHEN ACT REQUESTED IS NOT ILLEGAL But let us suppose that the client's request is not to do a positively illegal act, but to perform, or to assist in performing, something that is not in itself an act endangering the lawyer's profes- sional future. It merely offends his ethical ideals without descending to the plane of ethical duties. What should he do in such a case? The answer is the same. If, upon a fair analy- sis of the ethical ideal, and a resulting conviction that it is well-grounded and not merely fantastic and impracticable, the lawyer may rightfully decline and should so decline even though it cost him the future business of the client. The lawyer is the keeper of his own conscience 106 ETHICAL OBLIGATIONS OF THE LAWYER and if any of the client's biddings offend his con- scientious ideals, he is not under a duty to obey. § 42. Duty to Sever Relationship for Cause. If the client has proven unworthy, or if things have arisen between the attorney and client that have abated the attorney's zeal in behalf of his client, the only proper course to pursue is to sever the relationship, if this can be done without unduly jeopardizing the client's interests. It is related of Abraham Lincoln that once, when trying a case in covu-t for a client whom he caught in an untruth on the witness-stand, Lin- coln dramatically severed his relation as attorney then and there and angrily stalked from the court- room. Whether this story of the great and good man is true or not, it may still be a question whether such an act would be wise. Even though grave causes arise during the pro- gress of trial, the severance of the relation, if made in such a way as to acquaint the jury with the cause of the disruption, might so greatly injure the client's cause as to make it the lawyer's duty to continue until a more favorable opportunity. BASIS OF THE DUTY But the duty of severance of the relation, with or without the client's consent, is obvious. If the lawyer cannot give his best efforts and fullest DUTIES TO CLIENT 107 enthusiasm to his client's cause, he should make way for another lawyer who can. It is a mistaken idea of duty: to try to force one's self to render enthusiastic service in behalf of a person who can be regarded with no other feeling than that of aversion and contempt. The defence of a criminal in the toils of the law, however, raises a different question. The law- yer may believe hun guilty, and actually feel the greatest contempt for him, yet this is no reason why the lawyer may not conscientiously present every defence known to the law and use all honor- able means to prevent his conviction.^ If he is capable of doing these things as well as any other available lawyer, there is no reason for a change at any stage of proceedings. § 43. Duty to Client in Ascertaining Facts. When the client comes to the office for the first interview concerning his case, he should have the keen and watchful attention of his lawyer. Every material point in his story should be carefully noted. Every uncertain or weak place in his story, or his knowledge, or recollection of events, should be thoroughly probed, and memoranda should be made for the purpose of future verifi- cation or correction from other sources. The client should be questioned and cross- 1 See also § 25. 108 ETHICAL OBLIGATIONS OF THE LAWYER questioned that nothing escape attention. His story should be sifted and analyzed until the vital and essential elements are separated from the rest. When the whole story is unfolded, it should be reduced to writing by the lawyer, so that nothing be forgotten and no second going over the ground be necessary except for purposes of verification. After the client's knowledge of the facts has been exhausted, the duty then arises of corrobo- rating or correcting the essential facts. If there is documentary evidence of any sort it should be carefully examined. If there are witnesses, whether friendly or unfriendly, no time should be lost in interviewing them. All results of investigation should be reduced to writing and not trusted to memory. DANGER OF OVER-CONFIDENCE IN CLIENTS One other caution should be added. Many lawyers make the mistake of trusting too implicitly to the story told by their client and take action without first submitting it to a careful investiga- tion. The testimony of over-zealous friends is quite as dangerous a basis of action. The version of a hostile witness is often far more valuable, since it reveals the other side of the controversy and enables the lawyer to arrive at a more dispassion- ate view of his client's rights. DUTIES TO CLIENT 109 AN ILLUSTRATION Lawyer X was interviewed by A, who had been injured in a collision with B while both were driv- ing on the highway. A's version of the affair was that he was driving at a moderate pace when he met B, who was coming at an excessive speed. B's heavy wagon collided with A's light rig and tore off the rear wheel and badly wrecked the carriage. A himself was thrown out and injured. There was one witness, according to A's version, a neighbor C, who was in the carriage with him at the time. C verified A's story, and both men reported that B had used abusive language to them, both at the time and after the accident. B had refused to settle for the damage done. Lawyer X, after notifying B of his having been retained, brought suit and attached B's property. Shortly after suit was entered, X dis- covered sundry evidence tending to discredit the stories of A and C. As the time of trial drew near, he learned more and more to the disadvan- tage of his client. At the trial it was alleged, and fairly proven by the evidence, that A and C had conspired to extort money from B by means of a bogus acci- dent. The injured vehicle was a rattle-trap affair fit only for the junk-heap. A and C had been overheard by witnesses to boast that B would be "easy money," since he always drove fast horses, 110 ETHICAL OBLIGATIONS OF THE LAWYER and an accident could be easily arranged. It was shown further that previously in the same even- ing they had met B, and he had narrowly avoided running them down. When the accident occurred, they had made believe turn out around an exca- vation in the street, and B had been unable to avoid striking them. They had tried to extort money from B and, upon faUm-e so to do, had threatened him with legal proceedings. The case was so evidently fraudulent that even lawyer X, who had acted innocently enough, was suspected to be a liarty to the attempted fraud. The jury found for the defendant. A and C disappeared, and lawyer X received nothing for his services except some very embarrassing and humiliating experiences. § 44. Duty in Attempts to Settle. Before any efforts at settlement are made, the exact damage to the plaintiff should be ascer- tained, or at least so nearly as is possible under the circumstances. A hasty settlement without due consideration of the various elements of damage can be productive of nothing but regret and dissatisfaction later on. The damage first apparent may be the least of the damages caused, and if the case is settled on the basis of the damage first disclosed, there is no redress for that subse- quently appearing. DUTIES TO CLIENT 111 AN ILLUSTRATION OF THE DANGER OF HASTY SETTLEMENT Y was injured slightly, as he thought, in a rail- road accident. On the same day he consulted a lawyer, and the claim agent of the railroad was soon closeited with the lawyer and client. Y settled on the spot for an insignificant sum. That night serious trouble developed, and Y became an invalid and remained so for several months. Throughout his illness, he noted the growing items of expense with bitter thoughts of his own and his lawyer's rashness in settling as they did, for the damages to which he was rightfully entitled should have been fifty times the sum actually received. EVERY ELEMENT TO BE CONSIDERED The lawyer, in justice to his client, and to him- self, should consider the question of the amount of damages from every possible view-point before deciding the terms upon which he will settle. AMOUNT OF PRELIMINARY OFFER AS COMPARED WITH ACTUAL DAMAGE , In making the preliminary offer of settlement, due allowance must be made for the fact that a compromise of the claim is the customary mode of settlement. It would be unwise to set the claim at an amount too close to the minimum estimate 112 ETHICAL OBLIGATIONS OF THE LAWYER of damages. This does not mean that one should demand an unreasonable sum in the hope of securing an advantageous compromise. It does mean that the sum should be sufficiently high to allow some flexibility to the negotiations. A firm, manly stand, without haggling or attempt to drive a sharp bargain with the adversary, should do much to secure a fair settlement and to add to the lawyer's reputation as a worthy member of the profession. § 45. Negotiating for Settlement with the Adverse Party. It is the duty of the lawyer both to himself and to his client to exercise caution in dealing with the adverse party. He should constantly bear in mind that the adversary is really an enemy whose interests are antagonistic to those of his client. A smiling face and an insinuating manner may count for a great deal socially, but when an enemy employs them to discuss the terms of settlement the lawyer should beware lest he unconsciously be weakened in his client's cause. The ' ' good fellow " is nevertheless the enemy. WHEN THE ADVERSE PARTY ATTEMPTS CAJOLERY It may be that he will employ something more than the smile and the insinuating manner. He may drop the hint that he has some legal work in DUTIES TO CLIENT 113 view that a friend has advised him to give to this very lawyer, and that he was on the point of turn- ing it over to him and would do so after the present difficulty is adjusted. Such transparent ruses can scarcely influence a level-headed lawyer, but it so happens occasionally that the adverse party actu- ally offers the attorney a case or convinces him that employment will be forthcoming. It is need- less to say that the attorney who allows himself to be thus tempted will be less antagonistic in deal- ing with the adversary. EFFECT OF LESSENED VIGILANCE FOR CLIENT The only proper method to pursue is to set one- self unflinchingly to the task of gaining the best possible terms for the client without thought of consequences as to future relations with the adver- sary. A lawyer who lessens his vigilance in behalf of his client can never expect the confldence of the adversary. It would be natural to suppose that he would betray any client if occasion arose when it was for his own interest so to do. But the lawyer who gives the adversary a severe beat- ing becomes at once a desirable man in his eyes and will very likely be sought out with offer of employment when the present litigation is closed. 114 ETHICAL OBLIGATIONS OF THE LAWYER NOT TO BE OVERAWED BY BRILLIANT OPPOSING LAWYER Some lawyers lose courage upon learning that a well-known lawyer has been retained by the adversary. It is by no means certain that the employment of a brilliant attorney will result in a victory for the opponent. A mediocre lawyer with a strong case is more than a match for an attorney, however brilliant, who is enlisted on the weak side of the controversy. Such an opponent should put the lawyer upon his mettle and move him to exert the highest and best that is in him to gain a victory and the prestige that will result therefrom. § 46. Duty in Court. The lawyer owes his client the duty of respect- ful treatment in court. If the client is stupid, or is slow of speech, a patient and tactful examination becomes necessary. An exhibition of ill-temper, or of disgust at the replies of one's client, conveys an unfavorable impression to the jury and the court, either against the client or his lawyer, and whether against the one or the other, working injury to the client's case. No better way of securing the re- spectful interest of the court and the jury in the occupant of the witness stand can be devised than by the questioner himself appearing to entertain respect and deference for him in the first instance. DUTIES TO CLIENT 115 TO AVOID PUTTING LEADING QXJESTIONS TO CLIENT The lawyer owes his client the duty, when inter- rogating him in coxirt, to studiousy avoid putting leading questions. Such questions have the effect of discrediting the value of the testimony elicited, because they give the impression that the lawyer is prompting the witness. Only such questions as are absolutely necessary should be asked. The cUent rather should be encouraged to tell the story in his own way without interrup- tion or suggestive inquiries. The lawyer also owes his client the duty to treat his client's witnesses com-teously and to avoid the appear- ance of prompting them. LAWYER'S DUTY NOT TO FORFEIT THE GOOD WILL OF COURT OR JURY One of the most fatal things for one's client that can arise during a trial is for the lawyer to forfeit the sympathy and respect of the court and jury. The lawyer becomes so identified with the case that he is often the centre of interest, and the client is overlooked. In an imreasoning sort of way the friendliness or hostility of the auditors frequently takes shape around the personality of the advocate and it becomes a question of which lawyer shall win, rather than which chent is in the right and is really entitled to win. Hence, the lawyer should avoid any appearance of being 116 ETHICAL OBLIGATIONS OF THE LAWYER domineering or supercilious, thus incurring the enmity of those upon whose decision his chent's rights depend. BULLYING In his treatment of the adverse party the same thought should be borne in mind. Gentlemanly conduct on the part of the attorney in all phases of the trial is a right to which every client is entitled. Bullying the adversary will arouse sympathy for him and thus result in injury to one's client. DUTY TO PROTECT WITNESSES FROM VICIOUS CROSS EXAMINATION Another duty of the lawyer to his client and to his client's witnesses is to protect them, so far as is possible, from embarrassment when being cross- examined by the adverse counsel. Questions that are immaterial to the issue but which are intended to cause the witness mental distress by laying bare secrets of his or her life should be blocked by objec- tion. The attorney should be a vigilant guardian of those who may properly look to him for pro- tection against the efforts of an unscrupulous adversary. § 47. Summary of Chapter. The lawyer is under a duty of unswerving loyalty to client, but this duty extends only to DUTIES TO CLIENT 117 services that may be rendered within the law and not to those in contravention of it. He is not under a duty to do all of the cUent's biddings. It is his duty to sever his relationship as attorney if causes have arisen to bring about a lessening of zeal in his cUent's behalf. He is under a duty to ascertain all possible facts having to do with a client's cause of action. Over-confidence in a client is often dangerous to the lawyer. In attempting to settle, the lawyer is under a duty to fully consider all the elements of damages that have accrued or are likely to accrue to his client. In dealing with the adverse party, it is the lawyer's duty to protect himself from suspicion of dis- loyalty or lack of zeal in a client's behalf. He owes his client a duty in court to show respect to the client and his witnesses, to win respect for himself, and to prevent the adversary from bull- dozing the client or his witnesses. CHAPTER VI DUTIES TO CLIENT (Continued) Sec. 48. Duty not to Overcharge. Charges to Wealthy and to Poor CKents. How an Avaricious Lawyer Regretted a Small Charge. Sec. 49. Not to Drive Sharp Bargain with Client. Procuring the Signing Away of Client's Rights. An Illustration. Sec. 50. What Should be Considered in Fixing Charge. Sec. 51. Bringing Suit for Fee. When Compromise is Wiser than Suit. When Suit for Fee is Advisable. Honest Misunderstandings to be Settled in Court. Sec. 52. Duty not to Mix Trust Funds. Trustee Accounts in Banks. An Expedient for Lawyer Whose Practice is Small. Method of Keeping Trust Funds a Question for the Individual. Sec. 53. Duty to Account. Trust Estates to be Settled Promptly. Sec. 54. Return of Document and Papers. Sec. 55. Duty to Respect Confidences. Sec. 56. Summary of Chapter. § 48. Duty not to Overcharge. A duty to the client that a lawyer is tempted to abuse, is that of fixing a charge for service com- mensurate with the services rendered. It is fre- quently true that lawyers are governed more by DUTIES TO CLIENT 119 what other lawyers charge and by what they shrewdly believe the client will pay, even grudg- ingly, than by the monetary value of the time ex- pended and of services rendered. To a certain extent this practice is legitimate, for the custo- mary charge of lawyers of the same standing may rightfully be considered, as well as may the finan- cial standing of the client. CHARGES TO WEALTHY AND TO POOR CLIENTS If the client is wealthy, a good-sized fee is proper even for a service for which a smaller charge would be made if the client were a poor man. In other words, compassion for the impe- cunious client may well move the lawyer to charge a fee lower than the normal and legitimate amount. But it is contrary to the proper standard of ethics to charge an amount in excess of what can be said to be the normal and legitimate amount, merely because the client is well-to-do. HOW AN AVARICIOUS LAWYER REGRETTED A SMALL CHARGE An amusing instance of an avaricious lawyer regretting the smallness of his charge occurred a few years ago in a small New England city. In conversation with another lawyer he related the following story: He had been retained by a ragged, seedy-looking farmer to defend him in an insignificant trial. He won the case and charged 120 ETHICAL OBLIGATIONS OF THE LAWYER the man twenty dollars, little expecting that he would pay it. The seedy-looking farmer drew from his pocket a roll of bank notes that caused the avaricious lawyer to gasp with amazement. He selected two ten-dollar bills, handed them to his lawyer, and cramming the roll into the pocket again, made off for home. "Ah!" groaned the lawyer, in telling the story, "I've been sorry ever since that I didn't charge that man fifty dollars instead of twenty." "But twenty dollars was all your services were worth." "That's so," admitted the other, "but he would have paid fifty just as well as twenty." The injustice of such an attitude toward the client is too obvious to need further comment. § 49. Not to Drive Sharp Bargain With Client. In dealing with a client, unless with a shrewd individual who is fully able to look after his own rights, the lawyer should remember that he occu- pies a fiduciary relation. He should not bargain with his client for an exorbitant fee, either by taking advantage of his necessities or by making capital of his stupidity or ignorance. There are clients so short-sighted that a future gain, however great, has little real significance to them. Like Esau, they will bargain away their DUTIES TO CLIENT 121 birthright for a mess of pottage. The present need, or a tangible trifle, looms large in their mental horizon. Hence, when a lawyer suggests handling their case for a contingent fee, the pro- portion of which to the possible net result is very- large, they accede readily, for the