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AMERICAN BAR ASSOCIATION
"The adversary system in law administration bears a striking resemblance to the competitive economic system. In each we assume that the individual through partisanship or through self-interest will strive mightily for his side, and that kind of striving we must have. But neither system would be tolerable without restraints and modifications, and at times without outright departures from the system itself. Since the legal profession is entrusted with the system of law administration, a part of its task is to develop in its members appropriate restraints without impairing the values of partisan striving. An accompanying task is to aid in the modification of the adversary system or departure from it in areas to which the system is unsuited." Cheatham, The Lawyer's Role and Surroundings, 25 ROCKY MT. L. REV. 405, 410 (1953).
4. "Rule 4.15 prohibits, in the pursuit of a client's cause, 'any manner of fraud or chicane'; Rule 4.22 requires 'candor and fairness' in the conduct of the lawyer, and forbids the making of knowing misquotations; Rule 4.47 provides that a lawyer should always maintain his integrity,' and generally forbids all misconduct injurious to the interests of the public, the courts, or his clients, and acts contrary to 'justice, honesty, modesty or good morals.' Our Commissioner has accurately paraphrased these rules as follows: 'An attorney does not have the duty to do all and whatever he can that may enable him to win his client's cause or to further his client's interest. His duty and efforts in these respects, although they should be prompted by his "entire devotion" to the interest of his client, must be within and not without the bounds of the law.'" In re Wines, 370 S. W. 2d 328, 333 (Mo. 1963).
See Note, 38 TEXAS L. REV. 107, 110 (1959).
5. "Under our system of government the process of adjudication is surrounded by safeguards evolved from centuries of experience. These safeguards are not designed merely to lend formality and decorum to the trial of causes. They are predicated on the assumption that to secure for any controversy a truly informed and dispassionate decision is a difficult thing, requiring for its achievement a special summoning and organization of human effort and the adoption of measures to exclude the biases and prejudg ments that have free play outside the courtroom. All of this goes for naught if the man with an unpopular cause is unable to find a competent lawyer courageous enough to represent him. His chance to have his day in court loses much of its meaning if his case is handicapped from the outset by the very kind of prejudgment our rules of evidence and procedure are intended to prevent." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
6. "It is . [the tax lawyer's] positive duty to show the client how to avail himself to the full of what the law permits. He is not the keeper of the Congressional conscience." Paul, The Lawyer as a Tax Adviser, 25 ROCKY Mr. L. REV. 412, 418 (1953).
7. See ABA CANONS 15 and 30.
8. "The fact that it desired to evade the law, as it is called, is immaterial, because the very meaning of a line in the law is that you intentionally may go as close to it as you can if you do not pass it. It is a matter of proximity and degree as to which minds will differ Justice Holmes, in Superior Oil Co. v. Mississippi, 280 U.S. 390, 395-96, 74 L. Ed 504, 508, 50 S. Ct. 169, 170 (1930).
9. "Today's lawyers perform two distinct types of functions, and our ethical standards should, but in the main do not, recognize these two functions. Judge Philbrick McCoy recently reported to the American Bar Association the need for a reappraisal of the Canons in light of the new and distinct function of counselor, as distinguished from advocate, which today predominates in the legal profession.
In the first place, any revision of the canons must take into account and speak to this new and now predominant function of the lawyer. ... It is beyond the scope of this paper to discuss the ethical standards to be applied to the counselor except to state that in my opinion such standards should require a greater recognition and protection for the interest of the public generally than is presently expressed in the canons. Also, the counselor's obligation should extend to requiring him to inform and to impress upon the client a just solution of the problem, considering all interests involved." Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 578-79 (1961).
"The man who has been called into court to answer for his own actions is entitled to fair hearing. Partisan advocacy plays its essential part in such a hearing, and the lawyer pleading his client's case may properly present it in the most favorable light. A similar resolution of doubts in one direction becomes inappropriate when the lawyer acts as counselor. The reasons that justify and even require partisan advocacy in the trial of a cause do not grant any license to the lawyer to participate as legal advisor in a line of conduct that is immoral, unfair, or of doubtful legality. In saving himself from this unworthy involvement, the lawyer cannot be guided solely by an unreflective inner sense of good faith; he must be at pains to preserve a sufficient detachment from his client's interests so that he remains capable of a sound and objective appraisal of the propriety of what his client proposes to do." Professional
Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1161 (1958).
10. "[A] lawyer who is asked to advise his client... may freely urge the statement of positions most favorable to the client just as long as there is reasonable basis for those positions." ABA Opinion 314 (1965).
