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BLACK'S LAW DICTIONARY Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern By HENRY CAMPBELL BLACK, M. A. Author of Treatises on Judgments, Tax Titles, Intoxicating Liquors, Bankruptcy, Mortgages, Constitutional Law, Interpretation of Laws, Rescission and Cancellation of Contracts, Etc. REVISED FOURTH EDITION BY THE PUBLISHER'S EDITORIAL STAFF ST. PAUL, MINN. WEST PUBLISHING CO. 1968CODE OF PROFESSIONAL RESPONSIBILITY With amendments to February 24, 1970 PREAMBLE AND PRELIMINARY The Code of Professional Responsibility points the way to the aspiring and provides standards by STATEMENT which to judge the transgressor. Each lawyer must find within his own conscience the touch- Preamble 1 stone against which to test the extent to which his The continued existence of a free and democratic actions should rise above minimum standards. society depends upon recognition of the concept But in the last analysis it is the desire for the re- that justice is based upon the rule of law grounded spect and confidence of the members of his pro- in respect for the dignity of the individual and his fession and of the society which he serves that capacity through reason for enlightened self-gov- should provide to a lawyer the incentive for the 2 ernment. Law so grounded makes justice possi- highest possible degree of ethical conduct. The ble, for only through such law does the dignity of possible loss of that respect and confidence is the the individual attain respect and protection. With- ultimate sanction. So long as its practitioners are out it, individual rights become subject to unre- guided by these principles, the law will continue to strained power, respect for law is destroyed, and be a noble profession. This is its greatness and its rational self-government is impossible. strength, which permit of no compromise. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment Preliminary Statement of this role requires an understanding by lawyers In furtherance of the principles stated in the of their relationship with and function in our legal Preamble, the American Bar Association has 3 system. A consequent obligation of lawyers is promulgated this Code of Professional Responsi- to maintain the highest standards of ethical con- bility, consisting of three separate but interrelated duct. parts: Canons, Ethical Considerations, and Dis- 6 ciplinary Rules. The Code is designed to be fulfilling his professional responsibilities, a In adopted by appropriate agencies both as an in- lawyer necessarily assumes various roles that re- spirational guide to the members of the profession quire the performance of many difficult tasks. and as a basis for disciplinary action when the Not every situation which he may encounter can conduct of a lawyer falls below the required min- 4 be foreseen, but fundamental ethical principles imum standards stated in the Disciplinary Rules. are always present to guide him. Within the framework of these principles, a lawyer must with Obviously the Canons, Ethical Considerations, and Disciplinary Rules cannot apply to non-law- courage and foresight be able and ready to shape yers; however, they do define the type of ethical the body of the law to the ever-changing relation- conduct that the public has a right to expect not ships of society.5 5 "The law and its institutions change as social condi- 1 The footnotes are intended merely to enable the reader tions change. They must change if they are to preserve, to relate the provisions of this Code to the ABA Canons of much less advance, the political and social values from Professional Ethics adopted in 1908, as amended, the Opin- which they derive their purposes and their life. This is ions of the ABA Committee on Professional Ethics, and a true of the most important of legal institutions, the pro- limited number of other sources; they are not intended fession of law. The profession, too, must change when to be an annotation of the views taken by the ABA Special conditions change in order to preserve and advance the Committee on Evaluation of Ethical Standards. Footnotes social values that are its reasons for being." Cheatham, citing ABA Canons refer to the ABA Canons of Professional Availability of Legal Services: The Responsibility of the Ethics, adopted in 1908, as amended. Individual Lawyer and the Organized Bar, 12 U.C.L.A.L. Rev. 438, 440 (1965). 2 Cf. ABA Canons, Preamble. 6 The Supreme Court of Wisconsin adopted a Code of 3 "The lawyer stands today in special need of a clear Judicial Ethics in 1967. "The code is divided into stand- understanding of his obligations and of the vital connection ards and rules, the standards being statements of what between those obligations and the role his profession plays the general desirable level of conduct should be, the rules in society." Professional Responsibility: Report of the being particular canons, the violation of which shall sub- Joint Conference, 44 A.B.A.J. 1159, 1160 (1958). ject an individual judge to sanctions." In re Promulgation of a Code of Judicial Ethics, 36 Wis.2d 252, 255, 153 N.W. 4 "No general statement of the responsibilities of the legal 2d 873, 874 (1967). profession can encompass all the situations in which the The portion of the Wisconsin Code of Judicial Ethics lawyer may be placed. Each position held by him makes entitled "Standards" states that "the following stand- its own peculiar demands. These demands the lawyer must ards set forth the significant qualities of the ideal judge clarify for himself in the light of the particular role in . . . ." Id., 36 Wis.2d at 256, 153 N.W.2d at 875. The which he serves." Professional Responsibility: Report of portion entitled "Rules" states that "the court promul- the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958). gates the following rules because the requirements of Judi- Black's Law Dictionary 4th Ed. Rev.-b XVIICODE OF PROFESSIONAL RESPONSIBILITY 8 work of fair trial, the Disciplinary Rules should only of lawyers but also of their non-professional 9 be uniformly applied to all lawyers, regardless of employees and associates in all matters pertaining 10 the nature of their professional activities. The to professional employment. A lawyer should Code makes no attempt to prescribe either dis- ultimately be responsible for the conduct of his 11 ciplinary procedures or penalties for violation of employees and associates in the course of the pro- 12 a Disciplinary Rule, nor does it undertake to de- fessional representation of the client. fine standards for civil liability of lawyers for The Canons are statements of axiomatic norms, professional conduct. The severity of judgment expressing in general terms the standards of pro- against one found guilty of violating a Disciplinary fessional conduct expected of lawyers in their rela- Rule should be determined by the character of tionships with the public, with the legal system, 13 the offense and the attendant circumstances. An and with the legal profession. They embody the enforcing agency, in applying the Disciplinary general concepts from which the Ethical Consid- Rules, may find interpretive guidance in the basic erations and the Disciplinary Rules are derived. principles embodied in the Canons and in the ob- The Ethical Considerations are aspirational in jectives reflected in the Ethical Considerations. character and represent the objectives toward which every member of the profession should it as a matter of grace and favor. The right which it con- strive. They constitute a body of principles upon fers upon him to appear for suitors, and to argue causes, which the lawyer can rely for guidance in many is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legisla- specific situations.7 ture. It is a right of which he can only be deprived by The Disciplinary Rules, unlike the Ethical Con- the judgment of the court, for moral or professional de- siderations, are mandatory in character. The Dis- linquency." Ex parte Garland, 71 U.S. (4 Wall.) 333, 378- ciplinary Rules state the minimum level of con- 79, 18 L. Ed. 366, 370 (1866). duct below which no lawyer can fall without being See generally Comment, Procedural Due Process and Character Hearings for Bar Applicants, 15 Stan.L.Rev. 500 subject to disciplinary action. Within the frame- (1963). 9 cial conduct embodied therein are of sufficient gravity to "The canons of professional ethics must be enforced warrant sanctions if they are not obeyed . . . ." Id., by the Courts and must be respected by members of the 36 Wis.2d at 259, 153 N.W.2d at 876. Bar if we are to maintain public confidence in the in- tegrity and impartiality of the administration of justice." 7 "Under the conditions of modern practice it is peculiar- In re Meeker, 76 N.M. 354, 357, 414 P.2d 862, 864 (1966), ly necessary that the lawyer should understand, not mere- appeal dismissed, 385 U.S. 449 (1967). ly the established standards of professional conduct, but 10 See ABA Canon 45. the reasons underlying these standards. Today the lawyer "The Canons of this Association govern all its members, plays a changing and increasingly varied role. In many irrespective of the nature of their practice, and the appli- developing fields the precise contribution of the legal pro- cation of the Canons is not affected by statutes or regula- fession is as yet undefined." Professional Responsibility: tions governing certain activities of lawyers which may Report of the Joint Conference, 44 A.B.A.J. 1159 (1958). prescribe less stringent standards." ABA Comm. on Pro- "A true sense of professional responsibility must derive fessional Ethics, OPINIONS, No. 203 (1940) hereinafter from an understanding of the reasons that lie back of each Opinion is cited as "ABA Opinion". specific restraints, such as those embodied in the Canons. Cf. ABA Opinion 152 (1936). The grounds for the lawyer's peculiar obligations are to be found in the nature of his calling. The lawyer who 11 "There is generally no prescribed discipline for any seeks a clear understanding of his duties will be led to particular type of improper conduct. The disciplinary reflect on the special services his profession renders to so- measures taken are discretionary with the courts, which ciety and the services it might render if its full capacities may disbar, suspend, or merely censure the attorney as were realized. When the lawyer fully understands the the nature of the offense and past indicia of character may nature of his office, he will then discern what restraints warrant." Note, 43 Cornell L.Q. 489, 495 (1958). are necessary to keep that office wholesome and effective." 12 The Code seeks only to specify conduct for which a Id. lawyer should be disciplined. Recommendations as to the 8 "Disbarment, designed to protect the public, is a punish- procedures to be used in disciplinary actions and the grav- ment or penalty imposed on the lawyer. . . . He is ity of disciplinary measures appropriate for violations of accordingly entitled to procedural due process, which in- the Code are within the jurisdiction of the American Bar cludes fair notice of the charge." In re Ruffalo, 390 U.S. Association Special Committee on Evaluation of Dis- 544, 550, 20 L.Ed.2d 117, 122, 88 S.Ct. 1222, 1226 (1968), ciplinary Enforcement. rehearing denied, 391 U.S. 961, 20 L.Ed.2d 874, 88 S.Ct. 13 "The severity of the judgment of this court should be 1833 (1968). in proportion to the gravity of the offenses, the moral "A State cannot exclude a person from the practice of turpitude involved, and the extent that the defendant's acts law or from any other occupation in a manner or for rea- and conduct affect his professional qualifications to prac- sons that contravene the Due Process or Equal Protection tice law." Louisiana State Bar Ass'n v. Steiner, 204 La. Clause of the Fourteenth Amendment. . . . A State 1073, 1092-93, 16 So.2d 843, 850 (1944) (Higgins, J., con- can require high standards of qualification . . . but curring in decree). any qualification must have a rational connection with the "Certainly an erring lawyer who has been disciplined applicant's fitness or capacity to practice law." Schware and who having paid the penalty has given satisfactory v. Bd. of Bar Examiners, 353 U.S. 232, 239, 1 L.Ed.2d 796, evidence of repentance and has been rehabilitated and re- 801-02, 77 S.Ct. 752, 756 (1957). stored to his place at the bar by the court which knows "An accused lawyer may expect that he will not be him best ought not to have what amounts to an order of condemned out of a capricious self-righteousness or denied permanent disbarment entered against him by a federal the essentials of a fair hearing." Kingsland v. Dorsey, 338 court solely on the basis of an earlier criminal record and U. S. 318, 320, 94 L. Ed. 123, 126, 70 S.Ct. 123, 124-25 (1949). without regard to his subsequent rehabilitation and pres- "The attorney and counsellor being, by the solemn judi- ent good character . . .. We think, therefore, that cial act of the court, clothed with his office, does not hold the district court should reconsider the appellant's appli- XVIIICODE OF PROFESSIONAL RESPONSIBILITY seek to practice law. To assure the maintenance CANON 1 of high moral and educational standards of the A Lawyer Should Assist in Maintaining the legal profession, lawyers should affirmatively as- Integrity and Competence of the sist courts and other appropriate bodies in pro- Legal Profession mulgating, enforcing, and improving requirements ETHICAL CONSIDERATIONS 4 for admission to the bar. In like manner, the bar A basic tenet of the professional respon- has a positive obligation to aid in the continued EC 1-1 sibility of lawyers is that every person in our so- improvement of all phases of pre-admission and ciety should have ready access to the independent post-admission legal education. professional services of a lawyer of integrity and competence. Maintaining the integrity and im- EC 1-3 Before recommending an applicant for proving the competence of the bar to meet the admission, a lawyer should satisfy himself that highest standards is the ethical responsibility of the applicant is of good moral character. Although every lawyer. a lawyer should not become a self-appointed in- vestigator or judge of applicants for admission, EC 1-2 The public should be protected from those he should report to proper officials all unfavor- who are not qualified to be lawyers by reason of 1 able information he possesses relating to the or moral standards 2 a deficiency in education 3 character or other qualifications of an applicant.5 but who nevertheless or of