lawyer's services are much desired in the immediate present, his services will cost nothing until the case is settled, and the day of settlement is indefinitely remote. The lawyer should therefore bear in mind this weakness of human nature and forbear to take advantage of it. The widow, the orphan, or the person of weak intellect should arouse the lawyer's sympathy and compassion. His charge, whether the fee be contingent or not, should be only what he could consistently claim if the whole world were to sit in judgment on the justice of his fee. A contingent fee, or for that matter any fee, should be dependent upon the case, with abundant leeway to compensate for any difficulties. A con- tingent fee is sometimes arranged with minimum and maximum limits. If the case develops nor- mally, the charge is to be somewhat near the minimum figure, but if it develops difficult and perplexing featiires, the maximum figure may be approached, as a .fair-minded practitioner may see the need. 122 ETHICAL OBLIGATIONS OF THE LAWYER PROCURING THE SIGNING AWAY OF A CLIENT'S RIGHTS Some lawyers, especially those whose reputa- tions are questionable, persuade their clients to sign away their rights in litigation without reveal- ing the amount recovered. They bring them a form of release of all demands and procure their signature to the release, with the amount receiv- able therefor either left blank or stated obscurely as "one dollar and other good and valuable con- sideration." Such a practice opens the way to fraud. The client should be informed of the total recovery. AN ILLUSTRATION In disbarment proceedings against a certain lawyer, it appeared that he had acted as attorney for a widow whose husband had met his death in a railroad accident. The action had remained on the court dockets for a long time, and the widow, who had a chUd to support and was in poor circumstances, had begun to despair that she would ever receive any damages from the railroad. One day her lawyer informed her that the company had offered to settle and he hoped to be able to get fifteen hundred dollars for her, if that was satisfactory. After some indecision she finally signed a release as her lawyer directed. The company had really agreed to pay thirty-five DUTIES TO CLIENT 123 hundred dollars in settlement of the claim. Thus, the lawyer received two thousand dollars, and the poor widow only fifteen hundred. Knowledge of the transaction reached the ears of a prominent lawyer, and upon his complaint the offending attorney was disbarred. § 50. What Should be Considered in Fixing Charge.' The lawyer should first consider whether the circumstances of his client make necessary, as a matter of compassion, a charge less than what might reasonably be required. If the client's family would suffer in consequence of the exacting of a moderate fee, the charge should be greatly reduced or dispensed with entirely. If, on the other hand, the client can afford to pay liberally the amount of the fee should be determined from the following considerations, quoted from Canon Twelve of the American Bar Association Code of Ethics: "In determining the amount of the fee, it is proper to consider: (1) The time and labor re- quired, the novelty and difficulty of the questions involved and the skill requisite properly to con- duct the cause; (2) whether the acceptance of employment in the particular case will preclude ' See Chapter XII for a more complete treatment of the subject. 124 ETHICAL OBLIGATIONS OF THE LAWYER the lawyer's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other business while employed in the particular case or antagonisms with other clients; (3) the customary charges of the bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the ser- vices; (5) the contingency or the certainty of compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considera- tions in itself is controlling. They are mere guides in ascertaining the real value of the service. "In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade." § 51. Bringing Suit for Fee. Should a lawyer sue a client to enforce the pay- ment of a fee? Suppose the client disputes the size of the bill, but avers that he is willing to pay a lesser amount. Is it policy to allow the client to dictate the fixing of the fee, or should the law- yer stand firmly on his rights and insist upon his original estimate being considered as final? DUTIES TO CLIENT 125 WHEN COMPROMISE IS WISER THAN SUIT In general it may be said that the claim should be compromised rather than sued upon. A law suit with a client in a dispute over the amount of an impaid fee is at best an embarrassing experi- ence. An impression may go abroad that the lawyer has made an unjust charge, for, even though the amount of the charge be known, the public, being unacquainted with the facts, can never judge the matter fairly. The lawyer is sure to be blamed. A compromise may be adjusted quietly without the knowledge of out- siders, and is for that reason the wiser coiuse to pursue. WHEN SUIT FOR FEE IS ADVISABLE Occasions may arise, however, when a client willfully and in a spirit of meanness withholds the payment of a hard-earned fee. The client may be of the species sometimes encountered that never pay a bUl unless forced to do so. If the amount of the claim is sufficient to warrant a suit, such a client should sharply be brought to account. Imposition and fraud, especially when attempted to be exercised brazenly upon a lawyer, should be rebuked as severely as the law will permit, for if a cUent has the hardihood to attempt to over- reach one so amply able to defend himself and is not rebuked, he will hesitate at no degree of impo- 126 ETHICAL OBLIGATIONS OF THE LAWYER sition and fraud when dealing with a compara- tively defenseless layman. HONEST MISUNDERSTANDINGS TO BE SETTLED IN COURT There are also occasions when a genuine mis- understanding should be adjusted by suit unless a satisfactory compromise can be effected. If the lawyer has served under the impression that his compensation is to be equal to a certain propor- tion of the net recovery, and the cUent insists, after the suit is determined, that a different inter- pretation should be placed on the facts, the issue is joined, and the legal rights of the parties shovild be determined by the court. American Bar Association Code of Ethics, Canon 14: "Controversies with clients concerning com- pensation are to be avoided by the lawyer so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his services; and lawsuits with clients should be resorted to only to prevent injustice, imposi- tion, or fraud." § 52. Duty not to Mix Trust Funds. One of the fruitful causes of disaster to lawyers and to others who have in charge the money of another is the mingling of trust funds with moneys of their own. Carelessness of bookkeeping may DUTIES TO CLIENT 127 render impossible a correct separation of the moneys so mingled, and the attorney may thus be laid under a suspicion of dishonesty. Few- lawyers are accurate keepers of accounts; the memory is trusted too frequently and, when a few days of time have either effaced the recollec- tion or confused it, the only exact check upon mistake would be a keeping separate of the two funds. Another result from mingling funds is that the lawyer in so doing wUl gradually come to feel that the fact of the certainty of an ample fimd at a future date, before the time for settling with his client, will justify him in using the mingled funds for immediate needs. He regards it as a simple matter of debit and credit to be adjusted at the time of settlement. Let us suppose the funds have been used, the trust fund with the other. The client suddenly demands an accounting, and the lawyer is unable to meet the demand. His expected funds do not materialize, and he finds himself in the wretched predicament of an embezzler, with the likelihood of being disbarred from his profession. With the lawyer who has abundant financial resovirces, such a predicament as the above could not very well occur, because he could make up the deficit without detection. But for the lawyer with no other resoiirces than his professional fees, 128 ETHICAL OBLIGATIONS OF THE LAWYER the practice is extremely dangerous. Aside from expediency, the mingling of trust funds is a wrong to the client, and no lawyer who values his repu- tation wUl be guilty of it. TRUSTEE ACCOUNTS IN BANKS Many large firms carry trustee accounts in National Banks and Trust Companies. All mon- eys paid to the firm in behalf of clients are de- posited in this general fund; a mingling of clients' moneys results, but not a mingling with the funds of the lawyers themselves. From this general account are checked out balances due to clients, or expenditures in their behaK. The partners' shares of fees are taken out from time to time, or weekly withdrawals of definite sums are agreed upon, with a general settlement of profits at stated intervals. AN EXPEDIENT FOR LAWYER WHOSE PRACTICE IS SMALL The lawyer whose practice is still small may not need a checking account for trustee funds. How then shall he keep separate the moneys of clients? Some lawyers find a system of cash envelopes very satisfactory. A cash envelope is kept for each client, and as money is added to the envelope an indorsement is made of the date, the name of the case, and the amount of the deposit. The total DUTIES TO CLIENT 129 amount due each client is thus always at hand. In order to check up the client's envelope, en- dorsement is made upon the wrapper of the case from which the money comes. For example: Two payments are made by debtors of John Brown, John Jones paying ten dollars and John Smith five. The lawyer makes the foUowing entries; on the wrapper of John Brown v. John Jones, "June 15, 1910, cash $10; " on the wrapper of John Brown v. John Smith, "June 15, 1910, cash $5;" on the cash envelope of John Brown he makes the following entries: June 15, 1910 — John Jones . . $10. " " " —John Smith . . $5. The cash envelope thus becomes an index to all payments on a client's account. If the cash envelopes of the various cUents are kept in a strong box or safe, the necessity of a trustee account in a bank is obviated. Settlement should be made with each cUent as often as is conveniently possible. If the lawyer maintains a private check- ing account, settlements may readUy be made by means of a check for which cash withdrawal is made from the client's cash envelope. METHOD OF KEEPING TRUST FUNDS A QUESTION FOR THE INDIVIDUAL It is after all for the individual lawyer to deter- mine how he shall keep separate the money of his 130 ETHICAL OBLIGATIONS OF THE LAWYER client from his own. Various practical experi- ments may become necessary before a satisfactory method is found, but if through all his experi- menting the lawyer bears in mind that duty to his client and to his own professional reputation forbids the mingling of trust funds, he will thereby avoid probable embarrassment and possible dis- grace. § 53. Duty to Account. A lawyer who is occupying the relation of trustee to a client, whether managing an estate, looking after a particular business, or receiving moneys on the client's account, is under a duty to respond to any reasonable demands made by the client for an accounting. The settlement should be satisfactory, and if any accounts or transactions are withheld from the client's inspection without a valid excuse being offered, the client has a right to insist peremptorially upon a full disclosure. TRUST ESTATES TO BE SETTLED PROMPTLY It is a breach of duty to the client unreason- ably to delay the settlement of the trust estate. Such delay may be advantageous to the lawyer from a financial point of view, but it is unprofes- sional and illegal. An instance in point came to the writer's attention recently. A lawyer had been appointed administrator of a small estate. DUTIES TO CLIENT 131 For over four years he delayed, upon one pretext and another, to settle the estate. The heirs then jomed m a concerted action to force the adminis- trator to file an inventory, which up to that time had not been filed. His charge for services, as shown by the first and final account was in the neighborhood of three thousand dollars, a sum greater than that to be received by any one of the heirs. They contested the account on the ground that the charge was grossly excessive. The administrator's duties were trivial. The heirs alleged that the estate could as well have been settled at the end of the first year as fom- years later. The court disallowed the item, and it was reduced to a comparatively modest sum. § 54. Return of Documents and Papees. If, after the suit is settled, the cUent desires the return of documents, letters, or papers en- trusted to a lawyer during the pendency of Uti- gation, it is the lawyer's duty to return them at his earliest convenience. The documents may have become as so much waste paper, but they belong to the cHent, and his wishes should be respected. § 55. Duty to Respect Confidences.^ Commimications of a cUent to his attorney are privileged. Hence, the lawyer owes the cUent a 1 See also § 5. 132 ETHICAL OBLIGATIONS OF THE LAWYER duty not to reveal any information that comes to him from the chent that was called forth by the confidential relation existing between them. Nor does lapse of time, nor an estrangement be- tween the parties, lessen the lawyer's duty in this respect. The client possesses the sole right to waive the privilege. Greenleaf says: "The protection given by the law to such communications does not cease with the termination of the suit, or other Utigation or business, in which they were made; nor is it affected by the party's ceasing to employ the attorney and retaining another; nor by any other change of relations between them; nor by the death of the client. The seal of the law, once fixed upon them, remains forever, unless removed by the party himself, in whose favor it was there placed." ' § 56. Summary op Chapter. The lawyer is under a duty to his client not to over-charge, nor to drive a sharp bargain with the client. He should not procure the signing away of a client's rights in litigation without acquaint- ing the client with the exact sum to be paid for such surrender. The various considerations enter- ing into the fixing of a charge are enumerated. The lawyer should not sue his client for a fee ' Greenleaf on Evidence, Sec. 243. DUTIES TO CLIENT 133 unless to prevent imposition or fraud or to settle a legitimate misunderstanding. He is under a duty not to mingle trust funds with moneys of his own. He is under a duty to his client to render an account whenever reasonably demanded. Doc- uments and papers should be returned promptly to the client after being used, if he so desires. The lawyer is under a duty to keep sacred all confiden- tial communciations from a client. Sec. 57. Sec. 58. Sec. 59. Sec. 60. Sec. 61. Sec. 62. Sec. 63. Sec. 64. Sec. 65. Sec. 66. CHAPTER VII DUTIES TO ADVERSE PARTY Not to Procure Employment Against. Not to Confer With Except in Presence of Counsel. If Adverse Party has no Counsel. Not to Advise Adverse Party as to the Law. Not to Procure the Signing Away of Rights of Adverse Party. Not to Procure Opponent's Evidence by Trickery. Not to Circulate Slander Concerning Him. Duty in Reading Adversary's Pleadings in Court. Duty to the Adversary When on the Witness Stand. Not to Slander for Mere Effect in Plea to Jury. Summary of Chapter. § 57. Not to Procure Employment Against. In ordinary walks of life there is no especial duty not to become a partisan against an enemy or even, of one's own volition, to seek out some person who has a grievance against the aforesaid enemy and make common issue with him against the enemy. But is this true in the profession of law? Let us suppose a lawyer has a personal grievance against an individual and learns that a third person has a claim against him. If suit were brought upon the claim, it would vex and financially embarrass the man- who had inciured the lawyer's enmity. Suppose the lawyer were to DUTIES TO ADVERSE PARTY 135 go to the third person and volunteer to conduct tl\e case for him, actually persuading him to bring suit. Would such conduct on the part of the lawyer be a violation of legal ethics? To answer the question we need only consider that a lawyer is -an officer of the court. As an officer he has no right to stir up litigation, whether it be for sake of the resulting fee or to satisfy a personal grudge. But, on the other hand, if a case should come to him, even against an enemy, he has a right to accept it, although he may be suspected of having soUcited the employment. American Bar Association Code of Ethics, Canon 28 : "It is unprofessional for a lawyer to volunteer advice to bring a law suit, except in rare cases where ties of blood, relationship, or trust make it his duty to do so. Stirring up strife and litiga- tion is not only unprofessional, but it is indict- able at common law." § 58. Not to Confer With Except in Pres- ence OF Counsel. If the adverse party has engaged a lawyer, it is grossly unprofessional to attempt to deal with him except with the consent of, or in the presence of the lawyer.^ So to do would be to affront the lawyer and to cast discredit upon the profession » See § 71. 