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AMERICAN BAR ASSOCIATION
senting a client in other matters shall withdraw from employment, if:
(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.145
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
(4) He is discharged by his client.
(C) Permissive withdrawal.146
If DR 2-110 (B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
1. "Men have need for more than a system of law; they have need for a system of law which functions, and that means they have need for lawyers." Cheatham, The Lawyer's Role and Surroundings, 25 ROCKY MT. L. REV. 405 (1953).
2. "Law is not self-applying; men must apply and utilize it in concrete cases. But the ordinary man is incapable. He cannot know the principles of law or the rules guiding the machinery of law administration; he does not know how to formulate his desires with precision and to put them into writing; he is ineffective in the presentation of his claims." Id.
3. "This need [to provide legal services] was recognized by Mr. [Lewis F.] Powell [Jr., President, American Bar Association, 1963-64], who said: 'Looking at contemporary America realistically, we must admit that despite all our efforts to date (and these have not been insignificant), far too many persons are not able to obtain equal justice under law. This usually results because their poverty or their ignorance has prevented them from obtaining legal counsel.'" Address by E. Clinton Bamberger, Association of American Law Schools 1965 Annual Meeting, Dec. 28, 1965, in PROCEEDINGS, PART II, 1965, 61, 63-64 (1965).
"A wide gap separates the need for legal services and its satisfaction, as numerous studies reveal. Looked at from the side of the layman, one reason for the gap is poverty and the consequent inability to pay legal fees. Another set of reasons is ignorance of the need for and the value of legal services, and ignorance of where to find a dependable lawyer. There is fear of the mysterious processes and delays of the law, and there is fear of overreaching and overcharging by lawyers, a fear stimulated by the occasional exposure of shysters." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. REV. 438 (1965).
4. "It is not only the right but the duty of the profession as a whole to utilize such methods as may be developed to bring the services of its members to those who need them, so long as this can be done ethically and with dignity." ABA Opinion 320 (1968).
"[T]here is a responsibility on the bar to make legal services available to those who need them. The maxim, 'privilege brings responsibilities,' can be expanded to read, exclusive privilege to render public service brings responsibility to assure that the service is available to those in need of it.' Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. REV. 438, 443 (1965).
"The obligation to provide legal services for those actually caught up in litigation carries with it the obligation to make preventive legal advice accessible to all. It is among those unaccustomed to business affairs and fearful of the ways of the law that such advice is often most needed. If it is not received in time, the most valiant and skillful representation in court may come too late." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
5. "Over a period of years institutional advertising of programs for the benefit of the public have been approved by this and other Ethics Committees as well as by the
"To the same effect are opinions of this Committee; Opinion 179 dealing with radio programs presenting a situation in which legal advice is suggested in connection with
(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.
(e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules.
(f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.
(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
(3) His inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.
(4) His mental or physical condition renders it difficult for him to carry out the employment effectively.
(5) His client knowingly and freely assents to termination of his employment.
(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
a drafting of a will; Opinions 205 and 227 permitting institutional advertising of lawyer referral plans; Opinion 191 holding that advertising by lawyer members of a non-bar associated sponsored plan violated Canon 27. The Illinois Ethics Committee, in its Opinion 201, sustained bar association institutional advertising of a check-up plan
"This Committee has passed squarely on the question of the propriety of institutional advertising in connection with a legal check-up plan. Informal Decision C-171 quotes with express approval the Michigan Ethics Committee as follows:
As a public service, the bar has in the past addressed the public as to the importance of making wills, consulting counsel in connection with real estate transactions, etc. In the same way, the bar, as such, may recommend this program, provided always that it does it in such a way that there is not suggestion of solicitation on behalf of any individual lawyer."
ABA Opinion 307 (1962).
6. "We recognize a distinction between teaching the lay public the importance of securing legal services preventive in character and the solicitation of professional employment by or for a particular lawyer. The former tends to promote the public interest and enhance the public estimation of the profession. The latter is calculated to injure the public and degrade the profession.
"Advertising which is calculated to teach the layman the benefits and advantages of preventive legal services will benefit the lay public and enable the lawyer to render a more desirable and beneficial professional service. . . . ABA Opinion 179 (1938).
7. "[A bar association] may engage in a dignified institutional educational campaign so long as it does not involve the identification of a particular lawyer with the check-up program. Such educational material may point out the value of the annual check-up and may be printed in newspapers, 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 through the offices of persons having close dealings with lawyers as, for example, banks, real estate agents, insurance agents and others. They may be available in lawyers' offices. The bar association may prepare and distribute to lawyers materials and forms for use in the annual legal check-up." ABA Opinion 307 (1962).
8. "A lawyer may with propriety write articles for publications in which he gives information upon the law....' ABA CANON 40.
