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and he should scrupulously refrain at all times, and in all relations of life, from availing himself of any prejudice or popular misconception against lawyers, in order to carry a point against a brother attorney.
10. Nothing has been more potential in creating and pandering to popular prejudice against lawyers as a class, and in withholding from the profession the full measure of public esteem and confidence which belong to the proper discharge of its duties, than the false claim, often set up by the unscrupulous in defense of questionable transactions, that it is an attorney's duty to do everything to succeed in his client's cause.
An attorney "owes entire devotion to the interest of his client, warm zeal in the maintenance and defense of his cause, and the exertion of the utmost skill and ability,” to the end that nothing may be taken or withheld from him, save by the rules of law, legally applied. No sacrifice or peril, even to loss of life itself, can absolve from the fearless discharge of this duty. Nevertheless, it is steadfastly to be borne in mind that the great trust is to be performed within, and not without the bounds of the law which creates it. The attorney's office does not destroy man's accountability to his Creator, or lessen the duty of obedience to law and the obligation to his neighbor, and it does not permit, much less demand, violation of law, or any manner of fraud or chicanery for the client's sake.
11. Attorneys should fearlessly expose before the proper tribunals corrupt or dishonest conduct in the profession, and there should never be any hesitancy in accepting employment against an attorney who has wronged his client.
12. An attorney appearing or continuing as private counsel in the prosecution of a crime of which he believes the accused innocent, forswears himself. The state's attorney is criminal if he presses for a conviction, when upon the evidence he believes the prisoner innocent. If the evidence is not plain enough to justify a nolle pros., a public prosecutor should submit the case, with such comments as are pertinent, accompanied by a candid statement of his own doubts.
13. An attorney can not reject the defense of a person accused of a criminal offense because he knows or believes him guilty. It is his duty by all fair and honorable means to present such defenses as the law of the land permits, to the end that no one may be deprived of life or liberty but by due process of law.
14. An attorney must decline in a civil cause to conduct a prosecution when satisfied that the purpose is merely to harass or injure the opposite party, or to work oppression and wrong.
15. It is a bad practice for an attorney to communicate or argue privately with the judge as to the merits of his cause.
16. Newspaper advertisements, circulars and business cards tender: ing professional services to the general public are proper, but special solicitations of particular individuals to become clients ought to be avoided. Indirect advertisement for business, by furnishing or inspiring editorials or press notices, regarding causes in which the attorney takes part, the manner in which they were conducted, the importance of his positions, the
magnitude of the interests involved, and all other like self-laudation, is oi evil tendency and wholly unprofessional.
17. Newspaper publications by an attorney as to the merits of pending or anticipated litigation call forth discussion and reply from the opposite party, tend to prevent a fair trial in the courts, and otherwise prejudice the due administration of justice. It requires a strong case to justify such publications, and when proper, it is unprofessional to make them anonymously.
18. When an attorney is a witness for his client except as to formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the cause to otuer counsel. Except when essential to the ends of justice, an attorney should scrupulously avoid testifying in court in behalf of his client, as to any matter.
19. The same reasons which make it improper in general for an attorney to testify for his client apply with greater force to assertions, sometimes made by counsel in argument, of personal belief of the client's innocence or the justice of his cause. If such assertions are habitually made they lose all force and subject the attorney to falsehoods, while the failure to make them in particular cases will often be esteemed a tacit admission of belief of the client's guilt, or the weakness of his cause.
20. It is indecent to hunt up defects in titles and the like and inform thereof in order to be employed to bring suit, or to seek out a person supposed to have a cause of action and endeavor to get a fee to litigate about it. Except where ties of blood, relationship or trust make it an attorney's duty, it is unprofessional to volunteer advice to bring a lawsuit. Stirring up strife and litigation is forbidden by law and disreputable in morals.
21. Communications and confidence between client and attorney are the property and secrets of the client, and can not be divulged except at his instance, and even the death of the client does not absolve the attorney from his obligation of secrecy.
22. The duty not to divulge the secrets of clients extends further than mere silence by the attorney, and forbids accepting retainers or employment afterwards from others involving the client's interests, in the matters about which the confidence was reposed. When the secrets or confidence of a former client may be availed of or be material in a subsequent suit, as the basis of any judgment which may injuriously affect his rights, the attorney can not appear in such cause without the consent of his former client.
23. An attorney can never attack an instrument or paper drawn by him for any infirmity apparent on its face, nor for any other cause where confidence has been reposed as to the facts concerning it. Where the attorney acted as a mere conveyancer, and was not consulted as to the facts, and unknown to him the transaction amounted to a violation of the criminal laws, he may assail it on that ground, in suits between third persons or between parties to the instrument and strangers.
24. An attorney openly, and in his true character, may render purely professional services before committees, regarding proposed legislation,
and in advocacy of claims before departments of the government, upon the same principles of ethics which justify his appearance before the courts, but it is immoral and illegal for an attorney so engaged to conceal his attorneyship, or to employ secret personal solicitations, or to use means other than those addressed to the reason and understanding, to influence action.
25. An attorney can never represent conflicting interests in the same suit or transaction, except by express consent of all so concerned, with full knowledge of the facts. Even then, such a position is embarrassing, and ought to be avoided. An attorney represents conflicting interests, within the meaning of this rule, when it is his duty in behalf of one of his clients, to contend for that which duty to other clients in the transaction requires him to oppose.
26. “It is not a desirable professional reputation to live and die with that of a rough tongue, which makes a man to be sought out and retained to gratify the malevolent feeling of a suitor, in hearing the other side well lashed and villified.”