11. The lawyer . . . is not an umpire, but an advocate. He is under no duty to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness. ... His personal belief in the soundness of his cause or of the authorities supporting it, is irrelevant." ABA Opinion 280 (1949).
"Counsel apparently misconceived his role. It was his duty to honorably present his client's contentions in the light most favorable to his client. Instead he presumed to advise the court as to the validity and sufficiency of prisoner's motion, by letter. We therefore conclude that prisoner had no effective assistance of counsel and remand this case to the District Court with instructions to set aside the Judgment, appoint new counsel to represent the prisoner if he makes no objection thereto, and proceed anew." McCartney v. United States, 343 F. 2d 471, 472 (9th Cir. 1965).
12. "Here the court-appointed counsel had the transcript but refused to proceed with the appeal because he found no merit in it.... We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae which was condemned in Ellis, supra. Hence California's procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity. . . .
"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 13991400 (1967), rehearing denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094 (1967).
See Paul, The Lawyer As a Tax Adviser, 25 ROCKY MT. L. REV. 412, 432 (1953).
13. See ABA CANON 32.
14. "For a lawyer to represent a syndicate notoriously engaged in the violation of the law for the purpose of advising the members how to break the law and at the same time escape it, is manifestly improper. While a lawyer may see to it that anyone accused of crime, no matter how serious and flagrant, has a fair trial, and present all available defenses, he may not co-operate in planning violations of the law. There is a sharp distinction, of course, between advising what can lawfully be done and advising how unlawful acts can be done in a way to avoid conviction. Where a lawyer accepts a retainer from an organization, known to be unlawful, and agrees in advance to defend its members when from time to time they are accused of crime arising out of its unlawful activities, this is equally improper."
"See also Opinion 155." ABA Opinion 281 (1952).
15. See ABA Special Committee on Minimum Standards for the Administration of Criminal Justice, Standards Relating to Pleas of Guilty pp. 69-70 (1968).
16. "First of all, a truly great lawyer is a wise counselor to all manner of men in the varied crises of their lives when they most need disinterested advice. Effective counseling necessarily involves a thoroughgoing knowledge of the principles of the law not merely as they appear in the books but as they actually operate in action. Vanderbilt, The Five Functions of the Lawyer: Service to Clients and the Public, 40 A.B.A.J. 31 (1954).
17. "A lawyer should endeavor to obtain full knowledge of his client's cause before advising thereon. ..." ABA CANON 8.
18. "[I]n devising charters of collaborative effort the lawyer often acts where all of the affected parties are present as participants. But the lawyer also performs a similar function in situations where this is not so, as, for example, in planning estates and drafting wills. Here the instrument defining the terms of collaboration may affect persons not present and often not born. Yet here, too, the good lawyer
CODE OF PROFESSIONAL RESPONSIBILITY
does not serve merely as a legal conduit for his client's desires, but as a wise counselor, experienced in the art of devising arrangements that will put in workable order the entangled affairs and interests of human beings." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958).
19. See ABA CANON 8.
"Vital as is the lawyer's role in adjudication, it should not be thought that it is only as an advocate pleading in open court that he contributes to the administration of the law. The most effective realization of the law's aims often takes place in the attorney's office, where litigation is forestalled by anticipating its outcome, where the lawyer's quiet counsel takes the place of public force. Contrary to popular belief, the compliance with the law thus brought about is not generally lip-serving and narrow, for by reminding him of its long-run costs the lawyer often deters his client from a course of conduct technically permissible under existing law, though inconsistent with its underlying spirit and purpose." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1161 (1958).
20. "My summation of Judge Sharswood's view of the advocate's duty to the client is that he owes to the client the duty to use all legal means in support of the client's case. However, at the same time Judge Sharswood recognized that many advocates would find this obligation unbearable if applicable without exception. Therefore, the individual lawyer is given the choice of representing his client fully within the bounds set by the law or of telling his client that he cannot do so, so that the client may obtain another attorney if he wishes." Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 582 (1961). Cf. CODE OF PROFESSIONAL RESPONSIBILITY, DR 2-110 (C). 21. See ABA CANON 24.
22. Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 592 (1961).
23. Cf. ABA Opinions 253 (1946) and 178 (1938). 24. See ABA CANON 5 and Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).
