ABA Model Code of Professional Responsibility (1983)
NOTES
Preamble
1. The footnotes are intended merely to enable the reader to relate the provisions of this Model Code to the ABA Canons of Professional Ethic adopted in 1908, as amended, the Opinions of the ABA Committee on Professional Ethics, and a limited number of other sources; they are not intended to be an annotation of the views taken by the ABA Special Committee on Evaluation of Ethical Standards. Footnotes citing ABA Canons refer to the ABA canons of Professional Ethics, adopted in 1908, as amended.
2. Cf. ABA Canons of Professional Ethics, Preamble (1908)
3. "[T]he lawyer stands today in special need of a clear understanding of his obligations and of the vital connection between these obligations and the role his profession plays in society." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160 (1958).
4. "No general statement of the responsibilities of the legal profession can encompass all the situations in which the lawyer may be placed. Each position held by him makes its own peculiar demands. These demands the lawyer must clarify for himself in the light of the particular role in which he serves." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
5. "The law and its institutions change as social conditions change. They must change if they are to preserve, much less advance, the political and social values from which they derive their purpose and their life. This is true of the most important of legal institutions, the profession of law. The profession, too, must change when conditions change in order to preserve and advance the social values that are its reasons for being." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and the Organized Bar, 12 U.C.L.A. L. Rev. 438, 440 (1965).
6. The Supreme Court of Wisconsin adopted a Code of Judicial Ethics in 1967. "The code is divided into standards and rules, the standards being statements of what the general desirable level of conduct should be, the rules being particular canons, the violation of which shall subject an individual judge to sanctions." In re Promulgation of a Code of Judicial Ethics, 36 Wis.2d 252, 255, 153 N.W. 2d 873, 874 (1967).
The portion of the Wisconsin Code of Judicial Ethics entitled "Standards" states that "[t]he following standards set forth the significant qualities of the ideal judge . . . ." Id., 36 Wis.2d at 256, 153 N.W. 2d at 875. The portion entitled "Rules" states that [t]he court promulgates the following rules because the requirements of judicial conduct embodied therein are of sufficient gravity to warrant sanctions if they are not obeyed . . . ." Id.,36 Wis.2d at 259, 153 N.W.2d at 876.
7. "Under the conditions of modern practice it is peculiarly necessary that the lawyer should understand, not merely the established standards of professional conduct, but the reasons underlying these standards. Today the lawyer plays a changing and increasingly varied role. In many developing fields the precise contribution of the legal profession is as yet undefined." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159 (1958).
"A true sense of professional responsibility must derive from an understanding of the reasons that lie back of specific restraints, such as those embodied in the Canons. The grounds for the lawyer's peculiar obligations are to be found in the nature of his calling. The lawyer who seeks a clear understanding of his duties will be led to reflect on the special services his profession renders to society and the services it might render if its full capacities were realized. When the lawyer fully understands the nature of his office, he will then discern what restraints are necessary to keep that office wholesome and effective." Id.
8. "Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer . . . . He is accordingly entitled to procedural due process, which includes fair notice of charge." In re Ruffalo, 390 U.S.544, 550, 20 L. Ed.2d 117, 122, 88S. Ct. 1222, 1226 (1968), rehearing denied, 391 U.S. 961, 20 L. Ed. 2d 874, 88 S.Ct. 1933(1968).
"A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment . . . . A State can require high standards of qualification . . . but any qualification must have a rational connection with the applicant's fitness or capacity to practice law." Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239, 1 L. Ed. 2d 796, 801-02, 77 S. Ct 752, 756 (1957).
"[A]n accused lawyer may expect that he will not be condemned out of a capricious self-righteousness or denied the essentials of a fair hearing." Kingsland v. Dorsey, 338 U.S. 318, 320, 94 L. Ed. 123, 126, 70 S. Ct. 123, 124-25 (1949).
"The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court for moral or professional delinquency." Ex parte Garland, 71 U.S. (4 Wall.) 333, 378-79,18 L. Ed. 366, 370 (1866).
See generally Comment, Procedural Due Process and Character Hearings for Bar Applicants, 15 Stan. L. Rev. 500 (1963)
9. "The canons of professional ethics must be enforced by the Courts and must be respected by members of the Bar if we are to maintain public confidence in the integrity and impartiality of the administration of justice." In re Meeker, 76 N. M. 354, 357, 414 P.2d 862, 864 (1966), appeal dismissed 385 U.S. 449 (1967).
10. See ABA Canon of Professional Ethics, Canon 45 (1908).
"The Canons of this Association govern all its members, irrespective of the nature of their practice, and the application of the Canons is not affected by statutes or regulations governing certain activities of lawyers which may prescribe less stringent standards." ABA Comm. on Pressional Ethics, Opinions, No. 203 (1940) [hereinafter each Opinion is cited as "ABA Opinion"].
Cf. ABA Opinion 152 (1936).
11. "Other than serving as a model or derivative source, the American Bar Association Model Code of Professional Responsibility plays no part in the disciplinary proceeding, except as a guide for consideration in adoption of local applicable rules for the regulation of conduct on the part of legal practitioners." ABA Comm. on Professional Ethics, Informal Opinion No. 1420 (1978) [hereinafter each Formal Opinion is cited as "ABA Opinion"]. For the purposes and intended effect of the American Bar Association Model Code of Professional Responsibility and of the opinions of the Standing Committee on Ethics and Professional Responsibility, see Informal Opinion No. 1420.
"There is generally no prescribed discipline for any particular type of improper conduct. The disciplinary measure taken are discretionary with the courts, which may disbar, suspend, or merely censure the attorney as the nature of the offense and past indicia of character may warrant." Note, 43 Cornell L.Q. 489, 495 (1958).
12. The Model Code seeks only to specify conduct for which a lawyer should be disciplined by courts and governmental agencies which have adopted it. Recommendations as to the procedures to be used in disciplinary actions are within the jurisdiction of the American Bar Association Standing Committee on Professional Disciplinary.
13. "The severity of the judgment of this court should be in proportion to the gravity of the offenses, the moral turpitude involved, and the extent that the defendant's acts and conduct affect his professional qualifications to practice law." Louisiana State Bar Ass'n v. Steiner, 204 La. 1073, 1092-93, 16 So. 2d 843, 850 (1944) (Higgins, J., concurring in decree).
"Certainly an erring lawyer who has been disciplined and who having paid the penalty has given satisfactory evidence of repentance and has been rehabilitated and restored to his place at the bar by the court which knows him best ought not to have what amounts to an order of permanent disbarment entered against him by a federal court solely on the basis of an earlier criminal record and without regard to his subsequent rehabilitation and present good character . . . . We think, therefore, that the district court should reconsider the appellant's application for admission and grant it unless the court finds it to be a fact that the appellant is not presently of good moral or professional character." In re Dreier, 258 F.2d 68, 69-70 (3d Cir. 1958).
Canon 1
1. "[W]e cannot conclude that all educational restrictions [on bar admission] are unlawful. We assume that few would deny that a grammar school education requirement before taking the bar examination was reasonable. Or that an applicant had to be able to read or write. Once we conclude that some restriction is proper, then it becomes a matter of degree -- the problem of drawing the line.
. . . .
"We conclude the fundamental question here is whether Rule IV, Section 6 of the Rules pertaining to Admission of Applicants to the State Bar of Arizona is 'arbitrary, capricious and unreasonable.' We conclude an educational requirement of graduation from an accredited law school is not." Hackin v. Lockwood, 361 F.2d 499, 503-4(9th Cir. 1966), cert. denied, 385 U.S. 960, 17 L. Ed.2d 305, 87 S. Ct. 396(1966).
2. "Every state in the United States, as a prerequisite for admission to the practice of law, requires that applicants possess 'good moral character.' Although the requirement is of judicial origin, it is now embodied in legislation in most states." Comment, Procedural Due Process and Character Hearings for Bar Applicant, 15 Stan. L. Rev. 500 (1963).
"Good character in the member of the bar is essential to the preservation of the courts. The duty and power of the court to guard its portals against intrusion by men and women who are mentally and morally dishonest, unfit because of bad character, evidenced by their course of conduct, to participate in the administrative law, would seem to be unquestioned in the matter of preservation of judicial dignity and integrity." In re Monaghan, 126 Vt. 53, 222 A.2d 665, 670 (1966).
"Fundamentally, the question involved in both situations [i.e. admission and disciplinary proceedings] is the same -- is the applicant for admission or the attorney sought to be disciplined a fit and proper person to be permitted to practice law, and that usually turns upon whether he has committed or is likely to continue to commit acts of moral turpitude. At the time of oral argument the attorney for respondent frankly conceded that the test for admission and for discipline is and should be the same. We agree with this concession." Hallinan v. Comm. of Bar Examiners, 65 Cal.2d 447, 453, 421, P.2d 76, 81, 55 Cal.Rptr. 228,233(1966).
3. "Proceedings to gain admission to the bar are for the purpose of protecting the public and the courts from the ministrations of persons unfit to practice the profession. Attorneys are officers of the court appointed to assist the court in the administration of justice. Into their hands are committed the property, the liberty and sometimes the lives of their clients. This commitment demands a high degree of intelligence, knowledge of the law, respect for its function in society, sound and faithful judgment and, above all else, integrity of character in private and professional conduct." In re Monaghan, 126 Vt. 53, 222 A.2d 665, 676 (1966) (Holden, C.J., dissenting).
4. "A bar composed of lawyers of good moral character is objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. lt is also important both to society and the bar itself that lawyers be unintimidated -- free to think, speak, and act as members of an Independent Bar." Konigsberg v. State Bar, 353 U.S. 252, 273, I L. Ed. 2d 810, 825, 77 S. Ct. 722, 733 (1957).
5. See ABA Canons of Professional Ethics, Canon 29 (1908).
6. ABA Canons of Professional Ethics, Canon 28 (1908) designates certain conduct as unprofessional and then states that: "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." ABA Canon 29 states a broader admonition: "Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession."
7. "It is the obligation of the organized Bar and the individual lawyer to give unstinted cooperation and assistance to the highest court of the state in discharging its function and duty with respect to discipline and in purging the profession of the unworthy." Report of the Special Committee on Disciplinary Procedures, 80 A.B.A. Rep. 463, 470 (1955).
8. Cf. ABA Canons of Professional Ethics, Canon 32 (1908).
9. "We decline, on the present record, to disbar Mr. Sherman or to reprimand him -- not because we condone his actions, but because, as heretofore indicated, we are concerned with whether he is mentally responsible for what he has done.
"The logic of the situation would seem to dictate the conclusion that, if he was mentally responsible for the conduct we have outlined, he should be disbarred; and, if he was not mentally responsible, he should not be permitted to practice law.