136 ETHICAL OBLIGATIONS OF THE LAWYER of law. Fvirthermore it would demonstrate a spirit of trickery and a lack of professional honor in the lawyer so acting. A person who has engaged a lawyer to look after his interests in a given cause places the entire matter in his charge. He engages him because he is learned in the law and can protect his client's rights. It is the right of the client to have all persons representing adverse interests go to the attorney and negotiate with him rather than try to take advantage of his own lack of technical knowledge of his rights. American Bar Association Code of Ethics, Canon 9 : "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law." IF ADVERSE PARTY HAS NO COUNSEL If the adversary has not engaged a lawyer, it is of course necessary to deal directly with him. The question then arises; how shall it be done without laying one's self open to suspicion of unfair DUTIES TO ADVERSE PARTY 137 treatment, either to the adverse party, or to one's own client? Suppose also the adverse party makes damaging admissions during the negotia- tions; how shall these admissions be proved? The answer to both questions is either to em- ploy a stenographer to take down the entire con- versation, or to confer in the presence of witnesses. If the nature of the conference is such that the presence of witnesses would embarrass the adver- sary and prevent frankness, questions may be put in writing and the answers made in the same way. A permanent record is thus obtained, and if the answers are in the adversary's own handwriting they may be used against him in evidence, even more effectively than a stenographic record might be. HofEmann's Resolutions, Resolve 44: "Should the party just mentioned have no coimsel, and my cUent's interest demand that I should still commune with him, it shall be. done in writing only, and no verbal response will be received. And if such person be unable to com- mune in writing, I will either delay the matter until he employs counsel, or take down in writing his reply in the presence of others; so that, if occasion should make it essential to avail myself of his answer, it may be done through the testi- mony of others, and not by mine. Even such 138 ETHICAL OBLIGATIONS OF THE LAWYER cases should be regarded as the result of unavoid- able necessity, and are to be resorted to only to guard against great risk, the artifices of fraud, or with the hope of obviating litigation." § 59. Not to Advise Adverse Party as to THE Law. The lawyer has no right, either directly or indi- rectly, to advise the adverse party as to the law concerning his case. Even though the lawyer may honestly feel that he is giving him a correct version of the law, there is always the possibility of mistake, and if a mistake is made favorable to the interests of one's client, suspicion at once arises that the lawyer has intentionally misrepre- sented the law. Such a charge would be hard to meet, even if the issue were tried in cotut. The impression unfavorable to the lawyer and to the profession of law that would go out generally, would be impossible to recall. But, aside from the question of possible injury to the lawyer's reputation, the practice is unjusti- fiable from any point of view. The lawyer has assumed the view-point of his own client. It is his duty to be antagonistic to the adversary. Hence, legal advice to him is necessarilymade with the purpose of intimidating him and thus bringing about a settlement. DUTIES TO ADVERSE PARTY 139 American Bar Association Code of Ethics, Canon 9 : "... It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law." § 60. Not to Procure the Signing Away of Rights op Adverse Party. The attorney's duty to his own client is to secure the best settlement of a case that is honor- ably possible. But this does not warrant attempts to over-reach the adversary, either by sm-prislng him into making damaging admissions to some one whom he thinks to be a friend, or by procuring the signing away of his rights before he can fully reaUze what his rights are. If the lawyer represents a railroad company upon the road of which an accident has occurred, he cannot honorably persuade a person whom he has reason to believe is reaUy physically injured to sign away his rights for a trifling sum immedi- ately after the accident and before the fuU effects of the injury have had time to manifest them- selves. Such prompt action on the part of the lawyer may win the approval of the road and secure the lawyer's promotion in the service, but it is not justice to the injured party, nor even the justice that should be meted out to an adversary. 140 ETHICAL OBLIGATIONS OF THE LAWYER This does not mean that the lawyer has no ethical justification in securing a release of all demands from persons who were not really physi- cally injured but who, if they fell into the way of an unscrupulous lawyer, might use the accident as an excuse for bringing a suit against the com- pany. In such cases it is justifiable; but con- scientious discrimination should be exercised. If a lawyer represents a client who is one of the heirs to a considerable estate, he would not be justified in going to the other heirs in a distant part of the country and, by belittling the estate, procure a signing away of their rights in it for insignificant sums. The lawyer who aspires to a great and enduring success in his profession must not be blinded by partisanship for his client, but should exercise a conscientious regard for the rights of others, to the end that he may be an instrument of justice and not a worker of injustice. § 61. Not to Pkocuee Opponent's Evidence By Trickery. However advantageous it may be in the con- duct of a client's case to learn precisely what the evidence of the adversary may be, or the course of action he is planning to pursue, the lawyer should not resort to trickery to obtain the knowl- edge. Whatever knowledge comes to him in the DUTIES TO ADVEESE PARTY 141 natural course of events he is entitled to make use of, but for him to adopt underhanded methods to obtain it is contrary to legal ethics. It would be an act coming within this prohibi- tion to go personally to the adversary to whom one was unknown, and pretend friendliness in order to draw him out in regard to the contro- versy. Again: to go or to send a representative into an assembly of creditors who had met for the purpose of deciding what action they would take against one's client, and deceiving the credi- tors into thuiking the newcomer was also a cred- itor, would be contrary to the proper standard of ethics. § 62. Not to Circulate Slander Concern- ing Adversary. The lawyer owes a duty to the adverse party not to circulate slanders concerning him. The contest should be in the open, where the party against whom accusations are made can have a full and free opportunity to reply. He cannot effectively combat insinuations that are spread about covertly or through the public prints. The lawyer who inspires a newspaper article that casts reflections upon the adverse party is guilty of unprofessional conduct, whether or not he believes the charges to be true. 142 ETHICAL OBLIGATIONS OF THE LAWYER § 63. Duty in Reading Adveksary's Plead- ings IN Court. At the beginning of a trial, it becomes the duty of the plaintiff's attorney, in introducing the case to the court or jury, to read or to state in sub- stance all the pleadings filed in the case. In read- ing the adversary's pleadings, it is unprofessional to omit a material portion, or so to read it as to render it unintelligible to the listeners. It is necessary to a proper understanding of the case that the pleadings of both parties be stated fairly and honestly. § 64. Duty to the Adversary When on the Witness Stand. When the adversary is in court and on the witness stand, he should be treated with the same courtesy accorded to other witnesses. The fact that he is an adversary does not justify a lawyer in adopting an aggressive, domineering manner toward him. The attorney injures his own cause by undue harshness or display of temper. A quiet, gentlemanly demeanor in the examina- tion of a hostile witness is always more effective than any amount of bluster or theatrical assump- tion of suspicion. It is all very well for the law- yer to convey the impression to the jury that he is suspicious of the witness, but it is disastrous to his cause to simulate a suspicion of the witness. DUTIES TO ADVERSE PARTY 143 An obviously sincere suspicion is one thing, the make-believe suspicion of a hireling is quite another. The lawyer may to his advantage bear in mind that the jury are practical men of affairs, they champion the persecuted, if occasion arises, and they scorn trickery and shams. § 65. Not to Si^ndee or Disparage for Mere Effect in Plea to Jury. Although a privilege exists that protects a lawyer from liability for accusations made in course of argument in court, yet he is under an ethical obUgation to refrain from unjustly dis- paraging an adversary for mere effect. Such dis- paragement may prejudice the jury against the adversary and help win the case, but it has a boomerang effect upon the lawyer. The court is not slow to perceive the meanness of the act and to despise the attorney accordingly. Other lawyers also form unfavorable opinions concerning him, and a victory thus gained is dearly bought. § 66. Summary op Chapter. The lawyer is under a duty not to procure employment against a person, however much he may dislike him. He should not confer with an adversary who has retained counsel except in the presence of his counsel. If the adversary has no counsel, all conferences should be by means of 144 ETHICAL OBLIGATIONS OF THE LAWYER writing or in the presence of witnesses. The lawyer should not advise the adverse party as to the law governing his rights. He should not, for an insufficient consideration, procure the signing away of the adversary's rights. He should not procure his opponent's evidence by trickery. He should not circulate slanders concerning the adver- sary. In reading the adversary's pleadings in court he should exercise utmost fairness. In court he should treat the adversary courteously, and in his plea to the jury should refrain from disparaging him for mere effect. CHAPTER VIII DUTIES TO OTHER LAWYERS Sec. 67. Not to Take Case Belonging to Another Attorney. Sec. 68. If Lawyer Has Proved Unworthy. Sec. 69. Competition Among Lawyers. Commerciahsm Among Lawyers. Duty of Older Lawyers to Young Practitioners Sec. 70. Not to Disparage Other Lawyers. Caustic Comments Have Boomerang Effect. Caustic Comments Cause Evil Results. Sec. 71. Not to Deal With the Adversary Without Knowledge of His Lawyer. (1) Duty to the Opposite Lawyer. (2) Duty to the Profession of Law. (3) Duty to the Adverse Party. (4) Duty to One's Own Reputation. Sec. 72. Duty to Prosecute or Sue Fellow Attorney for Cause. Sec. 73. Right to Defend an Accused Attorney. Sec. 74. Not to Force Trial when Opposing Lawyer is 111 or Under Bereavement. Sec. 75. Not to Lay Undue Stress Upon Technicalities. Sec. 76. Not to Try to Over-reach the Other Through Ques- tionable Practices. Sec. 77. Duty as to Agreements. Sec. 78. Not to Abuse Fellow Attorney for Mere Effect. Sec. 79. Summary of Chapter. § 67. Not to Take Case Belonging to An- other Attorney. A lawyer owes a duty to fellow attorneys not to accept a case from a client if he has already 146 ETHICAL OBLIGATIONS OF THE LAWYER retained another lawyer in the same case, except where the other lawyer desires him to act as an associate. It frequently happens that lawyers of established reputation in a particular line of advo- cacy are sought, by mutual agreement of attorney and client, to render assistance in the cause; and, of course, under these circmnstances, the admoni- tion above does not apply. But when a client seeks out a new attorney because of some alleged cause of dissatisfaction with the lawyer aheady retained, the attorney consulted should decline to take any action in his behalf, unless fraud or positive wrongdoing on the part of the first lawyer is evident, until the client has obtained an acknowledgment of the first lawyer's discharge from the case. This acknowl- edgment opens the way for the engagement of a new lawyer. The basis of this duty is that lawyers should not directly nor indirectly encroach upon the business of each other. A person who has no regular lawyer is a legitimate client for any mem- ber of the bar to whom he goes for advice. But when he has once retained a lawyer in a given case, that lawyer has a right to the sole handling of the case, unless he forfeits the right by misconduct, or is dismissed by the client. To induce the client by fair promises and favorable representations to dismiss his lawyer is a positive wrong to the DUTIES TO OTHER LAWYERS 147 lawyer. To do as one would wish to be done by applies to lawyers as to all other persons. § 68. If Lawyer has Proved Unworthy. If the lawyer first engaged has proved unfaith- ful to his trust or grossly incompetent, the next lawyer consulted has a right, and even a duty,^ to advise the client and, furthermore, to take the case into his own hands, irrespective of the first lawyer's attitude in the matter. But he should see to it first, that the client's story is based upon facts, and that the lawyer has really proved unfaithful or incompetent. An attorney should always be extremely cau- tious in deciding that a fellow lawyer has been guilty of wrong. It is so much easier to condemn a lawyer and do him grave injury than to with- draw the condemnation and repair the injury, that every lawyer should take thought before speaking or acting against a fellow attorney. Zeal for business should never blind a lawyer to his higher duties, the duty to the individual attor- ney and to the profession of law which must suffer from the disgrace of any of its practitioners. Caution and fear of misjudging, however, should not be an excuse for shirking one's duty. The duty to see that justice is done, that the client who lodges the complaint be not wronged, that 1 See also § 24. 148 ETHICAL OBLIGATIONS OF THE LAWYER the profession of law be not shamed by the guilty conduct of one of its members, sho.uld move every honest lawyer to whom complaint is made to give ear to the complaint and, if he cannot investigate it personally, to call it to the attention of the local bar association for due investigation. A lawyer who will shirk this duty, even though his own professional conduct be above reproach, is nevertheless tacitly abetting the wrongdoing and injuring the profession of law. A client who has been wronged by one lawyer and then politely dismissed by another to whom he tries to tell the grievance, is likely to conclude, without further attempts to find a lawyer who will aid him, that lawyers are all alike and are banded together to shield one another from punishment for wrong- doing. American Bar Association Code of Ethics, Canon 7: "A lawyer should decline association as col- league if it is objectionable to the original counsel, but if the lawyer first retained is relieved, another may come into the case. . . . Efforts, direct or indirect, in any way to encroach upon the business of another lawyer, are unworthy of those who should be brethren at the bar; but, nevertheless, it is the right of any lawyer, without fear or favor, to give proper advice to those seeking relief against the unfaithful or neglectful counsel, generally DUTIES TO OTHER LAWYERS 149 after communication with the lawyer of whom complaint is made." Hoffman's Resolutions, Resolve 7: "As a general rule, I will not allow myself to be engaged in a cause to the exclusion of, or even participation with, the counsel previously engaged, unless at his own special instance, in union with his client's wishes; and it must, indeed, be a strong case of gross neglect or of fatal inability in the counsel, that shall induce me to take the cause to myself." § 69. Competition Among Lawyers. Competition in the business world is all very well, because it is established by immemorial custom and is necessary to the welfare of the community; but competition among brethren of the bar is unseemly and contrary to the estab- lished customs of the profession. The basis of the prohibition doubtless is that it would encour- age litigation and stir up unnecessary strife in a community if competition were to render a law- yer's compensation greatly reduced in amount. Then, too, law is a dignified profession and it could not retain its dignity if practitioners were to offer their services as hucksters offer their wares at cut rates and bargain-day prices. 150 ETHICAL OBLIGATIONS OF THE LAWYER COMMERCIALISM AMONG LAWYERS Complaint is sometimes heard among the older practitioners that too great a spirit of commer- cialism has grown up among lawyers; too many- lawyers have departed from the traditions of the profession and have brought to their law practice the customs of the market-place. Take for example Lawyer X, a bright, indus- trious, young man. His father being a successful business man, X was brought up in a commercial atmosphere. He was trained to the business by his father and has turned to the law only because his personal inclinations prompt him to be a lawyer. Since admission, he has apphed the principle of competition, importuning anybody and everybody for business and offering to render services more reasonably than other lawyers. He has not yet learned the true relation that the lawyer bears to the public. Doubtless he will learn it, and speedily, but his present example is contagious. He is honest and well liked socially, and other young lawyers will follow his example; if not for this reason, then because they are driven to it for self protection. DUTY OF OLDER LAWYERS TO YOUNG PRACTI- TIONERS There is an increasing number of young lawyers jecruited from the ranks of the business world, DUTIES TO OTHER LAWYERS 151 and it is the duty of older practitioners and of teachers of law to endeavor to impress upon them what the customs and traditions of the profession may be, that is, if these customs and traditions are to be preserved to futiire generations. Candidates for the clergy are taught that there are certain worldly customs that they must lay aside upon entering the profession. The same attitude should perhaps be taken by the lawyers of the land. Those who are newly admitted to the bar should be admonished to lay aside any method of prociaring business that militates against the dignity or honor of the profession of law. § 70. Not to Disparage Other Lawyers. It is written in the Great Book to which all Christendom goes for ethical teaching: "Blessed is the man that backbiteth not with his tongue nor speaketh evil of his neighbor." This applies to lawyers as well as to others of mankind. In this saying there is an implied reprobation of the man whose conduct is at vari- ance with it. The man, lawyer or layman, who speaks evil of his neighbor cannot expect a bless- ing for so doing. He may justly expect that such conduct will be followed by unpopularity and by others speaking evil of him. There is no vice more common than that of disparaging one's neighbor either through envy 152 ETHICAL OBLIGATIONS OF THE LAWYER or a foolish belief that to belittle the neighbor will magnify oneself in the opinion of present company. CAUSTIC COIflMENTS HAVE BOOMERANG EFFECT The lawyer should be broad-minded and wise if he expects to win enduring success. He must cast aside petty jealousies, and envyiags, and speaking evil of his neighbor. The Ustener may wag an acid tongue, but he is quick to perceive the same fault in another and to condemn him for it. He will speedily form his judgment of the critic and pass on his impressions for the benefit of the multitude. Thus a reputation will go abroad that will do much to prevent a full measure of success. Envy and jealousy are never felt against those who are less successful and less fortunate. Hence the deprecatory "He's all right, but," etc., indi- cates that the lawyer referred to has a better practice and a higher standing in the community than has his critic. Therefore, if a lawyer cannot speak well of another attorney, he had better by far maintain a discreet silence, or evade the issue by some commonplace remark. CAUSTIC COMMENTS CAUSE EVIL RESULTS The attorney criticized is also injured by caustic comments. The power of suggestion is very great. DUTIES TO OTHEE LAWYERS 153 All of US have had the experience of hearing a disparaging comment directed at an acquaintance, who had before that time inspired perfect confi- dence. "He is a time server," "He is tricky," "He stretches the truth," "He looks too hard at the dollar," "He's so conceited," and so on. Whatever the disparaging remark may be, we instantly refute it in our own minds, but presently it comes back to the memory, and the friend is watched to see if the fault described really exists. Confirmatory evidence of anything that we are looking for in another is reasonably sure to be forthcoming in time. We would not notice it ordinarily, but when watching for it, the whole horizon is darkened by its appearance. The attorney is injured in one mind at least, and the chances are that it wiU not be kept a secret. Others will hear and conjecture and surmise until the attorney concerned is regarded, temporarily at least, with suspicion by a large number of people. A thought that should constantly be borne in mind is that which is the basis of many of a law- yer's duties, — whatever injures the profession should be avoided. Blackening the reputation of a fellow member of the bar becomes indirectly an injury to the profession of law, and hence should be shimned and avoided by every worthy practi- tioner. 