The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1913-06-17

name Martht Elizabeth Fletcher, on
Exhibit l ard ask you 10 say whether
or not that is your signature. A. No.
1t is not. l know it is not; the name
Martha Elizabeth Fletcher on the
back of it is Dot my signature; know
it is not.
@. You don't recognize 1t to be
your handwriting? A. 1t is similar to
mine, but 1t is not mine. ].
@. The other one you say you do
not recognize to be your handwri ing ?
Court: That is enough of that, for
Lords sake.
MIR. McCoid: We except to the
courts remark"
1t may be that counsel had already
covered the matter in ano her way;
but, the remark of the court seems to
have been unfortunate. AS already
indicated, McCoid was a witness for
the defendant and doubtless neces-
sary one, because of his participation
in the settlement of the former suit,
and by reason OF the fact that he was
q "iSbDSo W SOHiS VI luS dlSpuJ6u 5leo-
natures, upon he exhibits, which we
have quoted. He did not withdraw
from the case, as an attorney, but par
ticipated actively in the trial.
AT plaintiffs request, The trial court
gave the following instruction:
IA. You are instructed that in this
state an attorney is a competent wit
ness for his client, if he desires to be
such; but the law does not look with
favor upon an attorney testifying as a
witness In case in which he IS ac-
lively engaged as an attorney conduct
ing the trial of case In such cases,
when it becomes certain that the at
torney will have to be called as wit
ness in the case prudence would indi-
cate that he withdrew from the case
as attorney. No attorney having a
J just conception of his true and proper
position will willingly unite the char
acter of counsel and witness in the
same case.
Given at request of plaintiff
! FRANK w. ETCHEIJBERGER,
Judge"
| This was duly excepted to and coun-
sci for defendant strenuously contend
that it was erroneous and highly pre-.
/ judicial to their client. Il is true, of
course, that this instruction an.
nounced a rule of professional e. hics,
which has long been known to, and,
generally practiced by members of the
bar of this state.
See Alger VS.. Merritt, 16 Iowa 121.
An attorney is undoubtedly COM
petent witness for his client, and Of
ten it is absolutely necessary that he
become such witness; but when he
takes the stand the fact that he is an
attorney for the party in whose favor
he is testifying. may and should be
considered by the jury on the ques-
ton of his credibility:
Ross vs.. Ross, 140 Iowa, 51-54
Kintz VS.. Menu, Lbr. Co., "a N. e.
1 500.
Edwards VS.. Edwards 40 Alt $40.
/ And 1t Is undoubtedly contrary TO
profession ethics for an attorney to
7! become witness without first entire
lly Withdrawing from any further con-
nection with the case, if he can safe
! ly do SO without disregarding the in
terests of his client:
Moore on Facts, Vol 2, Sec. 1107.
| Whether or not he will observe the
rule is a question of legal ethics and
largely matter of discre ion and
while the jury should be instructed to
take the matter of his interest as an
attorney into account in determining
the weight and credibility of his testi-
mony, we think the lecture on profess
sional ethics, embodied in this instruc-
ton, should no. have been given. 1t
not only affected his credit as a
witness, but, If considered by the jury,
as we must assume that it was, entire
ly discredited all his efforts as coun-
sci for the defendant. Such an In
struction necessarily had the effect OF
discounting everything that McCoid
did, either as witness or counsel, in
the case. These rules of profe ssional
ethics are for the guidance OF attor-
neys in the practice Of their profes.
sion and, OF course. they should, as a
rule, be scrupulously obeyed, If one
would retain his standing as a mem
Der of an honorable profession. but, it
is not for the court to enforce them to
the prejudice of the client or to state
them 10 jury in such way that the
client may suffer because counsel may
not have observed the ethical rules of
his profession. The attorney was a
competent witness, and his testimony
was to be weighed in the light of his
interest as an attorney; but his con
duct as an attorney was not to be min
imized before the Jury because he was
witness in the case. No such in
struction has ever been approved, to
our knowledge, by any court of last
resort In The country. And, as we
have said, these rules of professional
ethics are not guides for the jury, and.
! If violated. client should not be