other relevant factors EC 1-4 The integrity of the profession can be cation for admission and grant it unless the court finds maintained only if conduct of lawyers in violation it to be a fact that the appellant is not presently of good moral or professional character." In re Dreier, 258 F.2d of the Disciplinary Rules is brought to the atten- 68, 69-70 (3d Cir. 1958). tion of the proper officials. A lawyer should re- 1 "We cannot conclude that all educational restrictions veal voluntarily to those officials all unprivileged on bar admission are unlawful. We assume that few knowledge of conduct of lawyers which he believes would deny that a grammar school education requirement, clearly to be in violation of the Disciplinary before taking the bar examination, was reasonable. Or 6 Rules. A lawyer should, upon request, serve on that an applicant had to be able to read or write. Once and assist committees and boards having responsi- we conclude that some restriction is proper, then it becomes bility for the administration of the Disciplinary a matter of degree—the problem of drawing the line. Rules."' "We conclude the fundamental question here is whether Rule IV, Section 6 of the Rules Pertaining to Admission EC 1-5 A lawyer should maintain high standards of Applicants to the State Bar of Arizona is 'arbitrary, of professional conduct and should encourage fel- capricious and unreasonable.' We conclude an educational low lawyers to do likewise. He should be temper- requirement of graduation from an accredited law school ate and dignified, and he should refrain from all is not." Hackin v. Lockwood, 361 F.2d 499, 503-04 (9th Cir. 1966), cert. denied, 385 U.S. 960, 17 L.Ed.2d 305, 87 S.Ct. 396 (1966). court in the administration of justice. Into their hands are committed the property, the liberty and sometimes 2 "Every state in the United States, as a prerequisite for the lives of their clients. This commitment demands a admission to the practice of law, requires that applicants high degree of intelligence, knowledge of the law, respect possess 'good moral character.' Although the requirement for its function in society, sound and faithful judgment is of judicial origin, it is now embodied in legislation in and, above all else, integrity of character in private and most states." Comment, Procedural Due Process and Char- professional conduct." In re Monaghan, 126 Vt. 53, 222 acter Hearings for Bar Applicants, 15 Stan.L.Rev. 500 A.2d 665, 676 (1966) (Holden, C. J., dissenting). (1963). 4 "Good character in the members of the bar is essential "A bar composed of lawyers of good moral character to the preservation of the integrity of the courts. The is a worthy objective but it is unnecessary to sacrifice vital duty and power of the court to guard its portals against freedoms in order to obtain that goal. It is also important intrusion by men and women who are mentally and morally both to society and the bar itself that lawyers be unin- dishonest, unfit because of bad character, evidenced by timidated—free to think, speak, and act as members of an their course of conduct, to participate in the administra- Independent Bar." Konigsberg v. State Bar, 353 U.S. 252, tive law, would seem to be unquestioned in the matter of 273, 1 L.Ed.2d 810, 825, 77 S.Ct. 722, 733 (1957). preservation of judicial dignity and integrity." In re 5 See ABA Canon 29. Monaghan, 126 Vt. 53, 222 A.2d 665, 670 (1966). 6 "Fundamentally, the question involved in both situa- ABA Canon 28 designates certain conduct as unpro- tions i.e. admission and disciplinary proceedings is the fessional and then states that : "A duty to the public and same—is the applicant for admission or the attorney sought to the profession devolves upon every member of the Bar to be disciplined a fit and proper person to be permitted having knowledge of such practices upon the part of any to practice law, and that usually turns upon whether he practitioner immediately to inform thereof, to the end has committed or is likely to continue to commit acts of that the offender may be disbarred." ABA Canon 29 moral turpitude. At the time of oral argument the at- states a broader admonition : "Lawyers should expose torney for respondent frankly conceded that the test for without fear or favor before the proper tribunals corrupt admission and for discipline is and should be the same. or dishonest conduct in the profession." We agree with this concession." Hallinan v. Comm. of 7 "It is the obligation of the organized Bar and the in- Bar Examiners, 65 Cal.2d 447, 453, 421 P.2d 76, 81, 55 Cal. dividual lawyer to give unstinted cooperation and assistance Rptr. 228, 233 (1966). to the highest court of the state in discharging its function 3 "Proceedings to gain admission to the bar are for the and duty with respect to discipline and in purging the purpose of protecting the public and the courts from the profession of the unworthy." Report of the Special Com- ministrations of persons unfit to practice the profession. mittee on Disciplinary Procedures, 80 A.B.A.Rep. 463, 470 Attorneys are officers of the court appointed to assist the (1955). XIXCODE OF PROFESSIONAL RESPONSIBILITY 8 illegal and morally reprehensible conduct. Be- (B) A lawyer shall not further the application for cause of his position in society, even minor viola- admission to the bar of another person known tions of law by a lawyer may tend to lessen public by him to be unqualified in respect to char- confidence in the legal profession. Obedience to acter, education, or other relevant attribute." law exemplifies respect for law. To lawyers es- DR 1-102 Misconduct. pecially, respect for the law should be more than a platitude. (A) A lawyer shall not: EC 1-6 An applicant for admission to the bar or (1) Violate a Disciplinary Rule. a lawyer may be unqualified, temporarily or per- (2) Circumvent a Disciplinary Rule through manently, for other than moral and educational actions of another.12 reasons, such as mental or emotional instability. (3) Engage in illegal conduct involving Lawyers should be diligent in taking steps to see moral turpitude.13 that during a period of disqualification such per- son is not granted a license or, if licensed, is not 11 9 See ABA Canon 29. permitted to practice. In like manner, when the disqualification has terminated, members of the 12 In ABA Opinion 95 (1933), which held that a municipal bar should assist such person in being licensed, or, attorney could not permit police officers to interview per- sons with claims against the municipality when the at- if licensed, in being restored to his full right to torney knew the claimants to be represented by counsel, practice. the Committee on Professional Ethics said : DISCIPLINARY RULES "The law officer is, of course, responsible for the acts of those in his department who are under his supervision DR 1-101 Maintaining Integrity and Competence and control." Opinion 85. In re Robinson, 136 N.Y.S. 548 of the Legal Profession. (affirmed 209 N.Y. 354-1912) held that it was a matter of disbarment for an attorney to adopt a general course of (A) A lawyer is subject to discipline if he has approving the unethical conduct of employees of his client, made a materially false statement in, or if even though he did not actively participate therein, he has deliberately failed to disclose a ma- ". . 'The attorney should not advise or sanction terial fact requested in connection with, his acts by his client which he himself should not do.' Opinion application for admission to the bar.'° 75." 13 g "The most obvious non-professional ground for dis- Cf. ABA Canon 32. barment is conviction for a felony. Most states make con- 9 "We decline, on the present record, to disbar Mr. Sher- viction for a felony grounds for automatic disbarment. man or to reprimand him—not because we condone his ac- Some of these states, including New York, make disbar- tions, but because, as heretofore indicated, we are con- ment mandatory upon conviction for any felony, while cerned with whether he is mentally responsible for what others require disbarment only for those felonies which he has done. involve moral turpitude. There are strong arguments that "The logic of the situation would seem to dictate the some felonies, such as involuntary manslaughter, reflect conclusion that, if he was mentally responsible for the neither on an attorney's fitness, trustworthiness, nor com- conduct we have outlined, he should be disbarred; and, petence and, therefore, should not be grounds for disbar- if he was not mentally responsible, he should not be per- ment, but most states tend to disregard these arguments mitted to practice law. and, following the common law rule, make disbarment mandatory on conviction for any felony." Note, 43 Cornell "However, the flaw in the logic is that he may have L.Q. 489, 490 (1958). been mentally irresponsible at the time of his offensive conduct . . ., and, yet, have sufficiently improved in "Some states treat conviction for misdemeanors as the almost two and one-half years intervening to be able grounds for automatic disbarment . . .. However, the to capably and competently represent his clients. . 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 "We would make clear that we are satisfied that a case only proper that those minor offenses which do not affect has been made against Mr. Sherman, warranting a refusal the attorney's fitness to continue in the profession should to permit him to further practice law in this state unless not be grounds for disbarment. A good example is an he can establish his mental irresponsibility at the time of assault and battery conviction which would not involve the offenses charged. The burden of proof is upon him. moral turpitude unless done with malice and deliberation." "If he establishes such mental irresponsibility, the bur- Id. at 491. den is then upon him to establish his present capability "The term 'moral turpitude' has been used in the law to practice law." In re Sherman, 58 Wash.2d 1, 6-7, 354 371 U.S. 951, 9 L.Ed.2d for centuries. It has been the subject of many decisions P.2d 888, 890 (1960), cert. denied. by the courts but has never been clearly defined because 499, 83 S.Ct. 506 (1963). of the nature of the term. Perhaps the best general defi- 10 "This Court has the inherent power to revoke a license nition of the term 'moral turpitude' is that it imports an to practice law in this State, where such license was issued act of baseness, vileness or depravity in the duties which by this Court, and its issuance was procured by the fraud- one person owes to another or to society in general, which ulent concealment, or by the false and fraudulent repre- is contrary to the usual, accepted and customary rule of sentation by the applicant of a fact which was manifestly right and duty which a person should follow. 58 C.J.S. material to the issuance of the license." North Carolina at page 1201. Although offenses against revenue laws ex rel. Attorney General v. Gorson, 209 N.C. 320, 326, 183 have been held to be crimes of moral turpitude, it has also S.E. 392, 395 (1936), cert. denied, 298 U.S. 662, 80 L.Ed. been held that the attempt to evade the payment of taxes 1387, 56 S.Ct. 752 (1936). due to the government or any subdivision thereof, while See also Application of Patterson, 318 P.2d 907, 913 (Or. wrong and unlawful, does not involve moral turpitude. 58 1957), cert. denied, 356 U.S. 947, 2 L.Ed.2d 822, 78 S.Ct. C.J.S. at page 1205." Comm. on Legal Ethics v. Scheer, 795 (1958). 149 W.Va. 721, 726-27, 143 S.E.2d 141, 145 (1965). XXCODE OF PROFESSIONAL RESPONSIBILITY (4) Engage in conduct involving dishonesty, legal problems, appreciate the importance of seek- 2 fraud, deceit, or misrepresentation. ing assistance, and are able to obtain the services 3 of acceptable legal counsel. Hence, important (5) Engage in conduct that is prejudicial to functions of the legal profession are to educate the administration of justice. laymen to recognize their legal problems, to facili- Engage in any other conduct that ad- (6) tate the process of intelligent selection of lawyers, versely reflects on his fitness to prac- and to assist in making legal services fully avail- tice law.14 able.4 DR 1-103 Disclosure of Information to Authori- Recognition of Legal Problems ties. EC 2-2 The legal profession should assist laymen (A) A lawyer possessing unprivileged knowledge to recognize legal problems because such prob- of a violation of DR 1-102 shall report such lems may not be self-revealing and often are not knowledge to a tribunal or other authority empowered to investigate or act upon such means they have need for lawyers." Cheatham, The Law- violation.15 yer's Role and Surroundings, 25 Rocky Mt.L.Rev. 405 (1953). (B) A lawyer possessing unprivileged knowledge 2 "Law is not self-applying; men must apply and utilize or evidence concerning another lawyer or a it in concrete cases. But the ordinary man is incapable. judge shall reveal fully such knowledge or He cannot know the principles of law or the rules guiding evidence upon proper request of a tribunal or the machinery of law administration; he does not know other authority empowered to investigate or how to formulate his desires with precision and to put act upon the conduct of lawyers or judges.16 them into writing; he is ineffective in the presentation of his claims." Cheatham, The Lawyer's Role and Surround- ings, 25 Rocky Mt.L.Rev. 405 (1953). CANON 2 3 A Lawyer Should Assist the Legal Profession "This need to provide legal services was recognized by . . . Mr. Lewis F. Powell Jr., President, Amer- in Fulfilling Its Duty to Make Legal ican Bar Association, 1963-64, who said: 'Looking at Counsel Available contemporary America realistically, we must admit that ETHICAL CONSIDERATIONS despite all our efforts to date (and these have not been insignificant), far too many persons are not able to obtain EC 2-1 The need of members of the public for 1 equal justice under law. This usually results because their legal services is met only if they recognize their poverty or their ignorance has prevented them from ob- taining legal counsel.' " Address by E. Clinton Bamberger, "The right and power to discipline an attorney, as one Association of American Law Schools 1965 Annual Meeting, of its officers, is inherent in the court. . . . This pow- Dec. 28, 1965, in Proceedings, Part II, 1965, 61, 63-64 (1965). er is not limited to those instances of misconduct wherein "A wide gap separates the need for legal services and he has been employed, or has acted, in a professional ca- its satisfaction, as numerous studies reveal. Looked at pacity; but, on the contrary, this power may be exercised from the side of the layman, one reason for the gap is where his misconduct outside the scope of his professional poverty and the consequent inability to pay legal fees. relations shows him to be an unfit person to practice law." Another set of reasons is ignorance of the need for and In re Wilson, 391 S.W.2d 914, 917-18 (Mo. 1965). to the value of legal services, and ignorance of where 14 "It is a fair characterization of the lawyer's responsi- find a dependable lawyer. There is fear of the mysterious bility in our society that he stands 'as a shield,' to quote processes and delays of the law, and there is fear of over- Devlin, J., in defense of right and to ward off wrong. reaching and overcharging by lawyers, a fear stimulated From a profession charged with these responsibilities there Avail- by the occasional exposure of shysters." Cheatham, must be exacted those qualities of truth-speaking, of a high ability of Legal Services: The Responsibility of the In- sense of honor, of granite discretion, of the strictest ob- dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L. servance of fiduciary responsibility, that have, throughout Rev. 438 (1965). the centuries, been compendiously described as 'moral char- 4 "It is not only the right but the duty of the profession acter' ". Schware v. Bd. of Bar Examiners, 353 U.S. 232, as a whole to utilize such methods as may be developed to 247 L.Ed.2d 796, 806, 77 S.Ct. 752, 761 (1957) (Frankfurter, bring the services of its members to those who need them. J., concurring). so long as this can be done ethically and with dignity." "Particularly applicable here is Rule 4.47 providing that ABA Opinion 320 (1968). 