"The newsletters, by means of which respondents are alleged to have advertised their wares, were sent to the officers of union clients represented by their firm... They contain no reference to any cases handled by the respondents. Their contents are confined to rulings of boards, commissions and courts on problems of interest to labor union, together with proposed and completed legislation important to the Brotherhood, and other items which might affect unions and their members. The respondents cite Opinion 213 of the Committee on Professional Ethics and Grievances as permitting such practice. After studying this opinion, we agree that sending of newsletters of the above type to regular clients does not offend Canon 27." In re Ratner, 194 Kan. 362, 371, 399 P.2d 865, 872-73 (1965). Cf. ABA Opinion 92 (1933).
CODE OF PROFESSIONAL RESPONSIBILITY
9. Cf. ABA Opinions 307 (1962) and 179 (1938).
"There is no ethical or other valid reason why an attorney may not write articles on legal subjects for magazines and newspapers. The fact that the publication is a trade journal or magazine, makes no difference as to the ethical question involved. On the other hand, it would be unethical and contrary to the precepts of the Canons for the attorney to allow his name to be carried in the magazine or other publication . . . as a free legal adviser for the subscribers to the publication. Such would be contrary to Canons 27 and 35 and Opinions heretofore announced by the Committee on Professional Ethics and Grievances. (See Opinions 31, 41, 42, and 56)." ABA Opinion 162 (1936). 10. See ABA CANON 28.
11. This question can assume constitutional dimensions: "We meet at the outset the contention that 'solicitation' is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. ...
"However valid may be Virginia's interest in regulating the traditionally illegal practice of barratry, maintenance and champerty, that interest does not justify the prohibition of the NAACP activities disclosed by this record. Malicious intent was of the essence of the common-law offenses of fomenting or stirring up litigation. And whatever may be or may have been true of suits against governments in other countries, the exercise in our own, as in this case of First Amendment rights to enforce Constitutional rights through litigation, as a matter of law, cannot be deemed malicious. NAACP v. Button, 371 U.S. 415, 429, 439-40, 9 L. Ed. 2d 405, 415-16, 422, 83 S. Ct. 328, 336, 341 (1963).
12. See ABA CANON 27.
13. "The Canons of Professional Ethics of the American Bar Association and the decisions of the courts quite generally prohibit the direct solicitation of business for gain by an attorney either through advertisement or personal communication; and also condemn the procuring of business by indirection through touters of any kind. It is disreputable for an attorney to breed litigation by seeking out those who have claims for personal injuries or other grounds of action in order to secure them as clients, or to employ agents or runners, or to reward those who bring or influence the bringing of business to his office. Moreover, it tends
quite easily to the institution of baseless litigation and the manufacture of perjured testimony. From early times, this danger has been recognized in the law by the condemnation of the crime of common barratry, or the stirring up of suits or quarrels between individuals at law or otherwise." In re Ades, 6 F.Supp. 467, 474-75 (D. Mary. 1934).
14. "Rule 2.
"[A] member of the State Bar shall not solicit professional employment by
"(1) Volunteering counsel or advice except where ties of blood relationship or trust make it appropriate." BUSINESS AND PROFESSIONS CODE $6076 (West 1962).
15. "Rule 18... A member of the State Bar shall not advise inquirers or render opinions to them through or in connection with a newspaper, radio or other publicity medium of any kind in respect to their specific legal problems, whether or not such attorney shall be compensated for his services." CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962).
16. "In any case where a member might well apply the advice given in the opinion to his individual affairs, the lawyer rendering the opinion [concerning problems common to members of an association and distributed to the members through a periodic bulletin] should specifically state that this opinion should not be relied on by any member as a basis for handling his individual affairs, but that in every case he should consult his counsel. In the publication of the opinion the association should make a similar statement. ABA Opinion 273 (1946).
17. "A group of recent interrelated changes bears directly on the availability of legal services. . . . [One] change is the constantly accelerating urbanization of the country and the decline of personal and neighborhood knowledge of whom to retain as a professional man." Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. REV. 438, 440 (1965).
18. Cf. Cheatham, A Lawyer When Needed: Legal Services for the Middle Classes, 63 COLUM. L. REV. 973, 974 (1963).
19. See ABA CANON 27.
20. See ABA CANON 28.
21. "'Self-laudation' is a very flexible concept; Canon 27 does not define it, so what course of conduct would be said to constitute it under a given state of facts would no doubt vary as the opinions of men vary. As a famous English judge said, it would vary as the length of the chancellor's foot. It must be in words and tone that will offend the traditions and lower the tone of our profession.' When it
does this, it is 'reprehensible.' This seems to be the test by which 'self-laudation' is measured." State v. Nichols, 151 So. 2d 257, 259 (Fla. 1963).
