The Divided Lawyer

[Here is Guest Blogger Michael S. Ariens's first post.  DRE]

“In America THE LAW IS KING,” wrote Thomas Paine in Common Sense (1776). Paine’s epigram announced that the people were sovereign and they ruled through the law. The problem with Paine’s formulation is that the law acts only through its agents, the lawyers and judges who shape and make it. Former Harvard Law School Dean Roscoe Pound noted in a 1937 essay, “there is no law without lawyers.” A half-century later, legal ethicist David Luban took Pound’s statement a large step further: “Lawyers are the law.” If American lawyers were the law, they possessed extraordinary power. As power tends to corrupt, the people have long feared the possibility that lawyers would exercise power to benefit the clients who paid them to represent their interests at the expense of the interests of the public. American lawyers implicitly understood the elevated social position this power gave them, and they worked to justify to the people their exercise of it.

The 1701 Massachusetts attorney oath of office ended with injunction that the lawyer pledge “all good fidelity as well to the courts as to your clients.” This was echoed by Judge George Sharswood, whose writings on legal ethics were largely adopted in the second half of the nineteenth century. In his 1854 lectures on legal ethics to law students at the University of Pennsylvania, Sharswood agreed with the Massachusetts oath. A lawyer was “not merely the agent of the party,” but also “an officer of the Court.” Former President and future Chief Justice William Howard Taft declared in a 1914 lecture that lawyers owed “a double allegiance, a duty toward one’s client and a duty toward the court.” American Bar Association President David Maxwell praised lawyers in his 1957 farewell address for their “dedication to the public interest.” But how were lawyers to serve faithfully and in equal measure court and client? In a 1791 law lecture, Supreme Court Associate Justice James Wilson perceived little if any conflict: These “obligations are, by no means, incompatible: both will be discharged by uniform candour [sic], and by a decent firmness properly blended with a dignified respect.” A second approach minimized any conflict by arguing the lawyer’s legal knowledge made the client dependent on the lawyer, and the lawyer relatively independent of the client. A third approach was to ostracize as “unprofessional” those lawyers who served their clients at the expense of their duty to serve as officers of the court.

Finally, lawyers claimed they obeyed standards higher than the morals of the marketplace. They were in the marketplace, but not of the marketplace. Lawyers served clients and received fees for their exertions. They were paid agents of their principals. But they distinguished themselves from ordinary agents in asserting a duty to meet standards of behavior inapplicable to ordinary agents. These standards required lawyers to serve their clients in a detached, independent manner, which made more likely fulfillment of their duty to the court and any corresponding duty to serve the public. The responsibility to meet both obligations made lawyers a part of a profession rather than an ordinary business. This emphasis on non-market-based standards of behavior led Roscoe Pound and others to downplay the fact that lawyers made a living from the fees paid by their clients. “Historically,” wrote Pound in 1944, “there are three ideas involved in a profession: organization, learning, and a spirit of public service. These are essential. The remaining idea, that of gaining a livelihood, is incidental.” But the vast majority of American lawyers have practiced law to earn a living. The need for paying clients gave lawyers some incentive to represent them faithfully. (Even so, plenty of contrary examples exist and are discussed in The Lawyer’s Conscience.) In contrast to the present needs of one’s current clients, the duty a lawyer owed the court, the legal system, or the interests of the public, was diffuse and abstract. As between these two duties, the lawyer primarily focused on the duty to serve one’s clients. 

There was, of course, tension in the duty one owed to one’s clients and the interest of the lawyer in success, financially and reputationally. In Sharswood’s opinion, a lawyer “should never take a case “with a view to one single end, success.” A lawyer who sought only success might be willing to ignore all constraints on one’s behavior, to act as an ordinary agent. But Sharswood did not offer a practical substitute, and the adversary system and the market for clients heightened the lawyer’s devotion to success.     

The Lawyer’s Conscience: A History of American Lawyer Ethics is a history of American lawyers and their efforts to justify the power accorded them by the people.



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