'A lawyer should always maintain his integrity; and shall not willfully commit any act against the interest of the "There is a responsibility on the bar to make legal Public; nor shall he violate his duty to the courts or his services available to those who need them. The maxim, clients; nor shall he, by any misconduct, commit any of- 'privilege brings responsibilities,' can be expanded to read, fense against the laws of Missouri or the United States exclusive privilege to render public service brings responsi- of America, which amounts to a crime involving acts done bility to assure that the service is available to those in Availability of Legal Services: by him contrary to justice, honesty, modesty or good need of it." Cheatham, morals; nor shall he be guilty of any other misconduct The Responsibility of the Individual Lawyer and of the whereby, for the protection of the public and those 12 U.C.L.A.L.Rev. 438, 443 (1965). Organized Bar, charged with the administration of justice, he should no "The obligation to provide legal services for those ac- longer be entrusted with the duties and responsibilities tually caught up in litigation carries with it the obligation belonging to the office of an attorney.' " In re Wilson, to make preventive legal advice accessible to all. It is 391 S.W.2d 914, 917 (Mo. 1965). among those unaccustomed to business affairs and fearful 15 of the ways of the law that such advice is often most need- See ABA Canon 29; cf. ABA Canon 28. If it is not received in time, the most valiant and ed. 16 Cf. ABA Canons 28 and 29. Pro- skillful representation in court may come too late." 1 fessional Responsibility: Report of the Joint Conference, "Men have need for more than a system of law; they 44 A.B.A.J. 1159, 1216 (1958). have need for a system of law which functions, and that XXICODE OF PROFESSIONAL RESPONSIBILITY 5 Therefore, lawyers acting under seminars, lectures, and civic programs. But a law- timely noticed. proper auspices should encourage and participate yer who participates in such activities should in educational and public relations programs con- shun personal publicity.9 cerning our legal system with particular reference EC 2-3 Whether a lawyer acts properly in vol- to legal problems that frequently arise. Such ed- unteering advice to a layman to seek legal services ucational programs should be motivated by a desire 10 depends upon the circumstances. The giving of to benefit the public rather than to obtain publicity advice that one should take legal action could well or employment for particular lawyers.° Examples be in fulfillment of the duty of the legal profession of permissible activities include preparation of 7 to assist laymen in recognizing legal problems.11 and professional arti- institutional advertisements 8 The advice is proper only if motivated by a desire cles for lay publications and participation in to protect one who does not recognize that he may 5 have legal problems or who is ignorant of his legal "Over a period of years institutional advertising of pro- grams for the benefit of the public have been approved by rights or obligations. Hence, the advice is im- this and other Ethics Committees as well as by the courts. proper if motivated by a desire to obtain personal 12 benefit, secure personal publicity, or cause liti- "To the same effect are opinions of this Committee : gation to be brought merely to harass or injure Opinion 179 dealing with radio programs presenting a sit another. Obviously, a lawyer should not contact uation in which legal advice is suggested in connection and 227 permitting with a drafting of a will; Opinions 205 They contain no reference to any cases handled by the institutional advertising of lawyer referral plans; Opinion respondents. Their contents are confined to rulings of 191 holding that advertising by lawyer members of a non- boards, commissions and courts on problems of interest bar associated sponsored plan violated Canon 27. The Illi- to labor union, together with proposed and completed leg- nois Ethics Committee, in its Opinion 201, sustained bar islation important to the Brotherhood, and other items association institutional advertising of a check-up plan which might affect unions and their members. The re- spondents cite Opinion 213 of the Committee on Profession- "This Committee has passed squarely on the question of al Ethics and Grievances as permitting such practice. After the propriety of institutional advertising in connection studying this opinion, we agree that sending of newsletters with a legal check-up plan. Informal Decision C-171 quotes of the above type to regular clients does not offend Canon with express approval the Michigan Ethics Committee as 27." In re Ratner, 194 Kan. 362, 371, 399 P.2d 865, 872-73 follows : (1965). As a public service, the bar has in the past addressed Cf. ABA Opinion 92 (1933). the public as to the importance of making wills, consult- ing counsel in connection with real estate transactions, 9 Cf. ABA Opinions 307 (1962) and 179 (1938). etc. In the same way, the bar, as such, may recommend "There is no ethical or other valid reason why an attor- this program, provided always that it does it in such a ney may not write articles on legal subjects for magazines way that there is not suggestion of solicitation on behalf and newspapers. The fact that the publication is a trade of any individual lawyer." journal or magazine, makes no difference as to the ethical ABA Opinion 307 (1962). question involved. On the other hand, it would be un- 6 "We recognize a distinction between teaching the lay ethical and contrary to the precepts of the Canons for the public the importance of securing legal services preventive attorney to allow his name to be carried in the magazine in character and the solicitation of professional employment or other publication . . . as a free legal adviser for by or for a particular lawyer. The former tends to pro- the subscribers to the publication. Such would be contrary mote the public interest and enhance the public estimation to Canons 27 and 35 and Opinions heretofore announced of the profession. The latter is calculated to injure the by the Committee on Professional Ethics and Grievances. public and degrade the profession. (See Opinions 31, 41, 42, and 56)." ABA Opinion 162 (1936). 10 See ABA Canon 28. "Advertising which is calculated to teach the layman the benefits and advantages of preventive legal services will 11 This question can assume constitutional dimensions : benefit the lay public and enable the lawyer to render a "We meet at the outset the contention that 'solicitation' more desirable and beneficial professional service. . . ." is wholly outside the area of freedoms protected by the ABA Opinion 179 (1938). First Amendment. To this contention there are two an- 7 swers. The first is that a State cannot foreclose the ex- "A bar association may engage in a dignified institu- ercise of constitutional rights by mere labels. The second tional educational campaign so long as it does not involve is that abstract discussion is not the only species of com- the identification of a particular lawyer with the check-up munication which the Constitution protects; the First program. Such educational material may point out the Amendment also protects vigorous advocacy, certainly of value of the annual check-up and may be printed in news- lawful ends, against governmental intrusion. . papers, magazines, pamphlets, and brochures, or produced by means of films, radio, television or other media. The printed materials may be distributed in a dignified way "However valid may be Virginia's interest in regulating through the offices of persons having close dealings with the traditionally illegal practice of barratry, maintenance lawyers as, for example, banks, real estate agents, insur- and champerty, that interest does not justify the prohibi- ance agents and others. They may be available in law- tion of the NAACP activities discrosed by this record. Ma- yers' offices. The bar association may prepare and dis- licious intent was of the essence of the common-law offens- tribute to lawyers materials and forms for use in the es of fomenting or stirring up litigation. And whatever annual legal check-up." ABA Opinion 307 (1962). may be or may have been true of suits against governments in other countries, the exercise in our own, as in this case 8 "A lawyer may with propriety write articles for publi- of First Amendment rights to enforce Constitutional rights cations in which he gives information upon the law through litigation, as a matter of law, cannot be deemed .." ABA Canon 40. malicious." NAACP v. Button, 371 U.S. 415, 429, 439-40, "The newsletters, by means of which respondents are 9 L.Ed.2d 405, 415-16, 422, 83 S.Ct. 328, 336, 341 (1963). alleged to have advertised their wares, were sent to the 12 officers of union clients represented by their firm. See ABA Canon 27. XXIICODE OF PROFESSIONAL RESPONSIBILITY Selection of a Lawyer: Generally a non-client, directly or indirectly, for the purpose of being retained to represent him for compensa- EC 2-6 Formerly a potential client usually knew tion. the reputations of local lawyers for competency and integrity and therefore could select a prac- EC 2-4 Since motivation is subjective and often titioner in whom he had confidence. This tradi- difficult to judge, the motives of a lawyer who vol- tional selection process worked well because it was unteers advice likely to produce legal controversy initiated by the client and the choice was an in- may well be suspect if he receives professional em- formed one. 13 ployment or other benefits as a result. A lawyer EC 2-7 Changed conditions, however, have seri- who volunteers advice that one should obtain the services of a lawyer generally should not himself ously restricted the effectiveness of the traditional accept employment, compensation, or other benefit selection process. Often the reputations of law- in connection with that matter. However, it is yers are not sufficiently known to enable laymen 17 not improper for a lawyer to volunteer such ad- to make intelligent choices. The law has become vice and render resulting legal services to close increasingly complex and specialized. Few law- friends, relatives, former clients (in regard to mat- yers are willing and competent to deal with every ters germane to former employment), and regular kind of legal matter, and many laymen have diffi- clients.14 culty in determining the competence of lawyers to render different types of legal services. The EC 2-5 A lawyer who writes or speaks for the selection of legal counsel is particularly difficult purpose of educating members of the public to for transients, persons moving into new areas, recognize their legal problems should carefully persons of limited education or means, and others refrain from giving or appearing to give a general who have little or no contact with lawyers.18 solution applicable to all apparently similar in- 15 EC 2-8 Selection of a lawyer by a layman often dividual problems, since slight changes in fact is the result of the advice and recommendation situations may require a material variance in the of third parties—relatives, friends, acquaintances, applicable advice; otherwise, the public may be business associates, or other lawyers. A layman misled and misadvised. Talks and writings by is best served if the recommendation is disinterest- lawyers for laymen should caution them not to ed and informed. In order that the recommenda- attempt to solve individual problems upon the basis tion be disinterested, a lawyer should not seek to of the information contained therein.10 influence another to recommend his employment.10 13 A lawyer should not compensate another person "The Canons of Professional Ethics of the American for recommending him, for influencing a prospec- Bar Association and the decisions of the courts quite gen- erally prohibit the direct solicitation of business for gain tive client to employ him, or to encourage future by an attorney either through advertisement or personal recommendations.20 communication; and also condemn the procuring of busi- ness by indirection through touters of any kind. It is Selection of a Lawyer: Professional Notices and disreputable for an attorney to breed litigation by seeking Listings out those who have claims for personal injuries or other EC 2-9 The traditional ban against advertising by grounds of action in order to secure them as clients, or lawyers, which is subject to certain limited excep- to employ agents or runners, or to reward those who bring tions, is rooted in the public interest. Competitive or influence the bringing of business to his office. . . . advertising would encourage extravagant, artful, Moreover, it tends quite easily to the institution of base- 21 less litigation and the manufacture of perjured testimony. self-laudatory brashness in seeking business and From early times, this danger has been recognized in the law by the condemnation of the crime of common barratry, member as a basis for handling his individual affairs, but or the stirring up of suits or quarrels between individuals that in every case he should consult his counsel. In the at law or otherwise." In re Ades, 6 F.Supp. 467, 474-75 publication of the opinion the association should make a ( D. Mary. 1934). similar statement." 