22. "Were it not for the prohibitions of... [Canon 27] lawyers could, and no doubt would be forced to, engage competitively in advertising of all kinds in which each would seek to explain to the public why he could serve better and accomplish more than his brothers at the Bar.
"Susceptible as we are to advertising the public would then be encouraged to choose an attorney on the basis of which had the better, more attractive advertising program rather than on his reputation for professional ability.
"This would certainly maim, if not destroy, the dignity and professional status of the Bar of this State." State v. Nichols, 151 So. 2d 257, 268 (Fla. 1963) (O'Connell, J., concurring in part and dissenting in part).
23. Cf. ABA CANON 8.
24. "The prohibition of advertising by lawyers deserves some examination. All agree that advertising by an individual lawyer, if permitted, will detract from the dignity of Perthe profession, but the matter goes deeper than this. haps the most understandable and acceptable additional reasons we have found are stated by one commentator as follows:
"1. That advertisements, unless kept within narrow
"3. That the temptation would be strong to hold out as
"Of course, competition is at the root of the abuses in
26. Cf. ABA Opinions 309 (1963) and 284 (1951). 27. Cf. ABA Opinions 313 (1964) and 284 (1951). 28. See ABA CANON 27.
29. C. ABA Opinion 303 (1961).
30. See ABA CANON 33.
"The continued use of a firm name by one or more surviving partners after the death of a member of the firm whose name is in the firm title is expressly permitted by the Canons of Ethics. The reason for this is that all of the partners have by their joint and several efforts over a period of years contributed to the good will attached to the firm name. In the case of a firm having widespread connections, this good will is disturbed by a change in firm name every time a name partner dies, and that reflects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time. skill and labor through a period of years. To avoid this loss the firm name is continued, and to meet the requirements of the Canon the individuals constituting the firm from time to time are listed." ABA Opinion 267 (1945).
"Accepted local custom in New York recognizes that the name of a law firm does not necessarily identify the individual members of the firm, and hence the continued use of a firm name after the death of one or more partners is not a deception and is permissible. . . . The continued use of a deceased partner's name in the firm title is not affected by the fact that another partner withdraws from the firm and his name is dropped, or the name of the new partner is added to the firm name." Opinion No. 45, Committee on Professional Ethics, New York State Bar Ass'n, 39 N.Y.St.B.J. 455 (1967).
Cf. ABA Opinion 258 (1943).
32. Cf. ABA CANON 33 and ABA Opinion 315 (1965).
35. The word 'associates' has a variety of meanings. Principally through custom the word when used on the letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because the word has acquired this special significance in connection with the practice of the law the use of the word to describe lawyer relationships other than employer-employee is likely
AMERICAN BAR ASSOCIATION
to be misleading." In re Sussman and Tanner, 241 Ore. 246, 248, 405 P.2d 355, 356 (1965).
According to ABA Opinion 310 (1963), use of the term "associates" would be misleading in two situations: (1) where two lawyers are partners and they share both responsibility and liability for the partnership; and (2) where two lawyers practice separately, sharing no responsibility or liability, and only share a suite of offices and some costs.
36. For a long time, many lawyers have, of necessity, limited their practice to certain branches of law. The increasing complexity of the law and the demand of the public for more expertness on the part of the lawyer has, in the past few years-particularly in the last ten years-brought about specialization on an increasing scale." Report of the Special Committee on Specialization and Specialized Legal Services, 79 A.B.A. REP. 582, 584 (1954).
37. "In varying degrees specialization has become the modus operandi throughout the legal profession. ... American society is specialization conscious. The present Canons, however, do not allow lawyers to make known to the lay public the fact that they engage in the practice of a specialty. Tucker, The Large Law Firm: Considerations Concerning the Modernization of the Canons of Professional Ethics, 1965 WIS. L. REV. 344, 348-49 (1965).
38. See ABA CANON 27. 39. See ABA CANON 12. 40. Cf. ABA CANON 12.
41. "If there is any fundamental proposition of government on which all would agree, it is that one of the highest goals of society must be to achieve and maintain equality before the law. Yet this ideal remains an empty form of words unless the legal profession is ready to provide adequate representation for those unable to pay the usual fees." Professional Representation: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
"[U]nder... [Canon 12], this Committee has consistently held that minimum fee schedules can only be suggested or recommended and cannot be made obligatory . . . ." ABA Opinion 302 (1961).
"[A] compulsory minimum fee schedule is contrary to Canon 12 and repeated pronouncements of this committee." ABA Opinion 190 (1939).
Cf. ABA Opinions 171 (1937) and 28 (1930).
47. See ABA CANON 13; see also MACKINNON, CONTINGENT FEES FOR LEGAL SERVICES (1964) (A report of the American Bar Foundation).
