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CODE OF ETHICS ALABAMA STATE BAR ASSOCIATION PREAMBLE "There is, perhaps, no profession after that of the sacred
ministry, in which a high-toned morality is more imperatively necessary than
that of the law. There is certainly, without any exception, no profession in
which so many temptations beset the path to swerve from the lines of strict
integrity; in which so many delicate and difficult questions of duty are
constantly arising. There are pitfalls and man-traps 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 courage, which belongs commonly to riper
years. High moral principle is his only safe guide; the only torch to light his
way amidst darkness and obstruction." - Sharswood. These duties are: No rule will determine an attorney's duty in the varying phases of every case. What is right and proper must, in the absence of statutory rules and an authoritative code, be ascertained in view of the peculiar facts, in the light of conscience, and the conduct of honorable and distinguished attorneys in similar cases, and by an analogy to the duties enjoined by statute, and the rules of good neighborhood. The following general rules are adopted by the Alabama State Bar
Association for the guidance of its members: 1. The respect enjoined by law for courts and judicial officers is exacted
for the sake of the office, and not for the individual who administers it.
Bad opinion of the incumbent, however well founded, can not excuse the
withholding of the respect due the office, while administering its functions. 2. The proprieties of the judicial station, in a great measure, disable
the judge from defending himself against strictures upon his official conduct. For this reason, and because such criticisms tend to impair public
confidence in the administration of justice, attorneys should, as a rule,
refrain from published criticism of judicial conduct, especially in reference to causes in which they have been of counsel, otherwise than in courts of
review, or when the conduct of a judge is necessarily involved in determining
his removal from or continuance in office. 3. Marked attention and unusual hospitality to a judge, when the relations of
the parties are such that they would not otherwise be extended, subject both
judge and attorneys to misconstruction, and should be sedulously avoided. A
self-respecting independence in the discharge of the attorney's duties, which at
the same time does not withhold the courtesy and respect due the judge's
station, is the only just foundation for cordial personal and official relations
between bench and bar. All attempts by means beyond these to gain special
personal consideration and favor of a judge are disreputable. 4. Courts and judicial officers, in their rightful exercise of their functions,
should always receive the support and countenance of attorneys against unjust
criticism and popular clamor; and it is an attorney's duty to give them his
moral support in all proper ways, and particularly by setting a good example in
his own person of obedience to law. 5. The utmost candor and fairness should characterize the dealings of attorneys
with the courts and with each other. Knowingly citing as authority an overruled
case, or treating a repealed statute as in existence; knowingly misquoting the
language of a decision or text book; knowingly misquoting the contents of a
paper, the testimony of a witness, or the language or argument of opposite
counsel; offering evidence which is known the court must reject as illegal, to
get it before the jury, under guise of arguing its admissibility, and all
kindred practices, are deceits and evasions unworthy of attorneys. 6. Attorneys owe it to the courts and the public whose business the courts
transact, as well as their own clients, to be punctual in attendance
on their causes; and whenever an attorney is late he should apologize or
explain his absence. 7. One side must always lose the cause; and it is not wise, or respectful to the court, for attorneys to display temper because of an adverse ruling. DUTY OF ATTORNEYS TO EACH OTHER, TO CLIENTS AND THE PUBLIC 8. An attorney should strive, at all times, to uphold the honor, maintain the dignity, and promote the usefulness of the profession; for it is so interwoven with the administration of justice, that whatever redounds to the good of one advances the other; and the attorney thus discharges, not merely an obligation to his brothers, but a high duty to the State and his fellow man. Prejudice Should Not Be Stirred Up 9. An attorney should not speak slightingly or disparagingly of his profession, or pander in any way to unjust popular prejudices against it; and he should scrupulously refrain at all times, and in all relations of life, from availing himself of any prejudice or popular misconception against lawyers, in order to carry a point against a brother attorney. Duties to Be Performed within Limits of Law 10. Nothing has been more potential in creating and pandering to popular prejudice against lawyers as a class, and in withholding from the profession the full measure of public esteem and confidence which belong to
the proper discharge of its duties, than the false claim, often set up by the
