[Michael S. Ariens's posts on The Lawyer's Conscience continue. DRE]
The lawyer’s duty to abide by standards of behavior higher than the marketplace was successively but often unsuccessfully buttressed by concepts of honor, conscience, and rules. When lawyers were relatively few in number, the duty to behave honorably could be invoked by fellow lawyers. The standard of honor was exterior: others decided whether the lawyer was honorable. In theory, lawyers protected themselves (and indirectly, the people) by policing fellow lawyers under this standard. In a few instances, a lawyer initiated a disbarment proceeding. In 1823 in the District of Columbia, lawyer Francis Scott Key, composer of The Star-Spangled Banner, accused lawyer Levi S. Burr of “practices unbecoming a practitioner at the bar,” including having a “general reputation as to your ill-conduct in your profession.” Burr was disbarred. A decade later, he was a prisoner in New York’s Sing-Sing prison, serving his sentence after a perjury conviction. Such policing, however, was inconstant at best, and nonexistent at worst.
In 1836, Baltimore lawyer David Hoffman published the second edition of A Course of Legal Study, a student guide to the study of law, and nearly nine hundred pages long. This edition included fifty Resolutions in Regard to Professional Deportment, standards of ethical conduct. Hoffman believed lawyers should seek honor, in large part by practicing law virtuously. Hoffman’s emphasis on honor led him to conclude a lawyer should never take advantage of one’s clients, to represent the poor, including by taking a case on a contingent fee, and defend the weak against the powerful. He also believed no lawyer should represent a party with a “bad cause,” including making any claim or defense that was “knowingly in the wrong.” Thus, no lawyer should plead the statute of limitations or the defense of infancy.
The first edition of A Course of Legal Study (1817) had been published to a number of enthusiastic reviews, including one by Supreme Court Justice Joseph Story. The second edition was largely ignored, including Hoffman’s fifty Resolutions. Though Hoffman later blamed his publisher for the lack of attention given the 1836 edition, the book was unpopular because it did not meet the interests (or needs) of those in the market for such works. Lawyers (and law students) sought practical publications; A Course of Legal Study was anything but. Lawyers had also rejected Hoffman’s pursuit of honor, or at least the particular actions Hoffman deemed honorable. Lawyers regularly invoked the defenses of the statute of limitations and infancy. There seemed little appetite to serve the poor when the Panic of 1837 devastated the economy. A decade later, Hoffman published a book collecting all his works concerning standards of lawyer behavior, Hints on the Professional Deportment of Lawyers. It was not reviewed at all, but simply disappeared.
The standard of honor was being displaced by the standard of conscience. Conscience was an internal standard. Outwardly, the lawyer was to behave as a professional. A professional acted according to his legal knowledge and his public role, in the light of his conscience. A professional lawyer also acted with integrity and dignity, distinguishing oneself from the pettifogger (and soon, the “shyster”). In an 1839 address to law graduates, Timothy Walker framed the lawyer’s professional duty in light of conscience: “When a client has a bad cause, shall we prosecute it for him?” Yes, for “a lawyer is not accountable for the moral character of the cause he prosecutes, but only for the manner in which he conducts it.” Because only the lawyer who took the cause knew its strengths and weaknesses, other lawyers should refrain from criticizing the lawyer’s decision. If the lawyer could satisfy his conscience, even if it was a “bad cause,” that decision was immune from criticism.
American lawyers would on occasion recur to the standard of honor, but the standard of conscience predominated through the end of the nineteenth century. As the numbers of lawyers climbed, particularly in the last third of the nineteenth century, references to internal conscience became less appealing to some lawyers, and appeared less effective. The work of many corporate lawyers became bureaucratized. Elite lawyers claimed too many railroad lawyers had become “servants” of their clients rather than “counsellors.” Such clients too often hired lawyers “not to give advice but to obey; not to counsel, guide, inform, protect, but to carry out plans … to make legal that which is devious, to devise means for ends which are doubtful.” Another elite lawyer bemoaned the loss of independence of “corporate” lawyers. They had become “little more than a paid employee, bound hand and foot to the service of his employer,” “virtually owned and controlled by the client he serves.”
This loss of independence, or the fear of its loss, led Alabama lawyer Thomas Goode Jones to propose to the newly-formed Alabama State Bar Association that it adopt rules of professional behavior. Six years later, it adopted Jones’ Code of Ethics (1887). His Code followed much of George Sharswood’s antebellum An Essay on Professional Ethics. In general, the fifty-seven rules remained centered on the lawyer’s conscience as central to understanding one’s duties. Some rules provided particular standards, but these were relatively few in number.
Two voluntary state bar associations quickly adopted Jones’ Code, but it took nearly a decade before other state bars followed. Jumping in front of a forming crowd, the American Bar Association (ABA) in 1905 began considering adopting an oath and canons of ethics, which it approved in 1908. It is unclear why the adoption of a code of ethics by other state bars (thirty of which were formed by 1887, and nearly all by 1899) was so halting in the early 1890s and so popular beginning in the late 1890s.
A likely reason appears to be a crisis of identity among elite lawyers. President Theodore Roosevelt criticized (and also praised) elite lawyers for serving the interests of the wealthy at the expense of the public in a 1905 speech. The ABA responded by creating a committee to investigate whether to adopt a code of legal ethics; its President suggested the ABA demonstrate it had kept its “high standard which its position of influence in the country demands.”
The 1908 Code remained the guide to lawyer behavior in most states for over six decades. It served largely to exhort lawyers to be and do good and not bad. One critic complained the ABA Code failed because it focused on what a lawyer may not do. What lawyers needed instead, he concluded, was an expression of some worthy ideals in the practice of law, for “ideals of some kind, lawyers, like other men, necessarily must have.”