273 (1946). ABA Opinion 14 "Rule 17 2. "A group of recent interrelated changes bears directly "§a. . . . on the availability of legal services. . . . One change "A member of the State Bar shall not solicit profes- is the constantly accelerating urbanization of the country sional employment by and the decline of personal and neighborhood knowledge of "(1) Volunteering counsel or advice except where ties whom to retain as a professional man." Cheatham, Avail- of blood relationship or trust make it appropriate." Cal. ability of Legal Services: The Responsibility of the In- Business and Professions Code § 6076 (West 1962). dividual Lawyer and of the Organized Bar, 12 U.C.L.A.L. 15 Rev. 438, 440 (1965). "Rule 18 . . . A member of the State Bar shall not advise inquirers or render opinions to them through or in 18 Cf. Cheatham, A Lawyer When Needed: Legal Services connection with a newspaper, radio or other publicity for the Middle Classes, 63 Colum.L.Rev. 973, 974 (1963). medium of any kind in respect to their specific legal prob- 19 See ABA Canon 27. lems, whether or not such attorney shall be compensated for his services." Cal.Business and Professions Code § 6076 20 See ABA Canon 28. (West 1962). 21 " 'Self-laudation' is a very flexible concept; Canon 27 16 "In any case where a member might well apply the does not define it, so what course of conduct would be said advice given in the opinion to his individual affairs, the to constitute it under a given state of facts would no doubt lawyer rendering the opinion concerning problems com- vary as the opinions of men vary. As a famous English mon to members of an association and distributed to the judge said, it would vary as the length of the chancellor's members through a periodic bulletin should that will 'offend the specifically foot. It must be in words and tone state that this opinion should not be relied on by any traditions and lower the tone of our profession.' When it XXIIICODE OF PROFESSIONAL RESPONSIBILITY 22 EC 2-10 Methods of advertising that are subject thus could mislead the layman. Furthermore, 25 to the objections stated above should be and are it would inevitably produce unrealistic expecta- 26 However, the Disciplinary Rules tions in particular cases and bring about distrust prohibited. 23 recognize the value of giving assistance in the of the law and lawyers. Thus, public confidence in our legal system would be impaired by such selection process through forms of advertising that advertisements of professional services. The at- furnish identification of a lawyer while avoiding torney-client relationship is personal and unique such objections. For example, a lawyer may be and should not be established as the result of identified in the classified section of the telephone 24 27 pressures and deceptions. History has demon- directory, in the office building directory, and on 28 strated that public confidence in the legal system is his letterhead and professional card. But at all best preserved by strict, self-imposed controls over, times the permitted notices should be dignified and rather than by unlimited, advertising. accurate. EC 2-11 The name under which a lawyer con- does this, it is 'reprehensible.' This seems to be the test ducts his practice may be a factor in the selection by which 'self-laudation' is measured." State v. Nichols, 29 process. The use of a trade name or an assumed 151 So.2d 257, 259 (Fla. 1963). name could mislead laymen concerning the identi- 22 "Were it not for the prohibitions of . . . Canon ty, responsibility, and status of those practicing 27 lawyers could, and no doubt would be forced to, en- 30 thereunder. Accordingly, a lawyer in private gage competitively in advertising of all kinds in which practice should practice only under his own name, each would seek to explain to the public why he could the name of a lawyer employing him, a partner- serve better and accomplish more than his brothers at the Bar. ship name composed of the name of one or more "Susceptible as we are to advertising the public would of the lawyers practicing in a partnership, or, if then be encouraged to choose an attorney on the basis of permitted by law, in the name of a professional which had the better, more attractive advertising program legal corporation, which should be clearly designat- rather than on his reputation for professional ability. ed as such. For many years some law firms have "This would certainly maim, if not destroy, the dignity used a firm name retaining one or more names and professional status of the Bar of this State." State v. of deceased or retired partners and such practice Nichols, 151 So.2d 257, 268 (Fla. 1963) (O'Connell, J., con- is not improper if the firm is a bona fide successor curring in part and dissenting in part). of a firm in which the deceased or retired person 23 Cf. ABA Canon 8. was a member, if the use of the name is authorized 24 by law or by contract, and if the public is not mis- "The prohibition of advertising by lawyers deserves 31 led thereby. However, the name of a partner some examination. All agree that advertising by an in- dividual lawyer, if permitted, will detract from the dignity 25 of the profession, but the matter goes deeper than this. See ABA Canon 27. Perhaps the most understandable and acceptable additional 26 Cf. ABA Opinions 309 (1963) and 284 (1951). reasons we have found are stated by one commentator as follows : 27 Cf. ABA Opinions 313 (1964) and 284 (1951). " '1. That advertisements, unless kept within narrow 28 See ABA Canon 27. limits, like any other form of solicitation, tend to 29 stir up litigation, and such tendency is against the Cf. ABA Opinion 303 (1961). public interest. 30 See ABA Canon 33. " '2. That if there were no restrictions on advertise- 31 Id. ments, the least capable and least honorable lawyers "The continued use of a firm name by one or more sur- would be apt to publish the most extravagant and viving partners after the death of a member of the firm alluring material about themselves, and that the whose name is in the firm title is expressly permitted by harm which would result would, in large measure, the Canons of Ethics. The reason for this is that all of fall on the ignorant and on those least able to af- the partners have by their joint and several efforts over a ford it. period of years contributed to the good will attached to " '3. That the temptation would be strong to hold out the firm name. In the case of a firm having widespread as inducements for employment, assurances of suc- connections, this good will is disturbed by a change in cess or of satisfaction to the client, which assur- firm name every time a name partner dies, and that re- ances could not be realized, and that the giving of flects a loss in some degree of the good will to the building such assurances would materially increase the up of which the surviving partners have contributed their temptation to use ill means to secure the end de- time, skill and labor through a period of years. To avoid sired by the client. this loss the firm name is continued, and to meet the re- " 'In other words, the reasons for the rule, and for the quirements of the Canon the individuals constituting the conclusion that it is desirable to prohibit advertising firm from time to time are listed." ABA Opinion 267 entirely, or to limit it within such narrow bounds (1945). that it will not admit of abuse, are based on the "Accepted local custom in New York recognizes that the possibility and probability that this means of publicity, name of a law firm does not necessarily identify the in- if permitted, will be abused.' Harrison Hewitt in a dividual members of the firm, and hence the continued use comment at 15 A.B.A.J. 116 (1929) reproduced in of a firm name after the death of one or more partners is Cheatham, Cases and Materials on the Legal Profes- not a deception and is permissible. . . . The continued sion (2d Ed., 1955), p. 525. use of a deceased partner's name in the firm title is not "Of course, competition is at the root of the abuses in affected by the fact that another partner withdraws from advertising. If the individual lawyer were permitted to the firm and his name is dropped, or the name of the new compete with his fellows in publicity through advertising, partner is added to the firm name." Opinion No. 45, Com- we have no doubt that Mr. Hewitt's three points, quoted mittee on Professional Ethics, New York State Bar Assn, above, would accurately forecast the result." Jacksonville 39 N. Y. St. B. J. 455 (1967) . Bar Ass'n v. Wilson, 102 So.2d 292, 294-95 (Fla. 1958). Cf. ABA Opinion 258 (1943). XXIVCODE OF PROFESSIONAL RESPONSIBILITY EC 2-15 The legal profession has developed law- who withdraws from a firm but continues to prac- yer referral systems designed to aid individuals tice law should be omitted from the firm name in order to avoid misleading the public. who are able to pay fees but need assistance in locating lawyers competent to handle their par- EC 2-12 A lawyer occupy:ng a judicial, legisla- ticular problems. Use of a lawyer referral system tive, or public executive or administrative position enables a layman to avoid an uninformed selection who has the right to practice law concurrently may of a lawyer because such a system makes possible allow his name to remain in the name of the firm the employment of competent lawyers who have if he actively continues to practice law as a mem- indicated an interest in the subject matter in- ber thereof. Otherwise, his name should be re- volved. Lawyers should support the principle 32 moved from the firm name, and he should not of lawyer referral systems and should encourage be identified as a past or present member of the the evolution of other ethical plans which aid in firm; and he should not hold himself out as being the selection of qualified counsel. a practicing lawyer. Financial Ability to Employ Counsel: Generally EC 2-13 In order to avoid the possibility of mis- EC 2-16 The legal profession cannot remain a leading persons with whom he deals, a lawyer viable force in fulfilling its role in our society un- should be scrupulous in the representation of his less its members receive adequate compensation 33 He should not hold himself professional status. for services rendered, and reasonable fees 39 out as being a partner or associate of a law firm should be charged in appropriate cases to clients 34 if he is not one in fact, and thus should not hold able to pay them. Nevertheless, persons unable himself out as a partner or associate if he only to pay all or a portion of a reasonable fee should shares offices with another lawyer.35 40 be able to obtain necessary legal services, and lawyers should support and participate in ethical EC 2-14 In some instances a lawyer confines his 36 activities designed to achieve that objective.41 practice to a particular field of law. In the ab- sence of state controls to insure the existence of Financial Ability to Employ Counsel: Persons special competence, a lawyer should not be per- Able to Pay Reasonable Fees 37 mitted to hold himself out as a specialist or as EC 2-17 The determination of a proper fee re- having special training or ability, other than in the quires consideration of the interests of both client historically excepted fields of admiralty, trade- 42 and lawyers. A lawyer should not charge more mark, and patent law.38 43 than a reasonable fee, for excessive cost of legal service would deter laymen from utilizing the legal 32 Cf. ABA Canon 33 and ABA Opinion 315 (1965). system in protection of their rights. Furthermore, 33 Cf. ABA Opinions 283 (1950) and 81 (1932). an excessive charge abuses the professional rela- 34 See ABA Opinion 316 (1967). tionship between lawyer and client. On the other 35 hand, adequate compensation is necessary in order "The word 'associates' has a variety of meanings. to enable the lawyer to serve his client effectively Principally through custom the word when used on the and to preserve the integrity and independence of letterheads of law firms has come to be regarded as de- scribing those who are employees of the firm. Because the profession.44 the word has acquired this special significance in connec- tion with the practice of the law the use of the word to EC 2-18 The determination of the reasonableness describe lawyer relationships other than employer-employee of a fee requires consideration of all relevant cir- 45 is likely to be misleading." In re Sussman and Tanner, cumstances, including those stated in the Dis- 241 Ore. 246, 248, 405 P.2d 355, 356 (1965). ciplinary Rules. The fees of a lawyer will vary ac- According to ABA Opinion 310 (1963), use of the term cording to many factors, including the time re- "associates" would be misleading in two situations ; (1) quired, his experience, ability, and reputation, the where two lawyers are partners and they share both re- 39 sponsibility and liability for the partnership ; and (2) See ABA Canon 12. where two lawyers practice separately, sharing no responsi- 40 Cf. ABA Canon 12. bility or liability, and only share a suite of offices and some costs. 41 "If there is any fundamental proposition of govern- 36 "For a long time, many lawyers have, of necessity, ment on which all would agree, it is that one of the highest limited their practice to certain branches of law. The goals of society must be to achieve and maintain equality increasing complexity of the law and the demand of the before the law. Yet this ideal remains an empty form of public for more expertness on the part of the lawyer has, words unless the legal profession is ready to provide ade- in the past few years—particularly in the last ten years— quate representation for those unable to pay the usual brought about specialization on an increasing scale." Re- fees." Professional Representation: Report of the Joint port of the Special Committee on Specialization and Conference, 44 A.B.A.J. 1159, 1216 (1958). Specialized Legal Services, 79 A.B.A.Rep. 582, 584 (1954). 42 See ABA Canon 12. 37 "In varying degrees specialization has become the 43 Cf. ABA Canon 12. modus operandi throughout the legal profession. . . . 