Answer: The selection of the attorney, whether suggested by the husband or not, is controlled by the guardian by whom the action is brought; the minor having reached the age of consent but not of majority. With this safeguard, and if the facts be fully disclosed to the Court, it is, in the opinion of the Committee, not improper for such attorney, if consulted with a view to his being retained, to accept the employment, under a compensation advanced through the guardian by the husband.

BAR ASSOCIATION v. GREENHOOD.

(Supreme Judicial Court of Massachusetts, Suffolk, 1897. 166 Mass. 169, 46 N. E. 568.)

See ante, p. 140, for a report of the case

CONFLICTING INTERESTS. Report of May 1, 1916, of the Committee on Professional Ethics of the Bar Association of St. Louis: (6) March 13, 1916. The President of our Association on behalf of an unnamed lawyer, A., asked whether A. could ethically represent a small number of stockholders out of a large number in a large corporation, attacking the conduct and management of the directors and at the same time act for an individual (and long-time) client in a claim for personal injuries against the corporation.

Answer: The Committee answered A. might represent both clients, with qualification that if a situation arose, as it might, presenting some embarrassment, A. must deal with that condition when it arose.

ACCEPTING EMPLOYMENT FROM FINANCIALLY EMBARRASSED DEBTOR OF CLIENT, ON CONDITION THAT DEBTOR FIRST PREFER AND PAY HIS DEBT TO CLIENT. N. Y. Committee. Question 123: A creditor places a claim for suit in the hands of A., an attorney. Suit is instituted against the debtor, and upon the receipt of the summons and complaint, he calls on A., the attorney, and acquaints A. with his affairs, and desires to retain A. as his attorney to look after his affairs. It becomes necessary to call a meeting of the creditors of the debtor and arrange for an extension of time within which to pay his debts. Before A. accepts a retainer from the debtor, he informs the debtor that before he can act in the matter it is necessary that the creditor whom A. represents be paid in full, and the debtor agrees to do that.

Answer: In the opinion of the Committee, the acceptance of employment from the debtor is improper, because the attorney, as repre

senting the first creditor, by securing the preference specified, assumes a position incompatible with impartially counselling the debtor or representing him fairly to the other creditors.

RETAINER OF UNITED STATES DISTRICT ATTORNEY IN STATE COURT LITIGATION. N. Y. Committee. Question 82: Is it ethical for a lawyer who has been appointed as assistant to the United States District Attorney to carry on private litigation in state courts which requires his presence in the court room?

Answer: In the opinion of the Committee there is nothing essentially unethical in the practice suggested, so long as it does not interfere or conflict with the due performance of duty by the assistant. The Committee calls attention to the following circular issued by the Attorney General of the United States:

"Order No. 508.

"To all United States Attorneys, and Assistant United States Attorneys:

"From time to time the attention of the Department has been called to the following matters connected with the conduct of the offices of United States Attorneys:

"1st. The absence from their offices in the federal buildings, and the want, or seeming want, of attention to public business, by reason of attention to private business in their private offices.

"2d. The use of their official positions to advertise and promote their private business, by advertising the fact in the newspapers or printing their official position upon their private letter-heads and private business cards.

"3d. The use of the offices in the public buildings for the transaction of private business.

"As to the first of these complaints, it is obvious that their first duty is to the public, and that no private business should in any way interfere or be allowed to appear to interfere, with the discharge of public duties. It is therefore ordered that, as far as possible, they be present in their offices during reasonable office hours ready to meet the public and confer about and transact official business.

"As to the second of these complaints, it is plainly improper for a public official to use his public position for private professional purposes, and all methods of so doing are prohibited whether by the use of the official name on letter-heads, advertisements in newspapers, or otherwise.

"As to the third complaint, it is just as improper to use the public offices for the transaction of private business. It is, therefore, directed that no private professional business be transacted in public offices.

"It is not the purpose of this order to prohibit United States At

torneys, or their assistants, from accepting private professional business and transacting personal business, but to avoid any interference. of private with public business, as well as any fair criticism by the general public of the methods of conducting the businesses of the office. The hearty co-operation of the United States Attorneys and their assistants to these ends is relied upon with confidence.

"Respectfully,

T. W. Gregory, Attorney General."

SECTION 3.-THE ACCEPTANCE AND CONDUCT OF THE CLIENT'S CAUSE

I. THE JUSTICE of the CLIENT's Cause

A. B. A. CANONS.

30. JUSTIFIABLE AND UNJUSTIFIABLE LITIGATIONS. 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.22 But otherwise it is his right, and, having accepted retainer, it becomes his duty to insist upon the judgment of the Court as to the legal merits of his client's claim. His appearance in Court should be deemed equivalent to an assertion on his honor that in his opinion his client's case is one proper for judicial determination.

31. RESPONSIBILITY FOR LITIGATION. No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what business he will accept as counsel, what causes he will bring into Court for plaintiffs, what cases he will contest in Court for defendants. The responsibility for advising questionable transactions, for bringing questionable suits, for urging questionable defenses, is the lawyer's responsibility.

22 Hoffman's Resolution XXXIII: 66 What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom. * * "-David Hoffman, A Course of Legal Study (2d Ed., 1836) Vol. II, p. 765.

