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Monday, January 16, 2023

The Trustworthiness of American Lawyers (Part IV)

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

In a 1906 essay, lawyer Charles F. Chamberlayne noted increasing numbers of lawyers warned “that the client’s money too largely dominates professional morale; that rising tides of commercialism stifle the cry of its outraged conscience.” Did the ABA’s 1908 code of ethics alleviate this problem? In a 1909 essay, Chamberlayne thought not. The “panacea” for “low idealism” within the profession was a code of professional ethics. This would not do: “To the fervent cry for the bread of moral life a stone of formalism and negation … has apparently been given.” It was “ideals,” not “thou-shalt-nots,” that lawyers needed. Despite Chamberlayne’s critique, the ABA’s code of ethics, consisting of an oath and thirty-two Canons, was quickly adopted by many state and local bar associations. By 1924 an ABA committee concluded “almost all” state bar associations had adopted the ABA’s Code. In practice, this success meant little. From its adoption beyond the end of World War II in 1945, the ABA Code had little influence on the ineffectual and haphazard lawyer discipline process among the states.

When the ABA Code was supplemented in 1928, the oath was de-emphasized in favor of the Canons. (This required the ABA to add a canon regarding the duty to keep client confidences, which duty in 1908 was placed only in the oath.) Between then and the late 1960s, the ABA tinkered at the margins. This tinkering was closely related to an aversion to any communication by a lawyer that might be deemed advertising. Advertising meant that lawyers received money for their work, and elite lawyers found that idea both untasteful and unprofessional, demonstrative of a lawyer’s untrustworthiness. Thus, as the Great Depression wreaked havoc on lawyer income, non-elite lawyers were trustworthy only if the public believed they were independently wealthy.

The legal services economy in the post-World War II era (1946-1969) was extraordinarily favorable to lawyers. Real median income of lawyers, expressed in 1983 dollars, grew from $25,415 in 1947 to $35,300 in 1959 to $47,638 in 1969. During this time of plenty, the ABA decided to replace its 1908 Code with what became the 1969 Code of Professional Responsibility. The 1969 Code consisted of nine broad Canons, “axiomatic principles,” followed by Ethical Considerations, “aspirational in character and [which] represent the objectives toward which every member of the profession should strive.” Lastly, the Code included black-letter Disciplinary Rules, which were “mandatory in character.” The Ethical Considerations were presented as the heart of the Code, for they served as guides to the fulfillment of the lawyer’s professional responsibilities. The distinction between aspirational considerations and mandatory duties came from the writings of Professor Lon L. Fuller. Fuller had led a joint committee of the ABA and the Association of American Law Schools in the mid-1950s. Its Report, published in 1958, warned lawyers that following the rules of lawyer ethics was “not the equivalent to the practice of professional responsibility.”

The ABA adopted the proposed Code in 1969 without amendment. Within three years most states had adopted it as law. Yet the ABA called for a new code of lawyer ethics in 1977. What happened?

University of Texas professor John Sutton principally drafted the Code. He criticized parts as “at worst obstreperous and obstructionistic.” The traditional bias found in the Code included its rabid objection to communications from lawyers to the public, which one critic found created an “ironic contrast” to the goal of access to counsel trumpeted by Canon 2. Additionally, significant aspects of the Code were premised on protecting the economic position of lawyers, not the economic and other interests of clients. Finally, the Watergate crisis of 1972-1974 placed lawyers under a harsh and unforgiving light.

By the late 1970s, American lawyers were divided on the premises of rules of lawyer ethics. One group, which predominated in the Kutak Commission that drafted the new rules, believed ethics rules were premised on the idea of the lawyer as a social trustee. The other group desired a set of bottom-line rules in support of the “basic posture of ‘my client, first, last and always.’” A lawyer as social trustee took into account, when representing one’s clients, of “a determinable public interest.” The lawyer was thus autonomous from one’s client, with the discretion the choose “not to do what should not be done.” The basic posture focused on serving one’s clients, largely ignoring any duty to comprehend the existence of any determinable public interest. By the time the ABA adopted the Model Rules of Professional Conduct in 1983, lawyers promoting the “basic posture” had won the day.

Posted by Howard Wasserman on January 16, 2023 at 09:31 AM in Books, Law and Politics | Permalink

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