How the system of legal ethics for attornies evolved in America.
The Ethics of Ethics
(A brief History of ethical codes in American Jurisprudence)
By Arthur Jackson, Esquire, Adjunct Professor.
There is always an area of confusion when discussing ethics. Is it morality, that subjective sense each of us has about life’s occurrences, or is it something else? For most attorneys the distinction is murky at best, and for most lay persons, it can be down right mystical. The development of a code of ethical conduct evolved in the judiciary over many years, and is continuing to evolve. This code controls much of the behavior of Judges, Prosecutors, District Attorneys, Defense Attorneys, and lawyers in general. Ethics in the legal profession has evolved from a vaguely defined moralistic standard to a carefully crafted written code, which proscribes the behavior of lawyers, and to some degree the larger cultural community. It is important to understand how this system evolved, and came to be so pivotal
From Meager Beginnings
As the new country was just beginning its existence, the practice of law in America was evolving from European origins to become distinctly American. Up to and including the time of the American Revolution the practice of law in United States was primarily based upon various European models. In Virginia and the southern colonies the English model predominated. In New York, the practice was colored by the pragmatic approach taken by the original founders the Dutch. As the country broke away from European control, the judiciary in America was finding its own path toward the future.
From the late 17th century into the first part of the 1800's the practice of law in America was governed by the concept of a gentlemanly etiquette.(Marston,1998, page 21). The prototypical attorney for this time was a person with a background of broad literary readings in the classics, and a period of tutelage with a more established practitioner in the field for a period of years. The concept of conduct was largely governed by the rules of gentleman’s behavior. Law, after all was the pursuit of gentleman, and was to be practice in accordance with those rules. But, the nation, and the world were changing very rapidly. The world of the gentile ability was being replaced by the pragmatic world of big business and industrialization. This pragmatism was being pushed in large part by the newly created federal judiciary. The men of the federal bench would play a pivotal role in creating and structuring rules of professional conduct for attorneys in this country for many years to come.
But, as with all things we should start from the beginning. Attorneys have always been considered part of the cultural elite of American society. As the country began its path to independence, it was a time when the personae of gentility resonated through the cities and towns of the country. State courts and bar associations were appearing throughout the land. The older, more established state court system was being asked to make room for the new Federal judiciary. The Judicial Acts of 1789-1791, was to establish the structure of the new federal system, and greatly expand it. These new judges were to prove key players in the development and structure of the state bars and codes of conduct that would shape the legal culture of America.
The earliest code of conduct
As the dust was settling from the Revolutionary War, a scholar and philosopher in Maryland was already hard at work on the very first version of the code of ethics for attorneys. “ David Hoffman, a lawyer, teacher and historian, was the eleventh of the twelve children of Peter and Dorthea Stierlin (Lloyd) Hoffman. He was born in Baltimore, Md., where he was also educated, attending St. John's College, of which he was later patron, visitor, and governor. He became one of the prominent members of the Maryland bar. In 1816 he was appointed professor of law in the University of Maryland, the establishment of which he had been very active in promoting, but he did not begin to lecture until 1823. Meanwhile, he published his Course of Legal Study, which was designed to show the interrelations of the departments of the law, with bibliographies and historical aids for each. Judge Joseph Story pronounced it "by far the most perfect system for the study of the law which has ever been offered to the public" (North American Review, November 1817, p.76). His university lectures, which continued daily until 1832, followed the same generous plan. The course, however, was poorly patronized.” ( as cited in Sleeman, 2005, )
Hoffman had very specific views on legal education. He believed in a strong background of social training and study of statutes and of legal forms and pleadings. He promoted the strong recommendation of genuine practice courts in place of the less effective moot courts of his day. His, Course of Legal Studies, seemingly gave overwhelming emphasis to reading and knowledge. The bibliographies he used, showed extraordinary knowledge of foreign literature, were designed, to insure systematic reading. “He emphasized also the ethics of the profession, and his "Resolutions in Regard to Professional Deportment" anticipated most of the present canons of conduct of the American Bar Association.” (as cited in Sleeman, 2005)
Hoffman was a believer in the law as a holly calling. He viewed the study of law in the context of a strong classical education, which was reflected in his seminal work, “Course of Legal Study”. This publication became the text book for many of the law schools of the day. “In 1836, Hoffman published his second edition, in which he added what was considered the first legal ethical code written for American lawyers. While certain of the Resolutions--advocating courtesy to other lawyers, and responding quickly to all correspondence received, “ (Moriston,1998, page 14), were of great practical use, he was still tied to the principal of law as a gentleman’s concern. His writings talked of…” admiring instead of envying more successful lawyers”, and were to “look more like etiquette than ethics, they do clearly portray a system of professional morality. He maintains that attorneys must independently consult their consciences when conducting their cases and should not press claims that would make bad law. Hoffman's moral system, then, is explicitly premised on the assumption that men's consciences will accurately reflect shared community norms. (Marston, 1998, page 14)
