AMERICAN LEGAL ETHICS IN AN AGE OF ANXIETY (original) (raw)

Abstract

The thesis of my article, “American Legal Ethics in an Age of Anxiety,” is that the historical development of American legal ethics was regularly accompanied by an anxiety within the profession. In general, I suggest the legal profession’s understanding of its ethical precepts has been molded and reshaped during periods of professional anxiety. The profession’s understanding of legal ethics changed dramatically during various crises in the 19th century, exemplified by the different approaches taken by David Hoffman in the mid-1830s, George Sharswood in the mid-1850s, and David Dudley Field in the early 1870s. In each case, however, the triggering event was a crisis found within the legal profession. Similarly, the profession changed dramatically during the 20th century, beginning with the ABA’s adoption of the Canons of Ethics in 1908. A crisis in the profession also arose during the Great Depression in the 1930s, when the ABA appeared ready to amend the Canons. What was unusual about this crisis of professionalism was that lawyers found an approach other than reforming the rules of ethics to reform the legal profession. The drafting of the Model Rules of Professional Conduct in the late 1970s and early 1980s represented a dramatic turn as the legal profession stumbled from actual economic and social threats to the profession’s status. Even during the legal profession’s golden age in the 1960s, when the legal profession found itself both economically stable and socially prominent, the ABA’s Code of Professional Responsibility, adopted in 1969, was warped by an anxiety that the profession was under economic siege. The American legal profession’s best chance to craft an understanding of the lawyer’s ethical precepts went by the wayside because lawyer’s were unable to look beyond economic self-interest, a consequence that has contributed to a moral drift within the American legal profession.

Figures (2)

Loading...

Loading Preview

Sorry, preview is currently unavailable. You can download the paper by clicking the button above.

References (98)

  1. Robert P. Lawry, The Central Moral Tradition of Lawyering, 19 HOFSTRA L. REV. 311, 311 (1990).
  2. L.L. Fuller, The Philosophy of Codes of Ethics, 74 ELECTRICAL ENGINEERING 916, 917 (1955).
  3. See Report of the Special Committee on Evaluation of Ethical Standards, 94
  4. A.B.A. REP. 728, 728 (1969) (recommending adoption of the Code of Professional Responsibility). The Code of Professional Responsibility was made effective January 1, 1970. See id. (recommending that the Code of Professional Responsibility be adopted effective January 1, 1970); Proceedings of the 1969 Annual Meeting of the House of Delegates, 94 A.B.A. REP. 378, 392 (1969) ("[T]he House went on to adopt the code as written by the Committee on Evaluation of Ethical Standards.").
  5. Ted Schneyer, Professionalism As Bar Politics: The Making of the Model Rules of Professional Conduct, 14 LAW & SOC. INQUIRY 677, 677 (1989) (quoting William B. Spann, Jr., The Legal Profession Needs a New Code of Ethics, B. LEADER, Nov.-Dec. 1977, at 2, 3).
  6. See Proceedings of the 1983 Annual Meeting of the House of Delegates, 108
  7. A.B.A. REP. 763, 778 (1983) (noting the adoption of the Model Rules of Professional Conduct);
  8. Ted Schneyer, Professionalism As Bar Politics: The Making of the Model Rules of Professional Conduct, 14 LAW & SOC. INQUIRY 677, 677-78 (1989) (indicating that ABA President William B. Spann, Jr. "asked Omaha lawyer Robert Kutak to chair a 117. Id.
  9. Id. David Dudley Field published his contrary conclusion that "[t]he true lawyer... never prostitutes ... to a bad cause" in the April 1844 issue of the United States Magazine and Democratic Review-mere months prior to the publication of Walker's address. The Study and Practice of the Law, 14 U.S. MAG. & DEMOCRATIC REV. 345, 351 (1844).
  10. See TIMOTHY WALKER, INTRODUCTION TO AMERICAN LAW 661 (2d ed.
  11. Cincinnati, Derby, Bradley & Co. 1846) (1837) (including in the 1846 edition section 259, "Ways and Means of Professional Success").