"A contract for a reasonable contingent fee where sanctioned by law is permitted by Canon 13, but the client must remain responsible to the lawyer for expenses advanced by the latter. 'There is to be no barter of the privilege of prosecuting a cause for gain in exchange for the promise of the attorney to prosecute at his own expense.' (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265, 270-271.)" ABA Opinion 246 (1942).
48. See Comment, Providing Legal Services for the Middle Class in Civil Matters: The Problem, the Duty and a Solution, 26 U. PITT. L. REV. 811, 829 (1965).
49. See ABA CANON 38.
"Of course, as . . . [Informal Opinion 679] points out, there must be full disclosure of the arrangement [that an entity other than the client pays the attorney's fee] by the attorney to the client. "ABA Opinion 320 (1968).
50. "Only lawyers may share in . . . a division of fees, but ... it is not necessary that both lawyers be admitted to practice in the same state, so long as the division was based on the division of services or responsibility." ABA Opinion 316 (1967).
51. See ABA CANON 34.
"We adhere to our previous rulings that where a lawyer merely brings about the employment of another lawyer but renders no service and assumes no responsibility in the matter, a division of the latter's fee is improper. (Opinions 18 and 153).
"It is assumed that the bar, generally, understands what acts or conduct of a lawyer may constitute 'services' to a client within the intendment of Canon 12. Such acts or conduct invariably, if not always, involve 'responsibility' on the part of the lawyer, whether the word 'responsibility' be construed to denote the possible resultant legal or moral liability on the part of the lawyer to the client or to others, or the onus of deciding what should or should not be done in behalf of the client. The word 'services' in Canon 12 must be construed in this broad sense and may apply to the selection and retainer of associate counsel as well as to other
acts or conduct in the client's behalf." ABA Opinion 204 (1940).
52. See ABA CANON 14.
53. Cf. ABA Opinion 320 (1968).
54. See ABA CANON 14.
"Ours is a learned profession, not a mere money-getting
trade.... Suits to collect fees should be avoided. Only where the circumstances imperatively require, should resort be had to a suit to compel payment. And where a lawyer does resort to a suit to enforce payment of fees which involves a disclosure, he should carefully avoid any disclosure not clearly necessary to obtaining or defending his rights." ABA Opinion 250 (1943).
But cf. ABA Opinion 320 (1968).
55. "As a society increases in size, sophistication and technology, the body of laws which is required to control that society also increases in size, scope and complexity. With this growth, the law directly affects more and more facets of individual behavior, creating an expanding need for legal services on the part of the individual members of the society. As legal guidance in social and commercial behavior increasingly becomes necessary, there will come a concurrent demand from the layman that such guidance be made available to him. This demand will not come from those who are able to employ the best of legal talent, nor from those who can obtain legal assistance at little or no cost. It will come from the large 'forgotten middle income class,' who can neither afford to pay proportionately large fees nor qualify for ultra-low-cost services. The legal profession must recognize this inevitable demand and consider methods whereby it can be satisfied. If the profession fails to provide such methods, the laity will." Comment, Providing Legal Services for the Middle Class in Civil Matters: The Problem the Duty and a Solution, 26 U. PITT. L. REV. 811, 811-12 (1965).
"The issue is not whether we shall do something or do nothing. The demand for ordinary everyday legal justice is so great and the moral nature of the demand is so strong that the issue has become whether we devise, maintain, and support suitable agencies able to satisfy the demand or, by our own default, force the government to take over the job, supplant us, and ultimately dominate us." Smith, Legal Service Offices for Persons of Moderate Means, 1949 Wis. L. REV. 416, 418 (1949).
56. "Lawyers have peculiar responsibilities for the just administration of the law, and these responsibilities include providing advice and representation for needy persons. To a degree not always appreciated by the public at large, the bar has performed these obligations with zeal and devotion. The Committee is persuaded, however, that a system of justice that attempts, in mid-twentieth century America, to meet the needs of the financially incapacitated accused through primary or exclusive reliance on the uncompensated services of counsel will prove unsuccessful and inadequate.
A system of adequate representation, therefore, should be structured and financed in a manner reflecting its public importance.. We believe that fees for private appointed counsel should be set by the court within maximum limits established by the statute." REPORT OF THE ATT'Y GEN'S COMM. ON POVERTY AND THE ADMINISTRATION OF CRIMINAL JUSTICE 41-43 (1963).
57. "At present this representation [of those unable to pay usual fees] is being supplied in some measure through the spontaneous generosity of individual lawyers, through legal aid societies, and-increasingly-through the organized efforts of the Bar. If those who stand in need of this service know of its availability and their need is in fact adequately met, the precise mechanism by which this service is provided becomes of secondary importance. It is of great importance, however, that both the impulse to render this service, and the plan for making that impulse effective, should arise within the legal profession itself." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
58. "Free legal clinics carried on by the organized bar are not ethically objectionable. On the contrary, they serve a very worthwhile purpose and should be encouraged." ABA Opinion 191 (1939).