"However, the flaw in the logic is that he may have been mentally irresponsible [at the time of his offensive conduct] . . . , and, yet, have sufficiently improved in the almost two and one-half years intervening to be able to capably and competently represent his clients.
. . . .
"We would make clear that we are satisfied that a case has been made against Mr. Sherman, warranting a refusal to permit him to further practice law in this state unless he can establish his mental irresponsibility at the time of the offenses charged. The burden of proof is upon him.
"If he establish such mental irresponsibility, the burden is then upon him to establish his present capability to practice law." In re Sherman, 58 Wash. 2d 1, 6-7, 354 P.2d 888, 890 (1960), cert. denied, 371 U.S. 951, 9 L. Ed. 2d 499, 83 S. Ct. 506 (1963).
10. "This Court has the inherent power to revoke a license to practice law in this State, where such license was issued by this Court, and its issuance was procured by the fraudulent concealment, or by the false and fraudulent representation by the applicant of a fact which was manifestly material to the issuance of the license." North Carolina ex rel. Attorney General v. Gorson, 209 N.C. 320, 326, 183 S.E. 392, 395 (1936), cert. denied, 298 U.S. 662, 80 L.Ed. 1387, 56 S. Ct. 752 (1936).
11. See ABA Canons of Professional Ethics, Canon 29 (1908).
12. In ABA Opinion 95 (1933), which held that a municipal attorney could not permit police officers to interview persons with claims against the municipality when the attorney knew the claimants to be represented by counsel, the Committee on Professional Ethics said:
"The law officer is, of course, responsible for the acts of those in his department who are under his supervision and control. Opinion 85. In re Robinson, 136 N.Y.S. 548 (affirmed 209 N.Y. 354-1912) held that it was a matter of disbarment for an attorney to adopt a general course of approving the unethical conduct of employees of his client, even though he did not actively participate therein.
" '. . . The attorney should not advise or sanction acts by his client which he himself should not do.' Opinion 75."
13. "The most obvious non-professional ground for disbarment is conviction for a felony. Most states make conviction for a felony grounds for automatic disbarment. Some of these states, including New York, make disbarment mandatory upon conviction for any felony, while others require disbarment only for those felonies which involve moral turpitude. There are strong arguments that some felonies, such as involuntary manslaughter, reflect neither on an attorney's fitness, trustworthiness, nor competence and, therefore, should not be grounds for disbarment but most states tend to disregard these arguments and, following the common law rule, make disbarment mandatory on conviction for any felony." Note, 43 Cornell L.Q. 489, 490 (1958).
"Some states treat conviction for misdemeanors as grounds for automatic disbarment . . . . However, the vast majority, accepting the common law rule, require that the misdemeanor involve moral turpitude. While the definition of moral turpitude may prove difficult, it seems only proper that those minor offenses which do not affect the attorney's fitness to continue in the profession should not be grounds for disbarment. A good example is an assault and battery conviction which would not involve moral turpitude unless done with malice and deliberation." Id. at 491.
"The term 'moral turpitude' has been used in the law for centuries. It has been the subject of many decisions by the courts but has never been clearly defined because of the nature of the term. Perhaps the best general definition of the term 'moral turpitude' is that it imparts an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general, which is contrary to the usual, accepted and customary rule of right and duty which a person should follow. 58 C.J.S. at page 1201. Although offenses against revenue laws have been held to be crimes of moral turpitude, it has also been held that the attempt to evade the payment of taxes due to the government or any subdivision thereof, while wrong and unlawful, does not involve moral turpitude. 58 C.J.S. at page 1205." Comm. on Legal Ethics v. Scheer, 149 W. Va. 721, 726-27, 143 S.E.2d 141, 145 (1965).
"The right and power to discipline an attorney, as one of its officers, is inherent in the court . . . . This power is not limited to those instances of misconduct wherein he has been employed, or has acted, in a professional capacity; but, on the contrary, this power may be exercised where his misconduct outside the scope of his professional relations shows him to be an unfit person to practice law." In re Wilson, 391 S.W.2d 914, 179-18 (Mo. 1965).
14. "It is a fair characterization of the lawyer's responsibility in our society that he stands 'as a shield,' to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with these responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as 'moral character.' "Schware v. Bd. of Bar Examiners, 353 U.S. 232, 247, 1 L.Ed. 2d 796, 806, 77 S.Ct. 752, 761 (1957) (Frankfurter, J., concurring).
"Particularly applicable here is Rule 4.47 providing that 'A lawyer should always maintain his integrity; and shall not willfully commit any act against the interest of the public; nor shall he violate his duty to the courts or his clients; nor shall he, by any misconduct, commit any offense against the laws of Missouri or the United States of America, which amounts to a crime involving acts done by him contrary to justice, honesty, modesty or good morals; nor shall he be guilty of any other misconduct whereby, for the protection of the public and those charged with the administration of justice, he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney.' "In re Wilson, 391 S.W.2d 914, 917 (Mo. 1965).
15. See ABA Canons of Professional Ethics, Canon 29 (1908); cf. ABA Canons of Professional Ethics, Canon 28 (1908).
16. Cf. ABA Canons of Professional Ethics, Canons 28 and 29 (1908).
Canon 2
1. "Men have need for more than a system of law; they have need for a system of law which functions, and that means they have need for lawyers." Cheatham, The Lawyer's Role and Surroundings, 25 Rocky Mt. L. Rev. 405 (1953).
2. "Law is not self-applying; men must apply and utilize it in concrete cases. But the ordinary man is incapable. He cannot know the principles of law or the rules guiding the machinery of law administration; he does not know how to formulate his desires with precision and to put them into writing he is ineffective in the presentation of his claims." Id.
3. "This need [to provide legal services] was recognized by . . . Mr. [Lewis F.] Powell [Jr., President, American Bar Association, 1963-64], who said: 'Looking at contemporary America realistically, we must admit that despite all our efforts to date (and these have not been insignificant), far too many persons are not able to obtain equal justice under law. This usually results because their poverty or their ignorance has prevented them from obtaining legal counsel.' " Address by E. Clinton Bamberger, Association of American Law Schools 1965 Annual Meeting, Dec. 28, 1965, in Proceedings, Part II, 1965, 61, 63-64 (1965).
"A wide gap separates the need for legal services and its satisfaction, as numerous studies reveal. Looked at from the side of the layman, one reason for the gap is poverty and the consequent inability to pay legal fees. Another set of reasons is ignorance of the need for and the value of legal services, and ignorance of where to find a dependable lawyer. There is fear of the mysterious processes and delays of the law, and there is fear of overreaching and overcharging by lawyers, a fear stimulated by the occasional exposure of shysters." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. Rev. 438 (1965).
4. "It is not only the right but the duty of the profession as a whole to utilize such methods as may be developed to bring the services of its members to those who need them, so long as this can be done ethically and with dignity." ABA Opinion 320 (1968).
"[T]here is a responsibility on the bar to make legal services available to those who need them. The maxim, 'privilege brings responsibilities,' can be expanded to read, exclusive privilege to render public service brings responsibility to assure that the service is available to those in need of it." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. Rev. 438, 443 (1965).
"The obligation to provide legal services for those actually caught up in litigation carries with it the obligation to make preventive legal advice accessible to all. It is among those unaccustomed to business affairs and fearful of the ways of the law that such advice is often most needed. If it is not received in time, the most valiant and skillful representation in court may come too late." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
5. "A lawyer may with propriety write articles for publications in which he gives information upon the law . . . ." ABA Canons of Professional Ethics, Canon 40(1908).
6. See ABA Canons of Professional Ethics, Canon 28 (1908).
7. This question can assume constitutional dimensions: "We meet at the outset the contention that 'solicitation' is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion . . . .
. . . .
"However valid may be Virginia's interest in regulating the traditionally illegal practice of barratry, maintenance and champerty, that interest does not justify the prohibition of the NAACP activities disclosed by this record. Malicious intent was of the essence of the common-law offenses of fomenting or stirring up litigation. And whatever may be or may have been true of suits against governments in other countries, the exercise in our own, as in this case of First Amendment rights to enforce Constitutional rights through litigation, as a matter of law, cannot be deemed malicious." NAACP v. Button, 371 U.S. 415, 429, 439-40, 9 L. Ed. 2d 405, 415-16, 422, 83 S. Ct. 328, 336, 341 (1963).
8. It is disreputable for an attorney to breed litigation by seeking out those who have claims for personal injuries or other grounds of action in order to secure them as clients. or to employ agents or runners, or to reward those who bring or influence the bringing of business to his office . . . . Moreover, it tends quite easily to the institution of baseless litigation and the manufacture of perjured testimony. From early times, this danger has been recognized in the law by the condemnation of the crime of common barratry, or the stirring up of suits or quarrels between individuals at law or otherwise." In re Ades, 6 F.Supp. 467, 474-75 (D. Mary. 1934).
"§a . . . .
"[A] member of the State Bar shall not solicit professional employment by
"(1) Volunteering counsel or advice except where ties of blood relationship or trust make it appropriate." Cal. Business and Professions Code §6076 (West 1962).
10. "Rule 18 . . . A member of the State Bar shall not advise inquirers or render opinions to them through or in connection with a newspaper, radio or other publicity medium of any kind in respect to their specific legal problems, whether or not such attorney shall be compensated for his service." Cal. Business and Professions Code §6076 (West 1962).
11. "In any case where a member might well apply the advice given in the opinion to his individual affairs, the lawyer rendering the opinion [concerning problems common to members of an association and distributed to the members through a periodic bulletin] should specifically state that this opinion should not be relied on by any member as a basis for handling his individual affairs, but that in every case he should consult his counsel. In the publication of the opinion the association should make a similar statement." ABA Opinion 273 (1946).
12. "A group of recent interrelated changes bears directly on the availability of legal services.... [One] change is the constantly accelerating urbanization of the country and the decline of personal and neighborhood knowledge of whom to retain as a professional man." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L A. L. Rev. 438, 440 (1965).
13. Cf. Cheatham, A Lawyer When Needed: Legal Services for the Middle Classes, 63 Colum. L. Rev. 973, 974 (1963).
14. See ABA Canons of Professional Ethics, Canon 28 (1908).
15. Amended, August 1978, House Informational Report No. 118.
16. Cf. ABA Opinion 303 (1961).
17. See ABA Canons of Professional Ethics, Canon 33 (1908).
"The continued use of a firm name by one or more surviving partners after the death of a member of the firm whose name is in the firm title is expressly permitted by the Canons of Ethics. The reason for this is that all of the partners have by their joint and several efforts over a period of years contributed to the good will attached to the firm name. In the case of a firm having widespread connections, this good will is disturbed by a change in firm name every time a name partner dies, and that reflects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time, skill and labor through a period of years. To avoid this loss the firm name is continued, and to meet the requirements of the Canon the individuals constituting the firm from time to time are listed." ABA Opinion 267 (1945).
