-NRLF LIBRARY OF THE UNIVERSITY OF CALIFORNIA. GIFT OF .. ( ^*^k tr ^^ Class JAR ASSOCIATION OF SAN FRANCISCO Report of Section on Ethics CODE OF ETHICS Unanimously Adopted by Bar Association of San Francisco, Friday, Octooer 14, 1910. BAR ASSOCIATION OF SAN FRANCISCO Report of Section on Ethics CODE OF ETHICS CHARLES S. WHEELER, WARREN OLNEY JR., GROVER O'CONNOR, CHARLES A. SHURTLEPP, A. C. FREEMAN, Members of Section. Published by Authority of the Association. OF TH UNIVERSITY SAN FRANCISCO Recorder Printing and Publishing Company 1010 BAR ASSOCIATION OF SAN FRANCISCO Report of Section on Ethics San Francisco, California, Oct. 13, 1910. To the President and Members of the Bar Associa- tion of San Francisco. Gentlemen: Your Section on Legal Ethics respectfully reports as follows: As understood by your Committee, the phrase "Legal Ethics" broadly embraces every phase of morals and manners pertaining to the two branches of the legal profession the Bench and the Bar in their relation to the administration of justice. Any attempt to codify all of the moral obligations of the lawyer, even if susceptible of successful accom- plishment, would serve no practical purpose, and a Code closely defining, and demanding adherence to, rules of etiquette and set forms and formalities upon the part of members of the Bar in their rela- tions with one another and with the Bench, would bear too close an analogy to hated sumptuary leg- 205700 islation to command the respectful attention of the profession. Most strictly ethical truths are recognized intuitive- ly, and are sufficiently registered in the reasoning and conscience of the individual, and would not be ren- dered more effective by codification. The lawyer's oath, section 282 of the Code of Civil Procedure, and the code sections relating to trusts and trustees, supplemented by the Golden Rule and certain of the Ten Commandments are sufficient, save under extraordinary conditions as a tangible expression of the ethical obligations of the Bar. But it appears to your Committee that occa- sion has arisen for a Code of Ethics differing in es- sential particulars from any that has heretofore ap- peared, and which shall deal with certain phases of some of the duties which the profession is mor- ally obligated to perform and which seem to call for emphasis at the present time. There are live questions stirring at the moment which are of vital consequence not only to the Bar itself, but also to the State and the Nation in their relations with the legal profession. The Code here- with presented for your consideration is an effort to cope with some of them. Your Committee desires to speak plainly in ex- planation of the unmincing phraseology in which it has purposely clothed some of its proposed canons. The Bar is reminded that the President of the United States has declared, publicly and officially, 5* * that the administration of the criminal law is a disgrace to our institutions. In this belief he seems to have the concurrence of all persons save the criminal element and their sympathizers. There is a growing lack of confidence in the im- partiality and integrity of the judiciary. The be- lief is current that lawyers and interests deemed to have been instrumental in securing the nomina- tion and election to office of divers members of the judiciary are peculiarly potent in matters coming before the Bench, and that our judges are tram- melled by political obligations and aspirations in the performance of their duties. Complaint is very general that our courts base their decisions rather on hair-splitting technicalities than upon the real merits of the causes. It is commonly charged against some of our judges that they perform little work, shirk trials, read little law, and are neither sufficiently educated nor experienced in the law to have justified their advancement to the offices they hold. The jury system has acquired the disrespect and the distrust of a very large body of our citizens. There is a belief in many quarters that large inter- ests, corporate and other, maintain bureaus whose business it is to improperly influence jurors, or upon special occasions agencies are invoked for the same corrupt purpose. The feeling is often heard expressed that justice cannot be had from juries in civil causes, notably in damage suits for per- sonal injuries against public service corporations. It is charged that sometimes corrupt juries are de- liberately selected; that at other times jurors are corrupted during the trial, and that the admonitions of the court to jurors not to discuss with third persons or among themselves the cause on trial, are generally and habitually disregarded. Often, where no suspicion of jury-tampering appears, neverthe- less the opinion is prevalent that the trial by jury, once regarded as the buttress of our liberties, has degenerated into a farcical battle of wit between opposing counsel for the favor of the jury's verdict, with very little regard for the evidence in the case or the merits of the controversy. Many hold that the statutory grounds for dis- qualifying jurymen have been so far extended by judicial construction, and in practice, that intelli- gent