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Wednesday, January 18, 2023

The Trustworthiness of American Lawyers (Part V)

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

Part of the reason for the rejection of social trustee professionalism was ideological. Lawyers had long believed that zealously representing one’s (private) clients was essential to fulfilling the rule of law. The zealous advocate was, in the liberal imagination, opposed by another (and equally capable) zealous advocate. After assessing the evidence presented (and tested on cross-examination) by the lawyers for both parties, and hearing the closing arguments made by opposing counsel, a neutral decision maker (judge or jury) issued a verdict. The lawyer thus served an amoral and modest role within a larger justice system. The instrumental justification rejecting social trustee professionalism was economic; in 1980, median lawyer income, in real dollars, was less than it had been in 1970. This decline in income was related in part to a great expansion in the number of lawyers, as Baby Boomers headed to law schools in record numbers. It was also partly a result of high inflation during many of those years, and partly a consequence of changes in the private practice of law.

In difficult economic times, social trustee professionalism was viewed as dispensable by some; for others, the increasing interest in improving law firm income statements, in part by firing partners categorized as “dead weight,” was evidence of a professionalism crisis. “Professionalism” did not enter Black’s Law Dictionary until the publication in 2004 of its eighth edition, in which it was defined as “the practice of a learned art in a characteristically methodical, courteous, and ethical manner.” By then, the “crisis” had been in existence for two decades. One argument made those emphasizing the non-market-base responsibilities of American lawyers was to make “commercialism” and “professionalism” two variables in a zero-sum contest. In this view, commercialism was an effort by lawyers to maximize income, even at the expense of one’s clients. Only a return to professionalism would make lawyers more trustworthy power brokers in American society.

The professionalism movement consisted of several aspects. One effort of the ABA, beginning in the 1990s, was to foster the “core values” of American lawyers. A lawyer’s embrace of the profession’s core values demonstrated that lawyer’s trustworthiness. Core values were initially framed by ALI Director and legal ethics scholar Geoffrey Hazard as comprising “loyalty, confidentiality, and candor to the court.” A 1992 effort known as the MacCrate Report listed four fundamental values of the profession: competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development. A third publication (and second by an ABA committee) listed independence of professional judgment, confidentiality of client information, and client loyalty through avoiding conflicts of interest. The ABA House of Delegates in summer 2000 adopted a resolution listing six core values, from undivided loyalty to competence, client confidences, avoiding conflicts of interest, serving the public profession of the law and promoting access to justice. By the early 2000s, combined lists of professional core values as offered by different bar association entities and bar leaders had swollen the number of such values to eighteen.

As one perceptive critic noted, the lawyer’s loyalty had always been divided by the rules of lawyer ethics. The core value of loyalty, then, made sense only when defined more finely and contextually. One problem with the core values debate was the malleability of the concept. Core values were pitched at a high level of generality; this was necessary in part to avoid conflicts among different core values. The foundation of the idea of core values was unstable. This made it impossible to use core values to generate public (and client) trust of the work undertaken by lawyers.

American lawyers have always been more feared than loved. The public knows lawyers exercise power, and know that they usually do so on behalf of their paying clients. It seems that it is not solely that lawyers are paid by clients to exercise power that leads to public distrust. Instead, it is that lawyers do so while simultaneously arguing their actions are intended to serve the public as well as one’s clients.

Posted by Howard Wasserman on January 18, 2023 at 09:31 AM in Books, Law and Politics | Permalink

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