154 ETHICAL OBLIGATIONS OF THE LAWYER Hofiman's Resolutions, Resolve 37: "Should a professional brother, by his industry, learning and zeal, or even by some happy chance, become eminently successful in causes which give him large pecuniary emoluments, I will neither envy him the fruits of his toils or good fortune, nor endeavor by any indirection to lessen them, but rather strive to emulate his worth, than envi- ously to brood over his meritorious success, and my own more tardy career." § 71. Not TO Deal WITH THE Adversaey With- out Knowledge of His Lawyer.^ The lawyer is under a fourfold duty not to deal with the adverse party except through his duly authorized attorney. (1) DUTY TO THE OPPOSITE LAWYER He is under a duty to the adversary's lawyer not to belittle his services or cast reproach upon him in the eyes of his client. To ignore the law- yer is to affront him personally and by implication to affirm that he is unworthy of his high profession. To deal with the client directly, and especially to make a monetary settlement with him, embar- rasses the lawyer concerned by rendering possible the dictation of the amount of fees by the client, who, having the money in his own possession, is 1 See also § 58. DUTIES TO OTHER LAWYERS 155 likely to wish to keep as much of it as he possibly can. It is a psychological fact that a man who already possesses the fruits of another's labors is less willing to pay the other a reasonable sum for his services than if the money had come through the hands of the other, and fees for services had been taken out at the time. The lawyer, generally, has a lien on the proceeds of a suit in his possession until his own fees have been adjusted. It is his right, and has been so recognized from time immemorial, to have the settlement of a suit made to him personally, so that he may be able to protect his client's rights to the last moment before settlement, and to pro- tect his own rights to legal fees by possession of the proceeds until a settlement with his client. His right that a settlement should be made to him and not to his client should therefore be respected. (2) DUTY TO THE PROFESSION OF LAW There is also a duty to the profession that this long established custom, which has been shown to be wise and prudent and necessary to the wel- fare of the individual lawyer, be preserved both by precept and example. The dignity of the pro- fession and its standing with society in general, demands that one lawyer show no disrespect to another by ignoring him in a settlement with his 156 ETHICAL OBLIGATIONS OF THE LAWYER client. The fraternity of lawyers is not unlike a family: so long as they show respect to one another and prove themselves champions of each other's good name, so long are they held in respect in the community, but as soon as they show mutual disrespect and play mean, underhanded tricks upon each other, just so soon do they lose stand- ing in the community and become the objects of contempt and reproach. (3) DUTY TO THE ADVERSE PARTY There is also a duty to the adverse party not to deal with him directly.' If he has employed a lawyer to represent him, he has a right to the full benefit of the lawyer's services. He is not quali- fied to match his own imperfect knowledge of his rights against the persuasion of his opponent's lawyer, who is seeking the advantage for his client. Yet few laymen have the good judgment and the resolution to refer the matter to their lawyer and positively refuse to discuss it. It is human nature to talk, especially when the subject is one's own rights. Lawyers, therefore, are under a duty to refrain from placing the adversary under the temptation to commit himself one way or another. The opponent's lawyer is the only proper party to 1 See § 58. DUTIES TO OTHER LAWYERS 157 deal with, however unreasonable his demands may appear. (4) DUTY TO ONE'S OWN REPUTATION There is still another duty in this connection — the duty to one's own reputation. It is recog- nized by lawyer's generally that it is unprofes- sional, if not positively dishonorable, to deal with an adversary behind the back of his lawyer. Hence to do so is to invite censure and to defame one's own reputation. American Bar Associations Code of Ethics, Canon 9: "A lawyer should not in any way communicate upon the subject of controversy with a party repre- sented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. ..." § 72. Duty to Prosecute or Sue Fellow Attorney for Cause. As we have noted elsewhere,^ a lawyer is under a duty both to himself and to the profession to endeavor to rid the profession of undesirable law- yers. If a lawyer is known to have committed a breach of the ethics of the profession, it is the duty of fellow members to so effectually rebuke him as to prevent his repeating it in the future, or, if 1 See §§ 24 and 68. 158 ETHICAL OBLIGATIONS OF THE LAWYER he manifests a depraved or unworthy spirit, to put forth every effort to oust him from the pro- fession which he dishonors by his membership. As regards prosecution for criminal acts, the attorney to whom complaint is made by the injured party does his full duty by placing the facts before the prosecuting officer of the state or county, or before the proper officials of the local bar association. It is for the association to bring an action for disbarment of the offending attorney, but individual lawyers should render what assist- ance or advice may be possible, that the offender have a fair trial and that justice may be done. If the complaint against the attorney justifies a civil action for damages, it is the duty of the attorney to whom the complaint is made either to bring the suit himself, or, if too busy or for other valid cause unable to act, to procure some other reliable attorney to bring the suit. The lawyer cannot excuse himself by turning the complainant away, even on the plea that he is personally unable to take the case. Accusation has been made against a brother attorney, and it is the lawyer's duty to see that the complaint is fairly and impartially adjudged, in order that no unjust stigma rest upon the profession of law. If the complainant should meet with rebuff, however politely worded, he would doubtless regard it as a part of a conspiracy among lawyers DUTIES TO OTHER LAWYERS 159 to protect unworthy members, and would conclude that all lawyers were rascals. American Bar Association Code of Ethics, Canon 7: "It is the right of any lawyer without fear or favor, to sive proper advice to those seeking relief against unfaithful or neglectful counsel, generally after communication with the lawyer of whom the complaint is made." Canon 29: "Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession, and should accept with- out hesitation employment against a member of the bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities." § 73. kiGHT TO Defend an Accused Attoeney. For the same reason that it is one lawyer's duty to institute a prosecution against a fellow lawyer who has seemingly been guilty of crime, it is a duty of others to whom the accused may appeal ■ to defend him in his trial. Justice demands that both accuser and accused should find champions to set forth their respective rights. If the accu- sation is unjust, it should not prevail. If the 160 ETHICAL OBLIGATIONS OF THE LAWYER attorney is innocent, proof of his innocence will lift a cloud from the profession of law; if he is guilty, proof of his guilt, and a summary disbar- ment from the profession, will likewise elevate the profession in the estimation of the community. § 74. Not to Force Trial When Opposing Lawyer is ill or under Bereavement. Although it is the duty of every lawyer who has a case pending in court to refrain from pro- longing litigation and to oppose any such attempts on the part of the opponent's lawyer, yet there are occasions when this general duty yields ground to a special set of circumstances. If a situation has arisen, without fault of the party concerned, under which the opponent's case cannot be prop- erly presented, it would be manifestly unfair to urge immediate trial. Justice fairly demands con- tinuance until such a time as the disabiUty be removed. If the opposing attorney is ill, not actually con- fined to his bed, but in such a physical condition that he could not undergo the strain of trial and do justice to his chent's case, the case should be continued by agreement. There is little glory to be gained from a victory over a sick man. Cour- tesy to a brother attorney would prompt a lawyer to allow him an even chance in a contest of pro- fessional skill. DUTIES TO OTHER LAWYERS 161 The same would be true if the attorney were undergoing a great mental anxiety, such as the critical illness of a wife, or child, or other person in whose welfare he was profoundly interested. To force trial at such a time would be nothing short of brutal. The courts, however, would doubtless grant a continuance under any of the circumstances referred to, even against the protest of the adver- sary; but the fact that the courts stand ready to deal justly does not lessen the attorney's duty to be humane to his opponent. If a case may be tried as well on a different date, it would be ungenerous of a lawyer to insist upon immediate trial, when he knew that such trial would be extremely inconvenient to the opposite lawyer. Suppose, for example, the lawyer had just completed a long and arduous trial in a dis- tant part of the State; it would be a hardship upon him to insist that the case go to trial the very day of his return and before he had had time to review his evidence and get his witnesses together. American Bar Association Code of Ethics, Canon 24: "As to incidental matters pending the trial, not affecting the merits of the cause or working sub- stantial prejudice to the rights of the client, such as forcing the opposite lawyer to trial when he is under affliction or bereavement, forcing the trial 162 ETHICAL OBLIGATIONS OF THE LAWYER on a particular day, to the injury of the opposite lawyer, when no harm will result from a trial at a different time, agreeing to an extension of time for signing a bill of exceptions, cross-interroga- tories, and the like, the lawyer must be allowed to judge. In such matters no client has a right to demand that his counsel shall be illiberal, or that he shall do anything therein repugnant to his own sense of honor and propriety." ' § 75. Not to Lay Undue Stress Upon Tech- nicalities. One of the causes of reproach of our system of justice is the frequency with which apparently trivial technicalities defeat the ends of justice. The courts are reproached for setting free a wealthy criminal because of some technical error in the proceedings by which he was convicted. Lawyers are reproached for their proneness to seek out, and to argue, technical objections that have no material bearing upon the issue and which serve no purpose except to impose a delay upon proceedings that should promptly be terminated. These criticisms of lawyers and courts are fre- quently just, but in many cases the real fault is in an antiquated system of justice that is, in our day, gradually giving way to a more modern and less technical procedure. The spirit of the times is to adopt the more DUTIES TO OTHER LAWYERS 163 liberal attitude and to consider the substance rather than the form in which it is embodied. Many lawyers of the present day disdain to take advantage of a mere formal defect in an opponent's pleading, unless the opponent is clearly seeking an unjust end and the means of opposing him are doubtful or inadequate. In other words, their aim is to see that justice is done and, unless it will further the ends of justice to take advantage of the technicality, they ignore it entirely. In the examination of witnesses, if the opponent violates the rules of evidence, it is not always wise to interpose objections. Unless he is seeking to introduce evidence that will injure his adversary, or by prolonging examination to weary and vex a hostile witness, it is usually wiser to let him go on than to interrupt proceedings by frequent objec- tions. § 76. Not to Try to Over-reach the Other Through Questionable Practices. There was a certain lawyer of whom it was said that he delighted in outwitting his opponent by obtaining an agreed statement of facts as to the entire case or some portion of it. The state- ment would seem fair enough upon its face, yet there would be a hidden defect that was nearly always fatal to the opposite side. Such a practice as this cannot be too severely condemned. 164 ETHICAL OBLIGATIONS OF THE LAWYER § 77. Duty as to Agreements. All agreements between counsel, whether they be oral or reduced to writing, should be equally- obligatory upon each. It is not a sufficient excuse for failure to live up to the terms of an agreement that it was not really reduced to writing and there- fore difficult of proof. Any promise or agreement that involves the personal honor of a lawyer cannot be too strictly fulfilled. A lawyer who proves himself worthy of the confidence of other attorneys will speedily find that he enjoys their confidence, but the lawyer whose recollection is faulty with respect to the terms of agreements made with other lawyers will as speedily find himself the object of distrust. HofEman's Resolutions, Resolve 9: "Any promise or pledge made by me to the ad- verse counsel shall be strictly adhered to by me; nor shall the subsequent instructions of my client induce me to part from it, unless I am well satisfied it was made in error, or that the rights of my client would be materially impaired by its performance." § 78. Not to Abuse Fellow Attorney for Mere Effect. In making their plea to the jury, some lawyers feel called upon to abuse roundly all persons con- nected with the opposite side. In this sweeping DUTIES TO OTHER LAWYERS 165 arraignment the opposing counsel is often included. It is either directly stated or left to be inferred that the opposing counsel is a conscienceless knave or he would never have taken the adver- saries' case; or it may be that the accusation against him is that he is a party to a conspiracy to defraud the accuser's client. Whatever form the accusation takes, it is, unless the circumstances strongly warrant it, reprehensible practice for one lawyer to abuse another for mere effect upon the jury. The end does not justify the means. During the progress of trial personaUties between counsel are undig- nified and unprofessional. A scolding-match be- tween two sarcastic lawyers may be amusing to the spectators, but it does not indicate that the contestants are well-balanced lawyers. But abuse heaped upon an opponent in a closing argument, at a time when he cannot reply, calls down just condemnation upon the speaker. American Bar Association Code of Ethics, Canon 17: "Clients, not lawyers, are the litigants. What- ever may be the ill-feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. In the trial of a cause it is indecent to allude to 166 ETHICAL OBLIGATIONS OF THE LAWYER the personal history or the personal peculiarities and idiosyncrasies of counsel on the other side. Personal colloquies between counsel, which cause delay and promote unseemly wrangling, should also be carefully avoided." § 79. Summary of Chapter. It is a duty of a lawyer not to take a case of another lawyer unless he is to act as an associate, or unless the first lawyer has been dismissed from the case. If the first lawyer has been guilty of wrongdoing in the case, it is the right and the duty of another to take the case into his own hands, even against the other's objection. Com- petition among lawyers is unprofessional. The lawyer is under a duty not to disparage fellow attorneys. He is under a duty not to deal with the opposite party without the knowledge of his counsel. He is under a duty to protect the good name of the profession by exposing rascally prac- titioners. It is a lawyer's duty not to force trial when the opposing counsel is ill or under bereave- ment. He should not lay undue stress upon tech- nicalities. He should not try to over-reach another lawyer through questionable practices. He should respect all agreements with counsel, whether such agreements be legally binding or not. He should not abuse a fellow attorney for mere effect. .CHAPTER IX DUTIES TO THE COURTS. Sec. 80. Basis of the Duty. Sec. 81. The Duty of Loyalty to the Courts. Sec. 82. Duty of Loyalty to the Judges. Sec. 83. Duty of Respect to the Judges in Court. Sec. 84. Duty not to Delay Trial. Sec. 85. The duty of Punctuahty. Sec. 86. Duty not to Prolong Trial. Sec. 87. Duty not to Offer Improper Evidence. Sec. 88. Duty not to Argue Upon Matters not in Evidence. Sec. 89. Duty not to Offer Garbled Law. Sec. 90. Summary of Chapter. § 80. Basis of Duties. In another connection ^ it has been noted that an attorney is an officer of the courts. Through the gradual evolution of society he has become a necessary adjunct to the courts in the administra- tion of justice. In a case that presents complex features, it has become necessary that one skilled in the law should represent each of the contesting parties, in order that their respective claims may be presented to the court, each in its strongest array, so that the judge may determine which side should prevail. This peculiar relation to the 1 See § 5. 