NEW YORK STATE BAR ASSOCIATION,

CANONS OF ETHICS.

 
WN

3 1924 052 208

 

Garuell Law Schonl Library
‘CANONS OF ETHICS

ADOPTED BY

THE

New York State Bar Association

AT ITS THIRTY-SECOND ANNUAL MEETING HELD
IN THE CITY OF BUFFALO ON THE
28TH AND 29TH OF JANUARY, 1909.
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“ There is certainly, without any exception, no profession in which
so many temptations beset the path to swerve from the line of
strict integrity, in which so many delicate and difficult questions of
duty are continually arising. There are pitfalls and mantraps at
every step, and the mere youth, at the very outset of his career,
needs often the prudence and self-denial as well as the moral cour-
age, which belong commonly to riper years. High moral principle
is the only safe guide, the only torch to light his way amidst dark-
ness and obstruction.”— GEORGE SHARSWOOD.

“Craft is the vice, not the spirit, of the profession. Trick is pro-
fessional prostitution. Falsehood is professional apostasy. The
strength of a lawyer is in thorough knowledge of legal truth, in
thorough devotion to legal right. Truth and integrity can do more
in the profession than the subtlest and wiliest devices. The power
of integrity is the rule; the power of fraud is the exception. Emu-
lation and zeal lead lawyers astray; but the general law of the
profession is duty, not success. In it, as elsewhere, in human life,
the judgment of success is but the verdict of little minds. Pro-
fessional duty, faithfully and well performed, is the lawyer’s glory.
This is equally true of the Bench and of the Bar.’-— EDWARD G.

RYAN.

“ Discourage litigation. Persuade your neighbors to compromise
whenever you can. Point out to them how the nominal winner is
often a real loser —in fees, expenses and waste of time. As a
peacemaker, the lawyer has a superior opportunity of being a good
man. Never stir up litigation. A worse man can scarcely be found
than one who does this. Who can be more nearly a fiend than he
who habitually overhauls the register of deeds in search of defects
in titles, whereupon to stir up strife and put money in his pocket?
A moral tone ought to be enforced in the profession which would
drive such men out of it."— ABRAHAM LINCOLN.
CANONS OF ETHICS

I

PREAMBLE

In America, where the stability of Courts and of all departments
of government rests upon the approval of the people, it is peculiarly
essential that the system for establishing and dispensing Justice be
developed to a high point of efficiency and so maintained that the
public shall have absolute confidence in the integrity and impar-
tiality of its administration. The future of the Republic, to a great
extent, depends upon our maintenance of Justice pure and unsul-
lied. It cannot be so maintained unless the conduct arid the
motives of the members of our profession are such as to merit
the approval of all just men.

II

Tue Canon oF ETHICS

No code or set of rules can be framed, which will particularize all
the duties of the lawyer in the varying phases of litigation or in all
the relations of professional life. The following canons of ethics
are adopted by the New York State Bar Association as a general
guide, yet the enumeration of particular duties should not be con-
strued as a denial of the existence of others equally imperative,
though not specifically mentioned.

1. The Duty of the Lawyer to the Courts.— It is the duty of the
lawyer to maintain towards the Courts a respectful attitude, not for
the sake of the temporary incumbent of the judicial office, but for
the maintenance of its supreme importance. Judges, not being
wholly free to defend themselves, are peculiarly entitled to receive
the support of the Bar against unjust criticism and clamor. When-
ever there is proper ground for serious complaint of a judicial
officer, it is the right and duty of the lawyer to submit the griev-
ances to the proper authorities. In such cases, but not otherwise,
such charges should be encouraged and the person making them

should be protected.

2. The Selection of Judges.—It is the duty of the Bar to endeavor
to prevent political considerations from outweighing judicial fit-
ness in the selection of Judges. It should protest earnestly and
actively against the appointment or election of those who are
unsuitable for the Bench; and it should strive to have elevated
thereto only those willing to forego other employments, whether
of a business, political or other character, which may embarrass
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their free and fair consideration of questions before them for deci-
sion. The aspiration of lawyers for judicial position should be
governed by an impartial estimate of their ability to add honor to
the office and not by a desire for the distinction the position may
bring to themselves.

