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the Bar; but, nevertheless, it is the right of any lawyer, without fear or favor, to give proper advice to those seeking relief against unfaithful or neglectful counsel, generally after communication with the lawyer of whom the complaint is made.10

ANNOT. Change and substitution of attorneys, see Attorney and Client, Cent. Dig. §§ 110-131; Dec. Dig. §§ 75, 76.

8. ADVISING UPON THE MERITS OF A CLIENT'S CAUSE. A lawyer should endeavor to obtain full knowledge of his client's cause before advising thereon, and he is bound to give a candid opinion of the merits and probable result of pending or contemplated litigation. The miscarriages to which justice is subject, by reason of surprises and disappointments in evidence and witnesses, and through mistakes of juries and errors of Courts, even though only occasional, admonish lawyers to beware of bold and confident assurances to clients, especially where the employment may depend upon such assurance. Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end the litigation.11

ANNOT. Negligence of attorney in advising client, see Attorney and Client, Cent. Dig. §§ 221, 222; Dec. Dig. § 109.

9. NEGOTIATIONS WITH OPPOSITE PARTY. A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.12

ANNOT. Duties and liabilities of attorney to adverse parties and third persons, see Attorney and Client, Cent. Dig. §§ 38, 39, 61; Dec. Dig. §§ 26, 38.

10. ACQUIRING INTEREST IN LITIGATION. The lawyer should not purchase any interest in the subject-matter of the litigation which he is conducting.13

ANNOT. Right of attorney to purchase demands for suit, and effect thereof as ground for disbarment, see Attorney and Client, Cent. Dig. §§ 26, 51, 239263; Dec. Dig. §§ 18, 38, 122-125.

Champertous agreements, see Champerty and Maintenance, Cent. Dig. §§ 36-44, 47-51; Dec. Dig. § 5 (6, 8).

11. DEALING WITH TRUST PROPERTY. Money of the client or other trust property coming into the possession of the lawyer should be re

10 See B. B. A. revision of this canon and note, ante, pp. 454, 455.

11 See B. B. A. revision of this canon and notes, ante, pp. 368, 369.

12 See note to this canon, ante, p. 412.

13 See notes to this canon, ante, pp. 376, 532.

ported promptly, and except with the client's knowledge and consent should not be commingled with his private property or be used by him.14

ANNOT. Authority of attorney as to disposition of client's money or other property, see Attorney and Client, Cent. Dig. § 143; Dec. Dig. § 80.

Accounting and payment to client, see Attorney and Client, Cent. Dig. §§ 232-238; Dec. Dig. §§ 116–121.

12. FIXING THE AMOUNT OF THE FEE. In fixing fees, lawyers should avoid charges which overestimate their advice and services, as well as those which undervalue them. A client's ability to pay cannot justify a charge in excess of the value of the service, though his poverty may require a less charge, or even none at all. The reasonable requests of brother lawyers, and of their widows and orphans without ample means, should receive special and kindly consideration.

In determining the amount of the fee, it is proper to consider: (1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the lawyer's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other business while employed in the particular case or antagonisms with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service.

In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.15

ANNOT. Right of attorney to compensation, contracts therefor and value and amount thereof, see Attorney and Client, Cent. Dig. §§ 292-350; Dec. Dig. 88 130-145, 151, 152, 154, 155.

13. CONTINGENT FEES. Contingent fees, where sanctioned by law, should be under the supervision of the Court, in order that clients may be protected from unjust charges.18

ANNOT. Validity and effect of agreement for contingent fee, see Attorney and Client, Cent. Dig. §§ 351-357; Dec. Dig. §§ 146-150.

Agreement for contingent fee as constituting champerty, see Champerty and Maintenance, Cent. Dig. §§ 22-51; Dec. Dig. § 5.

14 See B. B. A. revision of this canon, ante, p. 533.

15 See B. B. A. revision of this canon and notes, ante, pp. 488, 489.

16 See note to this canon, ante, p. 495. The B. B. A. substitute for this canon is found ante, pp. 495, 496.

14. SUING A CLIENT FOR A FEE.

Controversies with clients concerning compensation are to be avoided by the lawyer so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his services; and lawsuits with clients should. be resorted to only to prevent injustice, imposition or fraud.*

ANNOT. Right of action for fees, defenses and practice, see Attorney and Client, Cent. Dig. §§ 358-377; Dec. Dig. §§ 157-169.

15. HOW FAR A LAWYER MAY GO IN SUPPORTING A CLIENT'S CAUSE. Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the profession of that full measure of public esteem and confidence which belongs to the proper discharge of its duties than does the false claim, often set up by the unscrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client's cause.

It is improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause.17

The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client."

18

ANNOT. Nature of office of attorney and duty to follow client's instructions, see Attorney and Client, Cent. Dig. §§ 21, 220; Dec. Dig. §§ 14, 108.