168 ETHICAL OBLIGATIONS OF THE LAWYER courts is the basis of the duties hereinafter set forth. § 81. The Duty of Loyalty to the Courts. Being an officer of the courts involves the duty of loyalty to the courts. It is improper, therefore, for the lawyer to disparage the system of justice. No human institution can be perfect, and there are few indeed that, even in our limited human wisdom, cannot be improved. But a judicial system that has not a basis of public sentiment behind it is not in the way of improvement, quite the reverse. Thoughtless disparaging of the courts by attor- neys has the effect of lessening the listener's respect for the court or courts in question. To say that a court is a farce and that the suitor with the longest purse is sure to win is to say that which is not true of any court. Exaggeration of faults that are quite generally known, but the extent of which is not known, except to the lawyers and judges, is to give to the public, not quali- fied to detect the exaggeration, a false and harmful impression. It is rather the duty of lawyers, who necessarily mingle with the people more than do any other officials of the court, to speak fairly of the courts and to disseminate a healthy optimism concerning them. Lawyers may thus strengthen the hands DUTIES TO THE COURTS 169 of justice, for the decrees and orders of a court that is respected are far more likely to be obeyed by the layman than if the court were held in con- tempt and derision. § 82. Duty op Loyalty to the Judges. The previous section deals with the court as a system of justice. We have now to consider the highest representatives of the court, — the judges who preside therein. Some lawyers take mali- cious satisfaction in blamiijg the judges for an adverse decision. They excuse themselves to their clients and friends for an unfavorable out- come of a suit by intimating that the judge acted unfairly or was so stupid as not to appreciate the real merits of the case. The judge is thus defamed in the minds of those who are seeking some explanation of the unex- pected result. If this were the practice of one lawyer merely the resulting injury to the fair name of our courts would be a negligible quantity, but with a large number of lawyers thus excusing their own mistakes the result is really deplorable. Doubtless there are judges in our courts to-day who are incompetent or unworthy, but the great majority of them are competent and worthy. Judges are so situated that they cannot know of, nor reply to criticisms of their conduct. Justice should be accorded them by the members of the 170 ETHICAL OBLIGATIONS OF THE LAWYER bar, and every lawyer should see to it that he does not unjustly or hastily criticize them. Hofiman's Resolutions, Resolve 39: "When the controversy has been judicially settled against me, in all courts, I will not fight the battle o'er again, coram non judice; nor en- deavor to persuade others, as is too often done, that the courts were prejudiced, or the jury des- perately ignorant, or the witnesses perjured, or that the victorious counsel were unprofessional and disingenuous." § 83. Duty of Respect to the Judges in COUET. When the court is in session, the judge should be accorded the respect and courtesy that is due his high station, irrespective of the personaUty of the temporary occupant. So far as openly manifested disrespect is con- cerned, little need be said. The judge has the power to summarily punish the offender, and not even the most reckless lawyer wUl knowingly take his chances of fine or imprisonment for contempt of court arising from openly manifested disrespect. But of the more or less secret mental attitude of disrespect much could be said. " As a man thinketh in his heart so is he; " if he allows his lack of respect for the individual to DUTIES TO THE COURTS 171 govern his mental attitude toward the occupant of the bench, it must necessarily affect his conduct to some degree. Sharp retorts to the court, or attempts to provoke a laugh at the judge's expense are dangerous practices and clearly unprofessional. Such examples are contagious. The whole morale of the court may be undermined by the influence of a few hostile practitioners. The loyal support of all members of the bar is therefore due to the occupant of the bench, what- ever the private character or deportment of the individual may be. If the judge is deserving of impeachment, he should be impeached, but so long as he remains a judge, he embodies the majesty of the law when presiding over a court room. HofEman's Resolutions, Resolve 3: "To all judges, when in court, I will ever be respectful. They are the law's vicegerents; and whatever may be their character and deportment, the individual should be lost in the majesty of the office." Resolve 4: "Should judges, while on the bench, forget that, as an officer of their court, I have rights, and, treat me even with disrespect, I shall value myself too highly to deal with them in like manner. A 172 ETHICAL OBLIGATIONS OF THE LAWYER firm and temperate remonstrance is all that I will ever allow myself." § 84. Duty not to Delay Trial. It is a matter of common knowledge among laymen as well as among lawyers that lawsuits drag along for discouragingly extended periods of time. All thinking men must deplore this con- dition of affairs. Not only does it cast disrepute upon our whole system of justice, but it works a serious hardship upon parties who are earnestly and honestly seeking to adjust their rights. The dread of being obliged to testify in court, coupled with the inevitable long delay of proceed- ings and the uncertainty of the ultimate result is driving more and more people every year to compromise their claims out of court or to abandon their rights altogether. Thus the object for which the courts were created is being defeated, and the situation is growing more serious every year. In a recent address,^ President Taft made the following statement: "We have got to arrange it so that cases are decided promptly. I am bound to say that the United States courts are not models in this, but all courts may be reformed in this regard. What is driving you merchants out of courts into arbitrations? It is the cost of 1 Delivered at St. Louis, May 4, 1910. DUTIES TO THE COURTS 173 litigation. Now, we ought to have courts that can dispose of the business promptly and end litigation. I speak as a lawyer and I speak as a judge, and therefore I speak with confidence, because I know what I am talking about." A remedy must be sought. Either the anti- quated procedure still prevailing in many sections must be abolished and a simpler procedure sub- stituted, or more judges must be appointed and the court's capacity for business in this way increased. But there is a duty resting upon members of the bar which, if properly appreciated and conscientiously discharged, would do much to lessen the evil described. Every case that comes into a lawyer's office should as speedily be adjusted as is consistent with the object sought to be attained. The fact that the amount of a fee depends somewhat upon the length of time spent upon the case does not justify dilatory tactics on the part of the lawyer handhng the case. Procrastination is no more justifiable in the lawyer than in the business man, nor so much so. The lawyer is acting in behalf of another person and he should therefore take thought of the additional expense and the mental distress and anxiety resulting to his cUent from the delay. If suit is to be brought, he should not wait for a more convenient season but bring suit at the earliest date compatible with good judgment. 174 ETHICAL OBLIGATIONS OF THE LAWYER After suit has been entered, it should not be neg- lected indefinitely but marked for trial at an early date. It should not be continued when once on the court docket, unless for very urgent reasons. Lawyers should co-operate with the courts to clear the court dockets as speedily as may be, and, in this way, make possible the handling of a greater volume of business, thus relieving the congestion now generally existing. § 85. The Duty of Punctuality. There is no fault more common among lawyers than tardiness in attendance upon court. It is no uncommon thing to see dozens of cases that are ripe for trial passed over because of the absence of the lawyers concerned. Tardiness in attendance at court means not only an injustice to one's client and an economic loss to the State through a slowing down of the court's progress, but it means also annoyance and vexation of spirit to the presiding justice. The judge finds enough cause for perturbation during the progress of trials without having the begin- ning of his day marred by inexcusable tardiness of counsel. The tardy lawyer is usually most insistent that his case be tried speedily when he does at length arrive, and the judge and clerk are pestered and irritated by frequent inquiries and DUTIES TO THE COURTS 175 requests. Such a condition of affairs ought not to exist. Punctuality in attendance at court, therefore, is one of the duties that every lawyer owes to the court. § 86. Duty not to Peolong Trial. Another fruitful cause of the congestion of court dockets is the tendency of la- See §§ 5, 94. ■■ See § 52. 304 APPENDIX 12. Fixing the Amount of the Fee. — In fixing fees, lawyers should avoid charges which over- estimate their advice and services, as well as those which undervalue them. A client's ability to pay cannot justify a charge in excess of the value of the service, though his poverty may require a less charge, or even none at all. The reasonable requests of brother lawyers, and of their widows and orphans without ample means, should re- ceive special and kindly consideration. In determining the amount of the fee, it is proper to consider: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite properly to conduct the cause; (2) whether the acceptance of employ- ment in the particular case will preclude the law- yer's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or wUl involve the loss of other business while employed in the particular case or antagonisms with other clients; (3) the custom- ary charges of the bar for similar services; (4) the amount involved in the controversy and the ben- efits resulting to the client from the services; (5) the contingency or the certainty of the com- pensation; and (6) the character of. the employ- ment, whether casual or for an established and constant client. No one of these considerations THE CANONS OF ETHICS 305 in itself is controlling. They are mere guides in ascertaining the real value of the service. In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.' 13. Contingent Fees. — Contingent fees lead to many abuses, and where sanctioned by law should be under the supervision of the court. 14. Suing a Client for a Fee. — Controversies with cUents concerning compensation are to be avoided by the lawyer, so far as shall be compati- ble with his self-respect and with his right to re- ceive reasonable recompense for his services; and lawsuits with clients should be resorted to only to prevent injustice, imposition, or fraud.^ 15. How far a Lawyer may go in Supporting a Clients Cause. — Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the profession of that full measure of public esteem and confidence which belongs to the proper discharge of its duties, than does the false claim, often set up by the un- scrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client's cause. It is improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause. 1 See § 50. « See §§ 51, 120. 306 APPENDIX The lawyer owes "entire devotion to the in- terest of the client, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability," to the end that noth- ing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is au- thorized by the law of the land, and he may ex- pect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind ■ that the great trust of the lawyer is to be per- formed within and not without the boimds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chi- cane. He must obey his own conscience and not that of his client.^ 16. Restraining Clients from l7nproprieties. — A lawyer should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, par- ticularly with reference to their conduct towards courts, judicial officers, jurors, witnesses, and suitors. If a client persist in such wrongdoing the lawyer should terminate their relation.^ » See 25. « See § 99. THE CANONS OF ETHICS 307 17. Ill Feeling and Personalities between Advo- cates. — Clients, not lawyers, are the litigants. Whatever may be the ill feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All per- sonalities between counsel should be scrupulously avoided. In the trial of a cause it is indecent to allude to the personal history or the personal peculiarities and idiosyncrasies of counsel on the other side. Personal colloquies between counsel, which cause delay and promote unseemly wrangling, should also be carefully avoided.^ 18. Treatment of Witnesses and Litigants. — A lawyer should always treat adverse witnesses and suitors with fairness and due consideration, and he should never minister to the malevolence or prejudices of a client in the trial or conduct of a cause. The client cannot be made the keeper of the lawyer's conscience in professional matters. He has no right to demand that his counsel shall abuse the opposite party or indulge in offensive personalities. Improper speech is not excusable on the ground that it is what the client would say if speakuig in his own behalf.^ 19. Appearance of Lawyer as Witness for his Client. — When a lawyer is a witness for his client, except as to merely formal matters, such as 1 See § 78. ' See § 64. 308 APPENDIX the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client/ 20. Newspaper Discussion of Pending Litiga- tion. — Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the courts and otherwise prej- udice the due administration of justice. Gener- ally they are to be condemned. If the extreme circumstances of a particular case justify a state- ment to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement.^ 21. Punctuality and Expedition. — It is the duty of the lawyer not only to his client, but also to the courts and to the public, to be punctual in attendance, and to be concise and direct in the trial and disposition of causes.^ 22. Candor and Fairness. — The conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness. It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testi- • See § 123. ' See § 101. a See §§ 85, 96. THE CANONS OF ETHICS 309 mony of a witness, the language or the argument of opposing counsel, or the language of a decision or a text-book; or with knowledge of its invalidity, to cite as authority a decision that has been over- ruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved; or, in those jurisdictions where a side has the opening and closing arguments, to mislead his opponent by concealing or withholding positions in his opening argiunent upon which his side then intends to rely. It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes. A lawyer should not offer evidence which he knows the court should reject, in order to get the same before the jury by argument for its admis- sibility, nor should he address to' the judge argu- ments upon any point not properly calling for determination by him. Neither should he intro- duce into an argument, addressed to the court, remarks or statements intended to influence the jury or bystanders. These and all kindred practices are unpro- fessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice.* 1 See §§ 87, 89. 310 APPENDIX 23. Attitude toward Jury. — All attempts to curry favor with juries by fawning, flattery, or pretended solicitude for their personal comfort are unprofessional. Suggestions of counsel, look- ing to the comfort or convenience of jurors, and propositions to dispense with argument, should be made to the court out of the jury's hearing. A lawyer must never converse privately with jurors about the case; and both before and during the trial he should avoid communicating with them, even as to matters foreign to the cause.' 24. Right of Lawyer to Control the Incidents of the Trial. — As to incidental matters pending the trial, not affecting the merits of the cause or working substantial prejudice to the rights of the client, such as forcing the opposite lawyer to trial when he is under affliction or bereavement, forcing the trial on a particular day, to the injury of the opposite lawyer, when no harm will result from a trial at a different time, agreeing to an extension of time for signing a bill of exceptions, cross-interrogatories, and the like, the lawyer must be allowed to judge. In such matters no client has a right to demand that his counsel shall be illiberal, or that he do anything therein repug- nant to his own sense of honor and propriety.^ 25. Taking Technical Advantage of Opposite 1 See § 103. ^ See § 74. THE CANONS OF ETHICS 311 Counsel — Agreements with him. — A lawyer should not ignore known customs or practice of the bar or of a particular court, even when the law per- mits, without giving timely notice to the oppos- ing counsel. As far as possible, important agree- ments, affecting the rights of clients, should be reduced to writing; but it is dishonorable to avoid performance of an agreement fairly made because it is not reduced to writing, as required by rules of court/ 26. Professional Advocacy other than before Courts. — A lawyer openly and in his true character may render professional services before legislative or other bodies, regarding proposed legislation and in advocacy of claims before departments of government, upon the same principles of ethics which justify his appearance before the courts; but it is improfessional for a lawyer so engaged to conceal his attorneyship, or to employ secret per- sonal soUcitations, or to use means other than those addressed to the reason and understanding to influence action. 27. Advertising, Direct or Indirect. — The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidehty to trust. This cannot be forced, but must be the 1 See § 77. 312 APPENDIX outcome of character and conduct. The publi- cation or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. But solicitation of business by circulars or advertisements, or by personal com- munications or interviews, not warranted by per- sonal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trus- teeships to be influenced by the lawyer. Indirect advertisement for business, by furnishing or in- spiring newspaper comments concerning causes in which the lawyer has been or is engaged, or concerning the manner of their conduct, the mag- nitude of the interests involved, the importance of the lawyer's positions, and aU other Uke self- laudation, defy the traditions and lower the tone of our high calling, and are intolerable.' 28. Stirring up Litigation, Directly or through Agents. — It is unprofessional for a lawyer to vol- unteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship, or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indict- » See § 127. THE CANONS OF ETHICS 313 able at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action, in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate police- men, court or prison officials, physicians, hospital attaches, or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick, and the in- jured, the ignorant, or others, to seek his profes- sional services. A duty to the public and to the profession devolves upon every member of the bar, having knowledge of such practices upon the part of any practitioner, immediately to inform thereof to the end that the offender may be disbarred.' 29. Upholding the Honor of the Profession. — Lawyers should expose without fear or favor be- fore the proper tribunals corrupt or dishonest con- duct in the profession, and should accept without hesitation employment against a member of the bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been 1 See § 57. 314 APPENDIX committed owe it to the profession and to the pub- lic to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the bar against the admission to the profession of candidates unfit or unqualified be- cause deficient in either moral character or edu- cation. He should strive at all times to uphold the honor and to maintain the dignity of the pro- fession, and to improve not only the law but the administration of justice.^ 30. Justifiable and Unjustifiable Litigations. — The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is in- tended merely to harass or to injure the opposite party or to work oppression or wrong. But other- wise it is his right, and, having accepted retainer, it becomes his duty, to insist upon the judgment of the court as to the legal merits of his cUent's claim. His appearance in court should be deemed equiv- alent to an assertion on his honor that in his opinion his client's case is one proper for judicial determination.