Thursday, August 9, 2007

More from Carle: the role of the NAACP in the development of 20th century U.S. legal ethics

More from Susan Carle, American University: a series of earlier articles, recently posted, on the history of legal ethics. These two articles explore the important story of the role of NAACP litigation in the development of American legal ethics. The first is Race, Class, and Legal Ethics in the Early Naacp (1910-1920). It appeared in the Law and History Review in 2002. Here's the abstract:
The history of the NAACP is key to American conceptions of how to achieve social change through law. Yet despite the vast literature on the NAACP, no one has explored how the early NAACP navigated traditional legal ethics strictures in developing its innovative test case litigation strategies. In this Article, Prof. Carle examines that question, focusing on the activities of the elite white New York City practitioners who dominated the NAACP's first national legal committee between 1910 and 1920. Prof. Carle shows that this committee was experimenting with litigation strategies that included soliciting clients, advertising legal services to strangers, and staging facts for test cases. At the same time, legal committee members were involved in local bar associations that were enforcing legal ethics prohibitions against solicitation, advertising, and "stirring up" litigation. Prof. Carle explores the world view that allowed these lawyers to champion the NAACP's innovative legal work while simultaneously supporting the bar's traditional legal ethics views. She argues that the committee members' universalist understanding of the public good allowed them to endorse the NAACP's use of innovative litigation techniques while sitting on bar committees that penalized other practitioners for similar conduct, and that their professional and social privilege gave them such freedom to maneuver around inconvenient legal ethics norms in experimenting with new forms of public interest practice.

The story continues. From Buchanan to Button: Legal Ethics and the Naacp (Part II) appeared in the University of Chicago Legal Forum in 2001. Here's the abstract:
This paper continues an inquiry I have undertaken into the relationship between the NAACP's public impact litigation strategies and traditional legal ethics norms. In an earlier paper, I investigated the legal ethics mind set of the members of the NAACP's first national legal committee, who oversaw the organization's legal work in the period between 1910 and 1920. This first article confined its examination to the NAACP's first decade of existence, but the NAACP's influence on the development of the ethical norms applying to public interest law practice by no means ends with this early period. The NAACP's legal wars with hostile southern states in the 1950s and 1960s culminated in the United States Supreme Court's important legal ethics decision in NAACP v. Button. That case essentially legalized the public impact litigation techniques that are at the core of U.S. conceptions of how to use law as an instrument for social change.
This Article picks up where my earlier article left off and explores the transition from the early twentieth century legal ethics views of the NAACP's first national legal committee to the understanding of the relationship between legal ethics rules and public interest law reflected in Button. The transition from Buchanan to Button reflects one aspect of an enormously complicated story. One of many chapters of that story involved transformations in lawyers' conceptions of their ethical obligations. That is the aspect of the transition from Buchanan to Button I am interested in here.
I undertake this inquiry by setting up two contrasts. First, in Part I, I compare snapshot views of two U.S. Supreme Court cases the NAACP litigated half a century apart, Buchanan v. Warley and NAACP v. Button. Second, in Part II, I contrast the biographies of two leading NAACP lawyers of different generations, Moorfield Storey and Charles Hamilton Houston. I examine the socially and historically situated perspectives of these two lawyers and analyze the complex interactions among a number of variables -- including race, social standing, insider versus outsider status in the profession, political conditions, and changing jurisprudential conceptions of the nature of legal representation -- that help account for their different approaches to the NAACP's legal ethics challenges during their respective generations. Finally, in Part III, I trace the development of the Supreme Court's legal ethics jurisprudence under Button and suggest the beginnings of a critical approach based on this analysis.