Hoffmann was an early advocate of the philosophy of natural law. His was the study of law as philosophy, and as a system of faith. “Hence the wisest system of human laws has grown out of the necessities of society as they occurred, and consequently, has grown up with society itself as it advanced from one degree of refinement and civilization to another.” ( Hoffman, 1837, page 513) His ideals are a reflection of today’s philosophies of natural law. “Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general jurisprudence. These two sources of interest in the nature of law are closely linked. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on such other normative orders, like morality or social conventions.” (Marmor, 2001, page 1)
Hoffman was a man out of step with the more pragmatic goals of the developing American Legal system. “Early Legal Positivists followed Hobbes' insight that the law is, essentially, an instrument of political sovereignty, and they maintained that the basic source of legal validity resides in the facts constituting political sovereignty.” (Marmor, 2001, page 2). During what should have been the high point of his life, Hoffman was considered, “…"too self righteous" for politics.” (as cited in Sleeman, 2005). He spent many years of his life and much of his own fortune, trying to establish and maintain these principles.
In 1854 David Hoffman died in New York, and to a large extent his philosophy of legal moralism died with him.
The Era of Legal Pragmatism
At the time of Hoffman’s death, a new philosophy of legal ethics was being forged in Philadelphia. George Sharswood, a sitting member of the Philadelphia courts was lecturing and writing on the legal ethics. In 1845 he was appointed to the federal district court of Pennsylvania, and served in that capacity for twenty years. “From 1850 to 1868 he served as a professor of law at the University of Pennsylvania and in 1879 became the Chief Justice of the Pennsylvania Supreme Court. Sharswood published his Essay on Professional Ethics in 1854, at which time he was also a sitting judge in the Pennsylvania courts. Sharswood's ethical system differs greatly from Hoffman's. " In contrast to Hoffman's belief that attorneys should not press bad claims, Sharswood thought that every client had the right to have his case decided on the law and the evidence. The lawyer "is not morally responsible for the act of the party in maintaining an unjust cause, nor for the error of the court, if they fall into error, in deciding it in his favor." (Marston, 1998, page 14) The new direction of the ethical conduct of lawyers was to aid men in the pursuit of wealth and power, within the limits of the law. “It is enough to look at the effects of the division of employments and the invention of labor-saving machinery, to recognize the invaluable results of society in the development of wealth and power…As men advance in knowledge and wisdom the standard of their physical wants is elevated. (Sharswood, 1860, preface page xvii) The advance of technology had forever changed the relationship of the lawyer and business. The era of big business called for a different type of ethical procedure, one more suited to the times. “ A blind attachment to principles of jurisprudence or rules of law because they are ancient, when the advancement of the useful arts, the new combinations of trade and business, and the influence of more rapid and general intercourse demand their repeal or modification, is as much to be deprecated as rash innovation and unceasing experiment. (Sharswood, 1860, preface page xxviii) This new model was to set the standard of ethics for many future generations of attorneys.
The Modern model of the code of Ethics
There were several formative principles that Sharswood set into place that would form the bedrock of legal ethics; honesty to the tribunal, loyalty to the client, avoiding conflicts of interest, appropriate fees, and advertisement. These items were discussed in light of the developing business environment. Sharswood was changing the landscape of legal ethics, by molding it to the modern era of industrialization, with its more significant business interest. Sharswood did not make a complete break with Hoffman, and did accept many of the precepts set down by Hoffman into his own works. However, the differences are more significant, in their impact on the development of the codes of ethical conduct. In the first instance, the primary concern to Sharswood was the attorneys need to respect the integrity of the tribunal.
There has always been general agreement about the conduct of attorneys before the tribunal. Yet, Sharswood spent a great deal of time reinforcing the need for the attorney to be open and honest before the tribunal. The practice of misrepresenting evidence quoting false presidents are books falsely or asserting anything with confidence that ignored case law and precedent was to be strictly prohibited. "It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, or evasion-to make no statements of facts which he does not know or believe to be true -to distinguish carefully what lies in his own knowledge from what he has merely derived from his instructions-to present no paper-books intentionally garbled. " (Sharswood, 1860, page 18). Along with this concept came the issue of decorum in the courtroom, and in the treatment of fellow practitioners. These last two items were leftovers from the era of David Hoffman. Still, they found some practical use in the new version all legal ethics.
