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CODE OF PROFESSIONAL RESPONSIBILITY
appeal dismissed, 385 U.S. 449, 17 L. Ed. 2d 510, 87 S. Ct. 613 (1967).
11. "Opinions 16, 30, 34, 77, 118 and 134 relate to Canon 6, and pass on questions concerning the propriety of the conduct of an attorney who is a public officer, in representing private interests adverse to those of the public body which he represents. The principle applied in those opinions is that an attorney holding public office should avoid all conduct which might lead the layman to conclude that the attorney is utilizing his public position to further his professional success or personal interests." ABA Opinion 192 (1939).
"The next question is whether a lawyer-member of a legislative body may appear as counsel or co-counsel at hearings before a zoning board of appeals, or similar tribunal, created by the legislative group of which he is a member. We are of the opinion that he may practice before fact-finding officers, hearing bodies and commissioners, since under our views he may appear as counsel in the courts where his
municipality is a party. Decisions made at such hearings are usually subject to administrative review by the courts upon the record there made. It would be inconsistent to say that a lawyer-member of a legislative body could not participate in a hearing at which the record is made, but could appear thereafter when the cause is heard by the courts on administrative review. This is subject to an important exception. He should not appear as counsel where the matter is subject to review by the legislative body of which he is a member. . . . We are of the opinion that where a lawyer does so appear there would be conflict of interests between his duty as an advocate for his client on the one hand and the obligation to his governmental unit on the other." In re Becker, 16 Ill. 2d 488, 494-95, 158 N. E. 2d 753, 756-57 (1959).
Cf. ABA Opinions 186 (1938), 136 (1935), 118 (1934), and 77 (1932). 12. Cf. ABA CANONS 1 and 2.
A Lawyer Should Avoid
Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system.1 A lawyer should promote public confidence in our system and in the legal profession." EC 9-2 Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a law
yer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client. While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.*
EC 9-3 After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to ac
cept employment would give the appearance of impropriety even if none exists.
EC 9-4 Because the very essence of the legal system is to provide procedures by which matters can be presented in an impartial manner so that they may be decided solely upon the merits, any statement or suggestion by a lawyer that he can or would attempt to circumvent those procedures is detrimental to the legal system and tends to undermine public confidence in it. EC 9-5 Separation of the funds of a client from those of his lawyer not only serves to protect the client but also avoids even the appearance of impropriety, and therefore commingling of such funds should be avoided. EC 9-6 Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety."
DR 9-101 Avoiding Even the Appearance of Impropriety."
(A) A fawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity."
(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official. DR 9-102 Preserving Identity of Funds and Property of a Client.10
(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank ac counts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law
firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
AMERICAN BAR ASSOCIATION
1. "Integrity is the very breath of justice. Confidence in our law, our courts, and in the administration of justice is our supreme interest. No practice must be permitted to prevail which invites towards the administration of justice a doubt or distrust of its integrity." Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 868 (1928).
2. "A lawyer should never be reluctant or too proud to answer unjustified criticism of his profession, of himself, or of his brother lawyer. He should guard the reputation of his profession and of his brothers as zealously as he guards his own." Rochelle and Payne. The Struggle for Public Understanding, 25 TEXAS B. J. 109, 162 (1962).
3. See ABA CANON 29.
4. See ABA CANON 36.
5. "As said in Opinion 49, of the Committee on Professional Ethics and Grievances of the American Bar Association, page 134: An attorney should not only avoid impropriety but should avoid the appearance of impropriety." State ex rel. Nebraska State Bar Ass'n v. Richards, 165 Neb. 80, 93, 84 N. W. 2d 136, 145 (1957).
"It would also be preferable that such contribution [to the campaign of a candidate for judicial office] be made to a campaign committee rather than to the candidate personally. In so doing. possible appearances of impropriety would be reduced to a minimum." ABA Opinion 226 (1941).
"The lawyer assumes high duties, and has imposed upon him grave responsibilities. He may be the means of much good or much mischief. Interests of vast magnitude are entrusted to him; confidence is reposed in him; life, liberty, character and property should be protected by him. He should guard, with jealous watchfulness, his own reputation, as well as that of his profession." People ex rel. Cutler v. Ford, 54 II. 520, 522 (1870), and also quoted in State Board of Law Examiners v. Sheldon, 43 Wyo. 522, 526, 7 P.2d 225. 227 (1932).
See ABA Opinion 150 (1936).
6. Cf. CODE OF PROFESSIONAL RESPONSIBILITY, EC 5-6. 7. See ABA CANON 36.
"It is the duty of the judge to rule on questions of law and evidence in misdemeanor cases and examinations in felony cases. That duty calls for impartial and uninfluenced judgment, regardless of the effect on those immediately involved or others who may, directly or indirectly, be affected. Discharge of that duty might be greatly interfered with if the judge, in another capacity, were permitted to hold himself out to employment by those who are to be, or who may be, brought to trial in felony cases, even though he did not conduct the examination. His private interests as a lawyer in building up his clientele, his duty as such zealously to espouse the cause of his private clients and to defend against charges of crime brought by law-enforcement agencies of which he is a part, might prevent, or even destroy, that unbiased judicial judgment which is so essential in the administration of justice.
"In our opinion, acceptance of a judgeship with the duties of conducting misdemeanor trials, and examinations in felony cases to determine whether those accused should be bound over for trial in a higher court, ethically bars the
judge from acting as attorney for the defendants upon such trial, whether they were examined by him or by some other judge. Such a practice would not only diminish public confidence in the administration of justice in both courts, but would produce serious conflict between the private interests of the judge as a lawyer, and of his clients, and his duties as a judge in adjudicating important phases of criminal processes in other cases. The public and private duties would be incompatible. The prestige of the judicial office would be diverted to private benefit, and the judicial office would be demeaned thereby." ABA Opinion 242 (1942).