44 American society is specialization conscious. The present "When members of the Bar are induced to render legal Canons, however, do not allow lawyers to make known to services for inadequate compensation, as a consequence the lay public the fact that they engage in the practice the quality of the service rendered may be lowered, the of a specialty. . . ." Tucker, The Large Law Firm: welfare of the profession injured and the administration Considerations Concerning the Modernization of the Canons of justice made less efficient." ABA Opinion 302 (1961). . of Professional Ethics, 1965 Wis.L.Rev. 344, 348 49 (1965). Cf. ABA Opinion 307 (1962). 38 45 ABA Canon 12. See ABA Canon 27. See XXVCODE OF PROFESSIONAL RESPONSIBILITY nature of the employment, the responsibility in- human relationships involved and the unique char- volved, and the results obtained. Suggested fee acter of the proceedings, contingent fee arrange- schedules and economic reports of state and local ments in domestic relation cases are rarely justi- bar associations provide some guidance on the sub- fied. In administrative agency proceedings con- 46 tingent fee contracts should be governed by the ject of reasonable fees. It is a commendable and long-standing tradition of the bar that special con- same considerations as in other civil cases. Public sideration is given in the fixing of any fee for policy properly condemns contingent fee arrange- services rendered a brother lawyer or a member of ments in criminal cases, largely on the ground that his immediate family. legal services in criminal cases do not produce a res with which to pay the fee. EC 2-19 As soon as feasible after a lawyer has been employed, it is desirable that he reach a clear EC 2-21 A lawyer should not accept compensa- agreement with his client as to the basis of the tion or any thing of value incident to his employ- fee charges to be made. Such a course will not ment or services from one other than his client only prevent later misunderstanding but will also without the knowledge and consent of his client work for good relations between the lawyer and after full disclosure.49 the client. It is usually beneficial to reduce to EC 2-22 Without the consent of his client, a law- writing the understanding of the parties regarding yer should not associate in a particular matter an- the fee, particularly when it is contingent. A law- other lawyer outside his firm. A fee may prop- yer should be mindful that many persons who de- 50 erly be divided between lawyers properly as- sire to employ him may have had little or no ex- sociated if the division is in proportion to the serv- perience with fee charges of lawyers, and for this ices performed and the responsibility assumed reason he should explain fully to such persons the 51 by each lawyer and if the total fee is reasonable. reasons for the particular fee arrangement he proposes. EC 2-23 A lawyer should be zealous in his ef- 47 forts to avoid controversies over fees with clients 52 EC 2-20 Contingent fee arrangements in civil and should attempt to resolve amicably any differ- cases have long been commonly accepted in the 53 ences on the subject. He should not sue a client United States in proceedings to enforce claims. for a fee unless necessary to prevent fraud or The historical bases of their acceptance are that gross imposition by the client.54 (1) they often, and in a variety of circumstances, provide the only practical means by which one 49 See ABA Canon 38. having a claim against another can economically "Of course, as . . . Informal Opinion 679 points afford, finance, and obtain the services of a com- out, there must be full disclosure of the arrangement that petent lawyer to prosecute his claim, and (2) a an entity other than the client pays the attorney's fee successful prosecution of the claim produces a res by the attorney to the client . . ." ABA Opinion 320 48 out of which the fee can be paid. Although a (1968). lawyer generally should decline to accept employ- 50 "Only lawyers may share in . . . a division of ment on a contingent fee basis by one who is able fees, but . . . it is not necessary that both lawyers be to pay a reasonable fixed fee, it is not necessarily admitted to practice in the same state, so long as the divi- i mproper for a lawyer, where justified by the par- sion was based on the division of services or responsibili- ticular circumstances of a case, to enter into a con- ty." ABA Opinion 316 (1967). tingent fee contract in a civil case with any client 51 See ABA Canon 34. who, after being fully informed of all relevant fac- "We adhere to our previous rulings that where a lawyer tors, desires that arrangement. Because of the merely brings about the employment of another lawyer but renders no service and assumes no responsibility in the 48 Id. matter, a division of the latter's fee is improper. (Opinions "Under . . . Canon 12, this Committee has con- 18 and 153). sistently held that minimum fee schedules can only be "It is assumed that the bar, generally, understands what suggested or recommended and cannot be made obligatory acts or conduct of a lawyer may constitute 'services' to a .." ABA Opinion 302 (1961). client within the intendment of Canon 12. Such acts or conduct invariably, if not always, involve 'responsibility' "A compulsory minimum fee schedule is contrary to Canon 12 and repeated pronouncements of this committee." on the part of the lawyer, whether the word `responsibili- ABA Opinion 190 (1939). ty' be construed to denote the possible resultant legal or moral liability on the part of the lawyer to the client or Cf. ABA Opinions 171 (1937) and 28 (1930). to others, or the onus of deciding what should or should 47 See ABA Canon 13; see also Mackinnon, Contingent • not be done in behalf of the client. The word 'services' Fees for Legal Services (1964) (A report of the American in Canon 12 must be construed in this broad sense and may Bar Foundation). apply to the selection and retainer of associate counsel as "A contract for a reasonable contingent fee where sanc- well as to other acts or conduct in the client's behalf." tioned by law is permitted by Canon 13, but the client ABA Opinion 204 (1940). must remain responsible to the lawyer for expenses ad- 52 See ABA Canon 14. vanced by the latter. `There is to be no barter of the 53 privilege of prosecuting a cause for gain in exchange for Cf. ABA Opinion 320 (1968). the promise of the attorney to prosecute at his own ex- 54 See ABA Canon 14. pense.' (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265, "Ours is a learned profession, not a mere money-getting 270-271.)" ABA Opinion 246 (1942). trade. . . . Suits to collect fees should be avoided. 48 See Comment, Providing Legal Services for the Middle Only where the circumstances imperatively require, should Class in Civil Matters: The Problem, the Duty and a So- resort be had to a suit to compel payment. And where a lution, 26 U.Pitt.L.Rev. 811, 829 (1965). lawyer does resort to a suit to enforce payment of fees XXVICODE OF PROFESSIONAL RESPONSIBILITY profession to institute additional programs to pro- Financial Ability to Employ Counsel: Persons 57 vide legal services. Accordingly, legal aid of- Unable to Pay Reasonable Fees 58 59 fices, lawyer referral services, and other relat- EC 2-24 A layman whose financial ability is not ed programs have been developed, and others will sufficient to permit payment of any fee cannot 60 be developed, by the profession. Every lawyer obtain legal services, other than in cases where should support all proper efforts to meet this need a contingent fee is appropriate, unless the services for legal services.61 are provided for him. Even a person of moderate means may be unable to pay a reasonable fee through primary or exclusive reliance on the uncompensat- which is large because of the complexity, novelty, ed services of counsel will prove unsuccessful and inade- or difficulty of the problem or similar factors.55 quate. . . . A system of adequate representation, there- fore, should be structured and financed in a manner re- EC 2-25 Historically, the need for legal services flecting its public importance. . . . We believe that of those unable to pay reasonable fees has been fees for private appointed counsel should be set by the met in part by lawyers who donated their services court within maximum limits established by the statute." or accepted court appointments on behalf of such Report of the Att'y Gen's Comm. on Poverty and the Ad- individuals. The basic responsibility for providing ministration of Criminal Justice 41-43 (1963). legal services for those unable to pay ultimately 57 "At present this representation of those unable to pay rests upon the individual lawyer, and personal usual fees is being supplied in some measure through the involvement in the problems of the disadvantaged spontaneous generosity of individual lawyers, through legal can be one of the most rewarding experiences in aid societies, and—increasinglythrough the organized ef- the life of a lawyer. Every lawyer, regardless of forts of the Bar. If those who stand in need of this serv- professional prominence or professional workload, ice know of its availability and their need is in fact ade- should find time to participate in serving the dis- quately met, the precise mechanism by which this service advantaged. The rendition of free legal services is provided becomes of secondary importance. It is of to those unable to pay reasonable fees continues great importance, however, that both the impulse to ren- der this service, and the plan for making that impulse to be an obligation of each lawyer, but the efforts effective, should arise within the legal profession itself." of individual lawyers are often not enough to meet 56 Professional Responsibility: Report of the Joint Confer- the need. Thus it has been necessary for the ence, 44 A.B.A.J. 1159, 1216 (1958). 58 which involves a disclosure, he should carefully avoid any "Free legal clinics carried on by the organized bar are disclosure not clearly necessary to obtaining or defending not ethically objectionable. On the contrary, they serve a his rights." ABA Opinion 250 (1943). very worthwhile purpose and should be encouraged." ABA But cf. ABA Opinion 320 (1968). Opinion 191 (1939). 55 "As a society increases in size, sophistication and tech- 59 "We are of the opinion that the lawyer referral nology, the body of laws which is required to control that plan here presented does not fall within the inhibition of society also increases in size, scope and complexity. With the Canon. No solicitation for a particular lawyer is in- this growth, the law directly affects more and more facets volved. The dominant purpose of the plan is to provide as of individual behavior, creating an expanding need for legal an obligation of the profession competent legal services to services on the part of the individual members of the persons in low-income groups at fees within their ability society. . . . As legal guidance in social and commer- to pay. The plan is to be supervised and directed by the cial behavior increasingly becomes necessary, there will local Bar Association. There is to be no advertisement come a concurrent demand from the layman that such of the names of the lawyers constituting the panel. The guidance be made available to him. This demand will not general method and purpose of the plan only is to be ad- come from those who are able to employ the best of legal vertised. Persons seeking the legal services will be direct- talent, nor from those who can obtain legal assistance at ed to members of the panel by the Bar Association. Aside little or no cost. It will come from the large 'forgotten from the filing of the panel with the Bar Association, middle income class,' who can neither afford to pay pro- there is to be no advertisement of the names of the lawyers portionately large fees nor qualify for ultra-low-cost serv- constituting the panel. If these limitations are observed, ices. The legal profession must recognize this inevitable we think there is no solicitation of business by or for par- demand and consider methods whereby it can be satisfied. ticular lawyers and no violation of the inhibition of Canon If the profession fails to provide such methods, the laity 27." ABA Opinion 205 (1940). will." Comment, Providing Legal Services for the Middle 60 "Whereas the American Bar Association believes that Class in Civil Matters: The Problem, the Duty and a it is a fundamental duty of the bar to see to it that all Solution, 26 U.Pitt.L.Rev. 811, 811-12 (1965). persons requiring legal advice be able to attain it, irrespec- "The issue is not whether we shall do something or do tive of their economic status . . nothing. The demand for ordinary everyday legal justice is so great and the moral nature of the demand is so strong "Resolved, that the Association approves and sponsors that the issue has become whether we devise, maintain, the setting up by state and local bar associations of lawyer referral plans and low-cost legal service methods for the and support suitable agencies able to satisfy the demand purpose of dealing with cases of persons who might not or, by our own default, force the government to take over the job, supplant us, and ultimately dominate us." Smith, otherwise have the benefit of legal advice . . .." Pro- Legal Service Offices for Persons of Moderate Means, 1949 ceedings of the House of Delegates of the American Bar Wis.L.Rev. 416, 418 (1949). Oct. 30, 1946, 71 A.B.A.Rep. 103, 109-10 (1946). Association, 56 61 "The defense of indigent citizens, without compensa- "Lawyers have peculiar responsibilities for the just ad- ministration of the law, and these responsibilities include tion, is carried on throughout the country by lawyers rep- providing advice and representation for needy persons. To resenting legal aid societies, not only with the approval, a degree not always appreciated by the public at large, the but with the commendation of those acquainted with the bar has performed these obligations with zeal and devotion. work. Not infrequently services are rendered out of individual The Committee is persuaded, however, that a system of sympathy or for other philanthropic reasons, by justice that attempts, in mid-twentieth century America, lawyers who do not represent legal aid societies. There to meet the needs of the financially incapacitated accused is nothing whatever in the Canons to prevent a lawyer XXVIICODE OF PROFESSIONAL RESPONSIBILITY Acceptance and Retention of Employment the representation except for compelling