The next item to be considered was loyalty to the client. This was the single most important item in Sharswood’s professional ethics. It is the standard that is continuing to be used today in all modern rules of ethics. It sets the stage and the standards of behavior for advocates in the legal system. "A council, attorney, or Solicitor, will in no case be permitted, even if he should be willing to do so, too deadbolts any matter which has been communicated to him in professional confidence. This is not his privilege but the privilege of the client, and non but the client can waive it. ("Jenkinson v. The state, 5 Blackford, 465). Not only was the lawyer required to keep client confidences during the time that he represented the client, it was founded in case law of that day, ". . . That though the council declined to be engaged for the client, yet the facts communicated where held confidential; the only exception recognize being where a purpose to perpetuate in futuro a felony or an action malum in se was disclosed. (Bank of Utica v. Mersereau, 3 Barbour Ch. Rep. 377). This duty of loyalty also included a rigorous protection of the client, by the attorney acting as an advocate. "An advocate, in the discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means an expedients, and at all hazards and costs to other persons, and among them to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring up on others," Sharswood wrote in his book “Professional Ethics in 1860, at page 30. It placed the responsibility upon attorneys to protect the client and their secrets at all costs.
The next item to be considered was that of conflict of interest. The advocate was honor bound to be sure that he did not create or allowed to stand a conflict of interest that might affect his client. "The advocate is bounded on her as well as duty, to disclose to the client at the time of the retainer, every circumstance of his own connection with the parties or par relation to the controversy, which can or may influence his determination in the selection of him for the office. An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the matter. " (Sharswood, 1860, page 53).
In keeping with the pragmatic aspects of the new code of ethics, Sharswood devoted considerable time to the discussion of fees for attorneys. "In making his charge, after the business committed to him has been completed, as an attorney may well take into consideration the general ability of the client to pay, so we may also consider the pecuniary benefit, which may have been derived from the services. For a poor man who is unable to pay in all, there may be a general understanding that the attorney is to be liberally compensated in case of success. " (Sharswood, 1860, page 97 ). This discussion the fees also included contingency fees, "Which recognize an agreement between council a client to pay him out of the verdict as an equitable assigned, and gave affect to it as against an attaching creditor. (Sharswood,1860, page 102). There was also a discussion of the prohibition of doing business with the client, on cases in hand, and matters generally. This was strongly argued against.
Finally, we are left with the discussion of advertisements. Sharswood gave a stern warning about the dangers to the profession of uncontrolled advertising. "The anxiety of the young lawyer it is a natural one had once to get business-as much business as he can. Following aside his books, he resorts to the many means at hand of gaining notoriety and attracting public attention with a view to bringing clients to his office such a one time it never fails to learn much by his mistakes but at a sad expense of character feeling conscience. .
With these principles in mind the framework for the conduct of legal ethics in the Judiciary was established. However, as with any area of human endeavor the impact of cultural forces cannot be ignored.
While the transition in the philosophy of legal ethics was under way, the plight of the legal profession was under assault. Between 1850 and 1900, participation in bar associations plummeted. “In 1800, for example, fourteen of the nineteen states required a mandatory period of preparation for admission to the Bar; in 1860, only nine of thirty-nine jurisdictions had such a requirement. n14 In many states, there was outright hostility to the notion of a Bar at all. Indiana liberally extended the license to practice law to all voters of "good moral character." In Roscoe Pound's words, "in this era of decadence it was assumed . . . that the Bar was not to be regarded as a profession, with requirements for admission such as public policy may prescribe, but as a mere private, money-making occupation." Only the Philadelphia Bar Association (formerly the Law Association of Philadelphia), founded in 1802, seems to have survived the period from the 1830s to the 1870s. (Pound, 1953, 254 ). The problem of falling interest in state bars was felt particularly in one part of America, the south.
By the end of the 1870s the country and the legal profession, especially in the south were in crisis.” The aftermath of the civil war, reconstruction, was wrecking havoc in the south. “The Fourteenth Amendment was one of three changes that altered the Constitution during the Civil War and Reconstruction. The Thirteenth Amendment, ratified in 1865, irrevocably abolished slavery throughout the United States. The Fifteenth, which became part of the Constitution in 1870, prohibited the states from depriving any person of the right to vote because of race (although leaving open other forms of disenfranchisement, including sex, property ownership, literacy, and payment of a poll tax). In between came the Reconstruction Act of 1867, which gave the vote to black men in the South and launched the short-lived period of Radical Reconstruction, during which, for the first time in American history, a genuine interracial democracy flourished. “Nothing in all history,” wrote the abolitionist William Lloyd Garrison, equaled “this . . . transformation of four million human beings from . . . the auction-block to the ballot-box.” (Foner, 2004, page 2, as cited in History Now) . These amendments were the cause of great concern. As of the year 1860, nearly forty two percent (42%) of the total population of the lower south were slaves. ( as cited from the University of Virginia, 2005). The passage of the fifteenth amendment would shift the political power in the south to these new voters.