  12. PERRY MILLER, THE LIFE OF THE MIND IN AMERICA 204 (1965); see also MAXWELL BLOOMFIELD, AMERICAN LAWYERS IN A CHANGING SOCIETY, 1776-1876, at 136-90 (1976) (detailing antebellum efforts to upgrade the image of the legal profession);
  13. Philip Gaines, The "True Lawyer" in America: Discursive Construction of the Legal Profession in the Nineteenth Century, 45 AM. J. LEGAL HIST. 132, 132 (2001) (asserting that the professionalism movement was initiated in part by the advancing industrialism and entrepreneurship of the period).
  14. See RICHARD B. KIMBALL, THE LAWYER: THE DIGNITY, DUTIES, AND RESPONSIBILITIES OF HIS PROFESSION 21-22 (New York, George P. Putnam & Co. 1853) ("[T]he higher and the more honorable the pursuit, the more despicable and degraded are those who pervert and misuse it.").
  15. BELLAMY STORER, THE LEGAL PROFESSION: AN ADDRESS DELIVERED BEFORE THE LAW DEPARTMENT OF THE UNIVERSITY OF LOUISVILLE, KENTUCKY 16- 17 (Cincinnati, C. Clark & Co. 1856).
  16. PERRY MILLER, THE LIFE OF THE MIND IN AMERICA 204 (1965).
  17. For some southerners, the work of the lawyers such as Webster, Clay and others 262. Canons of Ethics, 33 A.B.A. REP. 575, 585 (1908). In addition, one of the Field Code's oaths was absent from both the Washington oath and the ABA Code: the Field Code lawyer swore "[n]ot to encourage either the commencement or the continuance of an action or proceeding, from any motive of passion or interest." COMM'RS ON PRACTICE & PLEADINGS, THE CODE OF CIVIL PROCEDURE OF THE STATE OF NEW-YORK 205 (Albany, Weed, Parsons & Co. 1850). This was instead addressed by the ABA in Canon 18. See Canons of Ethics, 33 A.B.A. REP. 575, 580 (1908) (discussing the limitations on the conduct of attorneys and clients with regard to one another).
  18. Canons of Ethics, 33 A.B.A. REP. 575, 583 (1908).
  19. Id. at 576.
  20. See Carol Rice Andrews, Standards of Conduct for Lawyers: An 800-Year Evolution, 57 SMU L. REV. 1385, 1442 (2004) (stating that the ABA Canons were similar to the 1887 Alabama Code of Ethics and largely conformed with the "substance [and] form of the existing standards of conduct").
  21. A popular history of the Erie takeover war is JOHN STEELE GORDON, THE SCARLET WOMAN OF WALL STREET (1988). The classic and contemporaneous account, written by Charles F. Adams, Jr., is found in The Erie Railroad Row, 3 AM. L. REV. 41 (1868) and Charles Francis Adams, A Chapter of Erie, 109 N. AM. REV. 30 (1869). A Chapter of Erie and other articles, including an article by Henry Adams, The New York Gold Conspiracy, were collected and published as CHARLES F. ADAMS, JR. & HENRY ADAMS, CHAPTERS OF ERIE, AND OTHER ESSAYS (Boston, James R. Osgood & Co. 1871).
  22. GEORGE MARTIN, CAUSES AND CONFLICTS 8 (1997). [Vol. 40:343
  23. Summary of Proceedings of the Second Meeting of the House of Delegates, 62
  24. A.B.A. REP. 1026, 1030 (1937).
  25. House of Delegates Proceedings, 70 A.B.A. REP. 119, 119 (1945). As late as August 1942, the Committee warned that "unless a solution can be found for the economic problems of the bar, the leadership which this country should have will be seriously imperiled." Report of the Special Committee on the Economic Condition of the Bar, 67
  26. A.B.A. REP. 248, 250 (1942).
  27. RICHARD L. ABEL, AMERICAN LAWYERS 278 tbl.21 (1989); SECTION OF LEGAL EDUC. AND ADMISSIONS TO THE BAR, AM. BAR ASS'N, LAW SCHOOLS AND BAR ADMISSION REQUIREMENTS IN THE UNITED STATES 26 (1948).