"Accepted local custom in New York recognizes that the name of a law firm does not necessarily identify the individual member of the firm, and hence the continued use of a firm name after the death of one or more partners is not a deception and is permissible.... The continued use of a deceased partner's name in the firm title is not affected by the fact that another partner withdraws from the firm and his name is dropped, or the name of the new partner is added to the firm name." Opinion No. 45, Committee on Professional Ethics, New York State Bar Ass'n, 39 N.Y.St.B.J. 455 (1967).
Cf. ABA Opinion 258 (1943).
19. Cf. ABA Canons of Professional Ethics, Canon 33 ( 1908) and ABA Opinion 315 (1965).
20. Cf. ABA Opinions 283 (1950) and 81 (1932).
21. See ABA Opinion 316 (1967).
22. "The word 'associates' has a variety of meanings. Principally through custom the word when used on the letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because the word has acquired this special significance in connection with the practice of the law the use of the word to describe lawyer relationships other than employer-employee is likely to be misleading." In re Sussman and Tanner, 241 Ore. 246, 248, 405 P.2d 355, 356 (1965).
According to ABA Opinion 310 (1963), use of the term "associates" would be misleading in two situations: ( I ) where two lawyers are partners and they share both responsibility and liability for the partnership; and (2) where two lawyers practice separately, sharing no responsibility or liability, and only share a suite of offices and some costs.
23. "For a long time, many lawyers have, of necessity, limited their practice to certain branches of law. The increasing complexity of the law and the demand of the public for more expertness on the part of the lawyer has, in the past few years -- particularly in the last ten years -- brought about specialization on an increasing scale." Report of the Special Committee on Specialization and Specialized Legal Services, 79 A.B.A. Rep. 582, 584 (1954).
24. See ABA Canons of Professional Ethics, Canon 12 (1908).
25. Cf. ABA Canons of Professional Ethics, Canon 12 (1908).
26. "If there is any fundamental proposition of government on which all would agree, it is that one of the highest goals of society must be to achieve and maintain equality before the law. Yet this ideal remains an empty form of words unless the legal profession is ready to provide adequate representation for those unable to pay the usual fees." Professional Representation: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
27. See ABA Canons of Professional Ethics, Canon 12 (1908).
28. Cf. ABA Canons of Professional Ethics, Canon 12 (1908).
29. "When members of the Bar are induced to render legal services for inadequate compensation, as a consequence the quality of the service rendered may be lowered, the welfare of the profession injured and the administration of justice made less efficient." ABA Opinion 302 (1961).
Cf. ABA Opinion 307 (1962).
30. See ABA Canons of Professional Ethics, Canon 12 (1908).
31. See ABA Canons of Professional Ethics, Canon 13; see also Mackinnon, Contingent Fees for Legal Services (1964) (A report of the American Bar Foundation).
"A contract for a reasonable contingent fee where sanctioned by law is permitted by Canon 13, but the client must remain responsible to the lawyer for expenses advanced by the latter. 'There is to be no barter of the privilege of prosecuting a cause for gain in exchange for the promise of the attorney to prosecute at his own expense.' (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265, 270-271.)" ABA Opinion 246 (1942).
32. See Comment, Providing Legal Services for the Middle Class in Civil Matters: The Problem, the Duty and a Solution. 26 U. Pitt. L. Rev. 811, 829 (1965).
33. See ABA Canons of Professional Ethics, Canon 38 (1908).
"Of course, as . . . [Informal Opinion 679] points out, there must be full disclosure of the arrangement [that an entity other than the client pays the attorney's fee] by the attorney to the client . . . ." ABA Opinion 320 (1968).
34. "Only lawyers may share in . . . a division of fees, but . . . it is not necessary that both lawyers be admitted to practice in the same state, so long as the division was based on the division of services or responsibility." ABA Opinion 316 (1967)
35. See ABA Canons of Professional Ethics, Canon 34 (1908).
"We adhere to our previous rulings that where a lawyer merely brings about the employment of another lawyer but renders no service and assumes no responsibility in the matter, a division of the latter's fee is improper. (Opinions 18 and 153).
"It is assumed that the bar, generally, understands what acts or conduct of a lawyer may constitute 'services' to a client within the intendment of Canon 12. Such acts or conduct invariably, if not always, involve 'responsibility' on the part of the lawyer, whether the word 'responsibility' be construed to denote the possible resultant legal or moral liability on the part of the lawyer to the client or to others, or the onus of deciding what should or should not be done in behalf of the client. The word 'service' in Canon 12 must be construed in this broad sense and may apply to the selection and retainer of associate counsel as well as to other acts or conduct in the client's behalf." ABA Opinion 204 (1940).
36. See ABA Canons of Professional Ethics, Canon 14 (1908).
37. Cf ABA Opinion 320 (1968).
38. See ABA Canons of Professional Ethics, Canon 14 (1908).
"Ours is a learned profession, not a mere money-getting trade . . . . Suits to collect fees should be avoided. Only where the circumstances imperatively require, should resort be had to a suit to compel payment. And where a lawyer does resort to a suit to enforce payment of fees which involves a disclosure, he should carefully avoid any disclosure not clearly necessary to obtaining or defending his rights." ABA Opinion 250 (1943).
But cf. ABA Opinion 320 (1968).
39. "As a society increases in size, sophistication and technology, the body of laws which is required to control that society also increases in size, scope and complexity. With this growth, the law directly affects more and more facets of individual behavior, creating an expanding need for legal services on the part of the individual members of the society . . . . As legal guidance in social and commercial behavior increasingly becomes necessary, there will come a concurrent demand from the layman that such guidance be made available to him. This demand will not come from those who are able to employ the best legal talent, nor from those who can obtain legal assistance at little or no cost. It will come from the large 'forgotten middle income class,' who can neither afford to pay proportionately large fees nor qualify for ultra-low-cost services. The legal profession must recognize this inevitable demand and consider methods whereby it can be satisfied. If the profession fails to provide such methods, the laity will." Comment, Providing Legal Services For the Middle Class in Civil Matters: The Problem, the Duty and a Solution, 26 U. Pitt. L Rev. 811, 811-12 (1965).
"The issue is not whether we shall do something or do nothing. The demand for ordinary everyday legal justice is so great and the moral nature of the demand is so strong that the issue has become whether we devise, maintain, and support suitable agencies able to satisfy the demand or, by our own default, force the government to take over the job, supplant us, and ultimately dominate us." Smith, Legal Service Offices for Persons of Moderate Means, 1949 Wis. L Rev. 416, 418 (1949).
40. "Lawyers have peculiar responsibilities for the just administration of the law and these responsibilities include providing advice and representation for needy persons. To a degree not always appreciated by the public at large, the bar has performed these obligations with zeal and devotion. The Committee is persuaded, however, that a system of justice that attempts, in mid-twentieth century America, to meet the needs of the financially incapacitated accused through primary or exclusive reliance on the uncompensated services of counsel will prove unsuccessful and inadequate . . . . A system of adequate representation, therefore, should be structured and financed in a manner reflecting its public importance . . . . We believe that fees for private appointed counsel should be set by the court within maximum limits established by the statute." Report of the Atty Gen's Comm. on Poverty and the Administration of Criminal Justice 41-43 (1963).
41. "At present this representation [of those unable to pay usual fees] is being supplied in some measure through the spontaneous generosity of individual lawyers, through legal aid societies, and -- increasingly -- through the organized efforts of the Bar. If those who stand in need of this service know of its availability and their need is in fact adequately met, the precise mechanism by which this service is provided becomes of secondary importance. It is of great importance, however, that both the impulse to render this service, and the plan for making that impulse effective, should arise within the legal profession itself." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
42. "Free legal clinics carried on by the organized bar are not ethically objectionable. On the contrary, they serve a very worthwhile purpose and should be encouraged." ABA Opinion 191 (1939).
43. "Whereas the American Bar Association believes that it is a fundamental duty of the bar to see to it that all persons requiring legal advice be able to attain it, irrespective of their economic status . . . .
"Resolved, that the Association approves and sponsors the setting up by state and local bar associations of lawyer referral plans and low-cost legal service methods for the purpose of dealing with cases of persons who might not otherwise have the benefit of legal advice . . . ." Proceedings of the House of Delegates of the American Bar Association, Oct. 30, 1946, 71 A.B.A. Rep. 103,109-10(1946).
44. "The defense of indigent citizens, without compensation, is carried on throughout the country by lawyers representing legal aid societies, not only with the approval, but with the commendation of those acquainted with the work. Not infrequently services are rendered out of sympathy or for other philanthropic reasons, by individual lawyers who do not represent legal aid societies. There is nothing whatever in the Canons to prevent a lawyer from performing such an act, nor should there be." ABA Opinion 148 (1935).
45. But cf. ABA Canons of Professional Ethics, Canon 31 (1908).
46. "One of the highest services the lawyer can render to society is to appear in court on behalf of clients whose causes are in disfavor with the general public." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
One author proposes the following proposition to be included in "A Proper Oath for Advocates": "I recognize that it is sometimes difficult for clients with unpopular causes to obtain proper legal representation. I will do all that I can to assure that the client with the unpopular cause is properly represented, and that the lawyer representing such a client receives credit from and support of the bar for handling such a matter." Thode, The Ethical Standard for the Advocate, 39 Texas L. Rev. 575, 592 (1961).
"§6068 . . . . It is the duty of an attorney:
. . . .
"(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed." Cal. Business and Professions Code §6068 (West 1962). Virtually the same language is found in the Oregon statutes at Ore. Rev. Stats. Ch. 9 §9.460(8).
See Rostow, The Lawyer and His Client, 48 A.B.A.J. 25 and 146 (1962).
47. See ABA Canons of Professional Ethics, Canon 7 and 29 (1908).
"We are of the opinion that it is not professionally improper for a lawyer to accept employment to compel another lawyer to honor the just claim of a layman. On the contrary, it is highly proper that he do so. Unfortunately, there appears to be a widespread feeling among laymen that it is difficult, if not impossible, to obtain justice when they have claims against members of the Bar because other lawyers will not accept employment to proceed against them. The honor of the profession, whose members proudly style themselves officers of the court, must surely be sullied if its members bind themselves by custom to refrain from enforcing just claims of laymen against lawyers." ABA Opinion 144 (1935).
48. ABA Canons of Professional Ethics, Canon 4 (1908) uses a slightly different test, saying, "A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason . . . ."