and fair-minded men are rarely found eligible to jury duty, and that in consequence the intelli- gence of the average jury falls far below the aver- age intelligence of the community; that our system of instructing jurors on questions of law approaches the absurd; that in every day experience jurors are called upon to listen to the reading of many pages of instructions, replete with legal verbiage and at- tenuated distinction, which few lawyers compre- hend at one reading, and which no sane person believes are understood, comprehended or remem- bered by the jurors, and which, though without ac- tual effect upon the verdict, are nevertheless a ( UNIVERSITY I \ OF J X44UFOR^^ 7 fruitful source of reversal, retrial, expense, and de- lay. One hears the complaint from all directions that the law's delays, both in the trial courts and in the appellate courts, amount practically to a denial of justice; that such delays are unnecessary, and are not only tolerated, but are brought about by the apathy of the Bench and Bar. It is frequently charged that the machinery of the law can be so manipulated that, by means of wearing and dila- tory tactics and expensive processes, a litigant with no justice in his cause but possessed of riches can effectually deprive a poor suitor of his rights, and that a large number of the lawyers of this Bar stand ready, for a fee, to pander to the man of property in this prostitution of the law; that the Bar is overrun with dishonest lawyers and un- principled pettifoggers, and that those who are themselves not actually dishonest nevertheless wink at, or at least take no steps to prevent, crookedness in others; that the Bar is too indifferent to its own honor to bring about the disbarment of those who have disgraced the profession; that it is too selfish and inert to perform the duties morally resting upon it as a body; that it is too cowardly as a body to beard and call to account a judge it may know to be shirking and neglecting his judicial duties, or otherwise bringing his high office into disrepute; that the Bar does not uphold the courts against what it may know to be unjust assault and ground- less public clamor, and, generally, that in matters calling for character, independence of action, moral courage, and professional self-respect, it is shock- ingly deficient. The foregoing, and other current beliefs of a kindred nature, however exaggerated they may be, and however unjustified by actual facts and con- ditions, are nevertheless seriously undermining the people's respect for the law, and it will not do for the Bar to close its eyes to their existence. The Code of Ethics herewith presented does not attempt to investigate or pass upon the justness of the complaints enumerated above. It assumes the integrity of the Bar and Bench, but while doing so it recognizes the fact that these complaints exist, and frames its rules with a view not only to the correction of such evils if they do exist, but directs them against any appearances which would justify such strictures, to the end that the complaints may cease, and confidence in and due respect for the courts and the Bar be correspondingly restored. The duty of maintaining its own reputation is the paramount obligation which the profession owes to itself. In order to rehabilitate itself in the people's esteem, it must wake up and exact of itself the performance of its ethical obligations. A fail- ure to do so would be a confession that it is, as a profession, unequal to the honorable duties which a patriotic people has laid upon it. Without organization the Bar cannot hope to 9 meet the obligations which rest upon the profes- sion as a whole. Every man who is fit to stay in the profession is fit to be a member of his local Bar Association. The reputable members of the pro- fession and the whole legal body owe it to them- selves to exercise proper supervision of the pro- fessional conduct of the individuals making up the professional body. By common consent, no man should be held to be in reputable standing at the Bar who is unwilling to identify himself with the organized Bar. The time when apathy and neglect by the individual in this regard can be further tolerated has passed. Henceforth it must be made an accepted canon of the profession that member- ship in such an organization, and a proper atten- tion to the obligations of membership, are essential to professional standing. A Code of Legal Ethics is not self-executing, and, of itself, is without potency or vitality. All that it can hope to do is to prick the consciences and help in arousing the sensibilities of the profession. It is action, and not mere sounding ethical phrases or dogmas, that the situation most earnestly calls for. Respectfully submitted, CHARLES S. WHEELER, Chairman. WARREN OLNEY, GROVER O'CONNOR, CHARLES A. SHURTLEFF, A. C. FREEMAN. CODE OF LEGAL ETHICS OF THE Bar Association of San Francisco i. Distinctive Character of American Legal Ethics. The Bar Association of San Francisco calls upon all licensed practitioners at the San Francisco Bar to bear in mind that the profession of the law, for more than two thousand years, has been recognized as essential