  28. RICHARD L. ABEL, AMERICAN LAWYERS 278 tbl.21 (1989). The post-World War II high was 13,641 in 1950. Id.
  29. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE 1980s, at 217 n.9 (1983).
  30. MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS 20 (1991).
  31. Galanter and Palay were well aware of the shortcomings of the legal profession in 1960, including the paucity of minority and female lawyers. Id. at 25; see also MARY ANN GLENDON, A NATION UNDER LAWYERS 22 (1st paperback ed. 1996) (1994) (quoting Galanter and Palay and agreeing with their "golden age" conclusion);
  32. RICHARD A. POSNER, OVERCOMING LAW 60 (1995) ("With the benefit of hindsight, 1960 can be identified as the highwater mark of the American legal profession's cartel, and hence of jurisprudence as a guild ideology."). [Vol. 40:343
  33. HENRY S. DRINKER, LEGAL ETHICS 3 (1953).
  34. ALBERT P. BLAUSTEIN & CHARLES 0. PORTER, THE AMERICAN LAWYER 251 (1954).
  35. Id. (quoting Harlan F. Stone, The Public Influence of the Bar, 48 HARV. L. REV. 1, 10 (1934)).
  36. Philbrick McCoy, The Canons of Ethics: A Reappraisal by the Organized Bar, 43
  37. A.B.A. J. 38, 38 (1957). The American Bar Foundation Special Committee was initially charged in early 1955 to prepare a plan of study of the Canons. Id.
  38. Id. (noting alterations in the legal profession in light of modern circumstances that suggested a need for Canon revision).
  39. REPORT OF THE SPECIAL COMMITTEE OF THE AMERICAN BAR FOUNDATION ON CANONS OF ETHICS, at ix (June 30, 1958).
  40. Id. at 96.
  41. See id. at 97 (recommending six areas for revision of the Canons).
  42. See Other Groups and Organizations, 83 A.B.A. REP. 96, 96-98 (1958) (listing all special committees of the American Bar Foundation, which does not include a committee on Canons of Ethics);
  43. Other Groups and Organizations, 82 A.B.A. REP. 90, 91 (1957) (listing members of the American Bar Foundation Special Committee on Canons of Ethics). The publication of the Special Committee's Report in June 1958 is likely the 459. See id. ("A code that attempts to take the whole of right and wrong for its province breaks down inevitably into a mush of platitudes.").
  44. See Letter from Lon L. Fuller, Co-Chairman, Joint Conference on Prof'l Responsibility, to John D. Randall, Co-Chairman, Joint Conference on Prof'l Responsibility (July 10, 1958), in A. James Casner Papers, Box 37, Folder 10, Harvard Law School Library (on file with author) (objecting to the ABA's adoption of the Report);
  45. Letter from Lon L. Fuller, Co-Chairman, Joint Conference on Prof'l Responsibility, to A. James Casner, Member, Joint Conference on Prof'l Responsibility (Oct. 15, 1958), in A. James Casner Papers, Box 37, Folder 10, Harvard Law School Library (on file with author) (stating opposition to the ABA adoption of the Report).
  46. Proceedings of the House of Delegates, 84 A.B.A. REP. 541, 542 (1959) (noting that Mr. Randall moved "[t]hat the House of Delegates approve the final draft of the report of the Joint Conference on Professional Responsibility" and that this report was adopted without debate). Randall became president-elect of the ABA in August 1958 and its president in August 1959.
  47. FELIX S. COHEN, Modern Ethics and the Law, in THE LEGAL CONSCIENCE 17, 18 (Lucy Kramer Cohen ed., 1960).
  48. See Proceedings of the House of Delegates, 89 A.B.A. REP. 365, 381-83 (1964) (noting appointment of the Special Committee on the Evaluation of Ethical Standards);
  49. see also JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL 195 (1994) (noting Powell "called for comprehensive reform of legal ethics" in his incoming address on August 14, 1964). The Wright Committee's initial charge was to report "on the adequacy and effectiveness of the present Canons of Professional Ethics." Report of the Board of 467. Standing Committees of the Association, 85 A.B.A. REP. 20, 30 (1960).