49. Cf. ABA Canons of Professional Ethics, Canon 7 (1908).
50. See ABA Canons of Professional Ethics, Canon 5 (1908).
51. Dr. Johnson's reply to Boswell upon being asked what he thought of "supporting a cause which you know to be bad" was: "Sir, you do not know it to be good or bad till the Judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to whom you urge it: and if it does convince him, why, then, Sir, you are wrong, and he is right." 2 Boswell, The Life of Johnson 47-48 (Hill ed. 1887).
52. "The lawyer deciding whether to undertake a case must be able to judge objectively whether he is capable of handling it and whether he can assume its burdens without prejudice to previous commitments . . . ." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1158, 1218 (1958).
53. "The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. ABA Canons of Professional Ethics, Canon 30 (1908).
54. See ABA Canons of Professional Ethics, Canon 7 (1908).
"From the facts stated we assume that the client has discharged the first attorney and given notice of the discharge. Such being the case, the second attorney may properly accept employment. Canon 7; Opinions 10, 130. 149." ABA Opinion 209 (1941).
56. See ABA Canons of Professional Ethics, Canon 44 (1908).
"I will carefully consider, before taking a case, whether it appears that I can fully represent the client within the framework of law. If the decision is in the affirmative then it will take extreme circumstances to cause me to decide later that I cannot so represent him." Thode, The Ethical Standard for the Advocate, 39 Texas L. Rev. 575, 592 (1961) (from "A Proper Oath for Advocates").
57. ABA Opinion 314 (l965) held that a lawyer should not disassociate himself from a cause when "it is obvious that the very act of disassociation would have the effect of violating Canon 37."
58. ABA CANON 44 enumerates instances in which " ... the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer."
59. See ABA Canons of Professional Ethics, Canon 44 ( 1908).
60. Amended, February 1975, House Informational Report No. 110.
61. Amended, August 1978, House Informational Report No. 130.
63. Amended, February 1976, House Informational Report No. 100.
64. See ABA Opinion 301(1961).
65. "[I]t has become commonplace for many lawyers to participate in government service; to deny them the right, upon their return to private practice, to refer to their prior employment in a brief and dignified manner, would place an undue limitation upon a large element of our profession. It is entirely proper for a member of the profession to explain his absence from private practice, where such is the primary purpose of the announcement, by a brief and dignified reference to the prior employment.
". . . [A]ny such announcement should be limited to the immediate past connection of the lawyer with the government, made upon his leaving that position to enter private practice." ABA Opinion 301 (1961).
66. See ABA Opinion 251 (1943).
67. "Those lawyers who are working for an individual lawyer or a law firm may be designated on the letterhead and in other appropriate places as 'associates.' " ABA Opinion 310 (1963).
68. See ABA Canons of Professional Ethics, Canon 33 (1908).
69. But see ABA Opinion 285 (1951).
70. See ABA Canons of Professional Ethics, Canon 33 (1908); cf. ABA Opinions 318 (1967), 267 (1945), 219 (1941), 208 (1940). 192 (1939), 97 (1933), and 6 (1925).
71. ABA Opinion 318 (1967) held, "anything to the contrary in Formal Opinion 315 or in the other opinions cited notwithstanding that: "Where a partner whose name appears in the name of a law firm is elected or appointed to high local, state or federal office, which office he intends to occupy only temporarily, at the end of which time he intends to return to his position with the firm, and provided that he is not precluded by holding such office from engaging in the practice of law and does not in fact sever his relationship with the firm but only takes a leave of absence, and provided that there is no local law, statute or custom to the contrary, his name may be retained in the firm name during his term or terms of office, but only if proper precautions are taken not to mislead the public as to his degree of participation in the firm's affairs."
Cf. ABA Opinion 143 (1935), New York County Opinion 67, and New York City Opinions 36 and 798; but cf. ABA Opinion 192 (1939) and Michigan Opinion 164.
72. Cf. ABA Canons of Professional Ethics, Canon 33 (1908).
73. Amended, February 1979, House Informational Report No. 123.
74. See ABA Opinion 277 (1948); cf. ABA Canon of Professional Ethics, Canon 33 (1908) and ABA Opinions 318 (1967), 126 (1935), 115 (1934), 106 (1934), and i1383 (1977).
75. See ABA Opinions 318 (1967) and 316 (1967); cf. ABA Canons of Professional Ethics, Canon 33 (1908).
76. DR 2-102(E) was deleted and DR 2-102(F) was redesignated as DR 2-102(E) in February 1980, House Informational Report No. 107.
77. Cf. ABA Canons of Professional Ethics, Canon 28 (1908).
78. "We think it clear that a lawyer's seeking employment in an ordinary law office, or appointment to a civil service position, is not prohibited by . . . [Canon 27]." ABA Opinion 197 (1939).
79. "[A] lawyer may not seek from persons not his clients the opportunity to perform . . . a [legal] check-up." ABA Opinion 307 (1962).
80. Cf. ABA Opinion 78 (1932).
81. "No financial connection of any kind between the Brotherhood and any lawyer is permissible. No lawyer can properly pay any amount whatsoever to the Brotherhood or any of its departments, officers or members as compensation, reimbursement of expenses or gratuity in connection with the procurement of a case.'" In re Brotherhood of R. R. Trainmen, 13 111. 2d 391, 398, 150 N. E. 2d 163, 167 (1958), quoted in In re Ratner, 194 Kan. 362, 372, 399 P.2d 865, 873 (1965).
See ABA Opinion 147 (1935).
82. Amended, February 1975, House Informational Report No. 110.
83. "This Court has condemned the practice of ambulance chasing through the media of runners and touters. In similar fashion we have with equal emphasis condemned the practice of direct solicitation by a lawyer. We have classified both offenses as serious breaches of the Canons of Ethics demanding severe treatment of the offending lawyer." State v. Dawson, 111 So. 2d 427, 431 (Fla. 1959).
84. "Registrants [of a lawyer referral plan] may be required to contribute to the expense of operating it by a reasonable registration charge or by a reasonable percentage of fees collected by them." ABA Opinion 291 (1956).
Cf. ABA Opinion 227 (1941).
85. Amended, February 1975, House Informational Report No. 110.
86. Cf. ABA Opinion 148 (1935).
87. United Mine Workers v. Ill. State Bar Ass'n., 389 U.S. 217, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967); Brotherhood of R.R. Trainmen v. Virginia, 371 U.S. 1, 12 L. Ed. 2d 89, 84 S. Ct. 1113 (1964); NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Also see ABA Opinions 332 (1973) and 333 (1973).
88. Amended, February 1975, House Informational Report No. 110.
89. "If a bar association has embarked on a program of institutional advertising for an annual legal check-up and provides brochures and reprints, it is not improper to have these available in the lawyers office for persons to read and take." ABA Opinion 307 (1962).
Cf. ABA Opinion 121 (1934).
90. ABA Canons of Professional Ethics, Canon 28 (1908).
91. Cf. ABA Opinions 229 (1941) and 173 (1937).
92. "It certainly is not improper for a lawyer to advise his regular clients of new statutes, court decisions, and administrative rulings, which may affect the client's interests, provided the communication is strictly limited to such information . . . .
"When such communications go to concerns or individuals other than regular clients of the lawyer, they are thinly disguised advertisements for professional employment, and are obviously improper." ABA Opinion 213 (1941).
"It is our opinion that where the lawyer has no reason to believe that he has been supplanted by another lawyer, it is not only his right, but it might even be his duty to advise his client of any change of fact or law which might defeat the client's testamentary purpose as expressed in the will.
"Periodic notices might be sent to the client for whom a lawyer has drawn a will, suggesting that it might be wise for the client to reexamine his will to determine whether or not there has been any change in his situation requiring a modification of his will." ABA Opinion 210 (1941).
Cf. ABA Canons of Professional Ethics, Canon 28 (1908).
93. Amended, March 1974, House Informational Report No. 127.
94. Amended, February 1975, House Informational Report No. 110.
95. Cf. ABA Opinion 168 (1937).
96. But cf. ABA Opinion 111 (1934).
97. See ABA Canons of Professional Ethics, Canon 45 (1908); cf. ABA Canons of Professional Ethics, Canons 43, and 46 (1908).
98. This provision is included to conform to action taken by the ABA House of Delegates at the Mid-Winter Meeting, January, 1969.
99. See ABA Canons of Professional Ethics, Canon 12 (1908).
100. The charging of a "clearly excessive fee" is a ground for discipline. State ex rel. Nebraska State Bar Ass'n. v. Richards, 165 Neb. 80, 90, 84 N.W.2d 136, 143 (1957).
"An attorney has the right to contract for any fee he chooses so long as it is not excessive (see Opinion 190), and this Committee is not concerned with the amount of such fees unless so excessive as to constitute a misappropriation of the client's funds (see Opinion 27)." ABA Opinion 320 (1968).
Cf. ABA Opinions 209 (1940), 190 (1939), and 27 (1930) and State ex rel. Lee v. Buchanan, 191 So. 2d 33 (Fla. 1966).
101. Cf. ABA Canons of Professional Ethics, Canon 13 (1908); see generally MacKinnon, Contingent Fees for Legal Services (1964) (A Report of the American Bar Foundation).
102. "Contingent fees, whether in civil or criminal cases, are a special concern of the law . . . .
"In criminal cases, the rule is stricter because of the danger of corrupting justice. The second part of Section 542 of the Restatement [of Contracts] reads; 'A bargain to conduct a criminal case . . . in consideration of a promise of a fee contingent on success is illegal . . . .' " Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 967 (1959).
"The third area of practice in which the use of the contingent fee is generally considered to be prohibited is the prosecution and defense of criminal cases. However, there are so few cases, and these are predominantly old, that it is doubtful that there can be said to be any current law on the subject . . . . In the absence of cases on the validity of contingent fees for defense attorneys, it is necessary to rely on the consensus among commentators that such a fee is void as against public policy. The nature of criminal practice itself makes unlikely the use of contingent fee contracts." MacKinnon, Contingent Fees for Legal Services 52 (1964) (A Report of the American Bar Foundation).
103. See ABA Canons of Professional Ethics, Canon 34 (1908) and ABA Opinions 316 (1967) and 294 (1958), see generally ABA Opinions 265 (1945), 204 (1940), 190 (1939), 171 (1937), 153 (1936), 97 (1933), 63 (1932), 28 (1930), 27 (1930), and 18 (1930).
104. "Canon 12 contemplates that a lawyer's fee should not exceed the value of the services rendered . . . .
"Canon 12 applies, whether joint or separate fees are charged [by associate attorneys] . . . ." ABA Opinion 204 (1940).