to the social concept which is the basis of American civilization; that the ideals of the pro- fession call not only for ability, learning, humanity, and probity, but for a high-minded and unselfish obedience to the ethical truth that the lawyer, as an officer of the Court, is obligated to aid in, and not to hamper or thwart, the administration of justice. They are also called upon to remember that their profession is incorporated into, and dignified by, the organic acts of the State and the Nation; that the Bar is charged with the high duty of supplying from its limited ranks the Judicial Department of govern- ment, the supreme importance of which department is emphasized in the circumstance that the people have 10 11 delegated to it the power to adjudge null and void the acts of the two remaining departments. The Bar is admonished that an incompetent, cow- ardly, or dishonest judiciary would, if persisted in, lead to the overthrow of American institutions; and that a competent, courageous and honest judiciary cannot be looked for if the Bar itself is incompetent, cowardly, dishonest, or careless of the obligations resting upon it as a collective body. The profession should also bear in mind that the lawyer, in addition to his distinct functions in reference to the judicial branch of the government, has always been given much prominence in the legis- lative and executive departments; that in the legis- lative department members of his profession have usually, if not invariably, outnumbered the legislators elected from any other single walk in life, while the chief executives of the State and the Nation have, in most instances, been members of the Bar. The foregoing considerations, to which many of a kindred nature might be added, emphasize the vital nature of the relation of the Bar to American institu- tions, and point to the supreme truth that American patriotism is the keystone of American Legal Ethics. II. Lawyers' Obligations to the Professional Body. To the end that the duties which rest upon the Bar as a professional body may be performed, each lawyer 12 is in honor obligated to devote to the common cause a fair proportion of his time and labor. III. Organized Effort Essential. Since it is obvious that the work of the Bar cannot be effectually accomplished without organized effort, it follows that a local Bar Association should em- brace in its membership each and every reputable member of the Bar. The refusal of a member of the Bar so to identify himself with the body of his pro- fession at his earliest opportunity is a flagrant dis- regard of professional duty. Each member of the Bar is morally bound to per- form fairly and thoroughly the work assigned to him by the organized Bar. Duties of an inquisitorial or disciplinary character demand not only fairness and impartiality, but the highest degree of moral courage, unselfishness and backbone. Boards and committees called upon to dis- charge such duties are, in an important sense, the custodians of the reputation and dignity of the Bar. Shirking of duty on such committees is reprehensible and unprofessional in a high degree. IV. Duty to Maintain High Standard in Personnel of Bench and Bar. It is the duty of the united Bar to exert its influ- ence and efforts to the end that those only who are 18 honest, intelligent, and adequately prepared shall be admitted to the Bar; that those only who maintain their integrity of character shall be permitted to remain there; that those only who are in every way fitted shall be elevated to the Bench, and that those only whose honesty, industry, affiliations, associations, and habits continue to maintain the people's faith in and respect for the law shall be permitted to re- main on the Bench. V. Non-Partisanship in Regard to the Bench. 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 earn- estly and actively against the appointment or election of those who are unsuitable for the Bench. The united Bar should likewise strive for retention in office of competent judges, irrespective of their party affiliations, and should exert its influence for the re- moval of the judiciary from the domain of partisan politics. VI. Attitude of the Bar Toward the Bench. The lawyer must bear in mind that his duty to maintain toward the courts a respectful attitude does not spring from his personal regard for the incumbent of the judicial office, but from the fact that it is of -.14 supreme importance that the dignity of the office shall be maintained. Bad opinion of the incumbent, how- ever well-founded, cannot excuse a failure to exhibit the respect due to the judicial office. Judges are entitled to receive the support of the Bar as a professional body against unjust criticism and clamor. Where there is a proper ground for serious com- plaint against a judicial officer, it is the right and duty of the lawyer to submit his grievance to the proper authorities. In such cases, but not otherwise, such charges should be encouraged, and the person making them should be upheld and protected by his professional brethren. Lawyers are admonished to bear in mind that one side or the other must prevail in each of the several stages