"A lawyer, who has previously occupied a judicial position or acted in a judicial capacity, should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment which might reasonably appear to involve the same facts." ABA Opinion 49 (1931).
See ABA Opinion 110 (1934).
8. See ABA Opinions 135 (1935) and 134 (1935); cf. ABA CANON 36 and ABA Opinions 39 (1931) and 26 (1930). But see ABA Opinion 37 (1931).
9. "[A statement by a governmental department or agency with regard to a lawyer resigning from its staff that includes a laudation of his legal ability] carries implications, probably not founded in fact, that the lawyer's acquaintance and previous relations with the personnel of the administrative agencies of the government place him in an advantageous position in practicing before such agencies. So to imply would not only represent what probably is untrue, but would be highly reprehensible." ABA Opinion 184 (1938). 10. See ABA CANON 11.
"Rule 9. ... A member of the State Bar shall not commingle the money or other property of a client with his own; and he shall promptly report to the client the receipt by him of all money and other property belonging to such client. Unless the client otherwise directs in writing, he shall promptly deposit his client's funds in a bank or trust company .. in a bank account separate from his own account and clearly designated as 'Clients' Funds Account' or 'Trust Funds Account' or words of similar import. Unless the client otherwise directs in writing, securities of a client in bearer form shall be kept by the attorney in a safe deposit box at a bank or trust company, . . . which safe deposit box shall be clearly designated as 'Clients' Account' or 'Trust Account' or words of similar import, and be separate from the attorney's own safe deposit box." CAL. BUSINESS AND PROFESSIONS CODE $6076 (West 1962).
"[C]ommingling is committed when a client's money is intermingled with that of his attorney and its separate identity lost so that it may be used for the attorney's personal expenses or subjected to claims of his creditors. The
rule against commingling was adopted to provide against the probability in some cases, the possibility in many cases, and the danger in all cases that such commingling will result in the loss of clients' money. Black v. State Bar, 57 Cal. 2d 219, 225-26, 368 P.2d 118, 122, 18 Cal. Rptr. 518, 522 (1962).
(1) "Differing interests" include every interest that
(3) "Person" includes a corporation, an association,
(4) "Professional legal corporation" means a corpora
tion, or an association treated as a corporation, authorized by law to practice law for profit.
(5) "State" includes the District of Columbia, Puerto Rico, and other federal territories and possessions.
(6) "Tribunal" includes all courts and all other adjudicatory bodies.
(7) "A Bar association representative of the general bar" includes a bar association of specialists as referred to in DR 2-105(A)(1) or (4).
• "Confidence" and "secret" are defined in DR 4-101 (A).
Conflicting interests. See Adverse effect on professional judgment of lawyer.
Consent of client, requirement of
acceptance of employment though interests conflict, 18, 19, 20, 21
acceptance of value from third person, 6, 21
advice requested from another lawyer, 17
aggregate settlement of claims, 21
association of lawyer, 6, 9
foregoing legal action, 25
multiple representation, 19, 20, 21
revelation of client's confidences and secrets, 17 use of client's confidences and secrets, 17 withdrawal from employment, 10
Consent of tribunal to lawyer's withdrawal, requirement
of, 9, 10
Consultant. See Advertising, availability as consultant. Contingent fee, propriety of
in civil actions, 6, 19, 21
in criminal actions, 6, 9
in domestic relation cases, 6
Continuing legal education programs, 23
fee provisions, desirability of writing, 6
restrictive covenant in, 9
Controversy over fee, avoiding, 6
Copyright practitioner, 6, 9
Corporation, lawyer employed by, 20, 21
Counsel, designation as
"General Counsel" designation, 7
"Of Counsel" designation, 7
Corporation, professional legal. See Professional legal corporation.
Counseling. See Client, counseling.
Courts. See also Consent of tribunal to lawyer's withdrawal, requirement of; Evidence, conduct regarding; Trial tactics.
appointment of lawyer as counsel, 7
courtesy, known customs of, 27, 28
personal influence, prohibitions against exerting, 27,
Desires of third parties, duty to avoid influence of, 20, 21
Differing interests, 19, 37. See Also Adverse effect on professional judgment of lawyer.
Directory listing. See Advertising, directories. Disciplinary procedures, 1
application of, 1
purpose and function of, 1
Disciplinary sanction, 1
Discipline of lawyer, grounds for
advancement of funds to client improper, 21
advertising, improper, 7-8
associates, failure to exercise reasonable care toward,
bribery of legal officials, 29
circumvention of disciplinary rule, 3
clients' funds, mismanagement of, 35
communication with adverse party, improper, 28
communication with jurors, improper, 29
confidential information, disclosure of, 17
conflicting interests, representation of, 20, 21 crime of moral turpitude, 3
criminal conduct, 3, 27-28
differing interests, improper representation of, 20-21 disregard of tribunal ruling, 28
division of fee, improper, 9, 15
employees, failure to exercise reasonable care toward,
penalties imposed, 1
fair trial, requirement of, 1 Disclosure of improper conduct of another lawyer, 3
of bar applicant, 3
of judge, 3
toward juror or venireman, 27
Discretion of government lawyer, exercise of, 27-28
Discussion of pending litigation with news media. See
Diverse interests. See Adverse effect on professional judgment of lawyer.
Division of legal fees
consent of client, when required for, 6, 9
reasonableness of total fee, requirement of, 6, 9
with associated lawyer, 6, 9
with estate of deceased lawyer, 15
with laymen, 15
Dual practice, holding out as being engaged in pro