reasons.65 Compelling reasons do not include such factors as EC 2-26 A lawyer is under no obligation to act as the repugnance of the subject matter of the pro- adviser or advocate for every person who may 66 or position of a person in- ceeding, the identity wish to become his client; but in furtherance of volved in the case, the belief of the lawyer that the objective of the bar to make legal services fully the defendant in a criminal proceeding is guilty,67 available, a lawyer should not lightly decline prof- or the belief of the lawyer regarding the merits fered employment. The fulfillment of this objec- of the civil case.68 tive requires acceptance by a lawyer of his share of tendered employment which may be unattractive EC 2-30 Employment should not be accepted by both to him and the bar generally.62 a lawyer when he is unable to render competent 69 service or when he knows or it is obvious that EC 2-27 History is replete with instances of dis- the person seeking to employ him desires to in- tinguished and sacrificial services by lawyers who stitute or maintain an action merely for the pur- have represented unpopular clients and causes. pose of harassing or maliciously injuring another.70 Regardless of his personal feelings, a lawyer Likewise, a lawyer should decline employment if should not decline representation because a client the intensity of his personal feeling, as distin- or a cause is unpopular or community reaction is guished from a community attitude, may impair adverse.63 his effective representation of a prospective client. EC 2-28 The personal preference of a lawyer to If a lawyer knows a client has previously obtained avoid adversary alignment against judges, other counsel, he should not accept employment in the 64 71 lawyers, public officials, or influential members matter unless the other counsel approves or of the community does not justify his rejection withdraws, or the client terminates the prior em- of tendered employment. ployment.72 EC 2-29 When a lawyer is appointed by a court EC 2-31 Full availability of legal counsel requires or requested by a bar association to undertake both that persons be able to obtain counsel and that representation of a person unable to obtain coun- lawyers who undertake representation complete sel, whether for financial or other reasons, he the work involved. Trial counsel for a convicted should not seek to be excused from undertaking defendant should continue to represent his client by advising whether to take an appeal and, if the from performing such an act, nor should there be." ABA appeal is prosecuted, by representing him through Opinion 148 (1935). the appeal unless new counsel is substituted or 62 But cf. ABA Canon 31. withdrawal is permitted by the appropriate court. 63 "One of the highest services the lawyer can render to 65 ABA Canon 4 uses a slightly different test, saying, "A society is to appear in court on behalf of clients whose lawyer assigned as counsel for an indigent prisoner ought causes are in disfavor with the general public." Profession- not to ask to be excused for any trivial reason . . .." al Responsibility: Report of the Joint Conference, 44 A.B. A.J. 1159, 1216 (1958). 66 Cf. ABA Canon 7. One author proposes the following proposition to be in- 67 See ABA Canon 5. cluded in "A Proper Oath for Advocates" : "I recognize 68 that it is sometimes difficult for clients with unpopular Dr. Johnson's reply to Boswell upon being asked what causes to obtain proper legal representation. I will do all he thought of "supporting a cause which you know to be that I can to assure that the client with the unpopular bad" was : "Sir, you do not know it to be good or bad t y p cause is properly represen ed, and that the law er re re- till the Judge determines it. I have said that you are to senting such a client receives credit from and support of state facts fairly ; so that your thinking, or what you call knowing, a cause to be bad, must be from reason- the bar for handling such a matter." Thode, The Ethical ing, must be from supposing your arguments to be weak Standard for the Advocate, 39 Texas L. Rev. 575, 592 (1961). and inconclusive. But, Sir, that is not enough. An argu- "§ 6068. . . . It is the duty of an attorney : ment which does not convince yourself, may convince the "(h) Never to reject, for any consideration personal to Judge to whom you urge it : and if it does convince him, himself, the cause of the defenseless or the oppressed." why, then, Sir, you are wrong, and he is right." 2 Bos- Cal.Business and Professions Code § 6068 (West 1962). well, The Life of Johnson 47-48 (Hill ed. 1887). Virtually the same language is found in the Oregon stat- 69 "The lawyer deciding whether to undertake a case utes at Ore.Rev.Stats. Ch. 9 § 9.460(8). must be able to judge objectively whether he is capable of See Rostow, The Lawyer and His Client, 48 A.B.A.J. handling it and whether he can assume its burdens without 25 and 146 (1962). prejudice to previous commitments. . . ." Professional 6 4 See ABA Canons 7 and 29. Responsibility: Report of the Joint Conference, 44 A.B.A.J. "We are of the opinion that it is not professionally im- 1158, 1218 (1958). proper for a lawyer to accept employment to compel an- 70 "The lawyer must decline to conduct a civil cause or other lawyer to honor the just claim of a layman. On the to make a defense when convinced that it is intended mere- contrary, it is highly proper that he do so. Unfortunately, ly to harass or to injure the opposite party or to work there appears to be a widespread feeling among laymen oppression or wrong." ABA Canon 30. that it is difficult, If not impossible, to obtain justice when 71 See ABA Canon 7. they have claims against members of the Bar because other lawyers will not accept employment to proceed against 72 Id. them. The honor of the profession, whose members proud- "From the facts stated we assume that the client has ly style themselves officers of the court, must surely be discharged the first attorney and given notice of the dis- sullied if its members bind themselves by custom to refrain charge. Such being the case, the second attorney may from enforcing just claims of laymen against lawyers." properly accept employment. Canon 7; Opinions 10, 130, ABA Opinion 144 (1935). 149." ABA Opinion 209 (1941). XXVIIICODE OF PROFESSIONAL RESPONSIBILITY EC 2-32 A decision by a lawyer to withdraw This does not prohibit limited and dignified should be made only on the basis of compelling identification of a lawyer as a lawyer as well 73 as by name 99: circumstances , and in a matter pending before a tribunal he must comply with the rules of the (1) In political advertisements when his tribunal regarding withdrawal. A lawyer should professional status is germane to the not withdraw without considering carefully and political campaign or to a political is- endeavoring to minimize the possible adverse ef- sue. fect on the rights of his client and the possibility (2) In public notices when the name and 74 of prejudice to his client as a result of his profession of a lawyer are required or withdrawal. Even when he justifiably withdraws, authorized by law or are reasonably a lawyer should protect the welfare of his client by 75 pertinent for a purpose other than the giving due notice of his withdrawal: suggesting attraction of potential employment of other counsel, delivering to the client all papers and property to which the client (3) In routine reports and announcements is entitled, cooperating with counsel subsequently of a bona fide business, civic, profes- employed, and otherwise endeavoring to minimize sional, or political organization in which the possibility of harm. Further, he should refund he serves as a director or officer. to the client any compensation not earned during (4) In and on legal documents prepared by the employment:76 him. (5) In and on legal textbooks, treatises, and DISCIPLINARY RULES other legal publications, and in dignified advertisements thereof. DR 2-101 Publicity in Genera1.77 ( A) A lawyer shall not prepare, cause to be pre- (C) A lawyer shall not compensate or give any pared, use, or participate in the use of, any thing of value to representatives of the press, form of public communication that contains radio, television, or other communication professionally self-laudatory statements cal- medium in anticipation of or in return for culated to attract lay clients; as used herein, professional publicity in a news item.82 "public communication" includes, but is not DR 2-102 Professional Notices, Letterheads, Of- li mited to, communication by means of tele- fices, and Law Lists. vision, radio, motion picture, newspaper, mag- azine, or book. (A) A lawyer or law firm shall not use profession- al cards, professional announcement cards, ( B) A lawyer shall not publicize himself, his part- ner, or associate as a lawyer through news- ments and capabilities." Matter of Connelly, 18 App.Div. paper or magazine advertisements, radio or 2d 466, 478, 240 N.Y.S.2d 126, 138 (1963). television announcements, display advertise- "An announcement of the fact that the lawyer had re- ments in city or telephone directories, or other signed and the name of the person to succeed him, or take 78 means of commercial publicity, nor shall over his work, would not be objectionable, either as an he authorize or permit others to do so in his official communication to those employed by or connected 79 behalf except as permitted under DR 2-103. with the administrative agency or instrumentality that had employed him, or as a news release. 3 "But to include therein a statement of the lawyer's ex- See ABA Canon 44. perience in and acquaintance with the various departments "I will carefully consider, before taking a case, whether and agencies of the government, and a laudation of his it appears that I can fully represent the client within the legal ability, either generally or in a special branch of framework of law. If the decision is in the affirmative, the law, is not only bad taste but ethically improper. then it will take extreme circumstances to cause me to de- "It can have but one primary purpose or object ; to aid cide later that I cannot so represent him." Thode, The the lawyer in securing professional employment in private Ethical Standard for the Advocate, 39 Texas L.Rev. 575, practice by advertising his professional experience, attain- 592 (1961) (from "A Proper Oath for Advocates"). ments and ability." ABA Opinion 184 (1938). 74 ABA Opinion 314 (1965) held that a lawyer should not Cf. ABA Opinions 285 (1951) and 140 (1935). disassociate himself from a cause when "it is obvious that 80 "The question is always . . . whether under the the very act of disassociation would have the effect of vio- circumstance the furtherance of the professional employ- lating Canon 37." ment of the lawyer is the primary purpose of the adver- ABA Canon 44 enumerates instances in which ". . . tisement, or is merely a necessary incident of a proper and the lawyer may be warranted in withdrawing on due no- legitimate objective of the client which does not have the tice to the client, allowing him time to employ another effect of unduly advertising him." ABA Opinion 290 (1956). lawyer." See ABA Opinion 285 (1951). 76 31 See ABA Canon 44. See ABA Opinions 299 (1961), 290 (1956), 158 (1936), and 100 (1933) ; cf. ABA Opinion 80 (1932). 77 Cf. ABA Canon 27; see generally ABA Opinion 293 82 (1957). "Rule 2. 78 cf. ABA Opinions 133 (1935), 116 (1934), 107 (1934), 73 "A member of the State Bar shall not solicit pro- (1932), 59 (1931), and 43 (1931). fessional employment by . . 79 "There can be no justification for the participation "(4) The making of gifts to representatives of the and acquiescence by an attorney in the development and press, radio, television or any medium of communica- publication of an article which, on its face, plainly amounts tion in anticipation of or in return for publicity." to a self-interest and unethical presentation of his achieve- Cal.Business and Professions Code § 6076 (West 1962). XXIXCODE OF PROFESSIONAL RESPONSIBILITY office signs, letterheads, telephone directory ing his addresses, telephone numbers, listings, law lists, legal directory listings, or the name of his law firm, associates, 83 ex- similar professional notices or devices, and any information permitted under cept that the following may be used if they DR 2-105. A letterhead of a law firm are in dignified form: may also give the names of members 90 and associates, and names and dates (1) A professional card of a lawyer identi- relating to deceased and retired mem- fying him by name and as a lawyer, 1 bers 9 A lawyer may be designated and giving his addresses, telephone "Of Counsel" on a letterhead if he has numbers, the name of his law firm, and a continuing relationship with a law- any information permitted under DR yer or law firm, other than as a partner 2-105. A professional card of a law or associate. A lawyer or law firm firm may also give the names of mem- may be designated as "General Coun- bers and associates. Such cards may 84 sel" or by similar professional refer- be used for identification but may ence on stationery of a client if he or not be published in periodicals, maga- 85 the firm devotes a substantial amount zines, newspapers, or other media.86 of professional, time in the representa- (2) A brief professional announcement card 92 tion of that client. The letterhead of stating new or changed associations or a law firm may give the names and addresses, change of firm name, or simi- dates of predecessor firms in a con- lar matters pertaining to the profes- tinuing line of succession. sional office of a lawyer or law firm, (5) A listing of the office of a lawyer which may be mailed to lawyers, clients, or law firm in the alphabetical and former clients, personal friends, and 87 classified sections of the telephone di- relatives. It shall not state bio- rectory or directories for the geographi- graphical data except to the extent rea- cal area or areas in which the lawyer sonably necessary to identify the law- resides or maintains offices or in which yer or to explain the change in his association, but it may state the im- a significant part of his clientele re- 93 sides and in the city directory of the mediate past position of the lawyer.88 city in which his or the firm's office It may give the names and dates of 94 is located; but the listing may give predecessor firms in a continuing line only the name of the lawyer or law of succession. It shall not state the firm, the fact he is a lawyer, addresses, nature of the practice except as per- 95 and telephone numbers. The listing mitted under DR 2-105.89 96 shall not be in distinctive form or (3) A sign on or near the door of the office 97 type. A law firm may have a listing and in the building directory identifying in the firm name separate from that of the law office. The sign shall not state 98 its members and associates. The list- the nature of the practice, except as ing in the classified section shall not permitted under DR 2-105. be under a heading or classification (4) A letterhead of a lawyer identifying other than "Attorneys" or "Lawyers",99 him by name and as a lawyer, and giv- 91 See ABA Canon 33. 