3. Attempts to Exert Personal Influence on the Court.— Marked
attention and unusual hospitality on the part of a lawyer to a Judge,
uncalled for by the personal relations of the parties, subject both
the Judge and the lawyer to misconstructions of motive and should
be avoided. A lawyer should not communicate or argue privately
with the Judge as to the merits of a pending cause, and he deserves
rebuke and denunciation for any device or attempt to gain from a
Judge special personal consideration or favor. A self-respecting
independence in the discharge of professional duty, without denial
or diminution of the courtesy and respect due the Judge’s station,
is the only proper foundation for cordial personal and official rela-
tions between Bench and Bar.

4. When Counsel for an Indigent Prisoner. A lawyer assigned
as counsel for an indigent prisoner ought not to ask to be excused

for any trivial reason, and should always exert his best efforts in
his behalf.

5. The Defense or Prosecution of Those Accused of Crime.— It
is the right of the lawyer to undertake the defense of a person
accused of crime, regardless of his personal opinion as to the guilt
of the accused; otherwise innocent persons, victims only of sus-
picious circumstances, might be denied proper defense. Having
undertaken such defense, the lawyer is bound by all fair and honor-
able means, to present every defense that the law of the land per-
mits, to the end that no person may be deprived of life or liberty,
but by due process of law.

The primary duty of a lawyer engaged in public prosecution is
not to convict, but to see that justice is done. He should avoid
oppression and injustice of any kind whatsoever. The suppression
of facts or the secreting of witnesses capable of establishing the
innocence of the accused is a public wrong.

6. Adverse Influences and Conflicting Interests.—It is the duty of
a lawyer at the time of retainer to disclose to the client all the cir-
cumstances of his relations to the parties, and any interest in or
connection with the controversy, which might influence the client
in the selection of counsel. ,

It is unprofessional to represent conflicting interests, except by
express consent of all concerned given after a full disclosure of the
facts. Within the meaning of this canon, a lawyer represents con-
flicting interests when, in behalf of one client, it is his duty to con-
tend for that which duty to another client requires him to oppose.
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The obligation to represent the client with undivided fidelity and
not to divulge his secrets or confidences forbids also the subsequent
acceptance of retainers or employment from others in matters
adversely affecting any interest of the client with respect to which
confidence has been reposed.

7. Professional Colleagues and Conflicts of Opinion.— A client’s

proffer of assistance of additional counsel should not be regarded
as evidence of want of confidence, but the matter should be left to
the determination of the client. A lawyer should decline associa-
tion as colleague if it is objectionable to the original counsel, but
if the lawyer first retained is relieved, another may come into the
case. ;
When lawyers jointly associated in a cause cannot agree as to
any matter vital to the interest of the client, the conflict of opinion
should be frankly stated to him for his final determination. His
decision should be accepted unless the nature of the difference
makes it impracticable for the lawyer whose judgment has been
overruled to co-operate effectively. In this event it is his duty to
ask the client to relieve him.

Efforts, direct or indirect, in any way to encroach upon the
business of another lawyer, are unworthy of those who should be
brethren at the Bar; but, nevertheless, it is the right of any lawyer,
without fear or favor, to give proper advice to those seeking relief
against unfaithful or neglectful counsel, generally after communica-
tion with the lawyer of whom the complaint is made.

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

the litigation.

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

law.
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ro. Acquiring Interest in Litigation—-The lawyer should not
purchase any interest in the subject matter of the litigation which

he is conducting.

11. Dealing With Trust Property. Money of the client cr other
trust property coming into the possession of the lawyer should be
reported promptly, and except with the client’s knowledge and con-
sent should not be commingled with his private property or be
used by him.

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

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

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

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

14. Suing a Client for a Fee.— Controversies with clients con-
cerning compensation are to be avoided by the lawyer so far as
shall be compatible with his self-respect and with his right to
receive reasonable recompense for his services; and lawsuits with
clients should be resorted to only to prevent injustice, imposition
or fraud.
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15. How Far a Lawyer May Go in Supporting a Client’s Cause.—
Nothing operates more certainly to create or to foster popular
prejudice against lawyers as a class, and to deprive the profession
of that full measure of public esteem and confidence which belongs
to the proper discharge of its duties than does the false claim,
often set up by the unscrupulous in defense of questionable trans-
actions, that it is the duty of the lawyer to do whatever may
enable him to succeed in winning his client’s cause.

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

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

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

17. Ill Feeling and Personalities Between Advocates.— Clients,
not lawyers, are the litigants. Whatever may be the ill-feeling
existing between clients, it should not be allowed to influence
counsel in their conduct and demeanor toward each other or
toward suitors in the case. All personalities between counsel
should be scrupulously avoided. In the trial of a cause it is
indecent. to allude to the personal history or the personal peculiar-
ities and idiosyncrasies of counsel on the other side. Personal col-
loquies between counsel which cause delay and promote unseemly

wrangling should also be carefully avoided.