  50. See Letter from Ja[me]s L. Shepherd, Jr., Chairman, ABA Standing Comm. on Prof'l Ethics, to William P. Roberts (Dec. 31, 1959), in A. James Casner Papers, Box 3, Folder 8, Harvard Law School Library (on file with author) (noting the American Bar Foundation "will possibly attempt a complete rewriting of the two sets of canons").
  51. Proceedings of the House of Delegates, 89 A.B.A. REP. 365, 381 (1964). The events in Dallas included the assassination in late November 1963 of President John F. Kennedy and the murder of his assassin Lee Harvey Oswald. Powell was somewhat fixated on the issue of prejudicial pretrial publicity. See Letter from Lewis F. Powell, President, Am. Bar Ass'n, to Edward L. Wright, Chairman, Special Comm. on Evaluation of Ethical Standards (Sept. 9, 1964), in A. James Casner Papers, Box 25, Folder 1, Harvard Law School Library (on file with author) (offering a "thinking out loud" letter suggesting the Committee assess the "fair trial-free press" issue).
  52. Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1 (1964). The opinion was released on April 20, 1964. Id.
  53. NAACP v. Button, 371 U.S. 415, 416-18 (1963); see LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 219 (2000) ("[I]t strains credulity to believe that in the Virginia of 'Massive Resistance' the state was really concerned about protecting African-American litigants from the overbearing NAACP.").
  54. ABA Comm. on Prof'l Ethics and Prof I Responsibility, Formal Op. 297 (1961).
  55. See ABA Comm. on Prof'l Ethics and Prof'l Responsibility, Formal Op. 305 (1962) ("[Opinion 297] was not intended to preclude certified public accountants who are also lawyers but are holding themselves out only as accountants from engaging in activities permitted under the Statement of Principles.").
  56. See Meeting of Special Committee on Evaluation of Ethical Standards, American Bar Association (Dec. 3-4, 1964), in A. James Casner Papers, Box 102, at 5, Harvard Law School Library (on file with author) (reporting in a transcript letter of A. James Casner to John F. Sutton, Jr. of November 29, 1965). [Vol. 40:343
  57. JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA, at xii (paper ed. Oxford Univ. Press 1977) (1976). These statements are taken from the preface written in 1975. Id. Coming Apart was the title of an instant history of the 1960s by William L. O'Neill. WILLIAM L. O'NEILL, COMING APART: AN INFORMAL HISTORY OF AMERICA IN THE 1960s (paper ed. Quadrangle Books 1971).
  58. See David R. Brink, Who Will Regulate the Bar?, 61 A.B.A. J. 936, 937 (1975) ("[I]f Watergate has not tarnished the image of lawyers, at least it has acutely intensified public consciousness of questions of legal ethics and professional accountability."); see also JETHRO K. LIEBERMAN, CRISIS AT THE BAR 35 (1978) ("More than twenty-five lawyers were formally named as defendants or co-conspirators in Watergate and related criminal proceedings.").
  59. See Justice Department and Other Views on Prepaid Legal Services Plans Get an Airing Before the Tunney Subcommittee, 60 A.B.A. J. 791, 792-93 (1974) (discussing the premise that provisions of the Code could be held to violate antitrust laws);
  60. Justice Department Continues Its Contentions That the Houston Amendments Raise Serious Antitrust Problems, 60 A.B.A. J. 1410, 1410-14 (1974) (discussing the premise that provisions of the Code could be held to violate antitrust laws).
  61. James P. White, Is That Burgeoning Law School Enrollment Ending?, 61 A.B.A. J. 202, 202 (1975).
  62. See Report of the Task Force on Professional Utilization, 97 A.B.A. REP. 818, 819 (1972) (quoting the ABA Board of Governors charge to the Task Force). [Vol. 40:343
  63. Special Report, The Job Gap for College Graduates in the '70s, BUS. WK., Sept. 23, 1972, at 48, 51.
  64. See Norman Dorsen & Stephen Gillers, We Need More Lawyers!, 2 JURIs DR. 7, 7 (1972) (noting the projection that in 1974 the number of first-year students was twice as high as the number of jobs that would be available to them upon graduation); see also Special Report, The Job Gap for College Graduates in the '70s, Bus. WK., Sept. 23, 1972, at 48, 51 (noting that in 1974 there were 10,000 more new lawyers than jobs available for them); Report of the Task Force on Professional Utilization, 97 A.B.A. REP. 818, 835 (1972) (quoting a comment on the Department of Labor estimate).