83 Cf. ABA Opinions 233 (1941) and 114 (1934). 92 But see ABA Opinion 285 (1951). 84 See ABA Opinion 175 (1938). 93 See ABA Opinion 295 (1959). 85 See ABA Opinions 260 (1944) and 182 (1938). 94 But see ABA Opinion 313 (1964) which says the Com- 86 But cf. ABA Opinions 276 (1947) and 256 (1943). mittee "approves a listing in the classified section of the city directory for lawyers only when the listing includes 87 See ABA Opinion 301 (1961). all lawyers residing in the community and when no charge 88 "It has become commonplace for many lawyers to is made therefor." participate in government service ; to deny them the right, 95 "The listing should consist only of the lawyer's name, upon their return to private practice, to refer to their prior address and telephone number." ABA Opinion 313 (1964). employment in a brief and dignified manner, would place 90 an undue limitation upon a large element of our profes- "Adding to the regular classified listing a 'second sion. It is entirely proper for a member of the profession line' in which a lawyer claims that he is engaged in a to explain his absence from private practice, where such 'specialty' is an undue attempt to make his name distinc- is the primary purpose of the announcement, by a brief tive." ABA Opinion 284 (1951). and dignified reference to the prior employment. 97 di . "Opinion 284 held that a lawyer could not with pro- . . Any such announcement should be limited to priety have his name listed in distinctive type in a tele- the immediate past connection of the lawyer with the gov- phone directory or city directory. We affirm that opin- ernment, made upon his leaving that position to enter pri- ion." ABA Opinion 313 (1964). vate practice." ABA Opinion 301 (1961). See ABA Opinions 123 (1934) and 53 (1931). 89 See ABA Opinion 251 (1943). 98 "If a lawyer is a member of a law firm, both the 90 "Those lawyers who are working for an individual firm, and the individual lawyer may be listed separately." lawyer or a law firm may be designated on the letterhead 313 (1964). ABA Opinion and in other appropriate places as `associates'." ABA 284 (1951). 99 See ABA Opinion Opinion 310 (1963). XXXCODE OF PROFESSIONAL RESPONSIBILITY attended, with dates of graduation, de- except that additional headings or clas- sifications descriptive of the types of grees, and other scholastic distinctions; practice referred to in DR 2-105 are public or quasi-public offices; military service; posts of honor; legal author- permitted.100 101 ships; legal teaching positions; mem- or (6) A listing in a reputable law list berships, offices, committee assign- legal directory giving brief biographical ments, and section memberships in bar and other informative data. A law list associations; memberships and offices or directory is not reputable if its in legal fraternities and legal societies; management or contents are likely to technical and professional associations be misleading or injurious to the public 102 and societies; foreign language ability; or to the profession. A law list is names and addresses of references,106 conclusively established to be reputable and, with their consent, names of clients if it is certified by the American Bar regularly represented.107 Association as being in compliance with its rules and standards. The pub- (B) A lawyer in private practice shall not practice lished data may include only the follow- under a trade name, a name that is mislead- ing: name, including name of law firm ing as to the identity of the lawyer or lawyers and names of professional associates; practicing under such name, or a firm name 103 and telephone numbers; addresses containing names other than those of one or one or more fields of law in which the more of the lawyers in the firm, except that 104 a lawyer or law firm concentrates; the name of a professional corporation or pro- statement that practice is limited to one fessional association may contain "P.C." or or more fields of law; a statement that "P.A." or similar symbols indicating the na- the lawyer or law firm specializes in a ture of the organization, and if otherwise law- particular field of law or law practice ful a firm may use as, or continue to include but only if authorized under DR 2-105 in, its name, the name or names of one or date and place of birth; (A) (4) ; 105 more deceased or retired members of the date and place of admission to the bar firm or of a predecessor firm in a continuing of state and federal courts; schools 108 line of succession. A lawyer who assumes a judicial, legislative, or public executive or 100 See Silverman v. State Bar of Texas, 405 F.2d 410, (5th administrative post or office shall not permit Cir. 1968) ; but see ABA Opinion 286 (1952). his name to remain in the name of a law firm 101 ABA Canon 43. Cf. or to be used in professional notices of the 102 firm during any significant period in which Cf. ABA Opinion 255 (1943). he is not actively and regularly practicing law 103 "We are asked to define the word 'addresses' appear- 100 as a member of the firm, and during such ing in the second paragraph of Canon 27 . • • • period other members of the firm shall not "It is our opinion that an address (other than a cable use his name in the firm name or in profes- address) within the intendment of the canon is that of the lawyer's office or of his residence. Neither address should sional notices of the firm.110 be misleading. If, for example, an office address is given, it must be that of a bona fide office. The residence ad- 106 See ABA Canon 43 and ABA Opinion 119 (1934) ; but dress, if given, should be identified as such if the city or see ABA Opinion 236 (1941). other place of residence is not the same as that in which the 107 law office is located." ABA Opinion 249 (1942). See ABA Canon 27. 104 W8 "Today in various parts of the country Committees See ABA Canon 33; cf. ABA Opinions 318 (1967), 267 on Professional Ethics of local and state bar associations (1945), 219 (1941), 208 (1940), 192 (1939), 97 (1933), and 6 are authorizing lawyers to describe themselves in announce- (1925). ments to the Bar and in notices in legal periodicals and approved law lists as specialists in a great variety of things. 109 ABA Opinion 318 (1967) held, "anything to the con- Thus in the approved law lists or professional announce- trary in Formal Opinion 315 or in the other opinions cited ments there appear, in connection with the names of in- notwithstanding" that : "Where a partner whose name dividual practitioners or firms, such designations as 'In- appears in the name of a law firm is elected or appointed ternational Law, Public and Private' ; 'Trial Preparation to high local, state or federal office, which office he in- in Personal Injury and Negligence Actions' ; 'Philippine tends to occupy only temporarily, at the end of which time War Damage Claims' ; 'Anti-Trust' ; 'Domestic Relations' ; he intends to return to his position with the firm, and 'Tax Law' ; 'Negligence Law'. It would seem that the provided that he is not precluded by holding such office ABA has given at least its tacit approval to this sort of from engaging in the practice of law and does not in fact announcement. sever his relationship with the firm but only takes a leave "It is important that this sort of description is not, in of absence, and provided that there is no local law, stat- New York at least, permitted on letterheads or shingles or ute or custom to the contrary, his name may be retained elsewhere in communications to laymen. This is subject in the firm name during his term or terms of office, but to the single exception that such announcement to laymen only if proper precautions are taken not to mislead the is permitted in the four traditional specialties, Admiralty, public as to his degree of participation in the firm's af- Report of the Special fairs." Patent, Copyright and Trade-mark." Specialized Legal Educa- on Specialization and 143 (1935), New York County Opinion Committee Cf. ABA Opinion 79 A.B.A.Rep. 582, 586 (1954). 67, and New York City Opinions 36 and 798; but cf. ABA tion, 192 (1939) and Michigan Opinion 164. 105 This provision is included to conform to action taken Opinion by the ABA House of Delegates at the Mid-Winter Meet- 110 Cf. ABA Canon 33. 1969. ing, January, XXXICODE OF PROFESSIONAL RESPONSIBILITY (C) A lawyer shall not request a person or organ- (C) A lawyer shall not hold himself out as having ization to recommend employment, as a pri- a partnership with one or more other lawyers vate practitioner, of himself, his partner, or unless they are in fact partners.111 118 associate, except that he may request re- (D) A partnership shall not be formed or con- ferrals from a lawyer referral service operat- tinued between or among lawyers licensed in ed, sponsored, or approved by a bar associa- different jurisdictions unless all enumerations tion representative of the general bar of the of the members and associates of the firm on geographical area in which the association its letterhead and in other permissible listings exists and may pay its fees incident there- make clear the jurisdictional limitations on to.119 those members and associates of the firm not licensed to practice in all listed jurisdic- (D) A lawyer shall not knowingly assist a person 112 tions; however, the same firm name may or organization that recommends, furnishes, be used in each jurisdiction. or pays for legal services to promote the use of his services or those of his partners or as- A lawyer who is engaged both in the practice (E) sociates. However, he may cooperate in a dig- of law and another profession or business nified manner with the legal service activities shall not so indicate on his letterhead, office of any of the following, provided that his in- sign, or professional card, nor shall he iden- dependent professional judgment is exercised tify himself as a lawyer in any publication in in behalf of his client without interference or connection with his other profession or busi- control by any organization or other person: ness. (F) Nothing contained herein shall prohibit a law- (1) A legal aid office or public defender yer from using or permitting the use, in con- office: nection with his name, of an earned degree (a) Operated or sponsored by a duly or title derived therefrom indicating his train- accredited law school. ing in the law. (b) Operated or sponsored by a bona fide non-profit community or- DR 2-103 Recommendation of Professional Em- ganization. ployment.113 (c) Operated or sponsored by a gov- (A) A lawyer shall not recommend employment, 114 ernmental agency. as a private practitioner, of himself, his (d) Operated, sponsored, or approved partner, or associate to a non-lawyer who has by a bar association representa- not sought his advice regarding employment tive of the general bar of the geo- of a lawyer.115 graphical area in which the as- (B) Except as permitted under DR 2-103(C), a sociation exists.120 lawyer shall not compensate or give anything (2) A military legal assistance office. of value to a person or organization to recom- 116 (3) A lawyer referral service operated, mend or secure his employment by a client, sponsored, or approved by a bar asso- or as a reward for having made a recommen- 117 ciation representative of the general dation resulting in his employment by a bar of the geographical area in which client. the association exists.121 111 See ABA Opinion 277 (1948) ; cf. ABA Canon 33 and (4) A bar association representative of the ABA Opinions 318 (1967), 126 (1935), 115 (1934), and 106 general bar of the geographical area in (1934). which the association exists.122 112 See ABA Opinions 318 (1967) and 316 (1967) ; cf. ABA Canon 33. 118 "This Court has condemned the practice of ambu- 113 lance chasing through the media of runners and touters. Cf. ABA Canons 27 and 28. In similar fashion we have with equal emphasis condemned 114 "We think it clear that a lawyer's seeking employ- the practice of direct solicitation by a lawyer. We have ment in an ordinary law office, or appointment to a civil classified both offenses as serious breaches of the Canons service position, is not prohibited by . . . Canon 27." of Ethics demanding severe treatment of the offending ABA Opinion 197 (1939). lawyer." State v. Dawson, 111 So.2d 427, 431 (Fla. 1959). 115 "A lawyer may not seek from persons not his clients 119 "Registrants of a lawyer referral plan may be re- the opportunity to perform . . . a legal check-up." quired to contribute to the expense of operating it by a ABA Opinion 307 (1962). reasonable registration charge or by a reasonable percent- 116 Cf. ABA Opinion 78 (1932). age of fees collected by them." ABA Opinion 291 (1956). 