Lon L. Fuller and the 1969 ABA Code of Professional Responsibility

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

It is a mystery why the ABA agreed in the early 1950s to let its unauthorized practice committee undertake an effort to investigate the professional responsibility of lawyers, and to do so jointly with a committee of the Association of American Law Schools (AALS). It's a further mystery why the ABA-AALS Joint Conference's final result was so popular with the ABA. Finally, it's a mystery why Harvard Law School Professor Lon L. Fuller decided to shoulder most of the Conference's work.

In mid-1954, Fuller, then an AALS member of the Joint Conference, wrote a "second revised draft" for the Joint Conference. He wrote in the aftermath of the televised Army-McCarthy hearings, which may account for the draft's focus on why lawyers engage in public service when representing unpopular clients. He received comments from members, was named joint chairman, and followed up with a May 2, 1955 "final draft" to the Joint Conference. Two years passed before Fuller's second final draft (October 1, 1957) was distributed. This draft included an expanded section on the role of the lawyer as courtroom advocate. This draft was published in the ABA Journal (December 1958) and the South Carolina Law Quarterly (Spring 1959).

Professional Responsibility: A Statement, begins with a call to the "special obligations" of those who claim membership in a profession. One aspect of the lawyer's special obligations was to consider, not merely the legal task at hand, but one's work in light of the "ideals" giving meaning to that work. Dedication to these ideals allowed the lawyer to "reconcile a fidelity to those he serves along with an equal fidelity to an office." Such dedication moved the lawyer beyond the concerns of self-interest. When lawyers recognized the important social role they played, they considered the reasons that supported the profession's ethical "restraints," not merely the restraints themselves.

The Joint Conference's focus on the legal profession's "ideals," purposes, and goals was unusual. The Statement avoided lapsing into mere platitudes. And its brevity allowed Fuller to ignore the mind-numbing discussions of the details regarding ethical "restraints." The Statement offered a positive message that the ordinary work of the ordinary lawyer was crucial to the functioning of a democratic society.

An ABA committee began working on a new code of professional responsibility in 1964. Fuller played no role in its deliberations or conclusions. However, the committee's reporter, John F. Sutton Jr., was an admirer of Fuller's work. A University of Texas law professor, Sutton had led a Texas effort to amend its code of ethics a few years earlier. As finally adopted by the ABA in 1969, the Code of Professional Responsibility consisted on nine "axiomatic" canons, followed by Ethical Considerations "aspirational in character," and Disciplinary Rules "mandatory in character." Sutton adapted Fuller's view (found in The Morality of the Law (1964)) that law comprised two moralities, one of aspiration and the other of duty, to the professional responsibilities of the lawyer, thus leading to Ethical Considerations and Disciplinary Rules. Sutton also relied on the Joint Conference's Statement when drafting the Code. The Statement was cited more than twenty times in the Code, more than any other reference.

The Code was adopted without amendment by the ABA House of Delegates in August 1969. In less than three years it was adopted as law in forty-three states and the District of Columbia, ordinarily with few changes. (An additional four state bar associations adopted it as applicable to their members.) And by 1977, the ABA Code of Professional Responsibility was attacked in the ABA Journal as jejune, a mere "transitional document representing a middle stage in the development of a law for lawyers." This was appellation was particularly directed toward the Ethical Considerations, initially understood as the heart of the Code. The Code, as Sutton knew better than anyone, had some major problems, including a bias for some traditional ethical rules that Sutton decried as "at worst obstreperous and obstructionistic." But the die had been cast. The ABA had decided to embark on another effort to re-state the ethical constraints binding the actions of lawyers. The debates on these Model Rules of Professional Conduct exposed a yawning divide among lawyers.