The Trustworthiness of American Lawyers (Part I)

The following post comes from Michael Ariens (St. Mary's), the first in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).     

In my book The Lawyer’s Conscience: A History of American Lawyer Ethics (2023), I assess the ways in which lawyers have justified the power they possess and the manner in which they exert such power. The most important justification given by lawyers is the claim that lawyers are in the marketplace but not of the marketplace. Though lawyers were in the marketplace offering their legal expertise for fees from paying clients, they were not of the marketplace because they exercised power subject to some ethical constraints. The Lawyer’s Conscience traces the history of American lawyer ethics from 1760 to the early twenty-first century. My goal in this and following posts is to provide a brief sketch of this history.

How do we decide whether American lawyers are sufficiently trustworthy to continue the work they undertake? First, “we” needs to be disaggregated. “We” includes, among other possible inquisitors, the general public, current and prospective clients, and American lawyers themselves. The demand of trustworthiness made by each of these disparate groups may end in contradiction. To satisfy the demands of a client may conflict with the demands made by the public or other lawyers. And demands made by other lawyers may conflict with the general public’s requirements. Second, some trust in lawyers is necessary because lawyers possess extensive power and authority in American society.

In a series of essays written in spring 1786 for the Boston Independent Chronicle, Benjamin Austin Jr., writing as Honestus, argued Massachusetts lawyers were a “useless” and “dangerous” body that should be “annihilated.” Ten of his essays were published under the title, “Observations on the Pernicious Practice of the Law.” In subsequent editions of “Observations” he modified his call. By the 1819 edition, Honestus’s Prefatory Address concluded the work of lawyers was now “more congenial to the happiness of society,” in part due to his earlier excoriation of professors of the law. They no longer needed annihilation, but “regulation.”

Honestus’s 1786 attacks were joined by some, and rejected by others, most vociferously by lawyers. One of the lawyers responding to Honestus was the well-respected James Sullivan, writing as Zenas. Zenas made several arguments in defense of Massachusetts lawyers. First, they were necessary to a free government. Second, the written Massachusetts Constitution of 1780 and the Commonwealth’s laws also made lawyers necessary. Third, lawyers were subject to effective “checks on their conduct,” making improvident the call for annihilation. In expanding on this last point, Zenas admitted some lawyers were “men of bad morals and dishonest hearts.” But no profession could ever keep itself pure. Overall, most lawyers in the Commonwealth were honorable. They acted honorably for instrumental reasons: their “bread as well as the character of the practitioners of the law depends on their integrity and uprightness.” Zenas also pointed to the 1701 oath of admission subscribed to by all Massachusetts lawyers: it required the oath taker to act “so as to do honour to Court and bar.”

It was unclear whether Zenas believed the 1701 oath had some constraining effect on lawyers of bad morals and dishonest hearts. It was also unclear whether Zenas meant to tie tightly the lawyer’s interest in making money and in fostering an honorable character with honor.

Honestus offered a piercing response to both Zenas and another correspondent, “A Lawyer.” Both had offered “a few bad apples” argument, charging Honestus confused the immoral actions of a few with the good work of most lawyers. Like Zenas, A Lawyer had admitted some “abuses in the profession, productive of private distress and public uneasiness,” had occurred. Honestus, noting that Zenas had pointed to some of the language in the 1701 lawyer’s oath to defend lawyers, mentioned a provision in the oath ignored by his opponents: a lawyer was to inform the General Court (which supervised lawyers admitted to the bar) if another lawyer had spoken falsely. If A Lawyer knew of some abuses in the profession, why had he not informed the Court of these abuses and urged the Court to strike the names of those abusers from the roll, disbarring them? No answer was forthcoming.

Honestus was the most prominent but not only writer vociferously attacking the trustworthiness of lawyers and the work they did. Other events (Shays’s Rebellion, the 1787 Constitutional Convention) soon displaced published antilawyer sentiment. Such sentiment did, however, rise and fall during the next half-century. Lawyers continued to refer to honor as the touchstone of appropriate lawyer conduct. But relying on honor alone as providing sufficient evidence of trustworthiness among lawyers was fading. Its last defender, writing in 1836, seemed to understand he was fighting a losing battle.