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

19. Appearance of Lawyer as Witness for His Client—When a
lawyer is a witness for his client, except as to merely formal mat-
ters, such as the attestation or custody of an instrument and the
like, he should leave the trial of the case to other counsel. Except
when essential to the ends of justice, a lawyer should avoid
testifying in Court in behalf of his client.

20. Newspaper Discussion of Pending Litigation— Newspaper
publications by a lawyer as to pending or anticipated litigation may
interfere with a fair trial in the Courts and otherwise prejudice the
due administration of justice. Generally they are to be con-
demned. If the extreme circumstances of a particular case justify
a statement to the public, it is unprofessional to make it anony-
mously. An ex parte reference to the facts should not go beyond
quotation from the records and papers on file in the Court; but
even in extreme cases it is better to avoid any ex parte statement.

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

22. Candor and Fairness.— The conduct of the lawyer before the
Court and with other lawyers should be characterized by candor
and fairness.

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

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

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

of an officer of the law charged, as is the lawyer, with the duty of
aiding in the administration of justice.

23. Attitude Toward Jury All attempts to curry favor with
juries by fawning, flattery or pretended solicitude for their personal
comfort are unprofessional. Suggestions of counsel, looking to the
comfort or convenience of jurors, and propositions to dispense with
argument, should be made to the Court out of the jury’s hearing.
A lawyer must never converse privately with jurors about the case;
and both before and during the trial he should avoid communicat-
ing with them, even as to matters foreign to the cause.

24. Right of Lawyer to Control the Incidents of the Trial._—
As to incidental matters pending the trial, not affecting the merits
of the cause, or working substantial prejudice to the rights of the
client, such as forcing the opposite lawyer to trial when he is under
affliction or bereavement; forcing the trial on a particular day to
the injury of the opposite lawyer when no harm will result from a
trial at a different time; agreeing to an extension of time for sign-
ing a bill of exceptions, cross interrogatories and the like, the
lawyer must be allowed to judge. In such matters no client has a
right to demand that his counsel shall be illiberal, or that he do
anything therein repugnant to his own sense of honor and
propriety.

25. Taking Technical Advantage of Opposite Counsel; Agree-
ments With Him.—A lawyer should not ignore known customs
or practice of the Bar or of a particular Court, even when the law
permits, without giving timely notice to the opposing counsel. As
far as possible, important agreements, affecting the rights of
clients, should be reduced to writing; but it is dishonorable to avoid
performance of an agreement fairly made because it is not reduced
to writing, as required by rules of Court.

26. Professional Advocacy Other Than Before Courts.—A
lawyer openly, and in his true character may render professional
services before legislative or other bodies, regarding proposed
legislation and in advocacy of claims before departments of gov-
ernment, upon the same principles of ethics which justify his
appearance before the Courts; but it is unprofessional for a lawyer
so engaged to conceal his attorneyship, or to employ secret per-
sonal solicitations, or to use means other than those addressed to
the reason and understanding to influence action.

27. Advertising, Direct or Indirect.— The most worthy and
effective advertisement possible, even for a young lawyer, and
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especially with his brother lawyers, is the establishment of a well-
merited reputation for professional capacity and fidelity to trust.
This cannot be forced, but must be the outcome of character and
conduct. The publication or circulation of ordinary simple busi-
ness cards, being a matter of personal taste or local custom, and
sometimes of convenience, is not per se improper. But solicitation
of business by circulars or advertisements, or by systematic per-
sonal canvassing is unprofessional. It is equally unprofessional
to procure business by indirection through touters of any kind,
whether allied real estate firms or trust companies advertising to
secure the drawing of deeds or wills or offering retainers in
exchange for executorships or trusteeships to be influenced by the
lawyer. Indirect advertisement for business by furnishing or
inspiring newspaper comments concerning causes in which the
lawyer has been or is engaged, or concerning the manner of their
conduct, the magnitude of the interests involved, the importance
of the lawyer’s positions, and all other like self-laudation, defy the
traditions and lower the tone of our high calling, and are intolerable.