27. An attorney is under no obligation to minister to the malevolence or prejudices of a client in the trial or conduct of a cause. The client can not be made the keeper of the attorney's conscience in professional matters. He can not demand as of right that his attorney shall abuse the opposite party, or indulge in offensive personalities. The attorney, under the solemnity of his oath, must determine for himself whether such a course is essential to the ends of justice and therefore justifiable.
28. Clients and not their attorneys are the litigants; and whatever may be the ill feeling existing between clients, it is unprofessional for attorneys to partake of it in their conduct and demeanor to each other, or to suitors in the case.
29. In the conduct of litigation and the trial of causes the attorneys should try the merits of the cause, and not try each other. It is not proper to allude to, or comment upon, the personal history, or mental or physical peculiarities or idiosyncracies of opposite counsel. Personalities should always be avoided, and the utmost courtesy always extended to an honorable opponent.
30. As to incidental matters pending the trial, not affecting the merits of the cause, or working substantial prejudice to the rights of the client, such as forcing the opposite attorney to trial when he is under affliction or bereavement; forcing the trial on a particular day to the serious injury of the opposite attorney, where no harm will result from a trial at a different time; the time allowed for signing a bill of exceptions, cross interrogatories and the like; the attorney must be allowed to judge. No client has a right to demand that his attorney shall be illiberal in such matters, or that he should do anything therein repugnant to his own sense of honor and propriety; and if such a course is insisted on the attorney should retire from the cause.
31. The miscarriages to which justice is subject, and the uncertainty of predicting results, admonish attorneys to beware of bold and confident
assurances to clients, especially where the employment depends upon the assurance and the case is not plain.
32. Prompt preparation for trial, punctuality in answering letters and keeping engagements, are due from an attorney to his client, and do much to strengthen their confidence and friendship.
33. An attorney is in honor bound to disclose to the client, at the time of retainer, all the circumstances of his relations to the parties, or interest, or connection with the controversy, which might justly influence the client in the selection of his attorney. He must decline to appear in any cause where his obligations or relations to the opposite parties will hinder or seriously embarrass the full and fearless discharge of all his duties.
34. An attorney should endeavor to obtain full knowledge of his client's cause before advising him, and is bound to give him a candid opinion of the merits and probable result of his cause. When the controversy will admit of it he ought to seek to adjust it without litigation, if practicable.
35. Where an attorney, during the existence of the relation, has lawfully made an agreement which binds his client, he can not honorably refuse to give the opposite party evidence of the agreement, because of his subsequent discharge or instructions to that effect by his former client.
36. Money or other trust property coming into the possession of the attorney, should be promptly reported, and never commingled with his private property or used by him, except with the client's knowledge and consent.
37. Attorneys should, as far as possible, avoid becoming either borrowers or creditors of their client; and they ought scrupulously to refrain from bargaining about the subject matter of the litigation, so long as the relation of attorney and client continues.
38. Natural solicitude of clients often prompts them to offer assistance of additional counsel. This should not be met, as it sometimes is, as evidence of want of confidence; but after advising frankly with the client, it should be left to his determination.
39. Important agreements affecting the rights of clients should, as far as possible, be reduced to writing, but it is dishonorable to avoid performance of an agreement fairly made, because not reduced to writing as required by rules of court.
40. An attorney should not ignore known customs or practice of the bar in a particular court, even when the law permits, without giving opposing counsel timely notice.
41. An attorney should not attempt to compromise with the opposite party, without notifying his attorney, if practicable.
42. When attorneys jointly associated in a cause can not agree as to any matter vital to the interest of their client, the course to be pursued should be left to his determination. The client's decision should be cheerfully acquiesced in, unless the nature of the difference makes it imprac
ticable for the attorney to coöperate heartily and effectively; in which event, it is his duty to ask to be discharged.
43. An attorney coming into a cause in which others are employed, should give notice as soon as practicable and ask for a conference; and if the association is objectionable to the attorney already in the cause, the other attorney should decline to take part, unless the first attorney is relieved.
44. An attorney ought not to engage in discussion or arguments about the merits of the case with the opposite party, without notice to his attorney.
45. Satisfactory relations between attorney and client are best preserved by a frank and explicit understanding at the outset, as to the amount of the attorney's compensation; and, where it is possible, this should always be agreed on in advance.
46. In general, it is better to yield something to a client's dissatisfaction at the amount of the fee, though the sum be reasonable, than to engage in a lawsuit to justify it, which ought always to be avoided, except as a last resort to prevent imposition or fraud.
47. Men, as a rule, over-estimate rather than undervalue the worth of their services, and attorneys in fixing their fees should avoid charges which unduly magnify the value of their advice and services, as well as those which practically belittle them. A client's ability to pay can never justify a charge for more than the service is worth; though his poverty may require a less charge in many instances, and sometimes none at all.
48. An attorney may charge a regular client, who entrusts him with all his business, less for a particular service than he would charge a casual client for like services. The element of uncertainty of compensation where a contingent fee is agreed on justifies higher charges than where compensation is assured.
49. In fixing fees the following elements should be considered: First --The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to properly conduct the cause. SecondWhether the particular case will debar the attorney's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that the attorney would otherwise be employed; and herein of the loss of other business while employed in the particular case, and the antagonism with other clients growing out of the employ. ment. Third- The customary charges of the bar for similar services. Fourth-The real amount involved and the benefit resulting from the service. Fifth--Whether the compensation was contingent or assured. Sixth-Is the client a regular one, retaining the attorney in all his business? No one of these considerations is in itself controlling. They are mere guides in ascertaining what the service was really worth; and in fixing the amount it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.