59. "We are of the opinion that the [lawyer referral] plan here presented does not fall within the inhibition of the Canon. No solicitation for a particular lawyer is involved. The dominant purpose of the plan is to provide as an obligation of the profession competent legal services to persons in low-income groups at fees within their ability to pay. The plan is to be supervised and directed by the local Bar Association. There is to be no advertisement of the names of the lawyers constituting the panel. The general method and purpose of the plan only is to be advertised. Persons seeking the legal services will be directed to members of the panel by the Bar Association. Aside from the filing of the panel with the Bar Association, there is to be no advertisement of the names of the lawyers constituting the panel. If these limitations are observed, we think there is no solicitation of business by or for particular lawyers and no violation of the inhibition of Canon 27." ABA Opinion 205 (1940).
60. "Whereas the American Bar Association believes that it is a fundamental duty of the bar to see to it that all persons requiring legal advice be able to attain it, irrespective of their economic status....
"Resolved, that the Association approves and sponsors the setting up by state and local bar associations of lawyer referral plans and low-cost legal service methods for the purpose of dealing with cases of persons who might not otherwise have the benefit of legal advice . . . . Proceedings of the House of Delegates of the American Bar Associ
CODE OF PROFESSIONAL RESPONSIBILITY
ation, Oct. 30, 1946, 71 A.B.A. REP. 103, 109-10 (1946).
61. "The defense of indigent citizens, without compensation, is carried on throughout the country by lawyers representing legal aid societies, not only with the approval, but with the commendation of those acquainted with the work. Not infrequently services are rendered out of sympathy or for other philanthropic reasons, by individual lawyers who do not represent legal aid societies. There is nothing whatever in the Canons to prevent a lawyer from performing such an act, nor should there be." ABA Opinion 148 (1935).
62. But cf. ABA CANON 31.
63. "One of the highest services the lawyer can render to society is to appear in court on behalf of clients whose causes are in disfavor with the general public." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
One author proposes the following proposition to be included in "A Proper Oath for Advocates": "I recognize that it is sometimes difficult for clients with unpopular causes to obtain proper legal representation. I will do all that I can to assure that the client with the unpopular cause is properly represented, and that the lawyer representing such a client receives credit from and support of the bar for handling such a matter." Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 592 (1961). "§6068. . . . It is the duty of an attorney:
"(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed." CAL. BUSINESS AND PROFESSIONS CODE $6068 (West 1962). Virtually the same language is found in the Oregon statutes at ORE. REV. STATS. Ch. 9 $9.460 (8).
See Rostow, The Lawyer and His Client, 48 A.B.A.J. 25 and 146 (1962).
64. See ABA CANONS 7 and 29.
"We are of the opinion that it is not professionally improper for a lawyer to accept employment to compel another lawyer to honor the just claim of a layman. On the contrary, it is highly proper that he do so. Unfortunately, there appears to be a widespread feeling among laymen that it is difficult, if not impossible, to obtain justice when they have claims against members of the Bar because other lawyers will not accept employment to proceed against them. The honor of the profession, whose members proudly style themselves officers of the court, must surely be sullied if its members bind themselves by custom to refrain from enforcing just claims of laymen against lawyers." ABA Opinion 144 (1935).
65. ABA CANON 4 uses a slightly different test, saying, "A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason. . . .' 66. Cf. ABA CANON 7.
67. See ABA CANON 5.
68. Dr. Johnson's reply to Boswell upon being asked what he thought of "supporting a cause which you know to be bad" was: "Sir, you do not know it to be good or bad till the Judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to whom you urge it and it if does convince him, why, then. Sir, you are wrong, and he is right." 2 BOSWELL, THE LIFE OF JOHN SON 47-48 (Hill ed. 1887).
69. "The lawyer deciding whether to undertake a case must be able to judge objectively whether he is capable of handling it and whether he can assume its burdens without prejudice to previous commitments. Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1158, 1218 (1958).
70. "The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong." ABA CANON 30.
71. See ABA CANON 7.
"From the facts stated we assume that the client has discharged the first attorney and given notice of the discharge. Such being the case, the second attorney may properly accept employment. Canon 7; Opinions 10, 130, 149." ABA Opinion 209 (1941).
73. See ABA CANON 44.
"I will carefully consider, before taking a case, whether it appears that I can fully represent the client within the framework of law. If the decision is in the affirmative, then it will take extreme circumstances to cause me to decide later that I cannot so represent him." Thode. The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 592 (1961) (from "A Proper Oath for Advocates").
74. ABA Opinion 314 (1965) held that a lawyer should not disassociate himself from a cause when "it is obvious that the very act of disassociation would have the effect of violating Canon 37."