  65. Report of the Task Force on Professional Utilization, 97 A.B.A. REP. 818, 826 (1972). 518. Id. at 835.
  66. See Lawrence Walsh, The Annual Report of the President of the American Bar Association, 62 A.B.A. J. 1119, 1120 (1976) (noting the filing of antitrust case by the Department of Justice).
  67. Bates v. State Bar of Ariz., 433 U.S. 350, 383 (1977).
  68. See F.T.C. Goes Public on Lawyer Probe, 64 A.B.A. J. 959, 959 (1978) (discussing the Federal Trade Commission's investigation of lawyers).
  69. JETHRO K. LIEBERMAN, CRISIS AT THE BAR 35 (1978).
  70. RICHARD A. POSNER, OVERCOMING LAW 67 (1995).
  71. JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 286 (paper ed. Oxford Univ. Press 1977) (1976). 526. Id. at 288.
  72. Jay M. Smyser, In-House Corporate Counsek The Erosion of Independence, in VERDICTS ON LAWYERS 208, 215 (Ralph Nader & Mark Green eds., 1976). Other commentators in this volume expressed more mixed feelings toward the Code. See, e.g., Martin Garbus & Joel Seligman, Sanctions and Disbarment: They Sit in Judgment, in VERDICTS ON LAWYERS 47, 50 (Ralph Nader & Mark Green eds., 1976) ("Although several of the Disciplinary Rules have been criticized as mere subterfuge to fortify the position of the most prominent law firms-such as those prohibiting advertising and soliciting clients-they are generally rigorous, designed 'to avoid even the appearance of impropriety."').
  73. JETHRO K. LIEBERMAN, CRISIS ATTHE BAR 65,216-17 (1978).
  74. Eric Schnapper, The Myth of Legal Ethics, 64 A.B.A. J. 202, 203 (1978).
  75. Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90
  76. HARV. L. REV. 702, 704 (1977). [Vol. 40:343
  77. See id. at 735 (citing EC 2-25 and noting in an accompanying footnote the contrast with the English system of cab rank). 532. Id.
  78. L. Ray Patterson, Wanted: A New Code of Professional Responsibility, 63
  79. A.B.A. J. 639, 639 (1977); see also Robert J. Kutak, The Law of Lawyering, 22
  80. WASHBURN L.J. 413, 413 (1983) ("What lawyers ... have failed to appreciate is that ethics is not what the Model Rules concern; the Model Rules are about the law of lawyering."). Kutak was the chairman of the Commission on Evaluation of Professional Standards, which drafted the Model Rules.
  81. L. Ray Patterson, Wanted: A New Code of Professional Responsibility, 63
  82. A.B.A. J. 639, 639 (1977).
  83. GEOFFREY C. HAZARD, JR., ETHICS IN THE PRACTICE OF LAW 7 (1978). Karl Llewellyn made the same complaint in the 1930s in discussing the Canons of Ethics: "The canons of ethics on business-getting are still built in terms of a town of twenty-five thousand (or, much more dubiously, even fifty thousand) .... K.N. Llewellyn, The Bar's
  84. Troubles, and Poultices-and Cures?, 5 LAW& CONTEMP. PROBS. 104, 115 (1938).
  85. See W. William Hodes, The Code of Professional Responsibility, the Kutak Rules, and the Trial Lawyer's Code: Surprisingly, Three Peas in a Pod, 35 U. MIAMI L. REV. 739, 745 (1981) (noting criticism that the Code "overemphasized litigation"); see also "Independence and Candor").