unscrupulous in defense of questionable transactions, that it is an attorney's duty to do everything to succeed in his client's cause. Fearlessly Expose Unprofessional Conduct 11. Attorneys should fearlessly expose before the proper tribunals corupt or dishonest conduct in the profession; and there should never be any hesitancy in accepting employment against an attorney who has wronged his client. Defense and Prosecution of Criminal Cases 12. An attorney appearing or continuing as private counsel in the prosecution for a crime of which he believes the accused innocent, for swears himself. The State's attorney is criminal, if he presses for a conviction, when upon the evidence he believes the prisoner innocent. If the evidence is not plain enough to justify a nolle pros., a public prosecutor should submit the case, with such comments as are pertinent, accompanied by a candid statement of his own doubts. Present Such Defenses as Law of Land Permits 13. An attorney cannot reject the defense of a person accused of a criminal
offense, because he knows or believes him guilty. It is his duty by all fair and
honorable means to present such defenses as the law of the land
permits; to the end that no one may be deprived of life or liberty, but by
due process of law. 14. An attorney must decline in a civil cause to conduct a prosecution, when
satisfied that the purpose is merely to harass or injure the opposite party, or
to work oppression and wrong. 15. It is bad practice for an attorney to communicate or argue privately with the judge as to the merits of his cause. Newspaper Advertising 16. Newspaper advertisements, circulars and business cards, tending professional
services to the general public, are proper; but special solicitation Avoid Newspaper Discussion of Legal Matters 17. Newspaper publications by an attorney as to the merits of pending
or anticipated litigation, call forth discussion and reply from the opposite
party, tend to prevent a fair trial in the courts, and otherwise prejudice
the due administration of justice. It requires a strong case to justify such
publications; and when proper, it is unprofessional to make them anonymously. 18. When an attorney is a witness for his client except as to formal matters, 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, an attorney should scrupulously avoid testifying in court in behalf of his client, as to any matter. Avoid Assertion of Belief as to Justice of Client's Case 19. The same reasons which make it improper in general for an attorney to testify for his client, apply with greater force to assertions, some times made by counsel in argument, of personal belief of the client's innocence or the justice of his cause. If such assertions are habitually made they lose all force and subject the attorney to falsehoods; while the failure to make them in particular cases will often be esteemed a tacit admission of belief of the client's guilt, or the weakness of his cause. Disreputable to Stir Up Litigation 20. It is indecent to hunt up defects in titles and the like and inform thereof, in order to be employed to bring suit; or to seek out a person supposed to have a cause of action, and endeavor to get a fee to litigate about it. Except where ties of blood, relationship or trust, make it an attorney's duty, it is unprofessional to volunteer advice to bring a law suit. Stirring up strife and litigation is forbidden by law, and disreputable in morals. Confidences between Client and Attorney 21. Communications and confidence between client and attorney are
the property and secrets of the client, and can not be divulged, except at
his instance; even the death of the client does not absolve the attorney from
his obligation of secrecy. 22. The duty not to divulge the secrets of clients extends further than mere silence by the attorney, and forbids accepting retainers or employment afterwards from others involving the client's interests, in the matters about which the confidence was reposed. When the secrets or confidence of a former client may be availed of or be material, in a subsequent suit, as the basis of any judgment which may injuriously affect his rights, the attorney can not appear in such case without the consent of his former client. Attorney Not to Attack Instruments Drawn by Himself 23. An attorney can never attack an instrument or paper drawn by him for any infirmity apparent on its face; nor for any other cause where confidence has been reposed as to the facts concerning it. Where the attorney acted as a mere conveyancer, and was not consulted as to the facts, and unknown to him. the transaction amounted to a violation of the criminal laws, he may assail it on that ground, in suits between third persons, or between parties to the instrument and strangers. Personal Services before Bodies Other than Courts 24. An attorney openly, and in his true character, may render purely
professional services before committees, regarding proposed legislation, and in
advocacy of claims before departments of the government, upon the same
principles of ethics which justify his appearance before the courts; but it is
immoral and illegal for an attorney so engaged to conceal his attorneyship, or
to employ secret personal solicitations, or to use means other than those
addressed to the reason and understanding, to influence action. 25. An attorney can never represent conflicting interests in the same suit or transaction, except by express consent of all so concerned, with full knowledge of the facts. Even then, such a position is embarrassing, and ought to be avoided. An attorney represents conflicting interests, within the meaning of this rule, when it is his duty, in behalf of one of his clients, to contend for that which duty to other clients in the transaction requires him to oppose. Reputation of a "Rough Tongue" Not Desirable 26. "It is not a desirable professional reputation to live and die with that of a