75. ABA CANON 44 enumerates instances in which ". the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer." 76. See ABA CANON 44.
77. Cf. ABA CANON 27; see generally ABA Opinion 293 (1957).
78. Cf. ABA Opinions 133 (1935), 116 (1934), 107 (1934), 73 (1932), 59 (1931), and 43 (1931).
79. "There can be no justification for the participation and acquiescence by an attorney in the development and publication of an article which, on its face, plainly amounts to a self-interest and unethical presentation of his achievements and capabilities." Matter of Connelly, 18 App. Div. 2d 466, 478, 240 N.Y.S.2d 126, 138 (1963).
"An announcement of the fact that the lawyer had resigned and the name of the person to succeed him, or take over his work, would not be objectionable, either as an official communication to those employed by or connected with the administrative agency or instrumentality [that had employed him], or as a news release.
"But to include therein a statement of the lawyer's experience in and acquaintance with the various departments and agencies of the government, and a laudation of his legal ability, either generally or in a special branch of the law, is not only bad taste but ethically improper.
"It can have but one primary purpose or object: to aid the lawyer in securing professional employment in private practice by advertising his professional experience, attainments and ability." ABA Opinion 184 (1938).
Cf. ABA Opinions 285 (1951) and 140 (1935).
80. "The question is always. whether under the circumstance the furtherance of the professional employment of the lawyer is the primary purpose of the advertisement, or is merely a necessary incident of a proper and legitimate objective of the client which does not have the effect of unduly advertising him." ABA Opinion 290 (1956). See ABA Opinion 285 (1951).
81. See ABA Opinions 299 (1961), 290 (1956), 158 (1936), and 100 (1933); cf. ABA Opinion 80 (1932). 82. "Rule 2.
"[A] member of the State Bar shall not solicit professional employment by
"(4) The making of gifts to representatives of the press, radio, television or any medium of communication in anticipation of or in return for publicity." CAL. BUSINESS AND PROFESSIONS CODE $6076 (West 1962).
83. Cf. ABA Opinions 233 (1941) and 114 (1934). 84. See ABA Opinion 175 (1938).
85. See ABA Opinions 260 (1944) and 182 (1938). 86. But cf. ABA Opinions 276 (1947) and 256 (1943). 87. See ABA Opinion 301 (1961).
88. "It has become commonplace for many lawyers to participate in government service; to deny them the right, upon their return to private practice, to refer to their prior employment in a brief and dignified manner, would place an undue limitation upon a iarge element of our profession. It is entirely proper for a member of the profession to explain his absence from private practice, where such is the primary purpose of the announcement, by a brief and dignified reference to the prior employment.
"... [A]ny such announcement should be limited to the immediate past connection of the lawyer with the government, made upon his leaving that position to enter private practice." ABA Opinion 301 (1961).
89. See ABA Opinion 251 (1943).
90. "Those lawyers who are working for an individual lawyer or a law firm may be designated on the letterhead and in other appropriate places as associates'." Opinion 310 (1963).
91. See ABA CANON 33.
92. But see ABA Opinion 285 (1951). 93. See ABA Opinion 295 (1959).
94. But see ABA Opinion 313 (1964) which says the Committee "approves a listing in the classified section of the city directory for lawyers only when the listing includes all lawyers residing in the community and when no charge is made therefor."
95. "The listing should consist only of the lawyer's name, address and telephone number." ABA Opinion 313 (1964). 96. "[A]dding to the regular classified listing a 'second line' in which a lawyer claims that he is engaged in a 'specialty' is an undue attempt to make his name distinctive." ABA Opinion 284 (1951).
97. "Opinion 284] held that a lawyer could not with propriety have his name listed in distinctive type in a telephone directory or city directory. We affirm that opinion." ABA Opinion 313 (1964).
See ABA Opinions 123 (1934) and 53 (1931).
98. "[I]f a lawyer is a member of a law firm, both the firm, and the individual lawyer may be listed separately." ABA Opinion 313 (1964).
99. See ABA Opinion 284 (1951).
100. See Silverman v. State Bar of Texas, 405 F.2d 410, (5th Cir. 1968); but see ABA Opinion 286 (1952). 101. Cf. ABA CANON 43.
102. Cf. ABA Opinion 255 (1943).
103. "We are asked to define the word 'addresses' appearing in the second paragraph of Canon 27
"It is our opinioin that an address (other than a cable address) within the intendment of the canon is that of the lawyer's office or of his residence. Neither address should be misleading. If, for example, an office address is given, it
AMERICAN BAR ASSOCIATION
must be that of a bona fide office. The residence address, if given, should be identified as such if the city or other place of residence is not the same as that in which the law office is located." ABA Opinion 249 (1942).