117 Cf. ABA Opinion 227 (1941). " 'No financial connection of any kind between the 120 Brotherhood and any lawyer is permissible. No lawyer Cf. ABA Opinion 148 (1935). can properly pay any amount whatsoever to the Brother- 121 Cf. ABA Opinion 227 (1941). hood or any of its departments, officers or members as 122 compensation, reimbursement of expenses or gratuity in "If a bar association has embarked on a program of connection with the procurement of a case.' " In re institutional advertising for an annual legal check-up and Brotherhood of R. R. Trainmen, 13 Il1.2d 391, 398, 150 N.E. provides brochures and reprints, it is not improper to have 2d 163, 167 (1958), quoted in In re Ratner, 194 Kan 362, these available in the lawyer's office for persons to read 372, 399 P.2d 865, 873 (1965). and take." ABA Opinion 307 (1962). See ABA Opinion 147 (1935). Cf. ABA Opinion 121 (1934). XXXIICODE OF PROFESSIONAL RESPONSIBILITY i ognize legal problems, to make intell (5) Any other non-profit organization that -gent selection of counsel, or to utilize recommends, furnishes, or pays for le- available legal services if such activities gal services to its members or bene- are conducted or sponsored by any of ficiaries, but only in those instances and the offices or organizations enumerated to the extent that controlling constitu- in DR 2-103(D) (1) through (5), to the tional interpretation at the time of the extent and tinder the conditions pre- rendition of the services requires the scribed therein. allowance of such legal service activi- 23 A lawyer wno is furnished or paid by (3) ties,' and only if the following condi- any of the offices or organizations tions, unless prohibited by such inter- enumerated in DR 2-103(D) (1), (2), or pretation, are met: (5) may represent a member or bene- The primary purposes of such (a) ficiary thereof, to the extent and under organization do not include the the conditions prescribed therein. rendition of legal services. Without affecting his right to accept (4) The recommending, furnishing, (b) employment, a lawyer may speak pub- or paying for legal services to its licly or write for publication on legal members is incidental and rea- 127 topics so long as he does not em- sonably related to the primary phasize his own professional experience purposes of such organization. or reputation and does not undertake Such organization does not derive (c) to give individual advice. a financial benefit from the ren- If success in asserting rights or defens- (5) dition of legal services by the es of his client in litigation in the nature lawyer. of a class action is dependent upon the (d) The member or beneficiary for joinder of others, a lawyer may accept, whom the legal services are ren- but shall not seek, employment from dered, and not such organization, those contacted for the purpose of ob- is recognized as the client of the taining their joinder.128 lawyer in that matter. DR 2-105 Limitation of Practice.129 ( E) A lawyer shall not accept employment when he knows or it is obvious that the person who A) A lawyer shall not hold himself out publicly ( 130 seeks his services does so as a result of con- as a specialist or as limiting his practice,131 duct prohibited under this Disciplinary Rule. except as permitted under DR 2-102(A) (6) DR 2-104 Suggestion of Need of Legal Serv- or as follows: ices.124 (1) A lawyer admitted to practice before the ( United States Patent A) A lawyer who has given unsolicited advice to Office may use a layman that he should obtain counsel or the designation "Patents," "Patent At- torney," take legal action shall not accept employment or "Patent Lawyer," or any 125 resulting from that advice, except that: combination of those terms, on his let- terhead and office sign. A lawyer en- (1) A lawyer may accept employment by gaged in the trademark practice may a close friend, relative, former client use the designation "Trademarks," (if the advice is germane to the former "Trademark Attorney," or "Trademark employment), or one whom the lawyer Lawyer," or any combination of those reasonably believes to be a client.126 terms, on his letterhead and office sign, (2) A lawyer may accept employment that and a lawyer engaged in the admiralty results from his participation in activi- practice may use the designation "Ad- ties designed to educate laymen to rec- miralty," "Proctor in Admiralty," or 123 "Admiralty Lawyer," or any combina- 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 tion of those terms, on his letterhead R.R. Trainmen v. Virginia, 371 U.S. 1, 12 L.Ed.2d 89, 84 and office sign.132 S.Ct. 1113 (1964) ; NAACP v. Button, 371 U.S. 415, 9 L. Ed.2d 405, 83 S.Ct. 328 (1963). advise his client of any change of fact or law which might defeat the client's testamentary purpose as expressed in the 124 ABA Canon 28. will 123 cf. ABA Opinions 229 (1941) and 173 (1937). "Periodic notices might be sent to the client for whom a lawyer has drawn a will, suggesting that it might be wise 126 "It certainly is not improper for a lawyer to advise for the client to reexamine his will to determine whether his regular clients of new statutes, court decisions, and or not there has been any change in his situation requir- administrative rulings, which may affect the client's in- ing a modification of his will." ABA Opinion 210 (1941). terests, provided the communication is strictly limited to Cf. ABA Canon 28. such information. . 127 Cf. ABA Opinion 168 (1937). "When such communications go to concerns or indi- viduals other than regular clients of the lawyer, they are 128 But cf. ABA Opinion 111 (1934). thinly disguised advertisements for professional employ- 129 See ABA Canon 45; cf. ment, and are obviously improper." ABA Canons 27, 43, and 46. ABA Opinion 213 (1941). 130 Cf. ABA Opinions 228 (1941) and 194 (1939). "It is our opinion that where the lawyer has no reason 131 See ABA Opinions 251 (1943) and 175 (1938). to believe that he has been supplanted by another lawyer, it is not only his right, but it might even be his duty to 132 See ABA Canon 27; cf. ABA Opinion 286 (1952). Black's Law Dictionary 4th Ed. Rev.-c XXXIIICODE OF PROFESSIONAL RESPONSIBILITY (2) A lawyer may permit his name to be (4) The amount involved and the results ob- listed in lawyer referral service offices tained. according to the fields of law in which (5) The time limitations imposed by the he will accept referrals. client or by the circumstances. (3) A lawyer available to act as a consult- (6) The nature and length of the profes- ant to or as an associate of other law- sional relationship with the client. yers in a particular branch of law or (7) The experience, reputation, and ability legal service may distribute to other of the lawyer or lawyers performing lawyers and publish in legal journals a the services. dignified announcement of such avail- 133 ability, but the announcement shall (8) Whether the fee is fixed or contin- not contain a representation of special gent.138 134 competence or experience. The an- ( C) A lawyer shall not enter into an arrangement nouncement shall not be distributed to for, charge, or collect a contingent fee for rep- lawyers more frequently than once in a resenting a defendant in a criminal case.139 calendar year, but it may be published periodically in legal journals. DR 2-107 Division of Fees Among Lawyers. (4) A lawyer who is certified as a specialist in a particular field of law or law prac- (A) A lawyer shall not divide a fee for legal serv- tice by the authority having jurisdiction ices with another lawyer who is not a partner under state law over the subject of in or associate of his law firm or law office, unless: specialization by lawyers may hold him- self out as such specialist but only in (1) The client consents to employment of accordance with the rules prescribed by the other lawyer after a full disclosure that authority.135 that a division of fees will be made. The division is made in proportion to DR 2-106 Fees for Legal Services.136 (2) the services performed and responsibili- (A) A lawyer shall not enter into an agreement ty assumed by each.140 for, charge, or collect an illegal or clearly ex- (3) The total fee of the lawyers does not cessive fee.137 clearly exceed reasonable compensation (B) A fee is clearly excessive when, after a review for all legal services they rendered the of the facts, a lawyer of ordinary prudence client.141 would be left with a definite and firm convic- tion that the fee is in excess of a reasonable 138 Cf. ABA Canon 13; see generally MacKinnon, Con- tingent Fees for Legal Services (1964) (A Report of the fee. Factors to be considered as guides in de- American Bar Foundation). termining the reasonableness of a fee include the following: 139 "Contingent fees, whether in civil or criminal cases, are a special concern of the law. . (1) The time and labor required, the novel- ty and difficulty of the questions in- "In criminal cases, the rule is stricter because of the danger of corrupting justice. The second part of Section volved, and the skill requisite to per- 542 of the Restatement of Contracts reads : 'A bargain form the legal service properly. to conduct a criminal case . . . in consideration of a (2) The likelihood, if apparent to the client, promise of a fee contingent on success is illegal. . . . that the acceptance of the particular Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 967 (1959). employment will preclude other em- "The third area of practice in which the use of the con- ployment by the lawyer. tingent fee is generally considered to be prohibited is the prosecution and defense of criminal cases. However, there (3) The fee customarily charged in the lo- are so few cases, and these are predominantly old, that cality for similar legal services. it is doubtful that there can be said to be any current law on the subject. . . . In the absence of cases on the 133 Cf. ABA Opinion 194 (1939). validity of contingent fees for defense attorneys, it is 134 See ABA Canon 46. necessary to rely on the consensus among commentators that such a fee is void as against public policy. The nature 135 This provision is included to conform to action taken of criminal practice itself makes unlikely the use of con- by the ABA House of Delegates at the Mid-Winter Meeting, tingent fee contracts." MacKinnon, Contingent Fees for January, 1969. Legal Services 52 (1964) (A Report of the American Bar 136 See ABA Canon 12. Foundation). 137 The charging of a "clearly excessive fee" is a ground 140 See ABA Canon 34 and ABA Opinions 316 (1967) and for discipline. State ex rel. Nebraska State Bar Ass'n. v. 294 (1958) ; 265 (1945), 204 see generally ABA Opinions Richards, 165 Neb. 80, 90, 84 N.W.2d 136, 143 (1957). (1940), 190 (1939), 171 (1937), 153 (1936), 97 (1933), 63 "An attorney has the right to contract for any fee he (1932), 28 (1930), 27 (1930), and 18 (1930). chooses so long as it is not excessive (see Opinion 190), 141 "Canon 12 contemplates that a lawyer's fee should and this Committee is not concerned with the amount of not exceed the such fees unless so excessive as to constitute a misappro- value of the services rendered. . priation of the client's funds (see Opinion 27)." ABA Opinion 320 (1968). "Canon 12 applies, whether joint or separate fees ari Cf. ABA Opinions 209 (1940), 190 (1939), and 27 (1930) charged by associate attorneys . . .." ABA Opinion and State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla. 1966). 204 (1940). XX XIVCODE OF PROFESSIONAL RESPONSIBILITY taken reasonable steps to avoid fore- This Disciplinary Rule does not prohibit pay- (B) seeable prejudice to the rights of his ment to a former partner or associate pur- client, including giving due notice to suant to a separation or retirement agree- his client, allowing time for employ- ment. ment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying DR 2-108 Agreements Restricting the Practice of with applicable laws and rules. a Lawyer. (3) A lawyer who withdraws from employ- (A) A lawyer shall not be a party to or participate ment shall refund promptly any part in a partnership or employment agreement of a fee paid in advance that has not with another lawyer that restricts the right been earned. of a lawyer to practice law after the termina- tion of a relationship created by the agree- (B) Mandatory withdrawal. ment, except as a condition to payment of A lawyer representing a client before a retirement benefits.142 tribunal, with its permission if required by its (B) In connection with the settlement of a con- rules, shall withdraw from employment, and troversy or suit, a lawyer shall not enter into a lawyer representing a client in other matters an agreement that restricts his right to prac- shall withdraw from employment, if: tice law. He knows or it is obvious that his client (1) is bringing the legal action, conducting the defense, or asserting a position in DR 2-109 Acceptance of Employment. the litigation, or is otherwise having ( A) A lawyer shall not accept employment on be- steps taken for him, merely for the pur- half of a person if he knows or it is obvious pose of harassing or maliciously injur- that such person wishes to: ing any person. (1) Bring a legal action, conduct a defense, (2) He knows or it is obvious that his con- or assert a position in litigation, or tinued employment will result in viola- otherwise have steps taken for him, tion of a Disciplinary Rule.145 merely for the purpose of harassing or (3) His mental or physical condition ren- maliciously injuring any person.143 ders it unreasonably difficult for him (2) Present a claim or defense in litigation to carry out the employment effective- that is not warranted under existing ly. law, unless it can be supported by good (4) He is discharged by his client. faith argument for an extension, modi- fication, or reversal of existing law. (C) Permissive withdrawal.146 If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in DR 2-110 Withdrawal from Employment.144 matters pending before a tribunal, and may (A) In General. not withdraw in other matters, unless such (1) If permission for withdrawal from em- request or such withdrawal is because: ployment is required by the rules of a (1) His client: tribunal, a lawyer shall not withdraw (a) Insists upon presenting a claim from employment in a proceeding be- or defense that is not warranted fore that tribunal without its permis- under existing law and cannot be sion. supported by good faith argument (2) In any event, a lawyer shall not with- for an extension, modification, or draw from employment until he has reversal of existing law.147 (b) Personally seeks to pursue an il- 142 "A general covenant restricting an employed law- legal course of conduct. yer, after leaving the employment, from practicing in the (c) Insists that the lawyer pursue a community for a stated period, appears to this Committee course of conduct that is illegal to be an unwarranted restriction on the right of a lawyer or that is prohibited under the to choose where he will practice and inconsistent with our professional status. Accordingly, the Committee is of the Disciplinary Rules. opinion it would be improper for the employing lawyer to (d) By other conduct renders it un- require the covenant and likewise for the employed lawyer reasonably difficult for the law- to agree to it." ABA Opinion 300 (1961). 143 See ABA Canon 30. 145 See also Code of Professional Responsibility, DR 5- "Rule 13. . . . A member of the State Bar shall not 102 and DR 5-105. accept employment to prosecute or defend a case solely 146 Cf. ABA Canon 4. out of spite, or solely for the purpose of harassing or de- laying another . . .." Cal.Business and Professions 147 Cf. Anders v. California, 386 U.S. 738, 18 L.Ed.2d Code 6067 (West 1962). 388 U.S. 924, 493, 87 S.Ct. 1396 (1967), rehearing denied, 144 18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967). Cf. ABA Canon 44. XXXV