The final Element to the Modern Code of Professional Ethics.
Against this backdrop, a former confederate officer, Thomas Goode Jones, with eloquence and forth rightness moved the state of Alabama and the nation to halt the democratization of the legal and political systems in America. After serving in the confederate army, Jones returned to Alabama after the war and began public life, as a state representative. In 1887 he wrote the first code of Ethics for the state bar of Alabama. Jones wrote as one of the reasons for proposing the code, “…"judicial administration would be greatly advanced if there were some organized body of lawyers, armed with legal authority and duty to investigate and prosecute unworthy members. Jones, who was not a lawyer, was not putting forward an original work, but was using the work of David Hoffman, and to a very large degree the works of George Sharswood. His single original contribution was the addition of a policing mechanism to keep, unwanted elements out of the practice of law. Jones stated,”… the Alabama Bar for honesty, ability and talent, equals that of any State in the Union, it has not yet returned to that state of purity, which distinguished it before the war. There are still lawyers whose practices bring reproach upon the profession, and who, not being members of the Association, cannot be reached by any of the rules prescribed for its government. A large number of the profession have not joined the Association for the reason frankly stated by them, that it has not taken any prompt steps to put down these evil practices. If the Association once acts, nearly all of this class will become warm and ardent members.” (Marston, 1998, page 10). The code proposed and adopted in Alabama was a code for the modern era. Its core values were loyalty to the client, protecting client confidences, and candor to the court, and the exclusion of all non licensed practioners. With the establishment of this code, the modern model for legal codes of ethics was established.
The National Standard for a Code of Conduct
The Alabama code was a first step toward the establishment of such codes in all states. However, events on the national scene would provide a significant driving force to propel the application of such codes in all states forward.
By the beginning of the 1900, there was a migration of blacks from the south, as legal conditions worsened. “The Great Migration differed from previous migrations in that it was a movement directly from the rural South to the urban North. Railroads and black sleeping car porters were an important link between rural black communities and northern cities. Pullman porters on the Illinois Central Railroad distributed the Chicago Defender, a black newspaper, on their trips south and facilitated the migration of fellow blacks to Chicago. In the cities of the North, vast black ghettos appeared. Chicago's black population grew from 44,000 in 1910 to 110,000 in 1920. (Katzman, 2005, as cited in,” The Reader's Companion to American History”). The result of the migration was now being felt in northern cities. While there can be no direct correlation between these facts and the movement toward a national code of ethics by the New American Bar Association, the occurrence in time of these events is perhaps significant.
In 1905, the American Bar Association (ABA), which was founded in 1878, decided to research the advisability of establishing a national legal code of ethics. In this regard, the Association decided in 1907 to call on one Thomas Goode Jones to become a member of the commission. The cannons of ethics developed were strikingly similar to the Alabama code, which Jones had helped author earlier. Since those humble beginnings the ABA, has created several versions of the code of ethics. The first version, created from the Alabama code was replaced in 1969 by the model code of professional responsibility. In turn, the model code was replaced by the model rules of professional responsibility in 1983.
Today, every state has a version of ethical codes based on the models of the American Bar Association code. There was one unforeseeable side effect of these codes, particularly for the newly freed peoples of color .” Those conditions included two features that greatly impeded African-American lawyers. First, most elite educational opportunities remained closed to them. Second, the race prejudices of judges and other actors in the legal system put African-American lawyers at a disadvantage as advocates. (Carle, 2002, page 50)
The codes of ethical conduct, despite their origins, have proven to be a valuable tool in providing the public with competent lawyers. The history, though colorful, is by no means remarkable in this country of contrasts, and conflict. In today’s world the application of ethical codes remains a tension, between the models of Hoffman the purist, and Sharswood the pragmatist. The American Bar has moved past the original version, and is now looking toward the horizon, where even newer versions await.
The States move somewhat slower, but, they have moved. Caught between the forces of law and pragmatism, no one is immovable.
Bank of Utica v. Mersereau, 3 Barbour Ch. Rep. 377
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