AMERICAN LEGAL ETHICS IN AN AGE OF ANXIETY (original) (raw)
Related papers
The Agony of Modern Legal Ethics, 1970–1985
When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United States and the Soviet Union. Relatedly, American lawyers argued they possessed a central role in maintaining the rule of law. From the 1950s through the mid-1960s, the popular image of lawyers may have peaked. It was at this time that the ABA began its work to update the 1908 Canons of Ethics. The ABA’s adoption of the Code of Professional Responsibility in 1969 was the first significant reformulation of a lawyer’s code of ethics, and was intended to demonstrate that lawyers deserved the trust placed in them by American society. The ABA’s adoption of the Code, and its quick acceptance by most states as law, were the last acts in a “golden age.” By 1974, the American legal profession was reeling from the turmoil of the late 1960s, followed by the Watergate affair and an economic downturn that adversely affected many lawyers. The larger legal profession was buffeted by a series of lawsuits alleging antitrust violations by the ABA and state bar organizations, and the Supreme Court held in 1977 that a ban on lawyer advertising for ethical reasons was unconstitutional. Although some lawyers did exceedingly well economically during the 1970s, many struggled. In late 1977, the President of the ABA called for the Code’s replacement. Shortly thereafter, the ABA’s House of Delegates approved the nomination of the members of the Kutak Commission, which was handed this task. During the half-decade effort to craft the Model Rules of Professional Conduct, the problematic ethical behavior of lawyers continued to make national news. Within the profession, a significant segment of the Bar rejected the structure and tenets of the Code, demanding a “modern” code of legal ethics befitting the needs of modern lawyers. Another segment of the lawyer population challenged the particular vision within the Code of the ethical duties of lawyers in representing clients. When the ABA adopted its Model Rules of Professional Conduct, it replaced a code that combined rules and aspirations with an approach that merely set a floor regarding lawyer conduct. The drafters of the Model Rules intentionally created a law of lawyering that supplanted an ethic of lawyering. Much more so than the Code, the Model Rules ushered in the modern understanding of lawyer. This Article examines a crucial period in the history of American legal ethics, 1970–1985. Its thesis is that a shallow, though broad, consensus among American lawyers concerning the ideals of legal professionalism dissolved during the 1970s. An ideological dissensus, propelled by the scandalous behavior of some Executive Branch lawyers in the Watergate affair, joined by a heightened fear of economic torpor, shattered the post-World War II profession’s accepted self-definition. The Model Rules of Professional Conduct implicitly acknowledged this ideological disagreement, a disagreement that has coursed through the history of the American legal profession from the late 1970s to the present.
2014
The Watergate break-in and its cover-up in the early 1970s convinced the American public that lawyers will do illegal and immoral things for the sake of their clients' and their own interests. The organized bar responded to Watergate with several steps that were designed to clean up the profession. The ABA adopted a new set of professional rules,' law schools required students to study professional responsibility, and states required that lawyers pass a special professional responsibility exam. But continued problems in the legal profession have followed this attention to professional rules. In addition to the highly publicized lawyer leadership in the corporate takeover, savings and loan, and Whitewater scandals, observers of the legal profession find among lawyers a growing preoccupation with making money, 2 an increase in litigiousness, greater incivility, and more misuse of legal procedure. 3 It may be that the problem in the legal profession is not too little attention to rules, but too little attention to character. This crisis in the legal profession is the subject of recent books by Yale law professor (now dean) Anthony T. Kronman 4 and Harvard law professor Mary Ann Glendon. 5 Neither Glendon nor Kronman calls for new professional rules. They resist the Enlightenment (and lawyerly) temptation to propose a rule to solve every problem. In very different ways, each calls for a return to an older, more subtle moral tradition-the exercise of virtues.
Ethics of Lawyers , 2024
The ethical landscape of the legal profession is intricate, influenced by cultural norms, technological advancements, economic factors, and evolving societal expectations. This complexity necessitates a nuanced understanding of the interplay between moral values and legal rules. While ethical values such as integrity, fairness, and loyalty form the foundation of professional conduct, legal rules provide essential boundaries and enforceable guidelines. The advancement of digital technology and globalization has expanded the scope of legal practice, posing challenges to traditional ethical frameworks. Economic pressures and competition further complicate ethical standards, highlighting the need for a robust ethical foundation within the profession. While rules offer certainty, dynamic nature and effectiveness, they do not define ethics but guide professionals in upholding moral standards.
2008
In recent decades, the law governing lawyers has begun to fragment. A host of new regulators, mainly federal, has entered an area formerly reserved to state supreme courts and the organized bar. Their regulations typically restrain the freedom of lawyers to pursue their clients' interests, protecting instead the interests of the government or of opposing parties. Often, the new measures are highly detailed, and regulate only certain specialized kinds of legal services, though at the same time they may cover nonlawyers providing similar services. The new regulations supplement and change previously applicable rules such as those found in the Model Rules of Professional Conduct, sometimes by providing more stringent sanctions, and sometimes in other ways. This article describes and analyzes these developments.