of a court proceeding, and that it is highly unprofessional to display temper either in court or out because of an adverse ruling or decision. It is reprehensible and highly unprofessional for a lawyer to communicate, or argue privately, with a 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 consideration or personal privilege or favor. VII. Relations of Bench and Bar. Mutual respect, induced by high-minded independ- ence in the discharge of judicial and professional 15 duty, is a proper foundation for cordial personal and official relations between Bench and Bar. A judge's personal and political friends, who prac- tice before him, owe it to him, to the Bar, and to the public to be scrupulously careful to avoid any ap- pearance, act, or conduct susceptible of misconstruc- tion. VIII. Profession Responsible for the Progress and Adequacy of the Law. Law is a progressive science, and it is the duty of the Bar to do its utmost to keep it abreast of the needs of the times. To that end the Bar should exert itself to bring about the abolition of any rules of law or practice, however firmly grounded in prece- dent, that may appear to have become unsuited to present conditions. Particularly should the Bar strive for the abolition of any statutory or judicial doctrine not consonant with justice and equity. IX. Profession Responsible for the Law's Delays. The Bar admits its full responsibility for such of the law's delays as are not inherently necessary under our system of government. This Bar recognizes that it is an immediate and continuing duty on the part of the profession, on the Bench and at the Bar, to remedy the present tardy methods of conducting legal 16 controveries. To that end the members of the Bar are admonished that code provisions and rules of court regulating pleadings, practice, and procedure are intended to facilitate and speed the administra- tion of justice. Those in existence are recognized by the Bar as adaptable to that purpose if their spirit is insisted upon and obeyed by both Bench and Bar. To the same end, the Association declares it to be not professional for a lawyer to take advantage of any imperfections in the machinery of the law, with the intent thereby to retard, delay, or restrict the speedy trial and conclusion of civil and criminal ac- tions and proceedings, or the hearing of any demurrer, motion, or matter therein requiring a hearing. It is not professional to interpose demurrers for the purpose of securing delay, nor to carp at trivial de- fects in a pleading not going to the merits; nor to move to strike out parts of a pleading where no use- ful purpose will be subserved thereby; nor to obtain by stipulation or by order more time to plead than is reasonably and fairly necessary; nor to neglect to demand a jury trial until on or near the day of trial; nor ever to demand a jury trial where the pur- pose of the demand is to delay the cause; nor to move or request a court to grant a continuance of a cause on statutory grounds without making a strictly legal showing, or upon any other grounds without making or causing to be made to the court and opposing counsel a full, truthful, and unexaggerated statement of the reason therefor; nor to refrain from notifying the court and opposing counsel, as far in advance 17 - of the time set for trial as the circumstances of the case will admit, of an intent to move for a continu- ance; nor to move for a change of venue or to make any other motion in an action or proceeding, merely to vex, harass, or annoy the opposite party, or to put him to needless expense, nor to make use of the delays necessary or possible in the law for the pur- pose of wearing out an antagonist or forcing him to a compromise. It is the duly of the Bench and Bar to be punctual in attendance upon court. It is the lawyer's duty, in the trial of causes, to expedite the work of the court by admitting the truth of all matters which he knows to be true, and not to consume its time by requiring proof, in the hope of discovering and obtaining advantage from technical defects in an opponent's preparation or procedure. The lawyer is ethically obligated, not only to his clients, but also to the Bar, to take upon himself no more business than he can properly and speedily dispatch. While reasonable courtesies in the matter of continuances are essential in the experience of every lawyer, it is inethical to expect, or to seek to obtain, postponements or delays in the trial of causes which are either unreasonable in number or dura- tion, or which are not absolutely necessary. X. Responsibility of the Bar Relative to the Jury System. The Bar must hold its own apathy largely respon- 18 sible for the disrespect into which the jury system has fallen. In all cases a lawyer is responsible to his professional brethren for his own conduct and the conduct of his employees in relation to the jury. Ex- isting conditions demand that he also be held printa facie responsible for any misconduct in the same re- gard by his client or his client's employees. To that end it is declared that henceforth the lawyer repre- senting the side employing improper means with a jury is presumed to be the responsible source of such scandal, and where such improper conduct is shown to have been employed, it is essential to the profes- sional standing of the lawyer representing the side involved that he exonerate himself before the organ- ized Bar from complicity in it or connivance at it. 