  86. See Proceedings of the 1983 Annual Meeting of the House of Delegates, 108
  87. A.B.A. REP. 763, 778 (1983). The recommendation is found in the Report of the Commission on Evaluation of Professional Standards, 107 A.B.A. REP. 408, 408 (1982). 542. House of Delegates Proceedings, 107 A.B.A. REP. 298, 298 (1982). 543. Id. 544. Id. at 298-99.
  88. See id. at 299 (noting William R. Moller's motion to use the format of the Model Code of Professional Responsibility).
  89. W. William Hodes, The Code of Professional Responsibility, the Kutak Rules, and the Trial Lawyer's Code: Surprisingly, Three Peas in a Pod, 35 U. MIAMI L. REV. 739, 741 (1981).
  90. See MODEL RULES OF PROF'L CONDUCT R. 1.5(a) (2003) (listing the eight factors to consider whether a fee is reasonable). This rule was amended shortly after the turn of the century to read: "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." Id. The eight factors remain. Id.
  91. See Informational Report of the Adjunct Committee on Implementation of the Model Rules of Professional Conduct, 113 A.B.A. REP. 64, 64 (1988) (noting adoption of the Model Rules by twenty-five states, with another nine considering adoption);
  92. Informational Report of the Adjunct Committee on Implementation of the Model Rules of Professional Conduct, 112 A.B.A. REP. 79, 79 (1987) (noting that all but eight jurisdictions had adopted or considered adoption of Model Rules); Informational Report of the Special Committee on Implementation of the Model Rules of Professional Conduct, 111 A.B.A. REP. 343, 343 (1986) (noting the adoption of the Model Rules by thirteen states and consideration in twenty-four more). As of mid-2008, forty-nine jurisdictions had adopted some form of the Model Rules. See Am. Bar Ass'n, Model Rules of Professional Conduct: Dates of Adoption, http://www.abanet.org/cpr/mrpc/chron-states.html (last visited Nov. 10, 2008) (listing adoption in chronological order).
  93. E. Norman Veasey, Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000"): Chair's Introduction (Aug. 2002), http://www.abanet. org/cpr/mrpc/e2k chairintro.html; see also Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441, 441 (2002) (summarizing the work of the Ethics 2000 Commission).
  94. See Mark Hansen, Model Rules Rehab: House Tackles Tough Issues as Ethics Debate Begins, A.B.A. J., Oct. 2001, at 80, 80 ("The Ethics 2000 commission won a few rounds and lost a few others when its proposed overhaul of the ABA Model Rules of Professional Conduct finally came up for debate by the association's House of Delegates."). The face-off between the ABA and the federal government over the [Vol. 40:343
  95. Michael Ariens, "Playing Chicken": An Instant History of the Battle Over Exceptions to Client Confidentiality, 33 J. LEGAL PROF. (forthcoming 2009).
  96. See generally GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING (3d ed. Aspen Law & Bus. 2006) (1985) (referencing the law of lawyering as the focus of the ABA).
  97. See John S. Dzienkowski, Preface to PROFESSIONAL RESPONSIBILITY STANDARDS, RULES & STATUTES, at iii, iii (2007-2008 ed.) (noting changes and including both the 2007 and 2001 versions of Model Rules of Professional Conduct); see also Michael Ariens, The Ethics of Copyrighting Ethics Rules, 36 U. TOL. L. REV. 235, 235 n.1 (2005) (listing sources concerning ABA action on Ethics 2000 Commission). The ABA's House of Delegates adopted several of the Ethics 2000 proposed amendments between 2002 and 2003. See John S. Dzienkowski, Preface to PROFESSIONAL RESPONSIBILITY STANDARDS, RULES & STATUTES at iii, iii (2007-2008 ed.) (noting the adoption of the proposed amendments). This work continues; in February 2008, the ABA amended Model Rule 3.8, concerning the ethical duties of prosecutors to disclose evidence when a criminal defendant might have been erroneously convicted. James Podgers, Righting Wrongs, A.B.A. J., Apr. 2008, at 32, 32.
  98. Charles F. Chamberlayne, Legal Idealism, 21 GREEN BAG 436, 436 (1909).