"The public prosecutor cannot take as a guide for the conduct of his office the standards of an attorney appearing on behalf of an individual client. The freedom elsewhere wisely granted to a partisan advocate must be severely curtailed if the prosecutor's duties are to be properly discharged. The public prosecutor must recall that he occupies a dual role, being obligated, on the one hand, to furnish that adversary element essential to the informed decision of any controversy, but being possessed, on the other, of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice. Where the prosecutor is recreant to the trust implicit in his office, he undermines confidence, not only in his profession, but in government and the very ideal of justice itself." fessional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
"The prosecuting attorney is the attorney for the state, and it is his primary duty not to convict but to see that justice is done." ABA Opinion 150 (1936).
25. As to appearances before a department of government, Canon 26 provides: "A lawyer openly may render professional services. . . in advocacy of claims before departments of government, upon the same principles of ethics which justify his appearance before the Courts
26. "But as an advocate before a service which itself represents the adversary point of view, where his client's case is fairly arguable, a lawyer is under no duty to disclose its weaknesses, any more than he would be to make such a disclosure to a brother lawyer. The limitations within which he must operate are best expressed in Canon 22 ABA Opinion 314 (1965).
27. See Baird v. Koerner, 279 F. 2d 623 (9th Cir. 1960). 28. See ABA CANON 26.
29. "Law should be so practiced that the lawyer remains free to make up his own mind how he will vote, what causes he will support, what economic and political philosophy he will espouse. It is one of the glories of the profession that it admits of this freedom. Distinguished examples can be cited of lawyers whose views were at variance from those of their clients, lawyers whose skill and wisdom make them valued advisers to those who had little sympathy with their views as citizens." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).
"No doubt some tax lawyers feel constrained to abstain from activities on behalf of a better tax system because they think that their clients may object. Clients have no right to object if the tax adviser handles their affairs competently and faithfully__and independently of his private views as to tax policy. They buy his expert services, not his private opinions or his silence on issues that gravely affect the public interest." Paul, The Lawyer as a Tax Adviser, 25 ROCKY Mr. L. REV. 412, 434 (1953).
30. See ABA CANON 9.
32. See Professional Responsibility: Report of the Joint Conference, 44 A.B.AJ. 1159, 1160 (1958).
33. "Without the participation of someone who can act responsibly for each of the parties, this essential narrowing of the issues [by exchange of written pleadings or stipulations of counsel] becomes impossible. But here again the
true significance of partisan advocacy lies deeper, touching once more the integrity of the adjudicative process itself. It is only through the advocate's participation that the hearing may remain in fact what it purports to be in theory: a public trial of the facts and issues. Each advocate comes to the hearing prepared to present his proofs and arguments, knowing at the same time that his arguments may fail to persuade and that his proof may be rejected as inadequate. The deciding tribunal, on the other hand, comes to the hearing uncommitted. It has not represented to the public that any fact can be proved, that any argument is sound, or that any particular way of stating a litigant's case is the most effective expression of its merits." Professional Responsi bility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160-61 (1958).
34. Cf. ABA CANONS 15 and 32. 35. Cf. ABA CANON 21.
36. See Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958).
37. "We are of the opinion that the letter in question was improper, and that in writing and sending it respondent was guilty of unprofessional conduct. This court has heretofore expressed its disapproval of using threats of criminal prosecution as a means of forcing settlement of civil claims.
"Respondent has been guilty of a violation of a principle which condemns any confusion of threats of criminal prosecution with the enforcement of civil claims. For this misconduct he should be severely censured." Matter of Gelman, 230 App. Div. 524, 527, N. Y. S. 416, 419 (1930)
38. "An attorney has the duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling." Gallagher v. Municipal Court, 31 Cal. 2d 784, 796, 192 P.2d 905, 913 (1948).
"There must be protection, however, in the far more frequent case of the attorney who stands on his rights and combats the order in good faith and without disrespect believing with good cause that it is void, for it is here that the independence of the bar becomes valuable." Note, 39 COLUM. L. REV. 433, 438 (1939).
39. "Too many do not understand that accomplishment of the layman's abstract ideas of justice is the function of the judge and jury, and that it is the lawyer's sworn duty to portray his client's case in its most favorable light." Rochelle and Payne, The Struggle for Public Understanding, 25 TEXAS B.J. 109, 159 (1962).
40. "We are of the opinion that this Canon requires the lawyer to disclose such decisions [that are adverse to his client's contentions] to the court. He may, of course, after doing so, challenge the soundness of the decisions or present reasons which he believes would warrant the court in not following them in the pending case." ABA Opinion 146 (1935).