rough tongue, which makes a man to be sought out and retained to gratify the
malevolent feeling of a suitor, in hearing the other side well lashed and
vilified." 27. An attorney is under no obligation to minister to the malevolence or prejudices of a client in the trial or conduct of a cause. The client can not be made the keeper of the attorney's conscience in professional matters. He can not demand as of right that his attorney shall abuse the opposite. Ill-feeling of Clients Not to Be Entertained by Lawyers 28. Clients, and not their attorneys, are the litigants; and whatever may be the
ill-feeling existing between clients, it is unprofessional for attorneys to
partake of it in their conduct and demeanor to each other, or to suitors in the
case. Attorney Controls Incidents of Trial 30. As to the 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 attorney to trial when he is under affliction or bereavement; forcing the trial on a particular day to the serious injury of the opposite attorney, when no harm will result from a trial at a different time; the time allowed for signing a bill of exceptions, crossing interrogatories, and the like; the attorney must be allowed to judge. No client has a right to demand that his attorney shall be illiberal in such matters, or that he would do anything therein repugnant to his own sense of honor and propriety; and if such a course is insisted on the attorney should retire from the cause. Giving Preference as to Retainer 31. Where an attorney has more than one regular client, the oldest client, in the absence of some agreement, should have the preference of retaining the attorney, as against his other clients in litigation between them. Assurances of Success to Client Not to Be Made 32. The miscarriages to which justice is subject, and the uncertainty of predicting results, admonish attorneys to beware of bold and confident assurances to clients, especially where the employment depends upon the assurance, and the case is not plain. Promptness and Punctuality 33. Prompt preparation for trial, punctuality in answering letters and keeping engagements, are due from an attorney to his client, and do much to strengthen their confidence and friendship. Things Attorney Should Disclose to Client 34. An attorney is in honor bound to disclose to the client at the time of retainer, all the circumstances of his controversy, which might justly influence the client in the selection of his attorney. He must decline to appear in any cause where his obligation or relations to the opposite parties will hinder or seriously embarrass the full and fearless discharge of all his duties. Client Should Have Attorney's Candid Opinion 35. An attorney should endeavor to obtain full knowledge of his client's cause before advising him, and is bound to give him a candid opinion of the merits and probable result of his cause. When the controversy will admit of it he ought to seek to adjust it without litigation, if practicable. Evidence as to Agreements with Client 36. Where an attorney, during the existence of the relation, has lawfully made an agreement which binds his client, he cannot honorably refuse to give the opposite party evidence of the agreement, because of his subsequent discharge or instructions to that effect by his former client. Client's Money a Sacred Fund 37. Money or other trust property coming into the possession of the attorney,
should be promptly reported, and never commingled with his private property or
used by him, except with the client's knowledge and consent. 38. Attorneys should, as far as possible, avoid becoming either borrowers or
creditors of their client; and they ought scrupulously to refrain from
bargaining about the subject matter of the litigation, so long as the relation
of attorney and client continue. 39. Natural solicitude of clients often prompts them to offer assistance of
additional counsel. This should not be met, as it sometimes is, as evidence of
want of confidence; but after advising frankly with the client, it should be
left to his determination. 40. Important agreements affecting the rights of clients should, as far as possible, be reduced to writing; but it is dishonorable to avoid performance of an agreement fairly made, because not reduced to writing as required by rules of court. Known Customs of Bar to Be Followed 41. An attorney should not ignore known customs or practice of the bar of a particular court, even when the law permits, without giving opposing counsel timely notice. Notify Client of Proposed Compromises 42. An attorney should not attempt to compromise with the opposite party, without notifying his client, if practicable. Rule When Counsel Differ as to Vital Matters 43. Where attorneys jointly associate in a cause cannot agree as to any matter vital to the interest of their client, the course to be pursued should be left to his determination. The client's decision should be cheerfully acquiesced in, unless the nature of the difference makes it impracticable for the attorney to co-operate heartily and effectively; in which event, it is his duty to be asked to be discharged. Duty of Attorney Coming into a Case 44. An attorney coming into a cause in which others are employed, should give notice as soon as practicable and ask for conference, and if the association is objectionable to the attorney already in the cause, the other attorney should decline to take part, unless the first attorney is relieved. No Discussion of Merits of Cause with Opposite Party 45. An attorney ought not to engage in discussion or arguments about