105. "[A] general covenant restricting an employed lawyer, after leaving the employment, from practicing; in the community for a stated period, appears to this Committee to be an unwarranted restriction on the right of a lawyer to choose where he will practice and inconsistent with our professional status. Accordingly, the Committee is of the opinion it would be improper for the employing lawyer to require the covenant and likewise for the employed lawyer to agree to it." ABA Opinion 300 (1961).
106. See ABA Canons of Professional Ethics, Canon 30 (1908).
"Rule 13 . . . . A member of the State Bar shall not accept employment to prosecute or defend a case solely out of spite, or solely for the purpose of harassing or delaying another . . . . Cal. Business and Professions Code §6067 (West 1962).
107. Cf. ABA Canons of Professional Ethics, Canon 44 (1908).
108. See also Model Code of Professional Responsibility, DR 5-102 and DR 5-105.
109. Cf. ABA Canons of Professional Ethics, Canon 4 (1908).
110. Cf. Anderss v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), rehearing denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct 2094 (1967).
Canon 3
1. "The condemnation of the unauthorized practice of law is designed to protect the public from legal services by persons unskilled in the law. The prohibition of lay intermediaries is intended to insure the loyalty of the lawyer to the client unimpaired by intervening and possibly conflicting interests." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. Rev. 438, 439 (1965).
2. "What constitutes unauthorized practice of the law in a particular jurisdiction is a matter for determination by the courts of that jurisdiction." ABA Opinion 198 (1939).
"In the light of the historical development of the lawyer's functions, it is impossible to lay down an exhaustive definition of 'the practice of law' by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work." State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz., 76, 87, 366 P.2d 1, 8-9 (1961), modified, 91 Ariz. 293, 371 P.2d 1020 (1962).
3. "A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, nonlawyer draftsmen or nonlawyer researchers. In fact, he may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings that are a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible to the client." ABA Opinion 316 (1967).
ABA Opinion 316 (1967) also stated that if a lawyer practices law as part of a law firm which includes lawyers from several states, he may delegate tasks to firm members in other states so long as he "is the person who, on behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law."
"A lawyer cannot delegate his professional responsibility to a law student employed in his office. He may avail himself of the assistance of the student in many of the fields of the lawyer's work, such as examination of case law, finding and interviewing witnesses, making collections of claims, examining court records, delivering papers, conveying important messages, and other similar matters. But the student is not permitted, until he is admitted to the Bar, to perform the professional functions of a lawyer, such as conducting court trials, giving professional advice to clients or drawing legal documents for them. The student in all his work must act as agent for the lawyer employing him, who must supervise his work and be responsible for his good conduct." ABA Opinion 85 (1932).
4. "No division of fees for legal services is proper, except with another lawyer . . . ." ABA Canons of Professional Ethics, Canon 34 (1908). Otherwise, according to ABA Opinion 316 (1967), "[t]he Canons of Ethics do not examine into the method by which such persons are remunerated by the lawyer . . . . They may be paid a salary, a per diem charge, a flat fee, a contract price, etc."
See ABA Canons of Professional Ethics, Canons 33 and 47 (1908).
5. "Many partnership agreements provide that the active partners, on the death of any one of them, are to make payments to the estate or to the nominee of a deceased partner on a pre-determined formula. It is only where the effect of such an arrangement is to make the estate or nominee a member of the partnership along with the surviving partners that it is prohibited by Canon 34. Where the payments are made in accordance with a pre-existing agreement entered into by the deceased partner during his lifetime and providing for a fixed method for determining their amount based upon the value of services rendered during the partner's lifetime and providing for a fixed period over which the payments are to be made, this is not the case. Under these circumstances, whether the payments are considered to be delayed payment of compensation earned but withheld during the partner's lifetime, or whether they are considered to be an approximation of his interest in matters pending at the time of his death, is immaterial. In either event, as Henry S. Drinker says in his book, Legal Ethics, at page 189: 'It would seem, however, that a reasonable agreement to pay the estate a proportion of the receipts for a reasonable period is a proper practical settlement for the lawyer's services to his retirement or death.'" ABA Opinion 308 (1963).
6. Cf. ABA Opinion 311 (1964).
7. "That the States have broad power to regulate the practice of law is, of course, beyond question." United Mine Workers v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967).
"It is a matter of law, not of ethics, as to where an individual may practice law. Each state has its own rules." ABA Opinion 316 (1967).
8. "Much of clients' business crosses state lines. People are mobile, moving from state to state. Many metropolitan areas cross state lines. It is common today to have a single economic and social community involving more than one state. The business of a single client may involve legal problems in several states." ABA Opinion 316 (1967).
9. "[W]e reaffirmed the general principle that legal services to New Jersey residents with respect to New Jersey matters may ordinarily be furnished only by New Jersey counsel; but we pointed out that there may be multistate transactions where strict adherence to this thesis would not be in the public interest and that, under the circumstances, it would have been not only more costly to the client but also 'grossly impractical and inefficient' to have had the settlement negotiations conducted by separate lawyers from different states." In re Estate of Waring, 47 N.J. 367, 376, 221 A.2d 193, 197 (1966).
Cf. ABA Opinion 316 (1967).
10. Conduct permitted by Disciplinary Rules of Canons 2 and 5 does not violate DR 3-101.
11. See ABA Canons of Professional Ethics, Canon 47 (1908).
12. It should be noted, however, that a lawyer may engage in conduct, otherwise prohibited by this Disciplinary Rule, where such conduct is authorized by preemptive federal legislation. See Sperry v. Florida, 373 U.S. 379, 10 L. Ed. 2d 428, 83 S. Ct. 1322 (1963).
13. See ABA Canons of Professional Ethics, Canon 34 (1908) and ABA Opinions 316 (1967), 180 (1938), and 48 (1931).
"The receiving attorney shall not under any guise or form share his fee for legal services with a lay agency, personal or corporate, without prejudice, however, to the right of the lay forwarder to charge and collect from the creditor proper compensation for non-legal services rendered by the law [sic] forwarder which are separate and apart from the services performed by the receiving attorney." ABA Opinion 294 (1958).
14. See ABA Opinion 266 (1945).
15. Cf. ABA Opinion 311 (1964).
16. See ABA Informal Opinion 1440
17. Amended, February 1980, House Informational Report No. 107.
18. See ABA Canons of Professional Ethics, Canon 33 (1908); cf. ABA Opinions 239 (1942) and 201 (1940)
ABA Opinion 316 (1967) states that lawyers licensed in different jurisdictions may, under certain conditions, enter "into an arrangement for the practice of law" and that a lawyer licensed in State A is not, for such purpose, a layman in State B.
Canon 4
1. See ABA Canons of Professional Ethics, Canons 6 and 37 (1908) and ABA Opinion 287 (1953).
"The reason underlying the rule with respect to confidential communications between attorney and client is well stated in Mechem on Agency, 2d Ed., Vol. 2, §2297, as follows: 'The purposes and necessities of the relation between a client and his attorney require, in many cases, on the part of the client, the fullest and freest disclosures to the attorney of the client's objects, motives and acts. This disclosure is made in the strictest confidence, relying upon the attorney's honor and fidelity. To permit the attorney to confidence, relying upon the attorney's honor and fidelity. To permit the attorney to reveal to others what is so disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance. Based upon considerations of public policy, therefore, the law wisely declares that all confidential communications and disclosures, made by a client to his legal adviser for the purpose of obtaining his professional aid or advice shall be strictly privileged; -that the attorney shall not be permitted, without the consent of his client,-and much less will he be compelled-to reveal or disclose communications made to him under such circumstances.'" ABA Opinion 250(1943).
"While it is true that complete revelation of relevant facts should be encouraged for trial purposes, nevertheless an attorney's dealings with his client, if both are sincere, and if the dealings involve more than mere technical matters, should be immune to discovery proceedings. There must be freedom from fear of revealment of matters disclosed to an attorney because of the peculiarly intimate relationship existing." Ellis-Foster Co. v. Union Carbide & Carbon Corp., 159 F. Supp. 917, 919 (D.N.J. 1958).
Cf. ABA Opinions 314 (1965), 274 (1946) and 268 (1945).
2. "While it is the great purpose of law to ascertain the truth, there is the countervailing necessity of insuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. This assistance can be made safely and readily available only when the client is free from the consequences of apprehension of disclosure by reason of the subsequent statements of the skilled lawyer. Baird v. Koemer, 279 F.2d 623, 629-30 (9th Cir. 1960).
Cf. ABA Opinion 150 (1936).
3. "Where . . . [a client] knowingly and after full disclosure participates in a [legal fee] financing plan which requires the furnishing of certain information to the bank, clearly by his conduct he has waived any privilege as to that information." ABA Opinion 320 (1968)
4. "The lawyer must decide when he takes a case whether it is a suitable one for him to undertake and after this decision is made, he is not justified in turning against his client by exposing injurious evidence entrusted to him . . . . [D]oing something intrinsically regrettable, because the only alternative involves worse consequences, is a necessity in every profession. Williston, Life and Law 271 (1940).
Cf. ABA Opinions 177 (1938) and 83 (1932).
5. See ABA Canons of Professional Ethics, Canon 11 ( 1908).
6. See ABA Canons of Professional Ethics, Canon 37 (1908).
7. See ABA Canons of Professional Ethics, Canons 6 and 37 (1908).
"[A]n attorney must not accept professional employment against a client or a former client which will, or even may require him to use confidential information obtained by the attorney in the course of his professional relations with such client regarding the subject matter of the employment . . . ." ABA Opinion 165 (1936).
8. See ABA Canons of Professional Ethics, Canon 37 (1908).
"Confidential communications between an attorney and his client, made because of the relationship and concerning the subject-matter of the attorney's employment, are generally privileged from disclosure without the consent of the client, and this privilege outlasts the attorney's employment. Canon 37." ABA Opinion 154 (1936).
9. Cf. ABA Opinion 266 (1945).
10. See ABA Canons of Professional Ethics, Canon 37 (1908); cf. ABA Canons of Professional Ethics, Canon 6 (1908).
11. "§6068 . . . It is the duty of an attorney:
. . . .
"(e) To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client. Cal. Business and Professions Code §6068 (West 1962). Virtually the same provision is found in the Oregon statutes. Ore. Rev. Stats. ch. 9 §9.460(5).
"Communication between lawyer and client are privileged (Wigmore on Evidence, 3d Ed., Vol. 8, §§2290-2329). The modem theory underlying the privilege is subjective and is to give the client freedom of apprehension in consulting his legal adviser (ibid., §2290, p. 548). The privilege applies to communications made in seeking legal advice for any purpose (ibid., §2294, p.563). The mere circumstance that the advice is given without charge therefor does not nullify the privilege (ibid., §2303)." ABA Opinion 216 (1941).