104. "[T]oday in various parts of the country Committees on Professional Ethics of local and state bar associations are authorizing lawyers to describe themselves in announcements to the Bar and in notices in legal periodicals and approved law lists as specialists in a great variety of things. Thus in the approved law lists or professional announcements there appear, in connection with the names of individual practitioners or firms, such designations as 'International Law, Public and Private'; 'Trial Preparation in Personal Injury and Negligence Actions'; 'Philippine War Damage Claims'; 'Anti-Trust'; 'Domestic Relations': 'Tax Law'; 'Negligence Law'. It would seem that the ABA has given at least its tacit approval to this sort of announcement.
"It is important that this sort of description is not, in New York at least, permitted on letterheads or shingles or elsewhere in communications to laymen. This is subject to the single exception that such announcement to laymen is permitted in the four traditional specialties, Admiralty, Patent, Copyright and Trade-mark." Report of the Special Committee on Specialization and Specialized Legal Education, 79 A.B.A. REP. 582, 586 (1954).
105. This provision is included to conform to action taken by the ABA House of Delegates at the Mid-Winter Meeting. January, 1969.
106. See ABA CANON 43 and ABA Opinion 119 (1934); but see ABA Opinion 236 (1941).
107. See ABA CANON 27.
108. See ABA CANON 33: cf. ABA Opinions 318 (1967), 267 (1945), 219 (1941), 208 (1940), 192 (1939), 97 (1933), and 6 (1925).
109. ABA Opinion 318 (1967) held, "anything to the contrary in Formal Opinion 315 or in the other opinions cited notwithstanding" that: "Where a partner whose name appears in the name of a law firm is elected or appointed to high local, state or federal office, which office he intends to occupy only temporarily, at the end of which time he intends to return to his position with the firm, and provided that he is not precluded by holding such office from engag ing in the practice of law and does not in fact sever his relationship with the firm but only takes a leave of absence, and provided that there is no local law, statute or custom to the contrary, his name may be retained in the firm name during his term or terms of office, but only if proper precautions are taken not to mislead the public as to his degree of participation in the firm's affairs."
Cf. ABA Opinion 143 (1935), New York County Opinion 67, and New York City Opinions 36 and 798; but cf. ABA Opinion 192 (1939) and Michigan Opinion 164.
110. Cf. ABA CANON 33.
111. See ABA Opinion 277 (1948); cf. ABA CANON 33 and ABA Opinions 318 (1967), 126 (1935), 115 (1934), and 106 (1934).
112. See ABA Opinions 318 (1967) and 316 (1967); cf. ABA CANON 33.
113. Cf. ABA CANONS 27 and 28.
114. "We think it clear that a lawyer's seeking employment in an ordinary law office, or appointment to a civil service position, is not prohibited by ... [Canon 27]." ABA Opinion 197 (1939).
115. "[A] lawyer may not seek from persons not his clients the opportunity to perform. . . a [legal] check-up." ABA Opinion 307 (1962).
116. Cf. ABA Opinion 78 (1932).
117. "No financial connection of any kind between the Brotherhood and any lawyer is permissible. No lawyer can properly pay any amount whatsoever to the Brotherhood or any of its departments, officers or members as compensation, reimbursement of expenses or gratuity in connection with the procurement of a case.'" In re Brotherhood of R. R. Trainmen, 13 Ill. 2d 391, 398, 150 N .E. 2d 163, 167 (1958), quoted in In re Ratner, 194 Kan. 362, 372, 399 P.2d 865, 873 (1965).
See ABA Opinion 147 (1935).
118. "This Court has condemned the practice of ambulance chasing through the media of runners and touters. In similar fashion we have with equal emphasis condemned the practice of direct solicitation by a lawyer. We have classified both offenses as serious breaches of the Canons of Ethics demanding severe treatment of the offending lawyer." State v. Dawson, 111 So. 2d 427, 431 (Fla. 1959).
119. "Registrants [of a lawyer referral plan] may be required to contribute to the expense of operating it by a reasonable registration charge or by a reasonable percentage of fees collected by them." ABA Opinion 291 (1956). Cf. ABA Opinion 227 (1941). 120. Cf. ABA Opinion 148 (1935). 121. Cf. ABA Opinion 227 (1941).
122. "If a bar association has embarked on a program of institutional advertising for an annual legal check-up and provides brochures and reprints, it is not improper to have these available in the lawyer's office for persons to read and take." ABA Opinion 307 (1962).
Cf. ABA Opinion 121 (1934).
123. United Mine Workers v. Ill. State Bar Ass'n.. 389 U.S. 217, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967); Brotherhood of R.R. Trainmen v. Virginia, 371 U.S. 1, 12 L. Ed. 2d
89, 84 S. Ct. 1113 (1964); NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). 124. ABA CANON 28.