^ 31. Responsibility for Litigation. — No lawyer is obliged to act either ^.s adviser or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what business he will accept as counsel, what causes 1 See § 72. ' See § 93. THE CANONS OF ETHICS 315 he will bring into court for plaintiffs, what cases he will contest ia court for defendants. The re- sponsibility for advising questionable transac- tions, for bringing questionable suits, for urging questionable defenses, is the lawyer's responsibil- ity. He cannot escape it by m-ging as an excuse that he is only following his client's instructions.* 32. The Lawyer's Duty in its Last Analysis. — No client, corporate or individual, however power- ful, nor any cause, civil or political, however impor- tant, is entitled to receive, nor should any lawyer render, any service or advice involving disloyalty to the law, whose ministers we are, or disrespect of the judicial office, which we are bound to up- hold, or corruption of any person or persons exer- cising a public office or private trust, or deception or betrayal of the public. When rendering any such improper service or advice, the lawyer in- vites and merits stern and just condemnation. Correspondingly, he advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to im- press upon the client and his undertaking exact compliance with the strictest principles of moral law. He must also observe and advise his client to observe the statute law, though until a statute shall have been construed and interpreted by com- petent adjudication, he is free and is entitled to 1 See §§ 18, 19, 41, 92. 316 APPENDIX advise as to its validity and as to what he coi scientiously believes to be its just meaning an extent. But above all a lawyer will find his higl est honor in a deserved reputation for fidelity t private trust and to pubhc duty, as an honest ma and as a patriotic and loyal citizen. HOFFMAN'S FIFTY RESOLUTIONS IN REGARD TO PROFESSIONAL DEPORTMENT ^ This code of professional ethics was framed early in the nineteenth century by David Hoffman (born 1784, died 1854), of the Baltimore Bar, for adoption by his students on admission to the bar "as guides, never to be departed from, and to which they will ever be faithful." Hoffman re- marked: "We have preferred to frame them in the manner of resolutions, rather than of didactic rules, hoping they may thereby prove more im- pressive, and be more likely to be remembered." 1. I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that "if a river swell beyond its banks, it loseth its own channel." 2. I will espouse no man's cause out of envy, hatred, or malice toward his antagonist. 3. To all judges, when in court, I will ever be respectful. They are the law's vicegerents; and whatever may be their character and deportment, the individual should be lost in the majesty of the office. ' Reprinted from the " American Law School Review," Decem- ber, 1908. 318 APPENDIX 4. Should judges, while on the bench, forget that, as an officer of their court, I have rights, and treat me even with disrespect, I shall value myself too highly to deal with them in like manner. A firm and temperate remonstrance is all that I will ever allow myself. 5. In all intercoiu'se with my professional brethren I will always be courteous. No man's passion shall intimidate me from asserting fully my own or my client's rights; and no man's igno- rance or folly shall induce me to take any ad- vantage of him. I shall deal with them all as honorable men ministering at our common altar. But an act of unequivocal meanness or dis- honesty, though it shall wholly sever any personal relation that may subsist between us, shall pro- duce no change in my deportment when brought in professional connection with them. My client's rights, and not my own feelings, are then alone to be consulted. 6. To the various officers of the court I will be studiously respectful, and specially regardful of their rights and privileges. 7. As a general rule, I will not allow myself to be engaged in a cause to the exclusion of, or even in participation with, the counsel previously en- gaged, unless at his own special instance, in union with his client's wishes; and it must, indeed, be a strong case of gross neglect or of fatal inability in HOFFMAN'S FIFTY RESOLUTIONS 319 the counsel that shall induce me to take the cause to myself. 8. If I have ever had any connection with a cause, I will never permit myself (when that con- nection is from any reason severed) to be engaged on the side of my fornler antagonist. Nor shall any change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for bemg found on the opposite side that the present is but the ghost of the former cause. 9. Any promise or pledge made by me to the adverse counsel shall be strictly adhered to by me; nor shall the subsequent instructions of my client induce me to depart from it, unless I am well satisfied it was made in error, or that the rights of my client would be materially impaired by its performance. 10. Should my client be disposed to insist on captious- requisitions, or frivolous and vexatious defenses, they shall be neither enforced nor coun- tenanced by me. And if still adhered to by him from a hope of pressing the other party into an imjust compromise, or with any other motive, he shall have the option to select other counsel. 11. If, after duly examining a case, I am per- suaded that my client's claim or defense (as the case may be) cannot, or rather ought not to, be sustained, I will promptly advise him to abandon 320 APPENDIX it. To press it further in such a case, with tt hope of gleaning some advantage by an extorte compromise, would be lending myself to a dij honorable use of legal means in order to gain portion of that the whole of which I have reaso to believe would be denied to him both by la^ and justice. 12. I will never plead the Statute of Limitatior when based on the mere efflux of time; for if m client is conscious he owes the debt, and has n other defense than the legal bar, he shall neve make me a partner in his knavery. 13. I will never plead or otherwise avail of th bar of infancy against an honest demand. If m; client possesses the ability to pay, and has no othe legal or moral defense than that it was contracte by him when under the age of twenty-one years, h must seek for other counsel to sustain him in sue a defense. And although in this, as well as in tha of limitation, the law has given the defense, an contemplates in the one case to induce claimant to a timely prosecution of their rights, and in th other designs to protect a class of persons who b; reason of tender age are pecuharly liable to be in; posed on, yet in both cases I shall claim to be th sole judge (the pleas not being compulsory) of th occasions proper for their use. 14. My client's conscience and my own ar distinct entities; and though my vocation ma; HOFFMAN'S FIFTY RESOLUTIONS 321 sometimes justify my maintaining as facts or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privilege of solely judging to what extent to go. In civU cases, if I am satisfied from the evidence that the fact is against my client, he must excuse me if I do not see as he does, and do not press it; and should the principle also be wholly at variance with sound law, it would be dishonorable folly in me to endeavor to incorporate it into the juris- prudence of the country, when, if successful, it would be a gangrene that might bring death to my cause of the succeeding day. 15. When employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavors to arrest or to impede the course of justice, by special resorts to ingenuity, to the artifices of eloquence, to appeals to the morbid and fleeting sympathies of weak juries, or of temporizing courts, to my own personal weight of character — nor, finally, to any of the over- weening influences I may possess from popular manners, eminent talents, exalted learning, etc. Persons of atrocious character, who have vio- lated the laws of God and man, are entitled to no such special exertions from any member of our 322 APPENDIX pure and honorable profession; and, indeed, to no intervention beyond securing to them a fair and dispassionate investigation of the facts of their cause, and the due application of the law. All that goes beyond this, either in manner or substance, is unprofessional, and proceeds, either from a mis- taken view of the relation of client and counsel, or from some unworthy and selfish motive which sets a higher value on professional display and success than on truth and justice, and the sub- stantial interests of the community. Such an in- ordinate ambition I shall ever regard as a most dan- gerous perversion of talents, and a shameful abuse of an exalted station. The parricide, the gratui- tous murderer, or other perpetrator of like re- volting crimes, has surely no such claim on the commanding talents of a profession whose object and pride should be the suppression of all vice by the vindication and enforcement of the laws. Those, therefore, who wrest their proud knowledge from its legitimate pm-poses to pollute the streams of justice and to screen such foul offenders from merited penalties should be regarded by all (and certainly shall by me) as ministers at a holy altar full of high pretension and apparent sanctity, but inwardly base, unworthy, and hypocritical — dan- gerous in the precise ratio of their commanding talents and exalted learning. 16. Whatever personal influence I may be so HOFFMAN'S FIFTY RESOLUTIONS 323 fortunate as to possess shall be used by me only as the most valuable of my possessions, and not be cheapened or rendered questionable by a too fre- quent appeal to its influence. There is nothing more fatal to weight of character than its common use; and especially that unworthy one, often indulged in by eminent counsel, of solemn as- surances to eke out a sickly and doubtful cause. If the case be a good one, it needs no such appli- ance; and if bad, the artifice ought to be too shallow to mislead any one. Whether one or the other, such personal pledges should be very spar- ingly used and only on occasions which obviously demand them; for if more liberally resorted to, they beget doubts where none may have existed or strengthen those which before were only feebly felt. 17. Should I attain that eminent standing at the bar which gives authority to my opinions, I shall endeavor, in my inter coiu-se with my junior brethren, to avoid the least display of it to their prejudice. I will strive never to forget the days of my youth, when I too was feeble in the law, and without standing. I will remember my then am- bitious aspirations (though timid and modest), nearly blighted by the inconsiderate or rude and arrogant deportment of some of my seniors; and I will further remember that the vital spark of my early ambition might have been wholly extin- 324 APPENDIX guished, and my hopes forever ruined, had nc my own resolutions, and a few generous acts ( some others of my seniors, raised me from m depression. To my juniors, therefore, I shall ev( be kind and encouraging; and never too prou to recognize distinctly that, on many occasion it is quite probable their knowledge may be moi accurate than my own, and that they, with the: limited reading and experience, have seen th matter more soundly than I, with my much reac ing and long experience. 18. To my clients I will be faithful; and i their causes zealous and industrious. Those wh can afford to compensate me must do so; but shall never close my ear or heart because m client's means are low. Those who have none, an who have just causes, are of all others the bes entitled to sue or be defended; and they sha receive a due portion of my services, cheerfull given. 19. Should my client be disposed to compromise or to settle his claim or defense, and especial!; if he be content with a verdict or judgment tha ha§ been rendered, or, having no opinion of hi own, relies with confidence on mine, I will in a' such cases greatly respect his wishes and res interests. The further prosecution, therefore, c the claim, or defense (as the case may be) will b recommended by me only when, after matur HOFFMAN'S FIFTY RESOLUTIONS 325 deliberation, I am satisfied that the chances are decidedly in his favor; and I will never forget that the pride of professional opinion on my part, or the spirit of submission, or of controversy (as the case may be), on that of my client, may easily mislead the judgment of both, and cannot justify me in sanctioning, and certainly not in recom- mending, the further prosecution of what ought to be regarded as a hopeless cause. To keep up the ball (as the phrase goes) at my client's ex- pense, and to my own profit, must be dishonor- able; and however willing my client may be to pursue a phantom, and to rely implicitly on my opinion, I will terminate the controversy as con- scientiously for him as I would were the cause my own. 20. Should I not understand my client's cause, after due means to comprehend it, I will retain it no longer, but honestly confess it, and advise him to consult others, whose knowledge of the partic- ular case may probably be better than my own. 21. The wealthy and the powerful shall have no privilege against my client that does not equally appertain to others. None shaU be so great as to rise, even for a moment, above the just requisi- tions of the law. 22. When my client's reputation is involved in the controversy, it shall be, if possible, judicially passed on. Such cases do not admit of compro- 326 APPENDIX mise; and no man's elevated standing shall induce me to consent to such a mode of settling the mat- ter : the amende from the great and wealthy to the ignoble and poor should be free, full, and open. 23. In all small cases in which I may be en- gaged I will as conscientiously discharge my duty as in those of magnitude; always recollecting that "small" and "large" are to clients relative terms, the former being to a poor man what the latter is to a rich one; and, as a young practitioner, not forgetting that large ones, which we have not, will never come if the small ones, which we have, are neglected. 24. I will never be tempted by any pecuniary advantage, however great, nor be persuaded by any appeal to my feelings, however strong, to purchase, in whole or in part, my client's cause. Should his wants be pressing, it will be an act of humanity to relieve them myself, if I am able, and if I am not, then to induce others to do so. But in no case ,will I permit either my benevolence or avarice, his wants or his ignorance, to seduce me into any participation of his pending claim or de- fense. Cases may arise in which it would be mutu- ally advantageous thus to bargain, but the experi- ment is too dangerous, and my rule too sacred, to admit of any exception, persuaded as I am that the relation of client and counsel, to be preserved in absolute purity, must admit of no such privi- HOFFMAN'S FIFTY RESOLUTIONS 327 lege, however guarded it may be by circumstances; and should the special case alluded to arise, better would it be that my client should suffer, and I lose a great and honest advantage, than that any dis- cretion should exist in a matter so extremely liable to abuse, and so dangerous in precedent. And though I have thus strongly worded my resolution, I do not thereby mean to repudiate, as wholly inadmissible, the taking of contingent fees. On the contrary, they are sometimes perfectly proper, and are called for by public policy no less than by humanity. The distinction is very clear. A claim or defense may be perfectly good in law and in justice, and yet the expenses of litigation would be much beyond the means of the claimant or defendant; and equally so as to counsel, who, if not thus contingently compensated in the ratio of the risk, might not be compensated at all. A contingent fee looks to professional compensation only on the final resiilt of the matter in favor of the client. None other is offered or is attainable. The claim or defense never can be made without such an arrangement. It is voluntarily tendered, and necessarily accepted or rejected, before the institution of any proceedings. It flows not from the influence of counsel over client. Both parties have the option to be off. No expenses have been incurred. No moneys have been paid by the counsel to the client. The 328 APPENDIX relation of borrower and lender, of vendor and vendee, does not subsist between them; but it is an independent contract for the services of counsel to be rendered for the contingent avails of the matter to be litigated. Were this denied to the poor man, he could neither prosecute nor be de- fended. All of this differs essentially from the object of my resolution, which is against pur- chasing, in whole or in part, my client's rights, after the relation of client and counsel, in respect to it, has been fully established, after the strength of his case has become known to me, after his total pecuniary inability is equally known, after expenses have been incurred which he is unable to meet, after he stands to me in the relation of a debtor, and after he desires money from me in exchange for his pending rights. With this explanation I re- new my resolution never so to purchase my client's cause, in whole or in part, but still reserve to my- self, on proper occasions, and with proper guards, the professional privilege (denied by no law among us) of agreeing to receive a contingent compen- sation freely offered for services wholly to be rendered, and when it is the only means by which the matter can either be prosecuted or de- fended. Under all other circumstances I shall re- gard contingent fees as obnoxious to the present resolution. 25. I will retain no client's funds beyond the HOFFMAN'S FIFTY RESOLUTIONS 329 period in which I can, with safety and ease, put him in possession of them. 26. I will on no occasion blend with my own my client's money. If kept distinctly as his it will be less liable to be considered as my own. 27. I wUl charge for my services what my judgment and conscience inform me is my due, and nothing more. If that be withheld it will be no fit matter for arbitration; for no one but my- self can adequately judge of such services, and after they are successfully rendered they are apt to be ungratefully forgotten. I will then receive what the client offers or the laws of the country may award; but in either case he must never hope to be again my client. 28. As a general rule I wUl carefully avoid what is called the "taking of half fees." And though no one can be so competent as myself to judge what may be a just compensation for my services, yet when the quiddam honorarium has been estab- lished by usage or law, I shall regard as eminently dishonorable all underbidding of my professional brethren. On such a subject, however, no inflexible rule can be given to myself, except to be invariably guided by a lively recollection that I belong to an honorable profession. 29. Having received a retainer for contemplated services, which circumstances have prevented me from rendering, I shall hold myself bound to refund 330 APPENDIX the same, as having been paid to me on a consid- eration which has failed, and, as such, subject to restitution on every principle of law and of good morals, and this shall be repaid not merely at the instance of my client, but ex mero motu. 30. After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be carefully arranged by me and handed over to him. The execution of such demands, though sometimes troublesome, and in- opportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated. 31. All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a soimd one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain HOFFMAN'S FIFTY RESOLUTIONS 331 consequence be the loss of large prospective gains. 