"It is the duty of an attorney to maintain the confidence and preserve inviolate the secrets of his client . . . ." ABA Opinion 155 (1936).
12. See ABA Canons of Professional Ethics, Canon 11 (1908).
"The provision respecting employment is in accord with the general rule announced in the adjudicated cases that a lawyer may not make use of knowledge or information acquired by him through his professional relations with his client, or in the conduct of his client's business, to his own advantage or profit (7 C.J.S., § 125, p. 958, Healy v Gray 184 Iowa 111, 168 N.W. 222; Baumgardner v. Hudson, D.C. App., 277 F. 552, Goodrum v. Clement, D.C App., 277 F. 586)" ABA Opinion 250 (1943).
13. See ABA Opinion 177 (1938).
14. "[A lawyer] may not divulge confidential communications, information, and secrets imparted to him by the client or acquired during their professional relations unless he is authorized to do so by the client (People v. Gerold, 265 Ill. 448, 107 N.E. 165, 178; Murphy v. Riggs, 238 Mich. 151, 213 N.W. 110, 112; Opinion of this Committee, No. 91)." ABA Opinion 202 (1940).
Cf. ABA Opinion 91 (1933).
15. "A defendant in a criminal case when admitted to bail is not only regarded as in the custody of his bail, but he is also in the custody of the law, and admission to bail does not deprive the court of its inherent power to deal with the person of the prisoner. Being in lawful custody, the defendant is guilty of an escape when he gains his liberty before he is delivered in due process of law, and is guilty of a separate offense for which he may be punished. In failing to disclose his client's whereabouts as a fugitive under these circumstances the attorney would not only be aiding his client to escape trial on the charge for which he was indicted, but would likewise be aiding him in evading prosecution for the additional offense of escape.
"It is the opinion of the committee that under such circumstances the attorney's knowledge of his client's whereabouts is not privileged, and that he may be disciplined for failing to disclose that information to the proper authorities . . . ." ABA Opinion 155 (1936).
"We held in Opinion 155 that a communication by a client to his attorney in respect to the future commission of an unlawful act or to a continuing wrong is not privileged from disclosure. Public policy forbids that the relation of attorney and client should be used to conceal wrongdoing on the part of the client.
. . . .
"When an attorney representing a defendant in a criminal case applies on his behalf for probation or suspension of sentence, he represents to the court, by implication at least that his client will abide by the terms and conditions of the court's order. When that attorney is later advised of a violation of that order, it is his duty to advise his client of the consequences of his act, and endeavor to prevent a continuance of the wrongdoing. If his client thereafter persists in violating the terms and conditions of his probation, it is the duty of the attorney as an officer of the court to advise the proper authorities concerning his client's conduct. Such information, even though coming to the attorney from the client in the course of his professional relations with respect to other matters in which he represents the defendant, is not privileged from disclosure . . . ."
See ABA Opinion 156 (1936).
16. ABA Opinion 314 (1965) indicates that a lawyer must disclose even the confidences of his clients if "the facts in the attorney's possession indicate beyond reasonable doubt that a crime will be committed."
See ABA Opinion 155 (1936).
17. See ABA Canons of Professional Ethics, Canon 37 (1908) and ABA Opinion 202 (1940).
18. Cf. ABA Opinion 250 (1943)
19. See ABA Canons of Professional Ethics, Canon 37 (1908) and ABA Opinions 202 (1940) and 19 (1930).
"[T]he adjudicated cases recognize an exception to the rule [that a lawyer shall not reveal the confidences of his client], where disclosure is necessary to protect the attorney's interests arising out of the relation of attorney and client in which disclosure was made.
"The exception is stated in Mechem on Agency, 2d Ed., Vol. 2, §2313, as follows: 'But the attorney may disclose information received from the client when it becomes necessary for his own protection, as if the client should bring an action against the attorney for negligence or misconduct, and it became necessary for the attorney to show what his instructions were, or what was the nature of the duty which the client expected him to perform. So if it became necessary for the attorney to bring an action against the client, the client's privilege could not prevent the attorney from disclosing what was essential as a means of obtaining or defending his own rights.'
"Mr Jones, in his Commentaries on Evidence, 2d Ed., Vol. 5, §2165, states the exception thus 'It has frequently been held that the rule as to privileged communications does not apply when litigation arises between attorney and client to the extent that their communications are relevant to the issue. In such cases, if the disclosure of privileged communications becomes necessary to protect the attorney's rights, he is released from those obligations of secrecy which the law places upon him. He should not, however disclose more than is necessary for his own protection. It would be a manifest injustice to allow the client to take advantage of the rule of exclusion as to professional confidence to the prejudice of his attorney, or that it should be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights. In such cases the attorney is exempted from the obligations of secrecy.' " ABA Opinion 250 (1943).
Canon 5
1. Cf. ABA Canons of Professional Ethics, Canon 35 (1908).
"[A lawyer's] fiduciary duty is of the highest order and he must not represent interests adverse to those of the client. It is true that because of his professional responsibility and the confidence and trust which his client may legitimately repose in him, he must adhere to a high standard of honesty, integrity and good faith in dealing with his client. He is not permitted to take advantage of his position or superior knowledge to impose upon the client; nor to conceal facts or law, nor in any way deceive him without being held responsible therefor." Smoot v. Lund, 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962).
"When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and champion. If, as in this case, he is sued and his home attached by his own attorney, who is representing him in another matter, all feeling of loyalty is necessarily destroyed, and the profession is exposed to the charge that it is interested only in money." Grievance Comm. v. Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84 (1964).
"One of the cardinal principles confronting every attorney in the representation of a client is the requirement of complete loyalty and service in good faith to the best of his ability. In a criminal case the client is entitled to a fair trail, but not a perfect one. These are fundamental requirements of due process under the Fourteenth Amendment . . . . The same principles are applicable in Sixth Amendment cases (not pertinent herein) and suggest that an attorney should have no conflict of interest and that he must devote his full and faithful efforts toward the defense of his client" Johns v. Smyth, 176 F. Supp. 949, 952 (E.D. Va. 1959), modified, United States ex rel Wilkins v. Banmiller, 205 F. Supp. 123, 128 n.5(ED.Pa.1962), aff'd 325F.2d 514(3d Cir. 1963), cert. denied, 379 U.S. 847, 13 L. Ed. 2d 51, 85 S.Ct. 87 (1964).
2. "Attorneys must not allow their private interests to conflict with those of their clients . . . . They owe their entire devotion to the interests of their client" United States v. Anonymous, 215 F. Supp. 111, 113 (E.D. Tenn. 1963).
"[T]he court [below] concluded that a firm may not accept any action against a person whom they are presently representing even though there is no relationship between the two cases. In arriving at this conclusion, the court cites an opinion of the Committee on Professional Ethics of the New York County Lawyers' Association which stated in part: 'While under the circumstances . . . there may be no actual conflict of interest . . . "maintenance of public confidence in the Bar requires an attorney who has accepted representation of a client to decline, while representing such client, any employment from an adverse party in any matter even though wholly unrelated to the original retainer." See Question and Answer No. 350, N.Y. County L. Ass'n, Question and Answer No. 450 (June 21, 1956).' " Grievance Comm. v. Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84 (1964).
3. "Courts of equity will scrutinize with jealous vigilance transactions between parties occupying fiduciary relations toward each other . . . . A deed will not be held invalid, however, if made by the grantor with full knowledge of its nature and effect, and because of the deliberate voluntary and intelligent desire of the grantor . . . . Where a fiduciary relation exists, the burden of proof is on the grantee of beneficiary of an instrument executed during the existence of such relationship to show the fairness of the transaction, that it was equitable and just and that it did not proceed from undue influence . . . . The same rule has application where an attorney engages in a transaction with a client during the existence of the relation and is benefited thereby . . . . Conversely, an attorney is not prohibited from dealing with his client or buying his property, and such contracts, if open, fair and honest, when deliberately made, are as valid as contracts between other parties . . . . [I]mportant factors in determining whether a transaction is fair include a showing by the fiduciary (1) that he made a full and frank disclosure of all the relevant information that he had;(2) that the consideration was adequate; and (3) that the principal had independent advice before completing the transaction." McFail v. Braden, 19 Ill.2d 108, 117-18, 166 N.E.2d 46,52(1960).
4. See State ex rel. Nebraska State Bar Ass'n v. Richards, 165 Neb.80,94-95, 84 N.W.2d 136, 146(1957).
5. See ABA Canons of Professional Ethics, Canon 9(1908).
6. See ABA Canons of Professional Ethics, Canon 10(1908).
7. See Model Code of Professional Responsibility, EC 2-20.
8. See ABA Canons of Professional Ethics, Canon 42 (1908).
9. "Rule 3a . . . . A member of the State Bar shall not directly or indirectly pay or agree to pay, or represent or sanction the representation that he will pay, medical hospital or nursing bills or other personal expenses incurred by or for a client, prospective or existing; provided this rule shall not prohibit a member:
"(1) with the consent of the client, from paying or agreeing to pay to third persons such expenses from funds collected or to be collected for the client; or
(2) after he has been employed, from lending money to his client upon the client's promise in writing to repay such loan; or
(3) from advancing the costs of prosecuting or defending a claim or action. Such costs within the meaning of this subparagraph (3) include all taxable costs or disbursements, costs of investigation and costs of obtaining and presenting evidence." Cal. Business and Professions Code §6076 (West Supp. 1967).
10. "When a lawyer knows, prior to trial, that he will be a necessary witness, except as to merely formal matters such as identification or custody of a document or the like, neither he nor his firm or associates should conduct the trial. If, during the trial, he discovers that the ends of justice require his testimony, he should, from that point on, if feasible and not prejudicial to his client's case, leave further conduct of the trial to other counsel. If circumstances do not permit withdrawal from the conduct of the trial to other counsel. If circumstances do not permit withdrawal from the conduct of the trial, the lawyer should not argue the credibility of his own testimony." A Code of Trial Conduct: Promulgated by the American College of Trial Lawyers, 43 A.B.A.J. 223,224-25 (1957).
11. Cf. ABA Canons of Professional Ethics, Canon 19 (1908); "When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel."
12. "It is the general rule that a lawyer may not testify in ligation in which he is a advocate unless circumstances arise which could not be anticipated and it is necessary to prevent a miscarriage of justice. In those rare cases where the testimony of an attorney is needed to protect his client's interest, it is not only proper but mandatory that it be forthcoming." Schwartz v. Wenger, 267 Minn. 40, 43-44, 124 N.W.2d 489, 492 (1963).