Cf. ABA Opinion 280 (1949) and Thode. The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 585-86 (1961).
41. See ABA CANON 15.
"The traditional duty of an advocate is that he honorably uphold the contentions of his client. He should not voluntarily undermine them." Harders v. State of California, 373 F. 2d 839, 842 (9th Cir. 1967).
42. See ABA CANON 22.
43. Id.; cf. ABA CANON 41.
44. See generally ABA Opinion 287 (1953) as to a lawyer's duty when he unknowingly participates in introducing perjured testimony.
45. "Under any standard of proper ethical conduct an attorney should not sit by silently and permit his client to commit what may have been perjury, and which certainly would mislead the court and the opposing party on a matter vital to the issue under consideration. . . .
"Respondent next urges that it was his duty to observe the utmost good faith toward his client, and therefore he could not divulge any confidential information. This duty to the client of course does not extend to the point of authorizing collaboration with him in the commission of fraud." In re Carroll, 244 S. W. 2d 474, 474-75 (Ky. 1951). 46. See ABA CANON 5; cf. ABA Opinion 131 (1935). 47. Cf. ABA CANON 39.
48. "The prevalence of perjury is a serious menace to the administration of justice, to prevent which no means have as yet been satisfactorily devised. But there certainly can be no greater incentive to perjury than to allow a party to make payments to its opponents witnesses under any guise or on any excuse, and at least attorneys who are officers of the court to aid it in the administration of justice, must keep themselves clear of any connection which in the slightest degree tends to induce witnesses to testify in favor of their clients." In re Robinson, 151 App. Div. 589, 600, 136 N. Y. S. 548, 556-57 (1912), aff'd, 209 N. Y. 354, 103 N. E. 160 (1913).
49. "It will not do for an attorney who seeks to justify himself against charges of this kind to show that he has escaped criminal responsibility under the Penal Law, nor can he blindly shut his eyes to a system which tends to suborn witnesses, to produce perjured testimony, and to suppress the truth. He has an active affirmative duty to protect the administration of justice from perjury and fraud, and that duty is not performed by allowing his subordinates and assistants to attempt to subvert justice and procure
AMERICAN BAR ASSOCIATION
results for his clients based upon false testimony and perjured witnesses." Id., 151 App. Div. at 592, 136 N. Y. S. at 551.
50. See ABA CANON 23.
51. "It is unfair to jurors to permit a disappointed litigant to pick over their private associations in search of something to discredit them and their verdict. And it would be unfair to the public too if jurors should understand that they cannot convict a man of means without risking an inquiry of that kind by paid investigators, with, to boot, the distortions an inquiry of that kind can produce. State v. LaFera, 42 N. J. 97, 107, 199 A. 2d 630, 636 (1964).
52. ABA Opinion 319 (1968) points out that "[m]any courts today, and the trend is in this direction, allow the testimony of jurors as to all irregularities in and out of the courtroom except those irregularities whose existence can be determined only by exploring the consciousness of a single particular juror, New Jersey v. Kóciolek, 20 N. J. 92, 118 A.2d 812 (1955). Model Code of Evidence Rule 301. Certainly as to states in which the testimony and affidavits of jurors may be received in support of or against a motion for new trial, a lawyer, in his obligation to protect his client, must have the tools for ascertaining whether or not grounds for a new trial exist and it is not unethical for him to talk to and question jurors."
53. Generally see ABA ADVISORY COMMITTEE ON FAIR TRIAL AND FREE PRESS, STANDARDS RELATING TO FAIR TRIAL AND FREE PRESS 1966).
"[T]he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters... See State v. Van Dwyne, 43 N. J. 369, 389, 204 A.2d 841, 852 1964), in which the court interpreted Canon 20 of the American Bar Association's Canons of Professional Ethics to prohibit such statements. Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees. In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings. . . . In this manner, Sheppard's right to a trial free from outside interference would have been given added protection without corresponding curtailment of the news media. Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom-not pieced together from extrajudicial statements. Sheppard v. Maxwell, 384 U.S. 333, 361-62, 16 L. Ed. 2d 600, 619-20, 86 S. Ct. 1507, 1521-22 (1966).
"Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function. As a result, at this time those safeguards do not permit the televising and photographing of a criminal trial, save in two States and there only under restrictions. The federal courts prohibit it by specific rule. This is weighty evidence that our concepts of a fair trial do not tolerate such an indulgence. We have always held that the atmosphere essential to the preservation of a fair trial-the most fundamental of all freedoms-must be maintained at all costs." Estes v. State of Texas, 381 U.S. 532, 540, 14 L. Ed. 2d 543, 549, 85 S. Ct. 1628, 1631-32 (1965), rehearing denied, 382 U.S. 875, 15 L. Ed. 2d 118, 86 S. Ct. 18 (1965).
54. "Pretrial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful than publicity during the trial for it may well set the community opinion as to guilt or innocence.. . The trial witnesses present at the hearing, as well as the original jury panel, were undoubtedly made aware of the peculiar public importance of the case by the press and television coverage being provided, and by the fact that they themselves were televised live and their pictures rebroadcast on the evening show." Id., 381 U.S. at 536-37, 14 L. Ed. 2d at 546-47, 85 S. Ct. at 1629-30.
55. "The undeviating rule of this Court was expressed by Mr. Justice Holmes over half a century ago in Patterson v. Colorado, 205 U.S. 454, 462 (1907):
The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."
Sheppard v. Maxwell, 384 U.S. 333, 351, 16 L. Ed. 2d 600, 614. 86 S. Ct. 1507, 1516 (1966).
"The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. . Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution's evidence... It may indeed be greater for it is then not tempered by protective procedures." Marshall v. United
States, 360 U.S. 310, 312-13, 3 L. Ed. 2d 1250, 1252, 79 S. Ct. 1171, 1173 (1959).
"The experienced trial lawyer knows that an adverse public opinion is a tremendous disadvantage to the defense of his client. Although grand jurors conduct their deliberations in secret, they are selected from the body of the public. They are likely to know what the general public knows and to reflect the public attitude. Trials are open to the public, and aroused public opinion respecting the merits of a legal controversy creates a court room atmosphere which, without any vocal expression in the presence of the petit jury, makes itself felt and has its effect upon the action of the petit jury. Our fundamental concepts of justice and our American sense of fair play require that the petit jury shall be composed of persons with fair and impartial minds and without preconceived views as to the merits of the controversy, and that it shall determine the issues presented to it solely upon the evidence adduced at the trial and according to the law given in the instructions of the trial judge.
"While we may doubt that the effect of public opinion would sway or bias the judgment of the trial judge in an equity proceeding, the defendant should not be called upon to run that risk and the trial court should not have his work made more difficult by any dissemination of statements to the public that would be calculated to create a public demand for a particular judgment in a prospective or pending case." ABA Opinion 199 (1940).
Cf. Estes v. State of Texas, 381 U.S. 532, 544-45, 144 L. Ed. 2d 543, 551, 85 S. Ct. 1628, 1634 (1965), rehearing denied, 381 U.S. 875, 15 L. Ed. 2d 118, 86 S. Ct. 18 (1965). 56. See ABA CANON 20.
57. Canon 3 observes that a lawyer "deserves rebuke and denunciation for any device or attempt to gain from a Judge special personal consideration or favor." See ABA CANON 32.
58. "Judicial Canon 32 provides:
A judge should not accept any presents or favors from litigants, or from lawyers practicing before him or from others whose interests are likely to be submitted to him for judgment.
The language of this Canon is perhaps broad enough to prohibit campaign contributions by lawyers, practicing before the court upon which the candidate hopes to sit. However, we do not think it was intended to prohibit such contributions when the candidate is obligated, by force of circumstances over which he has no control, to conduct a campaign, the expense of which exceeds that which he should reasonably be expected to personally bear!" ABA Opinion 226 (1941).
59. See ABA CANONS 3 and 32.
61. See ABA CANONS 1 and 3.
66. See ABA CANON 15.
67. See ABA CANONS 5 and 15; cf. ABA CANONS 4 and 32.
68. Cf. ABA CANON 24.
69. See ABA CANON 30.
70. Cf. ABA CANONS 22 and 29.
71. See ABA CANON 41; cf. Hinds v. State Bar, 19 Cal. 2d 87, 92-93, 119 P.2d 134, 137 (1941); but see ABA Opinion 287 (1953) and TEXAS CANON 38. Also see CODE OF PROFESSIONAL RESPONSIBILITY, DR 4-101(C)(2).
72. See Precision Inst. Mfg. Co. v. Automotive M.M. Co., 324 U.S. 806, 89 L. Ed. 1381, 65 S. Ct. 993 (1945). 73. Cf. ABA CANON 5. 74. "Rule 12. . A member of the State Bar shall not communicate with a party represented by counsel upon a subject of controversy, in the absence and without the consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body." CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962).