Hoffman's Resolution XI: "If, after duly examining a case, I am persuaded that my client's claim or defense (as the case may be), cannot, or rather ought not to be sustained, I will promptly advise him to abandon it. To press it further in such a case, with the hope of gleaning some advantage by an extorted compromise, would be lending myself to a dishonorable use of legal means in order to gain a portion of that, the whole of which I have reason to believe would be denied to him both by law and justice." Id. p. 754.

He cannot escape it by urging as an excuse that he is only following his client's instructions.23

TRUTHFUL PLEADING. N. Y. Committee.

Question 95:

Under section 30 of the Code of Ethics of the American Bar Association, as published by West Publishing Co., in 1915, it is suggested that it is a lawyer's right to insist upon the judgment of the court as to the legal merits of his client's claim, unless the suit is brought to harass or injure, etc.

Under New York practice practically all pleadings are verified. In order to get the legal merits of his claim before the court the client must set forth his cause of action in legal terms with legal characterization of the facts, and swear to it. Of course the actual facts are clearly either true or false.

But do you consider that such a verification is equivalent to an affidavit of merit, and that therefore there is a question of legal ethics involved, so that an attorney should not draw up a pleading for his client unless he, as a lawyer, believes beyond a doubt that his client has the law on his side? Or is it sufficient for the attorney to feel that his client has a claim or defense which is justiciable, as suggested by section 30 above referred to, regardless of the attorney's own view of the legal merits? There is room for argument in most cases, as shown by the frequency of dissenting opinions of courts. Answer: In the opinion of the Committee, if the facts be truthfully pleaded, the lawyer may present any fairly debatable law question for the court's determination. The client is entitled to have a fairly debatable question of law presented from the angle of his side, though the lawyer might think, and might advise his client, that the question was a doubtful one. This, of course, excludes the raising of such points as the lawyer knows are without merit. At all times the lawyer must truthfully plead the facts as they are known to him; and if he pleads such facts according to their legal effect, he must believe that

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28 "The less keen are the moral perceptions of a client, the more should be those of his legal adviser. The aim of the latter should be not only to get his client out of trouble, but to keep him out. In the long run this can only be done if morality is brought into the business. * * No wise lawyer will ever advise a client to pursue a morally wrong course, nor countenance him in so doing. * No advice can in the long run prove sound that has not a moral basis."-John Brooks Leavitt, Lawyer and Client in EveryDay Ethics (Yale University Press, 1910) pp. 68, 69.

"Sir, be prevailed upon constantly to keep a Court of Chancery in your own breast: and scorn and fear to do anything but that which your conscience will pronounce consistent with, and conducing to 'Glory to God in the highest, peace on earth and good-will towards men.'"-Cotton Mather, Proposals to Lawyers, p. 4.

"Keep a record of the cases you discourage after full investigation, and of their final results, and you will find that in the long run you take ten cases which you should not to one that you turn off mistakenly."-John C. Reed, Conduct of Law Suits (2d Ed.) § 90, pp. 64, 65.

they fairly warrant the statements he makes in the pleading. For this he is responsible to the court of which he is an officer.

THE JUSTICE OF THE CLIENT'S CAUSE. William Forsyth, Hortensius (3d Ed.) p. 383: In France it was one of the solemn obligations imposed upon every advocate by oath, that he would not maintain causes that were unjust; and Pasquier thus writes to his son: "Do not undertake any cause which you do not believe to be good; for in vain will you attempt to persuade your judges if you are not first persuaded of the justice of your cause. Combat for truth and not for victory." We have seen also that, at the present day, it is part of the duty of the president of the court to warn the counsel for a prisoner not to speak against his conscience, or the respect due to the laws.25

99 24

ANONYMOUS.

(Court of King's Bench, 1677. 1 Mod. 209.)

An action was brought against four men, viz. two attorneys and two solicitors, for being attorneys and solicitors in a cause against the plaintiff in an Inferior Court, falsò et malitiosè knowing that there was no cause of action against him.

* * *

PER TOTAM CURIAM. There is no cause of action. For put the case as strong as you will: suppose a man be retained as an attorney to sue for a debt which he knows to be released, and that himself were a witness to the release; yet the Court held, that the action would not lie; for that what he does, is only as servant to another, and in the way of his calling and profession.26

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24 A son fils sur le point de devenir advocat. Lettre vi.-Author's Note. "The first thing to be done in opening a case is to impress the jury with the idea that at least you believe in it yourself."-Richard Harris, Hints on Advocacy (1903) pp. 9, 10.

"If the advocate himself does not feel strongly and sincerely, by no art can he excite through sympathy the feelings of his audience. It is his sense of right, his indignation of the wrong, enlisted in the cause he is advocating, making themselves visible even on his face, uttering their own natural and appropriate language, that kindles sympathy in the minds of the audience."— Francis L. Wellman, Day in Court (1910) p. 37.

"Juries need to be convinced of the honesty of purpose and truthfulness of the advocate. Otherwise they will look upon him with suspicion, distrust his assertions, and however great his ability, and brilliant his oratory, listen to him as an actor merely, his emotions feigned and his argument an ingenious fallacy."-Id. pp. 52, 53.

25 Code d'Inst. Crim. liv. ii, chap. 4.-Author's Note.

26 In Bicknell v. Dorion, 16 Pick. (Mass.) 478, 490 (1835), Shaw, C. J., said: "But we think in general it is true, that an action cannot be maintained against an attorney, on the ground of his instrumentality in bringing a civil action against the plaintiff, unless where he has commenced such suit without the authority of the party in whose name he sues, or unless there be a con