13. "The great weight of authority in this country holds that the attorney who acts as counsel and witness, in behalf of his client, in the same cause on a material matter, not of merely formal character, and not in an emergency, but having knowledge that he would be required to be a witness in ample time to have secured other counsel and given up his service in the case, violates a highly important provision of the Code of Ethics and a rule of professional conduct, but does not commit a legal error in so testifying, as a result of which a new trial will be granted." Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141A. 866, 869(1928).
14. "[C]ases may arise, and in practice often do arise, in which there would be a failure of justice should the attorney withhold his testimony. In such a case it would be a vicious professional sentiment which would deprive the client of the benefit of his attorney's testimony." Connoly v. Straw, 53 Wis. 645, 649, 11 N.W. 17, 19 (1881).
But see ABA Canons of Professional Ethics, Canon 19 (1908): "Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."
15. Cf. ABA Canons of Professional Ethics, Canon 7 (1908).
16. See ABA Canons of Professional Ethics, Canon 7 (1908).
17. See ABA Canons of Professional Ethics, Canon 6 (1908); cf. ABA Opinions 261 (1944), 242 (1942), 142 (1935), and 30 (1931).
18. The ABA Canons speak of "conflicting interests" rather than "differing interests" but make no attempt to define such other than the statement in Canon 6: "Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."
19. "Canon 6 of the Canons of professional Ethics, adopted by the American Bar Association on September 30, 1937, and by the Pennsylvania Bar Association on January 7, 1938, provides in part that 'It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interest when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.' The full disclosure required by this canon contemplates that the possible adverse effect of the conflict be fully explained by the attorney to the client to be affected and by him thoroughly understood . . . .
"The foregoing canon applies to cases where the circumstances are such that possibly conflicting interests may permissibly be represented by the same attorney. But manifestly, there are instances where the conflicts of interest are so critically adverse as not to admit of one attorney's representing both sides. Such is the situation which this record presents. No one could conscionably contend that the same attorney may represent both the plaintiff and defendant in an adversary action. Yet, that is what is being done in this case." Jedwabny v. Philadelphia Transportation Co., 390 Pa. 231, 235, 135 A.2d 252, 254 (1957), cert. denied, 355 U.S. 966, 2 L. Ed. 2d 5431, 78 S.Ct. 557 (1958).
20. "Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected. Irrespective of any conflict of interest, the additional burden of representing another party may conceivably impair counsel's effectiveness.
"To determine the precise degree of prejudice sustained buy Glasser as a result of the court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations and to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 75-76, 86 L. Ed. 680, 702 S. Ct. 457, 467 (1942).
21. See ABA Canons of Professional Ethics, Canon 6 (1908).
23. Cf. ABA Opinion 282 (1950).
"When counsel, although paid by the casualty company, undertakes to represent the policy holder and files his notice of appearance , he owes to his client, the assured, an undeviating and single allegiance. His fealty embraces the requirement to produce in court all witnesses, fact and expert, who are available and necessary for the proper protection of the rights of his client . . . .
". . . The Canons of Professional Ethics make it pellucid that there are not two standards, one applying to counsel privately retained by a client, and the other to counsel paid by an insurance carrier." American Employers Ins. Co. v. Goble Aircraft Specialties 205 Misc. 1066, 1075, 131 N.Y.S.2d 393,401 (1954), motion to withdraw appeal granted, 1 App. Div. 2d 1008, 154 N.Y.S.2d 835 (1956).
"[C]ounsel, selected by State Farm to defend Dorothy Walker's suit for $50,000 damages, was apprised by Walker that his earlier version of the accident was untrue and that actually the accident occurred because he lost control of his car in passing a Cadillac just ahead. At that point, Walker's counsel should have refused to participate further in view of the conflict of interest between Walker and State Farm . . . . Instead he participated in the ensuing deposition of the Walkers, even took an ex parte sworn statement from Mr. Walker in order to advise State Farm what action it should take, and later used the statement against Walker in the District Court. This action appears to contravene an Indiana attorney's duty 'at every peril to himself, to preserve the secrets of his client'. . . ." State Farm Mut. Auto Ins. Co. v. Walker, 382 F.2d 548, 552 (1967), cert. denied, 389 U.S. 1045, 19 L. Ed. 2d 837, 88 S. Ct. 789 (1968).
24. See ABA Canons of Professional Ethics, Canon 6 (1908).
25. See ABA Canons of Professional Ethics, Canon 35 (1908).
"Objection to the intervention of a lay intermediary, who may control litigation or otherwise interfere with the rendering of legal services in a confidential relationship, . . . derives from the element of pecuniary gain. Fearful of dangers thought to arise from that element, the courts of several States have sustained regulations aimed at these activities. We intimate no view one way or the other as to the merits of those decisions with respect to the particular arrangements against which they are directed. It is enough that the superficial resemblance in form between those arrangements and that at bar cannot obscure the vital fact that here the entire arrangement employs constitutionally privileged means of expression to secure constitutionally guaranteed civil rights." NAACP v. Button, 371 U.S. 415, 441-42, 9 L. Ed. 2d 405, 423-24, 83 S. Ct. 328, 342-43 (1963).
26. Cf. ABA Canons of Professional Ethics, Canon 38 (1908).
27. "Certainly it is true that 'the professional relationship between an attorney and his client is highly personal, involving an intimate appreciation of each individual client's particular problem.' And this Committee does not condone practices which interfere with that relationship. However, the mere fact the lawyer is actually paid by some entity other than the client does not affect that relationship, so long as the lawyer is selected by and is directly responsible to the client. See Informal Opinions 469 and 679. Of course, as the latter decision points out, there must be full disclosure of the arrangement by the attorney to the client . . . ." ABA Opinion 320 (1968).
"[A] third party may pay the cost of legal services as long as control remains in the client and the responsibility of the lawyer is solely to the client. Informal Opinions 469 ad [sic] 679. See also Opinion 237." Id.
28. ABA Opinion 303 (1961) recognized that "[s]tatutory provisions now exist in several states which are designed to make [the practice of law in a form that will be classified as a corporation for federal income tax purpose] legally possible, either as a result of lawyers incorporating or forming associations with various corporate characteristics."
29. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 6 (1908) and ABA Opinions 181(1938), 104 (1934), 103 (1933), 72 (1932), 50 (1931), 49 (1931), and 33 (1931).
"New York County [Opinion] 203 . . . . [A lawyer] should not advise a client to employ an investment company in which he is interested, without informing him of this." Drinker, Legal Ethics 956 (1953).
"In Opinions 72 and 49 this Committee held: The relations of partners in a law firm are such that neither the firm nor any member or associate thereof, may accept any professional employment which any member of the firm cannot properly accept.
"In Opinion 16 this Committee held that a member of a law firm could not represent a defendant in a criminal case which was being prosecuted by another member of the firm who was public prosecuting attorney. The Opinion stated that it was clearly unethical for one member of the firm to oppose the interest of the state which another member represented those interests . . . . Since the prosecutor himself could not represent both the public and the defendant, no member of his law firm could either." ABA Opinion 296 (1959).
30. Cf. ABA Canons of Professional Ethics, Canon 19 (1908) and ABA Opinions 220 (1941), 185 (1938), 50 (1931), and 33 (1931); but cf. Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 498-99, 141 A. 866, 868 (1928).
31. This Canon [19] of Ethics needs no elaboration to be applied to the facts here. Apparently, the object of this precept is to avoid putting a lawyer in the obviously embarrassing predicament of testifying and then having to argue the credibility and effect of his own testimony. It was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel." Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d 576, 580 (1951).
32. ABA Canons of Professional Ethics, Canon 10 (1908) and ABA Opinions 279 (1949), 246 (1942), and 176 (1938).
33. See Model Code of Professional Responsibility, DR 2-106(C).
34. See ABA Canons of Professional Ethics, Canon 42 (1908); cf. ABA Opinion 288 (1954).
35. See ABA Canons of Professional Ethics, Canon 6 (1908); cf. ABA Opinions 167 (1937), 60 (1931), and 40 (1931).
36. Amended, March 1974, House Informational Report No. 127.
37. ABA Opinion 247 (1942) held that an attorney could not investigate a night club shooting on behalf of one of the owner's liability insurers, obtaining the cooperation of the owner, and later represent the injured patron in an action against the owner and a different insurance company unless the attorney obtain the "express consent of all concerned given after a full disclosure of the facts," since to do so would be to represent conflicting interests.
See ABA Opinions 247 (1942), 224 (1941), 222 (1941), 218 (1941), 112 (1934), 86 (1932), and 83 (1932).
38. Amended, March 1974, House Information Report No. 127.
39. Cf. ABA Opinions 231 (1941) and 160 (1936).
40. Amended, March 1974, House Informational Report No. 127.
41. Cf. ABA Opinion 235 (1941).
42. See ABA Canons of Professional Ethics, Canon 38 (1908).
"A lawyer who receives a commission (whether delayed or not) from a title insurance company or guaranty fund for recommending or selling the insurance to his client, or for work done for the client or the company, without either fully disclosing to the client his financial interest in the transaction, or crediting the client's bill with the amount thus received, is guilty of unethical conduct." ABA Opinion 304 (1962.
43. See ABA Canons of Professional Ethics, Canon 35 (1908); cf. ABA Opinion 237 (1941).
"When the lay forwarder, as agent for the creditor, forwards a claim to an attorney, the direct relationship of attorney and client shall then exist between the attorney and the creditor, and the forwarder shall not interpose itself as an intermediary to control the activities of the attorney." ABA Opinion 294 (1958).
44. "Permanent beneficial and voting rights in the organization set up the practice law, whatever its form, must be restricted to lawyers while the organization is engaged in the practice of law." ABA Opinion 303 (1961).
45. "Canon 33 . . . promulgates underlying principles that must be observed no matter in what form of organization lawyers practice law. Its requirement that no person shall be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline, makes it clear that any centralized management must be in lawyers to avoid a violation of this Canon." ABA Opinion 303 (1961).
46. "There is no intervention of any lay agency between lawyer and client when centralized management provided only by lawyers may give guidance or direction to the services being rendered by a lawyer-member of the organization to a client. The language in Canon 35 that a lawyer should avoid all relations which direct the performance of his duties by or in the interest of an intermediary refers to lay intermediaries and not lawyer intermediaries with whom he is associated in the practice of law." ABA Opinion 303 (1961).
Canon 6
1. "[W]hen a citizen is faced with the need for a lawyer, he wants, and is entitled to, the best informed counsel he can obtain. Changing times produce changes in our laws and legal procedures. The natural complexities of law require continuing intensive study by a lawyer if he is to render his clients a maximum of efficient service. And, in so doing, he maintains the high standards of the legal profession; and he also increases respect and confidence by the general public." Rochelle & Payne, The struggle of Public Understanding, 25 Texas B.J. 109, 160 (1962).