75. See ABA CANON 9; cf. ABA Opinions 124 (1934), 108 (1934), 95 (1933), and 75 (1932); also see In re Schwabe, 242 Or. 169, 174-75, 408 P.2d 922, 924 (1965).
"It is clear from the earlier opinions of this committee that Canon 9 is to be construed literally and does not allow a communication with an opposing party, without the consent of his counsel, though the purpose merely be to investigate the facts. Opinions 117, 95, 66," ABA Opinion 187 (1938).
76. Cf. ABA Opinion 102 (1933).
77. Cf. ABA CANON 9 and ABA Opinion 58 (1931). 78. Cf. Note, 38 TEXAS L. REV. 107, 108-09 (1959).
79. "In the brief summary in the 1947 edition of the Committee's decisions (p. 17), Opinion 146 was thus summarized: Opinion 146-A lawyer should disclose to the court a decision directly adverse to his client's case that is unknown to his adversary.
"We would not confine the Opinion to 'controlling authorities'-i.e., those decisive of the pending case-but, in accordance with the tests hereafter suggested, would apply it to a decision directly adverse to any proposition of law on
CODE OF PROFESSIONAL RESPONSIBILITY
which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case.
The test in every case should be: Is the decision which opposing counsel has overlooked one which the court should clearly consider in deciding the case? Would a reasonable judge properly feel that a lawyer who advanced, as the law, a proposition adverse to the undisclosed decision, was lacking in candor and fairness to him? Might the judge consider himself misled by an implied representation that the lawyer knew of no adverse authority?" ABA Opinion 280 (1949).
80. "The authorities are substantially uniform against any privilege as applied to the fact of retainer or identity of the client. The privilege is limited to confidential communications, and a retainer is not a confidential communication, although it cannot come into existence without some communication between the attorney and the-at that stage prospective-client." United States v. Pape, 144 F.2d 778, 782 (2d Cir. 1944), cert. denied, 323 U.S. 752, 89 L. Ed. 2d 602, 65 S. Ct. 86 (1944).
"To be sure, there may be circumstances under which the identification of a client may amount to the prejudicial disclosure of a confidential communication, as where the substance of a disclosure has already been revealed but not its source." Colton v. United States, 306 F. 2d 633, 637 (2d Cir. 1962).
81. See ABA CANON 22; cf. ABA CANON 17.
"The rule allowing counsel when addressing the jury the widest latitude in discussing the evidence and presenting the client's theories falls far short of authorizing the statement by counsel of matter not in evidence, or indulging in argument founded on no proof, or demanding verdicts for purposes other than the just settlement of the matters at issue between the litigants, or appealing to prejudice or passion. The rule confining counsel to legitimate argument is not based on etiquette, but on justice. Its violation is not merely an overstepping of the bounds of propriety, but a violation of a party's rights. The jurors must determine the issues upon the evidence. Counsel's address should help them do this, not tend to lead them astray." Cherry Creek Nat. Bank v. Fidelity & Cas. Co., 207 App. Div. 787, 790-91, 202 N. Y. S. 611, 614 (1924).
82. Cj. ABA CANON 18.
"§6068. . . . It is the duty of an attorney:
(f) To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged." CAL. BUSINESS AND PROFESSIONS CODE $6068 (West 1962).
83. "The record in the case at bar was silent concerning the qualities and character of the deceased. It is especially improper, in addressing the jury in a murder case, for the prosecuting attorney to make reference to his knowledge of the good qualities of the deceased where there is no evidence in the record bearing upon his character. prosecutor should never inject into his argument evidence not introduced at the trial." People v. Dukes, 12 Ill. 2d 334, 341, 146 N. E. 2d 14, 17-18 (1957).
84. "A lawyer should not ignore known customs or practice of the Bar or of a particular Court, even when the law
85. The provisions of Sections (A), (B), (C), and (D) of this Disciplinary Rule incorporate the fair trial-free press standards which apply to lawyers as adopted by the ABA House of Delegates, Feb. 19, 1968, upon the recommendation of the Fair Trial and Free Press Advisory Committee of the ABA Special Committee on Minimum Standards for the Administration of Criminal Justice.
Cf. ABA CANON 20; see generally ABA ADVISORY COMMITTEE ON FAIR TRIAL AND FREE PRESS, STANDARDS RELATING TO FAIR TRIAL AND FREE PRESS (1966).