32. If my client consents to endeavors for a compromise of his claim or defense, and for that purpose I am to commune with opposing counsel or others, I will never permit myself to enter upon a system of tactics to ascertain who shall over- reach the other by the most nicely balanced arti- fices of disingenuousness, by mystery, silence, ob- scurity, suspicion, vigilance to the letter, and all of the other machinery used by this class of tacti- cians, to the vulgar siuprise of clients and the ad- miration of a few ill-judging lawyers. On the contrary, my resolution in such a case is to examine with great care, previously to the interview, the matter of compromise; to form a judgment as to what I wiU offer or accept; and promptly, frankly, and firmly to communicate my views to the ad- verse coimsel. In so doing no lights shall be with- held that may terminate the matter as speedily and as nearly in accordance with the rights of my client as possible: although a more dilatory, exacting, and wary policy might finally extract something more than my own or even my cUent's hopes. Reputation gained for this species of skill is sure to be followed by more than an equiva- lent loss of character; shrewdness is too often allied to unfairness, caution to severity, sUence to disingenuousness, wariness to exaction, to 332 APPENDIX make me covet a reputation based on such qualities. 33. What is wrong is not the less so from being common. And though few dare to be singular, even in a right cause, I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be profes- sionally right, however it may be sanctioned by time or custom. It is better to be right with a few, or even none, than wrong, though with a mul- titude. If, therefore, there be among my brethren any traditional moral errors of practice, they shall be studiously avoided by me, though in so doing I unhappily come in collision with what is (erro- neously, I think) too often denominated the policy of the profession. Such cases, fortunately, occur but seldom; but, when they do, I shall trust to that moral firmness of purpose which shrinks from no consequences, and which can be intimidated by no authority, however ancient or respectable. 34. Law is a deep science. Its boundaries, like space, seem to recede as we advance; and though there be as much of certainty in it as in any other science, it is fit we should be modest in our opin- ions, and ever willing to be further instructed. Its acquisition is more than the labor of a life, and after all can be with none the subject of an unshaken confidence. In the language, then, of a late beautiful writer, I am resolved to ' ' consider HOFFMAN'S FIFTY RESOLUTIONS 333 my own acquired knowledge but as a torch flung into an abyss, making the darkness visible, and showing me the extent of my own ignorance." (Jameson.) 35. I will never be voluntarily called as a witness in any cause in which I am counsel. Should my testimony, however, be so material that without it my client's cause may be greatly prejudiced, he must at once use his option to cancel the tie be- tween us in the cause, and dispense with my fur- ther services or with my evidence. Such a dilemma would be anxiously avoided by every delicate mind, the union of counsel and witness being usually re- sorted to only as a forlorn hope in the agonies of a cause, and becomes particularly offensive when its object be to prove an admission made to such counsel by the opposing litigant. Nor will I ever recognize any distinction in this respect be- tween my knowledge of facts acquired before and since the institution of the suit, for in no case will I consent to sustain by my testimony any of the matters which my interest and professional duty render me anxious to support. This resolution, however, has no application whatever to facts contemporaneous with and relating merely to the prosecution or defense of the cause itself, such as evidence relating to the contents of a paper un- fortunately lost by myself or others, and such like matters, which do not respect the original merits 334 APPENDIX of the controversy, and which, in truth, adds noth- ing to the once existing testimony, but relates merely to matters respecting the conduct of the suit, or to the recovery of lost evidence; nor does it apply to the case of gratuitous counsel — that is, to those who have expressly given their ser- vices voluntarily. 36. Every letter or note that is addressed to me shall receive a suitable response, and in proper time. Nor shall it matter from whom it comes, what it seeks, or what may be the terms in which it is penned. SUence can be justified in no case; and though the information sought cannot or ought not to be given, still decorima would re- quire from me a com-teous recognition of the request, though accompanied with a firm with- holding of what has been asked. There can be no surer indication of vulgar education than neglect of letters and notes. It manifests a total want of that tact and amenity which intercourse with good society never fails to confer. But that dogged silence (worse than a rude reply) in which some of our profession indulge on receiving letters offen- sive to their dignity, or when dictated by ignorant importunity, I am resolved never to imitate, but will answer every letter and note with as much civility as may be due, and in as good time as may be practicable. 37. Should a professional brother, by his in- HOFFMAN'S FIFTY RESOLUTIONS 335 dustry, learning, and zeal, or even by some happy chance, become eminently successful in causes which give him large pecuniary emoluments, I will neither envy him the fruits of his toUs or good fortune, nor endeavor by any indirection to lessen them, but rather strive to emulate his worth, than enviously to brood over his meritorious success and my own more tardy career. 38. Should it be my happy lot to rank with or take precedence of my seniors, who formerly endeavored to impede my onward course, I am firmly resolved to give them no cause to suppose that I remember the one, or am conscious of the other. When age and infirmities have overtaken them, my kindness will teach them the loveliness of forgiveness. Those, again, who aided me when young in the profession shall find my gratitude increase in proportion as I become the better able to sustain myself. 39. A forensic contest is often no very sure test of the comparative strength of the combatants, nor should defeat be regarded as a just cause of boast in the victor or of mortification in the van- quished. When the controversy has been judicially settled against me in all courts, I will not "fight the battle o'er again," coram non judice; nor en- deavor to persuade others, as is too often done, that the courts were prejudiced, or the jury des- perately ignorant, or the witnesses perjured, or 336 APPENDIX that the victorious counsel were unprofessional and disingenuous. In such cases, Credat Judaeus Appella ! 40. Ardor in debate is often the soul of elo- quence and the greatest charm of oratory. When spontaneous and suited to the occasion, it becomes powerful. A sure test of this is when it so alarms a cold, calculating, and disingenuous opponent as to induce him to resort to numerous vexatious means of neutralizing its force, when ridicule and sarcasm take the place of argument, when the poor device is resorted to of endeavoring to cast the speaker from his well-guarded pivot by repeated interruptions, or by impressing on the court and jury that his just and well-tempered zeal is but passion, and his earnestness but the exacerbation of constitutional infirmity, when the opponent assumes a patronizing air, and imparts lessons of wisdom and of instruction! Such opponents I am resolved to disappoint, and on no account will I ever imitate their example. The warm current of my feelings shall be permitted to flow on; the influences of my nature shall receive no check; the ardor and fullness of my words shall not be abated — for this would be to gratify the unjust wishes of my adversary, and would lessen my usefulness to my client's cause. 41. In reading to the court or to the jury au- thorities, records, documents, or other papers, I HOFFMAN'S FIFTY RESOLUTIONS 337 shall always consider myself as executing a trust, and as such bound to execute it faithfully and honorably. I am resolved, therefore, carefully to abstain from all false or deceptions reading, and from all uncandid omissions of any qualifications of the doctrines maintained by me which may be contained in the text or in the notes; and I shall ever hold that the obligation extends not only to words, syllables, and letters, but also to the modus legendi. All intentional false emphasis and even intonations in any degree calculated to mislead are petty impositions on the confidence reposed; and, whilst avoided by myself, shall ever be re- garded by me in others as feeble devices of an im- poverished mind, or as pregnant evidenes of a disregard for truth, which justly subjects them to be closely watched in more important matters. 42. In the examination of witnesses I shall not forget that perhaps circumstances and not choice have placed them somewhat in my power. Whether so or not, I shall never esteem it my privilege to disregard their feelings, or to extort from their evidence what, in moments free from embarrassment, they would not testify. Nor will I conclude that they have no regard for truth and even the sanctity of an oath because they use the privilege accorded to others of changing then- language and of explaining their previous declara- tions. Such captious dealing with the words and 338 APPENDIX syllables of a witness ought to produce in the mind of an intelligent jury only a reverse effect from that designed by those who practice such poor devices. 43. I wiU never enter into any conversation with my opponent's client relative to his claim or de- fense, except with the consent and in the presence of his counsel. 44. Should the party just mentioned have no counsel, and my client's interest demand that I should still commune with him, it shall be done in writing only, and no verbal response will be re- ceived. And if such person be unable to commune in writing, I will either delay the matter until he employs counsel, or take dowii in writing his reply in the presence of others; so that if occasion should make it essential to avail myself of his answer, it may be done through the testimony of others, and not by mine. Even such cases should be regarded as the result of unavoidable neces- sity, and are to be resorted to only to guard against great risk, the artifices of fraud, or with the hope of obviating litigation. 45. Success in any profession will be much promoted by good address. Even the most cau- tious and discriminating minds are not exempt from its influence; the wisest judges, the most dis- passionate juries, and the most wary opponents being made thereby, at least, more willing audi- tors — and this, of itself, is a valuable end. But HOFFMAN'S FIFTY RESOLUTIONS 339 whilst address is deservedly prized, and merits the highest cultivation, I fully concur in senti- ment with a high authority, that we should be "respectful without meanness, easy without too much familiarity, genteel without affectation, and insinuating without any art or design." 46. Nothing is more unfriendly to the art of pleasing than morbid timidity (bashfulness — mauvaise honte). All life teems with examples of its prejudicial influence, showing that the art of rising in life has no greater enemy than this nervous and senseless defect of education. Self-possession, calmness, steady assurance, intrepidity — are all perfectly consistent with the most amiable modesty, and none but vulgar and illiterate minds are prone to attribute to presumptuous assvirance the appar- ently cool and unconcerned exertions of young men at the bar. A great connoisseiu- in such matters says that "what is done under concern and embarrassment is sure to be ill done"; and the judge (I have known some) who can scowl on the early endeavors of the youthful advocate who has fortified himself with resolution must be a man poor in the knowledge of human character, and, perhaps, still more so in good feelings. Whilst, therefore, I shall ever cherish these opinions, I hold myself bound to distinguish the arrogant, noisy, shallow, and dictatorial impudence of some. 340 APPENDIX from the gentle, though firm and manly, confi- dence of others — they who bear the white banner of modesty fringed with resolution. 47. All reasoning should be regarded as a phi- losophical process — its object being conviction by certain known and legitimate means. No one ought to be expected to be convinced by loud words, dogmatic assertions, assumption of superior knowledge, sarcasm, invective; but by gentleness, sound ideas, cautiously expressed by sincerity, by ardor without extravasation. The minds and hearts of those we address are apt to be closed when the lungs are appealed to, instead of logic; when assertion is relied on more than proof; and when sarcasm and invective supply the place of deliberate reasoning. My resolution, therefore, is to respect courts, juries, and counsel as assail- able only through the medium of logical and just reasoning, and by such appeals to the sympathies of our common nature as are worthy, legitimate, well-timed, and in good taste. 48. The ill success of many at the bar is owing to the fact that their business is not their pleasure. Nothing can be more unfortunate than this state of mind. The world is too full of penetration not to perceive it, and much of om' discourteous man- ner to clients, to com-ts, to juries, and counsel has its source in this defect. I am, therefore, resolved to cultivate a passion for my profession, or, after HOFFMAN'S FIFTY RESOLUTIONS 341 a reasonable exertion therein, without success, to abandon it. But I will previously bear in mind that he who abandons any profession will scarcely find another to suit him. The defect is in himself. He has not performed his duty, and has failed in resolutions, perhaps often made, to retrieve lost time. The want of firmness can give no promise of success in any vocation. 49. Avarice is one of the most dangerous and disgusting of vices. Fortunately its presence is oftener found in age than in youth; for if it be seen as an early feature in oiu" character, it is sure in the course of a long life to work a great mass of oppression, and to end in both intellectual and moral desolation. Avarice gradually originates every species of indirection. Its offspring is meanness; and it contaminates every pure and honorable principle. It cannot consist with hon- esty scarce a moment without gaining the victory. Shoiild the young practitioner, therefore, on the receipt of the first fruits of his exertions, perceive the slightest manifestations of this vice, let him view it as his most insidious and deadly enemy. Unless he can then heartily and thoroughly eradi- cate it, he will find himself, perhaps slowly, but surely, capable of unprofessional, mean, and, finally, dishonest acts which, as they cannot be long concealed, will render him conscious of the loss of character; make him callous to all the nicer 342 APPENDIX feelings; and ultimately so degrade him, that he consents to live upon arts, from which his talents, acquirements, and original integrity would certainly have rescued him, had he, at the very commence- ment, fortified himself with the resolution to reject all gains save those acquired by the most strictly honorable and professional means. I am, there- fore, firmly resolved never to receive from any one a compensation not justly and honorably my due, and, if fairly received, to place on it no undue value, to entertain no affection for money further than as a means of obtaining the goods of life; the art of using money being quite as important for the avoidance of avarice and the preservation of a pure character as that of acquiring it. With the aid of the foregoing resolutions and the faithful adherence to the following and last one I hope to attain eminence in my profession, and to leave this world with the merited reputation of having lived an honest lawyer. 50. Last resolution: I will read the foregoing forty-nine resolutions twice every year during my professional life. A SCHEDULE OF LEGAL FEES The following schedule of fees was adopted in 1906 by a prominent New England Bar Associa- tion. The figures given are minimum fees, and all attorneys practicing in the locality were "ex- pected to abide by the same or be deemed guilty of improfessional conduct." For Superior Court writs where debt is not over three hundred dollars, not less than $5.00 For Superior Coiu-t writs where debt is over three hun- dred dollars, not less than 10.00 For drawing bill or answer in equity, not less than . . 25.00 For drawing answer in Superior and Land Courts, not less than 10.00 For uncontested libel for divorce, including costs, ex- clusive of witness fees, not less than 50.00 For appearance and answer for libellee in proceedings for divorce, not less than 30.00 For retainer and services for debtor in bankruptcy or insolvency proceedings, in addition to all expenses, not less than . 100.00 Except when assets are less than five hundred dollars, when in addition to all expenses, not less than ... 75.00 For retainer and services in matter of assignment for benefit of creditors where liabilities are less than five himdred dollars, not less than 50.00 For retainer and services in matter of assignment for benefit of creditors where liabilities are five himdred dollars or more, not less than 100.00 For taking out letters of administration or proving will, not less than 25.00 344 APPENDIX Except in cases where estate is less than two hundred dollars, in which case not less than . . . $ 10.00 For drawing will, not less than . 10.00 Except wills of simplest form drawn at the office, for which not less than . . . 6.00 For entering appearance and filing defendant's answer in District Court, not less than . . 6.00 For entering appearance and filing trustee's answer in District Court, not less than 2.00 For commencing suit, not less than 6.00 Except in collection cases to recover for necessaries in District Court when not less than actual dis- bursements. For trial of cause in District Court for either plaintiff or defendant, not less than ... . 6.00 For defending in District Court where charge is felony or violation of the liquor law, not less than 15.00 For prosecuting or defending in District Court where charge is misdemeanor (other than violation of liquor law) not less than 6.00 For examination of title to real estate, in addition to expenses, except where the examination is made for the holder of existing mortgage, not less than . 10.00 For drawing deed, mortgage, or other conveyance of real estate or for passing upon the same before record, when drawn by a person other than an attorney-at- law, not less than . . 2.00 For drawing bill of sale, chattel mortgage, or powers of attorney, not less than ... . 