the merits of the case with the opposite party, without notice to his attorney. 46. Satisfactory relations between attorney and client are best preserved by a frank and explicit understanding at the outset, as to the amount of the attorney's compensation; and, where it is possible, this should always be agreed on in advance. Suing a Client for a Fee 47. In general, it is better to yield something to a client's dissatisfaction at the amount of the fee, though the sum be reasonable, than to engage in a law suit to justify it, which ought always to be avoided, except as a last resort to prevent imposition or fraud. Value of Attorney's Services Not to Be Overestimated 48. Men, as a rule, overestimate rather than undervalue the worth of their services, and attorneys in fixing their fees should avoid charges which unduly magnify the value of their advice and services, as well as those which practically belittle them. A client's ability to pay can never justify a charge for more than the service is worth; though his poverty may require a less charge in many instances, and sometimes none at all. A Regular Client May Be Charged Less 49. An attorney may charge a regular client, who entrusts him with all
his business, less for a particular service than he would charge a casual
client for like services. The element of uncertainty of compensation where a
contingent fee is agreed on, justifies higher charges than where compensation is assured. 50. In fixing fees the following elements should be considered: 1st. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to properly conduct the cause. 2d. Whether the particular case will debar the attorney's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that the attorney would otherwise be employed; and herein of the loss of other business while employed in the particular case, and the antagonism with other clients growing out of the employment. 3d. The customary charges of the Bar for similar services. 4th. The real amount involved and the benefit resulting from the services. 5th. Whether the compensation was contingent or assured. 6th. Is the client a regular one, retaining the attorney in all his business? No one of these considerations is in itself controlling. They are mere guides in ascertaining what the service was really worth; and in fixing the amount it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade. Contingent Fees 51. Contingent fees may be contracted for; but they lead to many abuses, and certain compensation is to be preferred. Services to Family of a Deceased Lawyer 52. Casual and slight services should be rendered without charge by
one attorney to another in his personal cause; but when the service goes
beyond this an attorney may be charged as other clients. Ordinary advice
and services to the family of a deceased attorney should be rendered without charge in most instances; and where the circumstances make it proper
to charge, the fees should generally be less than in case of other clients. 53. Witnesses and suitors should be treated with fairness and kindness. When essential to the ends of justice to arraign their conduct or testimony, it should be done without vilification or unnecessary harshness. Fierceness of manner and uncivil behavior can add nothing to the truthful dissection of a false witness's testimony, and often rob deserved strictures of proper weight. Duty of Court to Attend to Comfort of Jurors 54. It is the duty of the court and its officers to provide for the comfort of jurors. Displaying special concern for their comfort, and volunteering to ask favors for them, while they are present -- such as frequent motions to adjourn trials, or take recess, solely on the ground of the jury's fatigue, or hunger, and uncomfortableness of their seats, or the court-room, and the like-should be avoided. Such intervention of attorneys, when proper, ought to be had privately with the court; whereby there will be no appearance of fawning upon the jury, nor grounds for ill-feeling of the jury towards the court or opposite counsel, if such requests are denied. For like reasons, one attorney should never ask another in the presence of the jury, to consent to its discharge or dispersion; and when such a request is made by the court, the attorneys, without indicating their preference, should ask to be heard after the jury withdraws. No Private Conversations with Jurors 55. An attorney ought never to converse privately with jurors about the case; and must avoid all unnecessary communication, even as to matters foreign to the cause, both before and during the trial. Any other course, no matter how blameless the attorney's motives, gives color to the imputing evil designs, and often leads to scandal in the administration of justice. Duty When Appointed by Court to Defend Prisoner 56. An attorney assigned as counsel for an indigent prisoner ought not to ask to be excused for any light cause, and should always be a friend to the defenseless and oppressed. |
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