Page:The Green Bag (1889–1914), Volume 20.pdf/112

 AMERICAN CODE OF LEGAL ETHICS the age of twenty-one years, he must seek for other counsel to sustain him in such a defense. And although in this, as well as in that of limitation, the law has given the defense, and contemplates, in the one case, to induce claimants to a timely prosecution of their rights, and in the other designs to protect a class of persons, who by reason of tender age are peculiarly liable to be imposed on, — yet, in both cases, I shall claim to be the sole judge (the pleas not being com pulsory) of the occasions proper for their use."1 I cannot agree, however, that Hoffman's resolutions deserve a place in a code of legal ethics. The pleas of infancy, the Statute of Limitations, and the Statute of Frauds are perfectly good pleas in themselves, and are demanded in the majority of cases by sound public policy. If the case is fit for the attorney to take, the pleas may morally be put in if their truth can be proven. The legislature has given us the age limit, or permitted the common law age limit to con tinue, and it has given us the Statute of Limitations and the Statute of Frauds, all to accomplish certain ends demanded by supposed public policy, and it is upon the legislature, rather than the lawyers, that the responsibility for the pleading of such defenses must be placed. Like the exemp tion statutes, these defenses rest on a real or supposed public policy of which the legis lature is the exclusive judge, and in the vast majority of cases the lawyer is aiding in the carrying out of that public policy by assist ing his client in setting up these defenses. In the cases where injustice is plainly being done by interposing such pleas, the conscien tious lawyer will of course do his best to dissuade the client from resorting to them. His full duty is done, however, when he has protested as vigorously as possible against his client's action. He can then with good conscience file the pleas or, if in the given case such action is repugnant to him, he can refuse to file them, and let the client seek another attorney. '- Quoted on p. 46 of Report of August, 1907.

Having determined that he can properly undertake the case for the client, the attorney's next duty is to have at the very outset a frank and explicit understanding with the client as to the amount of the attorney's compensation. The haggling over fees is the most disagreeable part of a lawyer's business. Every charge has its ethical element, for the lawyer, like the railroad, has always before him the question whether he shall charge what the traffic will bear. Unlike the railroad, however, the lawyer seldom succeeds in charging all that the traffic will bear. Some guide for the fixing of fees has to be furnished as part of every legal ethical code. Such a guide is furnished in sections 50 and 51 of the Alabama code: "50. In fixing fees the following elements should be considered : First. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to properly conduct the cause. Second. 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. Third. The customary charges of the Bar for similar services. Fourth. The real amount involved, and the benefits resulting from the services. Fifth. Whether the compensation be contingent or assured. Sixth. 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 pro fession is a branch of the administration of justice and not a mere money-getting trade. "51. Contingent fees may be contracted for; but they lead to many abuses, and cer tain compensation is to be preferred."1 1 Sees. 56 and 57 of Report of August, 1907, pp. 34 and 35.