The Watergate break-in and its cover-up in the early 1970s convinced the American public that lawyers will do illegal and immoral things for the sake of their clients' and their own interests. The organized bar responded to Watergate with several steps that were designed to clean up the profession. The ABA adopted a new set of professional rules,' law schools required students to study professional responsibility, and states required that lawyers pass a special professional responsibility exam. But continued problems in the legal profession have followed this attention to professional rules. In addition to the highly publicized lawyer leadership in the corporate takeover, savings and loan, and Whitewater scandals, observers of the legal profession find among lawyers a growing preoccupation with making money, 2 an increase in litigiousness, greater incivility, and more misuse of legal procedure. 3 It may be that the problem in the legal profession is not too little attention to rules, but too little attention to character.
Legal Ethics and Professionalism
The Yale Law Journal, 1970
Substantial numbers of citizens are disaffected with the entire apparatus of the law. In recent years commentators have begun to make the connection between this disaffection and the failure of the legal profession to make recourse to the law possible for the poor and much of the middle class.' For the poor or otherwise disadvantaged, the law often appears exploitative rather than protective because they cannot command legal services equivalent to those of the rich. 2 For the middle class, the law is often so cumbersome and expensive that it seems poorly designed for the practical resolution of disputes. 3 As one response to the perceived crisis in legal services, the organized bar as well as some of its critics have focused attention on the incidence of "unethical" behavior occurring especially among solo practitioners. But fundamental disagreement has arisen over whether the relation of unethical conduct to failure of service is one of cause or effect. The ABA has regarded deviance from the profession's code of ethics as at least one cause of the mounting criticism of the organized bar, and has therefore resorted to clarifying and enforcing the code as its primary response to the crisis in legal services. 4 Several leading commentators 1. The legal profession's critics include Associate Justice William J. Brennan, Jr. who has indicted the legal profession for the "obsolescence" of its "code of ethics and institutions" in our time of "social upheaval."
The Central Moral Tradition of Lawyering
Hofstra Law Review, 1990
Compare ABA RULES DRAFT, supra, Rule 1.7(c)(2), reprinted in PROFESSIONAL RESPONSIBILITY , supra, at 83 (allowing a lawyer to disclose a client confidence "to the extent it appears necessary to prevent or rectify the consequences of deliberately wrongful act by the client.") with MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinafter ABA RULES] (adoting the rule on confidentiality of information but deleting 1.7(c)(2)). See also Joint Report, supra note 1, at 1162 (emphasising that the lawyer's primary obligation is to the legal system.) 1 Lawry: The Central Moral Tradition of Lawyering Published by Scholarly Commons at Hofstra Law, 1990 4. See generally ABA RULES, supra note 3. In the final version of the ABA Rules, specific rules replaced distinct roles. Compare id. Rules 2.2, 2.3 with ABA RULES DRAFT, supra note 3, Rules 5, 6, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 126-34 (noting the de-emphasis on the variety of roles lawyers play as compared to the description in the Joint Report, supra note 1). Of course, the narrowing of the exceptions to the confidentiality rules is a clear substantive change. Compare ABA RULES DRAFT, supra note 3, Rule 1.7, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 83 with ABA RULES, supra note 3, Rule 1.6. 5. This, of course, is the question that is truly at the heart of the moral inquiry into the ethics of lawyers. See generally Wasserstrom, Roles and Morality, in THE GOOD LAWYER: LAWYER'S ROLES AND LAWYER'S ETHICS 25 (D. Luban ed. 1983) [hereinafter THE GOOD LAWYER] (examining how a person's role enters into the deliberation and assessment of the morality of her actions); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976). But see Drinker, Some Remarks on Mr. Curtis' "The Ethics of Advocacy," 4 STAN. L. REV. 349 (1952) (stating that "no man can be either too honest, too truthful, or too upright to be a thoroughly good lawyer."). Thus under the older tradition, no conflict existed.
Lost and Found: David Hoffman and the History of American Legal Ethics
David Hoffman was a successful Baltimore lawyer who wrote the first study of American law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited. How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A lawyer acted honorably if his actions were morally sanctioned. Thus, Hoffman concluded a lawyer should refuse to plead the statute of limitations because, though legal, such action was dishonorable. When Hoffman wrote his maxims of legal ethics, the concept of honor was being displaced by individualism. The test of lawyer behavior became private conscience rather than public honor. This turn was accompanied by a second shift, in which lawyers accepted that legal ethics differed from public morality. Though an “officer of the court,” the lawyer’s foremost duty was to serve his client’s private interests, and the lawyer was not morally accountable to the public for the client’s goals. One consequence of these changes was the profession’s agreement that lawyers owed a duty to their clients to plead all legal claims and defenses. This vision left Hoffman behind. Hoffman was found in response to a crisis within the modern American legal profession. By the late 1970s, many lawyers feared that the liberal ideal of the lawyer as a morally neutral, zealous agent (or “hired-gun”) effectuating a client’s goals ignored the lawyer’s duties to the public. This crisis was exacerbated by two events: Watergate, in which lawyers blindly followed the demands of their client, the President, to society’s detriment, and the ABA’s decision in 1978 to replace its 1969 Code of Professional Responsibility, because the Code embraced the “fiction” that ethical issues were “matters of ethics rather than law.” Because Hoffman concluded a lawyer’s duty to a client was limited by his duties to society, he was used as a relevant, historical example of an ethics of advocacy contrary to the “standard conception” of liberal neutrality. Hoffman was a touchstone justifying an ethics of virtue, of lawyers serving the ends of justice, not merely serving their client’s goals.