"From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that prescribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. laboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures." Sheppard v. Maxwell, 384 U.S. 333, 362-63, 16 L. Ed. 2d 600, 620, 86 S. Ct. 1507, 1522 (1966). 86. See ABA CANON 23.
87. "It would be unethical for a lawyer to harass, entice, induce or exert influence on a juror to obtain his testimony." ABA Opinion 319 (1968).
88. See ABA CANON 5. 89. Cf. ABA CANON 5.
"Rule 15. . . . A member of the State Bar shall not advise a person, whose testimony could establish or tend to establish a material fact, to avoid service of process, or secrete himself, or otherwise to make his testimony unavailable." CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962). 90. See In re O'Keefe, 49 Mont. 369, 142 P. 638 (1914). 91. Cf. ABA CANON 3.
92. "Rule 16. . . . A member of the State Bar shall not, in the absence of opposing counsel, communicate with or argue to a judge or judicial officer except in open court upon the merits of a contested matter pending before such judge or judicial officer; nor shall he, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or judicial officer concerning the merits of a contested matter pending before such judge or judicial officer. This rule shall not apply to ex parte matCAL. BUSINESS AND PROFESSIONS CODE $6076 (West
A Lawyer Should Assist in
EC 8-1 Changes in human affairs and imperfections in human institutions make necessary constant efforts to maintain and improve our legal system.1 This system should function in a manner that commands public respect and fosters the use of legal remedies to achieve redress of grievances. By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system, without regard to the general interests or desires of clients or former clients."
EC 8-2 Rules of law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain appropriate changes in the law. He should encourage the simplification of laws and the repeal or amendment of laws that are outmoded. Likewise, legal procedures should be improved whenever experience indicates a change is needed.
EC 8-3 The fair administration of justice requires the availability of competent lawyers. Members of the public should be educated to recognize the existence of legal problems and the resultant need for legal services, and should be provided methods for intelligent selection of counsel. Those persons unable to pay for legal services should be provided needed services. Clients and lawyers should not be penalized by undue geographical restraints upon representation in legal matters, and the bar should address itself to improvements in licensing, reciprocity, and admission procedures consistent with the needs of modern commerce.
EC 8-4 Whenever a lawyer seeks legislative or administrative changes, he should identify the capacity in which he appears, whether on behalf of himself, a client, or the public. A lawyer may advocate such changes on behalf of a client even though he does not agree with them. But when a lawyer purports to act on behalf of the public, he should espouse only those changes which he conscientiously believes to be in the public interest.
EC 8-5 Fraudulent, deceptive, or otherwise illegal con
AMERICAN BAR ASSOCIATION
duct by a participant in a proceeding before a tribunal or legislative body is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers. Unless constrained by his obligation to preserve the confidences and secrets of his client, a lawyer should reveal to appropriate authorities any knowledge he may have of such improper conduct. EC 8-6 Judges and administrative officials having adjudicatory powers ought to be persons of integrity, competence, and suitable temperament. Generally, lawyers are qualified, by personal observation or investigation, to evaluate the qualifications of persons seeking or being considered for such public offices, and for this reason they have a special responsibility to aid in the selection of only those who are qualified. It is the duty of lawyers to endeavor to prevent political considerations from outweighing judicial fitness in the selection of judges. Lawyers should protest earnestly against the appointment or election of those who are unsuited for the bench and should strive to have elected' or appointed thereto only those who are willing to forego pursuits, whether of a business, political, or other nature, that may interfere with the free and fair consideration of questions presented for adjudication. Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism." While a lawyer as a citizen has a right to criticize such
officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system.10 Criticisms motivated by reasons other than a desire to improve the legal system are not justified.
EC 8-7 Since lawyers are a vital part of the legal system, they should be persons of integrity, of professional skill, and of dedication to the improvement of the system. Thus a lawyer should aid in establishing, as well as enforcing, standards of conduct adequate to protect the public by insuring that those who practice law are qualified to do so.
EC 8-8 Lawyers often serve as legislators or as holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."
EC 8-9 The advancement of our legal system is of vital importance in maintaining the rule of law and in facilitating orderly changes; therefore, lawyers should encourage, and should aid in making, needed changes and improvements.
DR 8-101 Action as a Public Official. (A) A lawyer who holds public office shall not: (1) Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest. (2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.
(3) Accept any thing of value from any person
when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official.
DR 8-102 Statements Concerning Judges and Other Adjudicatory Officers.12
(A) A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office. (B) A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.
