The Trustworthiness of American Lawyers (Part III)

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

“Brains were the cheapest meat in the market.” So allegedly said Jay Gould, late nineteenth century Wall Street speculator, railroad owner, financier and, to some, robber baron. One of Gould’s many “brains” was David Dudley Field, one of the most prominent American lawyers of the nineteenth century. Field, his son Dudley, his partner Thomas Shearman, and dozens of other lawyers were handsomely paid by Gould and “Diamond” Jim Fisk for their work in the “Erie wars,” a series of legal battles from 1868-1872. These cases overlapped the indictment of William “Boss” Tweed, leader of Tammany Hall and functionally ruler of New York City government. Field also represented Tweed, after unsuccessfully seeking an appointment to prosecute him. For Field, his actions in representing Gould, Fisk, and Tweed were all within the bounds of conscience. His lawyer-critics claimed his behavior should subject him to disbarment, or failing that, to some type of censure by his fellow lawyers. These critics argued Field had represented his clients beyond the limits of permissible adversarial zeal.

Field made himself an inviting target to his critics because his post-war behavior appeared contrary to his antebellum statements about the ethical limits of zealous advocacy. The 1850 Code of Civil Procedure, popularly known as the Field Code because he largely drafted it, revolutionized pleading and practice. It also included a list of ethical duties lawyers to which lawyer were to adhere. Among those duties were to maintain only “legal and just” proceedings and to “use such means only as are consistent with the truth.” Critics suggested Field failed to live up to his own words.

Field initially represented the not-yet-named robber barons against Cornelius “Commodore” Vanderbilt, who appeared to “own” a New York Supreme Court (that is, trial court) judge, George Barnard. Vanderbilt sought to purchase the Erie; Barnard issued injunctions in Vanderbilt’s behalf. Field obtained counter-injunctions, including making Barnard a defendant and enjoining him from enjoining Vanderbilt. Round and round it went until the parties reached a monetary settlement that nearly sank the Erie. Soon thereafter, Barnard was ready to do the corrupt bidding of Gould.

In 1869, the Erie attempted to take over the Albany & Susquehanna (A&S) Railroad. Among other actions, Barnard issued an arrest warrant for several of its executives, including its lawyer. The arrest of the A&S’s lawyer at its annual meeting in Albany was a regrettable first in legal annals. Another New York Supreme Court judge later declared the Erie’s lawyers had “fraudulently procured an order for [the] arrest” of A&S’s officers.

In late 1870 Field’s behavior was criticized as unethical by several unconnected critics. The more acute limited their attacks to assessing whether Field had acted beyond the limits of adversarial zeal in representing the Erie. Specifically, had the law firm of Field & Shearman acted unethically by repeatedly seeking injunctions from Judge Barnard?

The American Law Review, a Boston-based periodical then co-edited by future Supreme Court Justice Oliver Wendell Holmes, Jr., joined Field’s critics. It called for an immediate examination of “the charges of unprofessional conduct, fraud, and perhaps crime, made in the most respectable quarters, against one of its members, Mr. David Dudley Field.” These calls continued for over two years, and for each criticism Field offered a rejoinder, including obtaining a series of letters from lawyer-defenders. Though intended as exculpatory, none of the twelve letters specifically joined issue with Field’s critics: had Field’s behavior in seeking injunctions from Barnard, when Field’s partner Shearman had credibly accused Barnard of corrupt behavior, itself been corrupt? Further, had the firm acted unethically in obtaining an arrest warrant against A&S’s lawyer? Efforts to disbar or censure Field eventually went nowhere. Barnard was impeached, convicted, and removed from office for corruption regarding his conduct in the Erie wars.

The aftermath of the Field debate suggested that allegations of dishonor retained their sting. However, allegations of bad conduct and defenses to such allegations were more often framed in light of unprofessional behavior. Field himself defended his acts by claiming the lawyer “should defend his client per fas, and not per nefas” (by right, and not by wrong), and he had acted in this light. Such a defense provided a lawyer a clear conscience, which was sufficient to justify the lawyer’s actions. Field and his opponents simply disagreed about which side of the line Field’s conduct fell, insufficient by itself to make the critics’ case.

Beginning in the early 1880s, Alabama lawyer Thomas Goode Jones began drafting a code of ethics applicable to members of the Alabama State Bar Association. It was finally readied and adopted in 1887. Two other voluntary state bar associations quickly adopted the Alabama code. After a respite, nine others joined in, beginning in the late 1890s. These latter bodies did so at a time of transformation. Between 1870 and 1890, the number of lawyers had tripled, an increase outstripping the doubling of the nation’s population. Additionally, the Panic of 1893 had a lengthy and adverse impact on lawyer income. Lawyers writing in general and legal publications asked, can a lawyer be honest and successful? Given the economic stresses on many lawyers, the answer to this question was uncertain. Lawyers complained about pettifoggers, shysters, ambulance chasers (coined at the end of the nineteenth century) and, on the corporate side, “corporation tricksters,” lawyers who represented railroads and other defendants in personal injury matters.  

Beginning in 1897, the idea of written ethical codes was revived. The state bar associations that adopted such codes had little in common demographically, geographically, or otherwise. What they may have had in common was a crisis of professional identity. In a rapidly changing society, what were the responsibilities of lawyers to their clients, their communities, the courts, and other lawyers? As bar associations considered what rules to adopt, the American Bar Association, in 1905, agreed to look into drafting a code. The next year it formally decided to do so, and it adopted a code of ethics in 1908.