125. Cf. ABA Opinions 229 (1941) and 173 (1937).
126. "It certainly is not improper for a lawyer to advise his regular clients of new statutes, court decisions, and administrative rulings, which may affect the client's interests, provided the communication is strictly limited to such information....
"When such communications go to concerns or individuals other than regular clients of the lawyer, they are thinly disguised advertisements for professional employment, and are obviously improper." ABA Opinion 213 (1941).
"It is our opinion that where the lawyer has no reason to believe that he has been supplanted by another lawyer, it is not only his right, but it might even be his duty to advise his client of any change of fact or law which might defeat the client's testamentary purpose as expressed in the will.
"Periodic notices might be sent to the client for whom a lawyer has drawn a will, suggesting that it might be wise for the client to reexamine his will to determine whether or not there has been any change in his situation requiring a modification of his will." ABA Opinion 210 (1941). Cf. ABA CANON 28.
127. Cf. ABA Opinion 168 (1937).
128. But cf. ABA Opinion 111 (1934).
129. See ABA CANON 45; cf. ABA CANONS 27, 43, and 46. 130. Cf. ABA Opinions 228 (1941) and 194 (1939). 131. See ABA Opinions 251 (1943) and 175 (1938). 132. See ABA CANON 27; cf. ABA Opinion 286 (1952). 133. Cf. ABA Opinion 194 (1939).
134. See ABA CANON 46.
135. This provision is included to conform to action taken by the ABA House of Delegates at the Mid-Winter Meeting, January, 1969.
136. See ABA CANON 12.
137. The charging of a "clearly excessive fee" is a ground for discipline. State ex rel. Nebraska State Bar Ass'n. v. Richards, 165 Neb. 80, 90, 84 N. W. 2d 136, 143 (1957).
"An attorney has the right to contract for any fee he chooses so long as it is not excessive (see Opinion 190), and this Committee is not concerned with the amount of such fees unless so excessive as to constitute a misappropriation of the client's funds (see Opinion 27)." ABA Opinion 320 (1968).
Cf. ABA Opinions 209 (1940), 190 (1939), and 27 (1930) and State ex rel. Lee v. Buchanan, 191 So. 2d 33 (Fla. 1966). 138. Cf. ABA CANON 13; see generally MACKINNON, CONTINGENT FEES FOR LEGAL SERVICES (1964) (A Report of the American Bar Foundation).
139. "Contingent fees, whether in civil or criminal cases, are a special concern of the law. . . .
"In criminal cases, the rule is stricter because of the danger of corrupting justice. The second part of Section 542 of the Restatement [of Contracts] reads; 'A bargain to conduct a criminal case ... in consideration of a promise of a fee contingent on success is illegal. Peyton v. Margiotti, 398 Pa. 86, 156 A. 2d 865, 967 (1959). "The third area of practice in which the use of the contingent fee is generally considered to be prohibited is the prosecution and defense of criminal cases. However, there are so few cases, and these are predominantly old, that it is doubtful that there can be said to be any current law on the subject. . . . In the absence of cases on the validity of contingent fees for defense attorneys, it is necessary to rely on the consensus among commentators that such a fee is void as against public policy. The nature of criminal practice itself makes unlikely the use of contingent fee contracts." MACKINNON, CONTINGENT FEES FOR LEGAL SERVICES 52 (1964) (A Report of the American Bar Foundation). 140. See ABA CANON 34 and ABA Opinions 316 (1967) and 294 (1958); see generally ABA Opinions 265 (1945), 204 (1940), 190 (1939), 171 (1937), 153 (1936), 97 (1933), 63 (1932), 28 (1930), 27 (1930), and 18 (1930).
141. "Canon 12 contemplates that a lawyer's fee should not exceed the value of the services rendered. . . . "Canon 12 applies, whether joint or separate fees are charged [by associate attorneys] ABA Opinion 204 (1940).
142. "[A] general covenant restricting an employed lawyer, after leaving the employment, from practicing in the community for a stated period, appears to this Committee to be an unwarranted restriction on the right of a lawyer to choose where he will practice and inconsistent with our professional status. Accordingly, the Committee is of the opinion it would be improper for the employing lawyer to require the covenant and likewise for the employed lawyer to agree to it." ABA Opinion 300 (1961). 143. See ABA CANON 30.
"Rule 13. . . . A member of the State Bar shall not accept employment to prosecute or defend a case solely out of spite, or solely for the purpose of harassing or delaying another CAL. BUSINESS AND PROFESSIONS CODE §6067 (West
144. Cf. ABA CANON 44.
145. See also Code of Professional Responsibility, DR 5-102 and DR 5-105.
146. Cf. ABA CANON 4.
147. Cf. Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), rehearing denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094 (1967).