28. Stirring up Litigation, Directly or Through Agents.— It
is unprofessional for a lawyer to volunteer advice to bring a law-
suit, except in rare cases where ties of blood, relationship or
trust make it his duty to do so. Stirring up strife and litigation
is not only unprofessional, but it is indictable at common law. It
is disreputable to hunt up defects in titles or other causes of action
and inform thereof in order to be employed to bring suit, or to
breed litigation by seeking out those with claims for personal
injuries or those having any other grounds of action in order to
secure them as clients, or to employ agents or runners for like
purposes, or to pay or reward, directly or indirectly, those who
bring or influence the bringing of such cases to his office, or to
remunerate policemen, court or prison officials, physicians, hospital
attaches or others who may succeed, under the guise of giving
disinterested friendly advice, in influencing the criminal, the sick
and the injured, the ignorant or others, to seek his professional
services. A duty to the public and to the profession devolves upon
every member of the Bar, having knowledge of barratrous prac-
tices upon the part of any practitioner, immediately to inform
thereof to the end that the offender may be disbarred.

29. Upholding the Honor of the Profession Lawyers should
expose without fear or favor before the proper tribunals corrupt or
dishonest conduct in the profession, and should accept without
hesitation employment against a member of the Bar who has
wronged his client. The counsel upon the trial of a cause in which
perjury has been committed owe it to the profession and to the
public to bring the matter to the knowledge of the prosecuting
authorities. The lawyer should aid in guarding the Bar against
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the admission to the profession of candidates unfit or unqualified
because deficient in either moral character or education. He
should strive at all times to uphold the honor and to maintain the
dignity of the profession and to improve not only the law but the
administration of justice.

30. Justifiable and Unjustifiable Litigations— The lawyer must
decline to conduct a civil cause or to make a defense when con-
vinced that it is intended merely to harass or to injure the opposite
party or to work oppression or wrong. But otherwise it is his
right, and, having accepted retainer, it becomes his duty to insist
upon the judgment of the Court as to the legal merits of his client’s
claim. His appearance in Court should be deemed equivalent to
an assertion on his honor that in his opinion his client’s case is
one proper for judicial determination.

31. Responsibility for Litigation— No lawyer is obliged to act
either as adviser or advocate for every person who may wish to
become his client. He has the right to decline employment. Every
lawyer upon his own responsibility must decide what business he
will accept as counsel, what causes he will bring into Court for
plaintiffs, what cases he will contest in Court for defendants. The
responsibility for advising questionable transactions, for bringing
questionable suits, for urging questionable defenses, is the lawyer’s
responsibility. He cannot escape it by urging as an excuse that
he is only following his client’s instructions.

32. The Lawyer’s Duty in Its Last Analysis No client, cor-
porate or individual, however powerful, nor any ‘cause, civil or
political, however important, is entitled to receive, nor should any
lawyer render, any service or advice involving disloyalty to the
‘law whose ministers we are, or disrespect of the judicial office,
which we are bound to uphold, or corruption of any person or
persons exercising a public office or private trust, or deception or
betrayal of the public. When rendering any such improper service
or advice, the lawyer invites and merits stern and just condemna-
tion. Correspondingly, he advances the honor of his profession
and the best interests of his client when he renders service or
gives advice tending to impress upon the client and his undertaking
exact compliance with the strictest principles of moral law. He
must also observe and advise his client to observe the statute law,
though until a statute shall have been construed and interpréted
by competent adjudication, he is free and is entitled to advise as
to its validity and as to what he conscientiously believes to be its
just meaning and extent. But above all a lawyer will find his
highest honor in a deserved reputation for fidelity to private trust
and to public duty, as an honest man and as a patriotic and loyal

citizen.
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II

OatH oF ADMISSION

The general principles which should ever control the lawyer in
the practice of his profession are clearly set forth in the following
Oath of Admission to the Bar:

I DO SOLEMNLY SWEAR:

I will support the Constitution of the United States and the
Constitution of the State of New York.

I will maintain the respect due to Courts of Justice and judicial
officers;

I will not counsel or maintain any suit or proceeding which shall

appear to me to be unjust, nor any defense except such as I believe
to be honestly debatable under the law of the land.

I will employ for the purpose of maintaining the causes confided
to me such means only as are consistent with truth and honor, and
will never seek to mislead the Judge or jury by any artifice or false
statement of fact or law;

I will maintain the confidence and preserve inviolate the secrets
of my client, and will accept no compensation in connection with
his business except from him or with his knowledge and approval;

I will abstain from all offensive personality, and advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which I am charged;

I will never reject, from any consideration personal to myself, the
cause of the defenseless or oppressed, or delay any man’s cause for
lucre or malice. SO HELP ME GOD.