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 or prospective jurors, and both before and during the trial he should avoid communicating with them even as to matters foreign to the cause. It is not professional for a lawyer to offer evi- dence which he knows the court should reject in order, under the guise of arguing its admissibility, to get the same before the jury, nor should a lawyer ad- dress to the judge arguments or statements known to be foreign to the issue. 19 It is particularly reprehensible to introduce into an argument addressed to the court remarks or state- ments intended to influence the jury or prospective jurors in the cause. It is disreputable and unprofessional to make, in an opening statement to the jury, or in an offer to prove, assertions which a lawyer knows he cannot or will not be permitted to prove. A too narrow application of existing rules oper- ates to relieve a large part of the most intelligent portion of the community from jury duty. The obligation rests upon the Bar to strive for greater liberality in these rules to the end that juries may possess the intelligence essential to true fair- mindedness. The members of the Bar who make up the judiciary are respectfully admonished that it is the concensus of opinion of this Association that the latitude often permitted counsel conducting jury trials, particularly in criminal cases, tends to con- fuse the issue, to improperly bias the jury, and to defeat the ends of justice; and it is the intent of this code respectfully to remind the Bench that it is the duty of the courts, in their ethical relations to the Bar, to hold all counsel strictly and impar- tially to the issues involved, in criminal and civil jury trials, and to enforce their orders and ad- monitions given to that end with all of the powers at their command. 20 XI. The Conduct of Criminal Causes. This Association takes notice of the opinion ex- pressed by the Chief Executive of the Nation him- self a distinguished lawyer and judge that the administration of the criminal law is a disgrace to our institutions. It further recognizes that the remedy lies to a large extent in the domain of legal ethics. It therefore lays down the following canons which should be obvious but which it be- lieves have been generally disregarded in the trial of criminal causes: The lawyer's right and obligation to defend per- sons charged with crime carries with it no duty and no right to prostitute either the letter or the spirit of the law. The lawyer's primary obligation, as an officer of the court, to assist in the administration of justice, is neither abrogated nor diminished by his appoint- ment or retainer to defend a person charged with crime. A lawyer who invents or manufactures defenses for prisoners, or who procures their acquittal by the practice of any manner of deceit, cajolery, wilful distortion, or misrepresentation of facts, or any other means not within the spirit as well as the letter of the law, is to be reckoned as an enemy to society more dangerous than the criminal him- eelf ; while successes at the Bar won by such meth- 21 ods can never be the basis of desirable professional reputations, but, on the contrary, are badges of in- famy. 'Whenever an attorney's professional obligation compels him to bring about the acquittal of a per- son charged with crime through the advancement of a legal proposition foreign to the guilt or innocence of the accused, his success is to be regarded both by him and by his professional brethren rather as the culmination of a regrettable duty than as a pro- fessional triumph. ' Lawyers representing the people in public prose- cutions should use every proper means to lay be- fore the jury the cause of the people, and should strive to prevent miscarriages of justice through the exercise by persons accused of crime, or those acting in their behalf, of any improper or corrupt means. In the criminal law it must be remembered that the people rightfully demand, and are entitled to, not only the conviction of the guilty but the acquit- tal of the innocent as well. To the extent of a full recognition -of the fore- going principles, the feelings of the attorney charged with the prosecution or with the defense may prop- erly enter into his client's cause, but beyond this lie should avoid bringing his personality or his personal feelings or beliefs into a criminal cause. 22 XII. Paramount Ethical Obligation. As a final and emphatic canon in this its Code of Ethics, the Bar Association of San Francisco admonishes the profession that its members are officers of the court charged with the high duty of aiding in the administration of justice, and that this duty enters into and must be recognized as the dominant factor in the interpretation of any obligation resting upon the lawyer to further the interests of his clients or to maintain successfully their causes. 205700