SEC. 58. CHAPTER VII DUTIES TO ADVERSE PARTY SEC. 57. Not to Procure Employment Against. SEC. 59. SEC. 61. SEC. 62. SEC. 63. SEC. 64. Not to Procure Opponent's Evidence by Trickery. Not to Circulate Slander Concerning Him. Duty in Reading Adversary's Pleadings in Court. Duty to the Adversary When on the Witness Stand. SEC. 65. Not to Slander for Mere Effect in Plea to Jury. SEC. 66. Summary of Chapter. § 57. NOT TO PROCURE EMPLOYMENT AGAINST. In ordinary walks of life there is no especial duty not to become a partisan against an enemy or even, of one's own volition, to seek out some person who has a grievance against the aforesaid enemy and make common issue with him against the enemy. But is this true in the profession of law? Let us suppose a lawyer has a personal grievance against an individual and learns that a third person has a claim against him. If suit were brought upon the claim, it would vex and financially embarrass the man who had incurred the lawyer's enmity. Suppose the lawyer were to go to the third person and volunteer to conduct the case for him, actually persuading him to bring suit. Would such conduct on the part of the lawyer be a violation of legal ethics? To answer the question we need only consider that a lawyer is an officer of the court. As an officer he has no right to stir up litigation, whether it be for sake of the resulting fee or to satisfy a personal grudge. But, on the other hand, if a case should come to him, even against an enemy, he has a right to accept it, although he may be suspected of having solicited the employment. American Bar Association Code of Ethics, Canon 28: "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." § 58. NOT TO CONFER WITH EXCEPT IN PRESENCE OF COUNSEL. If the adverse party has engaged a lawyer, it is grossly unprofessional to attempt to deal with him except with the consent of, or in the presence of the lawyer. So to do would be to affront the lawyer and to cast discredit upon the profession 1 See § 71. of law. Furthermore it would demonstrate a spirit of trickery and a lack of professional honor in the lawyer so acting. A person who has engaged a lawyer to look after his interests in a given cause places the entire matter in his charge. He engages him because he is learned in the law and can protect his client's rights. It is the right of the client to have all persons representing adverse interests go to the attorney and negotiate with him rather than try to take advantage of his own lack of technical knowledge of his rights. American Bar Association Code of Ethics, Canon 9: "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." IF ADVERSE PARTY HAS NO COUNSEL If the adversary has not engaged a lawyer, it is of course necessary to deal directly with him. The question then arises; how shall it be done without laying one's self open to suspicion of unfair treatment, either to the adverse party, or to one's own client? Suppose also the adverse party makes damaging admissions during the negotiations; how shall these admissions be proved? The answer to both questions is either to employ a stenographer to take down the entire conversation, or to confer in the presence of witnesses. If the nature of the conference is such that the presence of witnesses would embarrass the adversary and prevent frankness, questions may be put in writing and the answers made in the same way. A permanent record is thus obtained, and if the answers are in the adversary's own handwriting they may be used against him in evidence, even more effectively than a stenographic record might be. Hoffmann's Resolutions, Resolve 44: "Should the party just mentioned have no counsel, and my client's interest demand that I should still commune with him, it shall be done in writing only, and no verbal response will be received. And if such person be unable to commune in writing, I will either delay the matter until he employs counsel, or take down in writing his reply in the presence of others; so that, if occasion should make it essential to avail myself of his answer, it may be done through the testimony of others, and not by mine. Even such cases should be regarded as the result of unavoidable necessity, and are to be resorted to only to guard against great risk, the artifices of fraud, or with the hope of obviating litigation." § 59. NOT TO ADVISE ADVERSE PARTY AS TO THE LAW. The lawyer has no right, either directly or indirectly, to advise the adverse party as to the law concerning his case. Even though the lawyer may honestly feel that he is giving him a correct version of the law, there is always the possibility of mistake, and if a mistake is made favorable to the interests of one's client, suspicion at once arises that the lawyer has intentionally misrepresented the law. Such a charge would be hard to meet, even if the issue were tried in court. The impression unfavorable to the lawyer and to the profession of law that would go out generally, would be impossible to recall. But, aside from the question of possible injury to the lawyer's reputation, the practice is unjustifiable from any point of view. The lawyer has assumed the view-point of his own client. It is his duty to be antagonistic to the adversary. Hence, legal advice to him is necessarily made with the purpose of intimidating him and thus bringing about a settlement. |