"We have undergone enormous changes in the last fifty years within the lives of most of the adults living today who may be seeking advice. Most of these changes have been accompanied by changes and developments in the law . . . . Every practicing lawyer encounters these problems and is often perplexed with his own inability to keep up, not only with changes in the law, but also with changes in the lives of his clients and their legal problems.
"To be sure, no client has a right to expect that his lawyer will have all of the answers at the end of his tongue or even in the back of his head at all times. But the client does have the right to expect that the lawyer will have devoted his time and energies to maintaining and improving his competence to know where to look for the answers to know how to deal with the problems, and to know how to advise to the best of his legal talents and abilities." Levy & Sprague, Accounting and Law: Is Dual Practice in the Public Interest?, 52 A.B.A.J. 1110, 1112 (1966).
2. "The whole purpose of continuing legal education, so enthusiastically supported by the ABA, is to make it possible for lawyers to make themselves better lawyers. But there are no nostrums for proficiency in the law; it must come through the hard work of the lawyer himself. To the extent that work, whether it be in attending institutes or lecture courses, in studying after hours or in the actual day in and day out practice of his profession, can be concentrated within a limited field, the greater the proficiency and expertness that can developed." Report of the Special Committee on Specialization and Specialized Legal Education, 79 A.B.A. Rep. 582, 588 (1954).
3. "If the attorney is not competent to skillfully and properly perform the work, he should not undertake the service." Design v. Steinbrink, 202 App. Div. 477, 481, 195 N.Y.S. 810, 814 (1922), aff'd mem., 236 N.Y. 669, 142 N.E. 328 (1923).
4. See ABA Opinion 303 (1961); cf. Code of Professional Responsibility, EC 2-11.
5. The annual report for 1967-1968 of the Committee on Grievances of the Association of the Bar of the City of New York showed a receipt of 2,232 complaints; of the 828 offenses against clients, 76 involved conversion, 49 involved "overreaching," and 452, or more than half of all such offenses, involved neglect. Annual Report of the Committee on Grievances of the Association of the Bar of the City of New York, N.Y.L.J., Sept 12, 1968, at 4, col. 5.
Canon 7
1. "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even intelligent and educated layman has small and sometimes no skill in the science of law." Powell v. Alabama, 287 U.S. 45, 68-69, 77 L.Ed. 158, 170, 53 S. Ct. 55,64 (1932).
2. Cf. ABA Canons of Professional Ethics, Canon 4 (1908).
"At times . . . . [the tax lawyer] will be wise to discard some argument and he should exercise discretion to emphasize the arguments which in his judgment are most likely to be persuasive. But this process involves legal judgment rather than moral attitudes. The tax lawyer should put aside private disagreements with Congressional and Treasury policies. His own notions of policy, and his personal view of what the law should be, are irrelevant. The job entrusted to him by his client is to use all his learning and ability to protect his client's rights, not to help in the process of promoting a better tax system. The tax lawyer need not accept his client's economic and social opinions, but the client is paying for the technical attention and undivided concentration upon his affairs. He is equally entitled to performance unfettered by his attorney's economic and social predilections." Paul, The Lawyer as a Tax Adviser, 25 Rocky Mt. L. Rev. 412, 418 (1953).
3. See ABA Canons of Professional Ethics, Canons 15 and 32 (1908).
ABA Canon 5, although only speaking of one accused of crime, imposes a similar obligation on the lawyer: "[T]he 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 liberty, but by due process of law."
"Any persuasion of pressure on the advocate which deters him from planning and carrying out the litigation on the basis of 'what, within the framework of the law, is best for my client's interest?' interferes with the obligation to represent the client fully within the law.
"This obligation, in it fullest sense, is the heart of the adversary process. Each attorney, as an advocate, acts for and seeks that which in his judgment is best for his client, within the bounds authoritatively established. The advocate does not decide what is just in this case -- he would be usurping the function of the judge and jury -- he acts for and seeks for his client that which he is entitled to under the law. He can do no less and properly represent the client." Thode, The Ethical Standard for the Advocate, 39 Texas L.Rev. 575, 584 (1961).
"The [Texas public opinion] survey indicates that distrust of the lawyer can be traced directly to certain factors. Foremost of these is a basis misunderstanding of the function of the lawyer as an advocate in an adversary system.
"Lawyers are accused of taking advantage of 'loopholes' and 'technicalities' to win. Person who make this charge are unaware, or do not understand, that the lawyer is hired to win, and if he does not exercise every legitimate effort in his client's behalf, then he is betraying a sacred trust." Rochelle & Payne, The Struggle for Public Understanding, 25 Texas B.J. 109, 159 (1962).
"The importance of the attorney's undivided allegiance and faithful service to one accused of crime, irrespective of the attorney's personal opinion as to the guilt of his client, lies in Canon 5 of the American Bar Association Canon of Ethics.
"The difficulty lies, of course, in ascertaining whether the attorney has been guilty of an error of judgment, such as an election with respect to trial tactics, or has otherwise been actuated by his conscience or belief that his client should be convicted in any event. All too frequently courts are called upon to review actions of defense counsel which are at the most, errors of judgment, not properly reviewable or habeas corpus unless the trial is a farce and a mockery of justice which requires the court to intervene . . . . But when defense counsel, in a truly adverse proceeding, admits that his conscience would not permit him to adopt certain customary trial procedures, this extends beyond the realm of judgment and strongly suggests an invasion of constitutional rights." Johns v. Smyth 176 F.Supp. 949, 952 (E.D. Va. 1959), modified, United States ex rel. Wilkins v. Banmiller, 205 F.Supp. 123, 128, n. 5 (E.D. Pa. 1962), aff'd, 325 F.2d 514 (3rd Cir. 1963), cert. denied, 279 U.S. 847, 13 L. Ed. 2d 51, 85 S. Ct. 87 (1964).
"The adversary system in law administration bears a striking resemblance to the competitive economic system. In each we assume that the individual through partisanship or through self-interest will strive mightily for his side, and that kind of striving we must have. But neither system would be tolerable without restraints and modifications, and at times without outright departures from the system itself. Since the legal profession is entrusted with the system of law administration, a part of its task is to develop in its members appropriate restraints without impairing the values of partisan striving. An accompanying task is to aid in the modification of the adversary system or departure from it in areas to which the system is unsuited." Cheatham, The Lawyer's Role and Surroundings, 25 Rock Mt. L. Rev. 405, 410 (1953).
4. "Rule 4.15 prohibits, in the pursuit of a client's cause, 'any manner of fraud or chicane'; Rule 4.22 requires 'candor and fairness' in the conduct of the lawyer, and forbids the making of knowing misquotations; Rule 4.47 provides that a lawyer 'should always maintain his integrity,' and generally forbids all misconduct injurious to the interests of the public, the courts, or his clients, and acts contrary to 'justice, honesty, modesty or good morals.' Our Commissioner has accurately paraphrased these rules as follows: 'An attorney does not have the duty to do all and whatever he can that may enable him to win his client's cause or to further his client's interest. His duty and efforts in these respects, although they should be prompted by his "entire devotion" to the interest of his client, must be within and not without the bounds of the law.' " In re Wines, 370 S.W.2d 328, 333 (Mo. 1963).
See Note, 38 Texas L. Rev. 107,110 (1959).
5. "Under our system of government the process of adjudication is surrounded by safeguards evolved from centuries of experience. These safeguards are not designed merely to lend formality and decorum to the trial of causes. They are predicated on the assumption that to secure for any controversy a truly informed and dispassionate decision is a difficult thing, requiring for its achievement a special summoning and organization of human effort and the adoption of measures to exclude the biases and prejudgments that have free play outside the courtroom. All of this goes for naught if the man with an unpopular cause is unable to find a competent lawyer courageous enough to represent him. His chance to have his day in court loses much of its meaning if his case is handicapped from the outset by the very kind of prejudgment our rules of evidence and procedure are intended to prevent." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
6. "[I]t is . . . [the tax lawyer's] positive duty to show the client how to avail himself to the full of what the law permits. He is not the keeper of the Congressional conscience." Paul, The Lawyer as a Tax Adviser, 25 Rocky Mt. L. Rev. 412, 418 (1953).
7. See ABA Canons of Professional Ethics, Canons 15 and 30 (1908).
8. "The fact that it desired to evade the law, as it is called, is immaterial, because the very meaning of a line in the law is that you intentionally may go as close to it as you can if you do not pass it . . . . It is a matter of proximity and degree as to which minds will differ . . . ." Justice Holmes, in Superior Oil Co. v. Mississippi, 280 U.S. 390, 395-96, 74 L. Ed. 504, 508, 50 S. Ct. 169, 170 (1930).
9. "Today's lawyers perform two distinct types of functions, and our ethical standards should, but in the main do not, recognize these two functions. Judge Philbrick McCoy recently reported to the American Bar Association the need for a reappraisal of the Canons in light of the new and distinct function of counselor, as distinguished from advocate, which today predominates in the legal profession . . . .
". . . In the first place, any revision of the canons must take into account and speak to this new and now predominant function of the lawyer . . . . It is beyond the scope of this paper to discuss the ethical standards to be applied to the counselor except to state that in my opinion such standards should require a greater recognition and protection for the interest of the public generally than is presently expressed in the canons. Also, the counselor's obligation should extend to requiring him to inform and to impress upon the client a just solution of the problem, considering all interests involved." Thode, The Ethical Standard for the Advocate, 39 Texas L. Rev. 575, 578-79 (1961).
"The man who has been called into court to answer for his own actions is entitled to fair hearing. Partisan advocacy plays its essential part in such a hearing, and the lawyer pleading his client's case may properly present it in the most favorable light. A similar resolution of doubts in one direction becomes inappropriate when the lawyer acts as counselor. The reasons that justify and even require partisan advocacy in the trial of a cause do not grant any license to the lawyer to participate as legal advisor in a line of conduct that is immoral, unfair, or of doubtful legality. In saving himself from this unworthy involvement, the lawyer cannot be guided solely by an unreflective inner sense of good faith; he must be at pains to preserve a sufficient detachment from his client's interests so that he remains capable of a sound and objective appraisal of the propriety of what his client proposes to do." Professional Responsibility: Report of the Joint Conference, 4 A.B.A.J. 1159, 1161 (1958).
10. "[A] lawyer who is asked to advise his client . . . may freely urge the statement of positions most favorable to the client just as long as there is reasonable basis for those positions." ABA Opinion 314 (1965).
11. "The lawyer . . . is not an umpire, but an advocate. He is under no duty to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness . . . . His personal belief in the soundness of his cause or of the authorities supporting it, is irrelevant." ABA Opinion 280 (1949).
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