Argument and conduct of counsel, see Criminal Law, Cent. Dig. §§ 16551693: Dec. Dig. §§ 699-730; Trial, Cent. Dig. §§ 267-316; Dec. Dig. §§ 106-133.

16. RESTRAINING CLIENTS FROM IMPROPRIETIES. A lawyer should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards Courts, judicial officers, jurors, witnesses and suitors. If a client persists in such wrong-doing the lawyer should terminate their relation.19

ANNOT. Termination of relation by withdrawal of attorney, see Attorney and Client, Cent. Dig. § 121; Dec. Dig. § 76 (1).

*See B. B. A. revision of the canon, ante, p. 474.

17 See B. B. A. revision of this sentence in note, ante, p. 309.

18 See notes to this canon, ante, pp. 441, 442.

19 See note to this canon, ante, p. 424.

17. ILL FEELING AND PERSONALITIES BETWEEN ADVOCATES. Clients, not lawyers, are the litigants. Whatever may be the ill feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. In the trial of a cause it is indecent to allude to the personal history or the personal peculiarities and idiosyncrasies of counsel on the other side. Personal colloquies between counsel which cause delay and promote unseemly wrangling should also be carefully avoided.20

ANNOT. Conduct toward other attorneys, ground for disbarment, see Attorney and Client, Cent. Dig. § 61; Dec. Dig. § 38.

Use of abusive language and retaliatory statements and remarks by attor neys, see Trial, Cent. Dig. §§ 308, 310; Dec. Dig. §§ 126, 129.

18. TREATMENT OF WITNESSES AND LITIGANTS. A lawyer should always treat adverse witnesses and suitors with fairness and due consideration, and he should never minister to the malevolence or prejudices of a client in the trial or conduct of a cause. The client cannot be made the keeper of the lawyer's conscience in professional matters. He has no right to demand that his counsel shall abuse the opposite party or indulge in offensive personalities. Improper speech is not excusable on the ground that it is what the client would say if speaking in his own behalf.21

ANNOT. Duties and liabilities to adverse parties and to third persons, see Attorney and Client, Cent. Dig. § 38; Dec. Dig. § 26.

Use of abusive language and retaliatory statements or remarks, see Trial, Cent. Dig. §§ 308, 310; Dec. Dig. §§ 126, 129.

19. APPEARANCE OF LAWYER AS WITNESS FOR HIS CLIENT. When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in Court in behalf of his client.22

ANNOT. Competency of attorneys as witnesses, see Witnesses, Cent. Dig. §§ 79, 121-123; Dec. Dig. § 67.

20. NEWSPAPER DISCUSSION OF PENDING LITIGATION. Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the

20 See notes to this canon, ante, pp. 455, 456.

21 See note to this canon, ante, p. 445.

22 See note to this canon, ante, p. 448.

COST.LEG.ETH.--37

records and papers on file in the Court; but even in extreme cases it is better to avoid any ex parte statement.28

ANNOT. Publications relating to pending proceedings as constituting contempt, see Contempt, Cent. Dig. §§ 15, 16; Dec. Dig. § 9.

21. PUNCTUALITY AND EXPEDITION. It is the duty of the lawyer not only to his client, but also to the Courts and to the public, to be punctual in attendance, and to be concise and direct in the trial and disposition of causes.

ANNOT. Absence of counsel as ground for continuance, see Continuance, Cent. Dig. § 51; Dec. Dig. § 20; Criminal Law, Cent. Dig. §§ 1313, 1320; Dec. Dig. 88 587, 593.

Absence of counsel as ground for new trial, see Criminal Law, Cent. Dig. § 2205; Dec. Dig. § 920; New Trial, Cent. Dig. §§ 173, 174; Dec. Dig. § 87.

22. CANDOR AND FAIRNESS. The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness.

It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of a decision or a text-book; or with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely.

It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes.

A lawyer should not offer evidence, which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the Judge arguments upon any point not properly calling for determination by him. Neither should he introduce into an argument, addressed to the Court, remarks or statements intended to influence the jury or bystanders.

These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice.24

ANNOT. Argument and conduct of counsel in general, see Criminal Law, Cent. Dig. §§ 1655-1693; Dec. Dig. §§ 699-730; Trial, Cent. Dig. §§ 267-309; Dec. Dig. §§ 106-133.

Regulation of professional conduct of attorneys and conduct ground for disbarment, see Attorney and Client, Cent. Dig. §§ 45, 51, 53, 54, 61; Dec. Dig. §§ 32, 38, 41, 42.

Conduct constituting contempt, see Contempt, Cent. Dig. § 21; Dec. Dig. & 10.

28 See note to this canon, ante, p. 442.

24 See B. B. A. revision of this canon and note, ante, p. 164.

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