2.00 For foreclosure of real estate mortgages, in addition to expenses, not less than . ... .25.00 For assistance and direction to any person not an at- torney-at-law as to conduct of foreclosure proceed- ings, not less than . 25.00 For drawing discharge or an assignment of a mortgage, not less than . . 1.00 For organizing corporations, not including disburse- ments, not less than ... . . 50.00 For drawing partnership papers, not less than . . 10.00 Except when only the simplest form, in which case not less than 5.00 A SCHEDULE OF LEGAL FEES 345 For ejectment proceedings: Lease and notice, not less than $ 2.00 For ejectment proceedings: Writ, npt less than .... 3.00 For drawing leases (short form), not less than .... 2.00 For drawing leases (long form), not less than 4.00 For the trial of any case in the Probate Court, not less than 25.00 For drawing an assignment of wages or an assignment of an account, not less than 1.00 INDEX INDEX (Ref«rence3 are to sections) ABUSE of opponent, 65 of opposing lawyer, 70, 78 of judge as a cause for disbarment, 167 ACCOUNT duty of lawyer to account to client, 52 ACKNOWLEDGMENTS should they be taken by telephone, 122 ADVANCE COSTS advisability of exacting, 27 amount of, 27 ADVERTISING ethical rules respecting, 127 by professional cards, 128 by letters and circulars, 129 through newspapers, 120, 131, 132 by anonymous announcements, 131 divorce advertising as a cause for disbarment, 131, 167 by discussions in the press, 132 employment of runners, 135 social acquaintance and club hfe as, 134 politics as a means, 133 ADVERSE EMPLOYMENT may not be accepted, 20 ADVERSE PARTY should not procure employment against, 57 should not confer with except in presence of coimsel, 58 should not advise as to the law, 59 should not procure signing away of rights of, 60 evidence of should not be procured by trickery, 61 attempted cajolery by, 45 lawyer's duty to client in negotiating with, 45 lawyer's duty to when a witness, 63 350 INDEX (References are to sections) ADVICE to clients, not to be given hastily, 29 how much should be given, 31 duty that advice should be clear and definite, 32 should not be given to adverse party, 59 AGREEMENTS by lawyers, necessity for observance of, 77 for compensation, actual or implied. 111 ALABAMA lawyer's oath in, 164 AMERICAN BAR ASSOCIATION CANONS OF ETHICS in full in Appendix APPEALS not to be used as instrument of delay, 105 ARGUMENTS duty not to argue upon matters not in evidence, 88 ARIZONA lawyer's oath in, 164 ARKANSAS lawyers oath in, 164 ATTORNEY (See Lawter) BANKRUPTCY fee for cases in, 116 BAR SCHEDULES actual fee biU in Appendix BEREAVEMENT not to force trial when opposing lawyer is under, 74 BREACH OP TRUST as a cause for disbarment, 167 BROADENING OF LAWYER'S DUTIES broadening of lawyer's duties, 144 BUSINESS as a field for lawyers, 149 lawyers needed in, 149 INDEX 351 (References are to sections) CALIFORNIA lawyer's oath in, 164 statutory causes for disbarment in, 166 CHAMPERTY distinguished from contingent fees, 95 CIGARETTES smoking of, in office, 15 CIRCULARS by attorneys, when allowed, 129 CIRCUMVENTING THE LAW should not assist in, 98 CITY large or small as a location for lawyer, 9 CLIENT lawyers duties to. Chaps. Ill, IV, V, and VI must lawyer accept any cUent, 18 should not accept if a party in adverse interest, 20 representing adversary, 21 lawyer's duty where both parties are former clients, 21 if recently counsel for adverse party, 22 in case of divorce sought by friends, 23 to accept case against fellow attorney, 24 of loyalty to cUent, 39, 40, 41 to, in ascertaining facts, 43 in attempts at settlement, 44 in court, 46 not to overcharge, 48, 49, 50 over inquisitive client, 33 confidences of to be respected by lawyer, 5, 55 may compel lawyer to follow instructions, to what extent, 41 relation of attorney and client should be severed when, 42 right of client, to discharge attorney, 67 money advanced by lawyer to client, 37 lawyer as witness for client, 123 enticement of, by other lawyers, 67 undesirable clients, 18 352 INDEX (References are to sections) CLIENT — Continued liabilities of lawyer to client, Chap. XVI for exceeding authority, 152 failure to exercise reasonable care and skill, 153 errors in law or judgment, 154 negligence in collecting money, 155 in trial of an action, 156 in drawing legal documents, 157 money collected on client's account, 158 CLUB LIFE as a means of advertising, 134 COLLECTING MONEY negligence in, 155 COLORADO lawyers oath in, 164 COMMERCIALISM among lawyers, 69 COMPENSATION lawyer's duty not to overcharge cUent, 48 principles governing, the fixing of, 50 (See Fees) COMPETITION among lawyers, 69 CONDUCT toward judge in court, 83 out of court, 81, 104 client (see Client) adverse party (see Adverse Paett) other lawyers (see Opposite Lawyer) CONFIDENCES lawyer's duty to respect, 55 CONNECTICUT lawyer's oath in, 164 CONTEMPT of court, punishment for, 83 INDEX 353 (References are to sections) CONTINGENT FEES duty as to, 95 amount to champerty, when, 95 ethical objections to, 95 ethical reasons in favor of, 95 (See also Fees) CONTINUANCE illness of counsel as cause for, 74 CONVERSION of funds as a cause for disbarment, 167 CONVICTION OF CRIME as a cause for disbarment, 167 CORPORATION fee for organizing, 116 COURTS lawyer's duty to client in, 46 judges in, 82, 83 charge per day for services in, 116 duty of loyalty toward, 81, 82 punctuality in attendance, 85 duty not to postpone trial, 84 prolong trial, 86 attempt to influence, 104 introduce improper testimony in, 87 CRIMINALS defense of, 42 defense of, no violation of morals, 42 CRITICISM of courts, 80, 81, 82 CROSS EXAMINATION vicious, lawyer's duty to protect witnesses from, 46 DEED fee for drawing, 116 DEFENSE OF CRIMINALS duty of lawyers as to, 25 DELAWARE the lawyer's oath in, 164 354 INDEX (References are to Bections) DELUSIVE HOPES in client, lawyer's duty not to encourage, 30 DESKROOM in law office, 11 DILIGENCE lawyer's duty as to, 125 DISBARMENT meaning of term, 160 may be inflicted, when, 161 regarded as an act of protection, 72 reinstatement of disbarred lawyer, 162 causes for, 163 violation of oath of office, 164 (See Lawyer's Oath) offenses recognized by common law, 165 specially designated by statute, 166 in California, 166 District of Columbia, 166 Illinois, 166 Massachusetts, 166 New York, 166 Ohio, 166 specific examples of causes for disbarment and suspensic conviction of crime, 167 embezzlement, 167 conversion, 167 dishonesty, 167 breach of trust, 167 abusing judge, 167 slandering fellow attorney, 167 divorce advertising, 167 DISCHARGE of counsel, client's right of, 67 DISCUSSION of legal topics in the public press, 132 DISHONESTY as a cause for disbarment, 167 DISREGARDING INSTRUCTIONS liability for, 152 INDEX 355 (References are to sections) DISTRICT OF COLUMBIA statutory causes in, for disbarment, 166 DIVORCES duty in case of divorce sought by friends, 23 advertising to procure, as a cause for disbarment, 131, 167 fees for procuring, 116 DOCUMENTS return of to client, upon demand, 54 DUTIES OF LAWYER assumption of new duties, 1 of silence as to client's confidences, 5, 55 to uphold dignity of the profession, 5 not to disparage other lawyers, 5- make the rascality of lawyers a subject of jest, 5 of loyalty to courts, 5 duties to persons accused of crime, 42 general duties, to clients (see Client) general duties, to courts (see Courts) to other lawyers (see Opposing Lawyers) (See Lawyer) EMBEZZLEMENT as a cause for disbarment, 167 ENVIRONMENT its bearing upon ethics of a lawyer, § 7 ERRORS OF LAW OR JUDGMENT liability for, 154 EXAMINATION OF TITLE fee for, 116 EXCEEDING AUTHORITY liability to client for, 152 FEES duty of lawyer, not to overcharge, 48, 49, 50 unfair charges, 108 law not a money getting trade, 109 actual or implied arguments as to. 111 Uen on proceeds of suit for, when, 71 principles governing the fixing of, 50 356 INDEX (References are to sections) FEES — Continued should not overestimate the value of services, 110 circumstances should govern, 112 time and labor involved, 113 novelty of question, 114 amount of money involved, 117 contingency or certainty, 118 casual or regular employment, 119 customary charges of the profession, 116 minimum fee, 116 drawing deed or mortgage, 116 court service, per day, 116 settling cases out of courts, 116 organizing corporations, 116 bankruptcy cases, 116 drawing wills, 116 legal opinions, 116 examination of title, 116 divorce cases, 116 an actual fee bill (Appendix) bringing suit for fee, 51, 120 FLORIDA lawyer's oath in, 164 GARBLED LAW lawyer's duty not to offer, 89 GEORGIA lawyer's oath in, 164 GRAFTER evolution of, 140 GRATUITY services rendered as, 48, 116 GROUNDLESS SUITS should lawyer undertake such, 92 GUILT of prisoner, knowledge of, 42 HOFFMAN'S RESOLUTIONS (Appendix) HOPELESS CIVIL CASES duty as to, 35 INDEX 357 (References are to sections) IDAHO lawyer's oath in, 164 ILLEGAL ACTS duty to advise client against, 34 ILLINOIS lawyer's oath in, 164 statutory causes for disbarment, 166 ILLNESS of counsel as cause for continuance, 74 ILL USAGE by client, effect upon lawyer's duties, 22 IMPROPER EVIDENCE duty not to offer in court, 87 INDIANA lawyer's oath in, 164 INEQUITABLE SUITS duty as to, 36 INTEMPERANCE of lawyer's, 85 INTEREST IN LITIGATION duty of lawyer not to acquire, 5, 94 INTERFERENCE by lawyers with others' clients, 67 IOWA lawyer's oath in, 164 JUDGE position of in judicial system, 5 lawyers should pay respect to, 82, 83 criticism of by lawyers, 82 Wtempts to influence, unprofessional, 104 JURY plea to, not to disparage adversary in, 65 not to attempt to influence, 103 KANSAS lawyer's oath in, 164 358 INDEX (References are to sections) KENTUCKY lawyers oath in, 164 LAW advice to adverse party as to, 69 mistake of, liability of lawyer for, 154 LAW OFFICE location of, its bearing upon etWcal development, 7 in large or small city, 9 clerkship or independant practice, 10 deskroom or independant office, 11 conditions of office, 12 showy, luxurious appearing, 13 not a lounging place, 14 to be constantly in business trim, 15 pollution of air by smoking, 15 leaving office door ajar, 16 LAWYER ignorance of legal ethics common among, 3 how lawyer differs socially from layman, 5 personal appearance of lawyer, 5 personal conduct of, 5 morals of, 5 duties to client is it a duty to accept any client, 18 freedom of choice among clients, 19 effect of choosing clients wisely, 19 should not accept case if adversely interested, 20 should not accept case if representing adverse party, 21 duty when both parties are former clients, 21 should not accept case if recently in employ of adveri party, 22 duty in case of divorce sought by friends, 23 duty to accept case against fellow attorney, 24 duty to defend criminals, 25 should not advise client hastily, 29 should not make positive assertions of outcome of suit, i duty that advice should be clear and definite, 32 duty in respect to over inquisitive client, 33 should advise client against illegal acts, 34 INDEX 359 (References are to sectionB) LAWYER — Continued should not take hopeless civil case, 35 duty as^o unjust or inequitable suits, 36 advancing money to clients, 37 duty of loyalty, 39 how far should duty extend, 40 should sever relationship for cause, 42 duty to client in ascertaining facts, 43 duty to client in attempts at settlement, 44 should avoid putting leading questions to client at trial, 46 should avoid overcharging for services, 48, 49 should not mix trust funds, 52 should return documents, etc., upon demand, 54 duty to respect confidences, 55 duties to adverse party should not procure employment against, 57 should not confer with except in presence of counsel, 58 should not advise as to the law, 59 should not procure signing away of adversary's rights, 60 should not procure adversary's evidence by trickery, 61 should not circulate slander concerning opponent, 62, 65 duty to adversary when on the witness stand, 64 duties to other lawyers should not take case belonging to, 67 unless he has proved unworthy, 68 should not disparage other lawyers, 70, 78 should not deal with adversary without knowledge of, 71 duty to prosecute or sue for cause, 72 right to defend accused lawyer, 73 should not force trial when opponent is ill, etc., 74 duty to respect agreements with, 77 duties to the courts duty of loyalty to, 81 ■ duty of loyalty to the judges of, 82, 83 should not delay trial, 84 should be punctual in attendance, 85 should not prolong trial, 86 should not offer improper evidence, 87 should not argue upon matters not in evidence, 88 should not offer garbled law, 89 360 INDEX (References are to sections) LAWYER — Continued duties to the state duty not to bring groundless suit, 92 duty in respect to inequitable claim that is legally sound, I should not acquire interest in litigation, 94 duty as to contingent fees, 95 duty of punctuality in court, 96 should not be unduly influenced by wealthy clients, 97 should not assist in circumventing law, 98 should endeavor to restrain client from unlawful acts, 9i should not discuss pending cases through newspapers, 1( should not attempt to procure perjured testimony, 102 should not attempt to influence jury, 103 should not try to influence court, 104 should not prolong litigation, 105 should lawyer be a witness for client? 123 duty to answer letters promptly, 124 duty to be diligent, 125 should cultivate a passion for the profession, 126 duty as to advertising, 126, 127, 128,, 129, 130, 131, 13: 133, 134, 135 lawyer in politics. Chap. XIV lawyer in business, Chap. XV liabilities to client for disregarding or exceeding authority, 152 for failure to exercise reasonable care and skill, 153 for errors in law judgment, 154 for negligence in collecting money, 155 for negligence in trial of action, 156 for negligence in drawing legal documents, 157 tor money collected on client's accoimt, 158 LAWYER'S OATH in Alabama, 164 Arizona, 164 Arkansas, 164 California, 164 Colorado, 164 Connecticut, 164 Delaware, 164 Florida, 164 INDEX 361 (References are to sections) LAWYER'S OAT'S— Continued Georgia, 164 Idaho, 164 Illinois, 164 Indiana, 164 Iowa, 164 Kansas, 164 Kentucky, 164 Louisiana, 164 Maine, 164, Maryland, 164 Massachusetts, 164 Michigan, 164 Minnesota, 164 Mississippi, 164 Missouri, 164 Montana, 164 Nebraska, 164 Nevada, 164 New Hampshire, 164 New Jersey, 164 New York, 164 North Carolina, 164 North Dakota, 164 Ohio, 164 Oklahoma, 164 Oregon, 164 Penffsylvania, 164 Rhode Island, 164 South Dakota, 164 Tennessee, 164 Texas, 164 Utah, 164 Vermont, 164 Virginia, 164 Washington, 164 West Virginia, 164 Wisconsin, 164 Wyoming, 164 362 INDEX (References are to sections) LAYMAN change of status to lawyer, Chap. I how lawyer differs socially from layman, 5 LEGAL ETHICS hazy ideas of, 2 ignorance of, common among lawyers, 3 adoption of canons of Ethics, 4 Study of, advised by American Bar Association, 4 LEGAL DOCUMENTS negUgence in preparation, liability of lawyer for, 157 LEGAL OPINIONS fees for, 116 LETTEES duty to answer promptly, 124 LIBRARY of lawyer, § 12 LINCOLN, ABRAHAM incident in career of, 42 LITIGATION duty not to prolong, 105 LOUISIANA lawyers oath in, 164 LOYALTY duty of, to client, 39 how far should it extend, 40, 41 duty of, to courts, 81 MAINE lawyer's oath in, 164 MARYLAND lawyer's oath in, 164 MASSACHUSETTS lawyers oath in, 164 statutory causes for disbarment in, 166 MICHIGAN lawyers oath in, 164 INDEX 363 (References are to sections) MINIMUM FEE amount of, 116 MINNESOTA lawyer's oath in, 164 MISCONDUCT duty of lawyers to assist in prosecution of erring lawyers, 72 right to defend accused lawyers, 73 MISSISSIPPI lawyer's oath in, 164 MISSOURI lawyer's oath in, 164 MISSTATEMENTS of lawyers, unprofessional, 89 MISUNDERSTANDING as to fee, to be settled in court when, 51 MONEY duty of safe keeping of, 52 MONTANA lawyer's oath in, 164 MORALITY of lawyer, essential, 5 MORTGAGE fee for drawing, 116 NEBRASKA lawyer's oath in, 164 NEGLIGENCE in collecting money, 155 in trial of action, 156 in drawing legal documents, 157 NEVADA lawyer's oath in, 164 NEW HAMPSHIRE lawyer's oath in, 164 364 INDEX (Heferences are to sections) NEWSPAPERS advertising in (see Adveetising) eagerness of for sensational news, 101 not to discuss pending cases in, 101 discussions in, when allowable, 132 NEW YORK lawyer's oath in, 164 statutory causes for disbarment, 166 NORTH CAROLINA lawyer's oath in, 164 NORTH DAKOTA lawyer's oath in, 164 NOVELTY OF QUESTION as affecting fee, 114 OATH (See Lawyer's Oath) OFFICE condition of, §§ 12-16 OHIO lawyer's oath in, 164 statutory causes for disbarment, 166 OKLAHOMA lawyer's oath in, 164 OPPOSING LAWYER not to be overawed by, 45 not to take case belonging to, 67 except in case of misconduct, 68 duty not to disparage, 70, 78 duty not to deal with client of, 71 not to try to overreach by questionable practices, 76 OREGON lawyer's oath in, 164 PARTY IN INTEREST not to accept case if a party in adverse interest, 20 not to acquire an interest in litigation, 5, 94 INDEX 365 (References are to sections) PENNSYLVANIA lawyer's oath in, 164 PERJURED TESTIMONY not to attempt to procure, 87, 99, 102 POLICY OF THE PROFESSION duty as to questionable practices, 106 POLITICS as a means of advertising, 133 why lawyers are attracted to, 138 the need of lawyers in, 141 PRACTICE building up practice, 10 PRIVILEGED COMMUNICATIONS duty of lawyer in respect thereto, 55 PROFESSIONAL CARDS (See Advertising) PUNCTUALITY in court, 96 REASONABLE CARE AND SKILL liabihty for failure to exercise, 153 REINSTATEMENT of disbarred or suspended lawyers, 162 REPUTATION certain acts to avoid because of effect upon, 71 RETAINER advisability of exacting, 26 amount of, 26 in criminal cases, may accept with knowledge of prisoner's guilt, 25 right to decline, 19 RHODE ISLAND lawyer's oath in, 164 ROOSEVELT, THEODORE reference to, 148 RUNNERS emplojrment of, 135 366 INDEX (References are to sections) SETTLEMENT OF CASE duty of lawyer to client in negotiationB for, 44 with client, when to be made, 53 SKILL failure to exercise, liability for, 153 SLANDER of fellow-attorney, as a cause for disbarment, 167 SOCIAL ACQUAINTANCE as a means of advertising, 134 SOUTH DAKOTA lawyer's oath in, 164 SPECIALIZING should your lawyer specialize 19 STATE duties to. Chaps. X and XI SUSPENSION of what consisting, 160 (See Disbahment) TAFT, WM. H. statement of, concerning court delays, 84 TECHNICALITIES not to lay undue stress upon, 75 TELEPHONE should acknowledgments be taken by, 122 TENNESSEE lawyer's oath in, 164 TITLES examination of, fee for, 116 TEXAS lawyer's oath in, 164 TOBACCO SMOKING in offices during business hours, 15 TRIAL OF ACTION negligence in, 156 TRUST ESTATES settlement of, 53 INDEX 367 (Referencea are to sections) TRUST FUNDS duty of lawyer not to mix with personal funds, 52 TRIALS duty not to delay, 84 duty not to prolong, 86 UNJUST SUITS duty as to, 36 UTAH lawyer's oath in, 164 VERMONT lawyer's oath in, 164 VIOLATION OF LAW duty to prevent, 99 VIRGINIA lawyer's oath in, 164 WASHINGTON lawyer's oath in, 164 WEALTHY CLIENTS not to be unduly influenced by, 97 WEST VIRGINIA lawyer's oath in, 164 WILLS fees for drawing, 116 WISCONSIN lawyer's path in, 164 WITNESSES to be protected from vicious cross-examination, 46 lawyer as witness for client, 123 WYOMING lawyer's oath in, 164