1. ". [Another] task of the great lawyer is to do his part individually and as a member of the organized bar to improve his profession, the courts, and the law. As President Theodore Roosevelt aptly put it, 'Every man owes some of his time to the upbuilding of the profession to which he belongs.' Indeed, this obligation is one of the great things which distinguishes a profession from a business. The soundness and the necessity of President Roosevelt's admonition insofar as it relates to the legal profession cannot be doubted. The advances in natural science and technology are so startling and the velocity of change in business and in social life is so great that the law along with the other social sciences, and even human life itself, is in grave danger of being extinguished by new gods of its own invention if it does not awake from its lethargy. Vanderbilt, The Five Functions of the Lawyer: Service to Clients and the Public, 40 A.B.A.J. 31, 31-32 (1954).
2. See ABA CANON 29; Cf. Cheatham, The Lawyer's Role and Surroundings, 25 ROCKY MT. L. REV. 405, 406-07 (1953). "The lawyer tempted by repose should recall the heavy costs paid by his profession when needed legal reform has to be accomplished through the initiative of public-spirited laymen. Where change must be thrust from without upon an unwilling Bar, the public's least flattering picture of the lawyer seems confirmed. The lawyer concerned for the standing of his profession will, therefore, interest himself actively in the improvement of the law. In doing so he will not only help to maintain confidence in the Bar, but will have the satisfaction of meeting a responsibility inhering in the nature of his calling." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).
3. See Stayton, Cum Honore Officium, 19 TEX. B.J. 765, 766 (1956); Professional Responsibility: Report of the Joint Conference, 44 A.BA.J. 1159, 1162 (1958); and Paul, The Lawyer as a Tax Adviser, 25 ROCKY MT. L. REV. 412, 43334 (1953).
4. "There are few great figures in the history of the Bar who have not concerned themselves with the reform and improvement of the law. The special obligation of the profession with respect to legal reform rests on considerations too obvious to require enumeration. Certainly it is the lawyer who has both the best chance to know when the law is working badly and the special competence to put it in order." Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958). 5. "Rule 14. A member of the State Bar shall not communicate with, or appear before, a public officer, board, committee or body, in his professional capacity, without first disclosing that he is an attorney representing interests that may be affected by action of such officer, board, committee
or body." CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962).
6. See ABA CANON 2.
"Lawyers are better able than laymen to appraise accurately the qualifications of candidates for judicial office. It is proper that they should make that appraisal known to the voters in a proper and dignified manner. A lawyer may with propriety endorse a candidate for judicial office and seek like endorsement from other lawyers. But the lawyer who endorses a judicial candidate or seeks that endorsement from other lawyers should be actuated by a sincere belief in the superior qualifications of the candidate for judicial service and not by personal or selfish motives; and a lawyer should not use or attempt to use the power or prestige of the judicial office to secure such endorsement. On the other hand, the lawyer whose endorsement is sought, if he believes the candidate lacks the essential qualifications for the office or believes the opposing candidate is better qualified, should have the courage and moral stamina to refuse the request for endorsement." ABA Opinion 189 (1938).
7. "We are of the opinion that, whenever a candidate for judicial office merits the endorsement and support of lawyers, the lawyers may make financial contributions toward the campaign if its cost, when reasonably conducted, exceeds that which the candidate would be expected to bear personally," ABA Opinion 226 (1941).
8. See ABA CANON 1.
9. "Citizens have a right under our constitutional system to criticize governmental officials and agencies. Courts are not, and should not be, immune to such criticism." Konigsberg v. State Bar of California, 353 U.S. 252, 269 (1957).
10. "[E]very lawyer, worthy of respect, realizes that public confidence in our courts is the cornerstone of our governmental structure, and will refrain from unjustified attack on the character of the judges, while recognizing the duty to denounce and expose a corrupt or dishonest judge." Kentucky State Bar Ass'n v. Lewis, 282 S. W. 24 321, 326 (Ky. 1955).
"We should be the last to deny that Mr. Meeker has the right to uphold the honor of the profession and to expose without fear or favor corrupt or dishonest conduct in the profession, whether the conduct be that of a judge or not.
However, this Canon  does not permit one to make charges which are false and untrue and unfounded in fact. When one's fancy leads him to make false charges, attacking the character and integrity of others, he does so at his peril. He should not do so without adequate proof of his charges and he is certainly not authorized to make careless, untruthful and vile charges against his professional brethren." In re Meeker, 76 N. M. 354, 364-65, 414 P.2d 862, 869 (1966),