Where Did All the Lawyers Go? Challenging Perceptions of the Lawyer as Civic Linchpin in New Haven: 1830‐1890 By: Leslie Esbrook1 ‐But above all a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen. –The Final Prays of the Canon of Ethics2 Lawyers have traditionally been portrayed as models for civic representation, epitomized by their role in the founding of the Republic. In recent studies a consensus has formed around the idea that the legal profession lost its civic‐mindedness, sometime between the nineteenth and beginning of the twentieth centuries. Consequently, the story goes, lawyers have lost a key part of the profession that elevated the law to a higher plane compared to other career paths. This paper will explore the history of this shift using New Haven and the greater Connecticut forum for empirical data. The paper will challenge the historical narrative by detailing internal inconsistencies amongst leading scholars, both in terms of time frame of decline and the amount and kind of civic participation envisioned as exemplary. I will show that, at least at the local level in New Haven, the shift of lawyers as history remembers did not occur in a radical, sudden fashion at all; by the end of the century a non‐trivial amount of lawyers continued to fully participate in civic life. Finally, I will track prevalent theories behind the myth of the lawyer’s civic decline and superimpose them on the facts relative to New Haven to show that the conflicting results accrued from the data support the absence of causal findings for the current theories in vogue. In sum, the shift of the role of lawyers in public service in New Haven is much more gradual than once surmised, suggesting the change was not a top‐down deluge to a new world of corporate law but rather a trickle out of public service into many other fields that valued legal expertise. 1 Many thanks and appreciation for help on this article go out to the library staff at the Lillian Goldman Law Library at Yale Law School, the archivists at the Whitney Library of the New Haven Museum, the law unit at the Connecticut State Library, Professor Lawrence Fox, George W. and Sadella D. Crawford Visiting Lecturer in Law, Yale Law School, and Professor Robert C. Ellickson, Walter E. Meyer Professor of Property and Urban Law, Yale Law School. 2 LAWRENCE J. FOX, A CENTURY OF LEGAL ETHICS 169 (2009). 1 Table of Contents Introduction …………………………………………………………………………………………….…………2 Part I : Historiography of the Lawyer‐Statesman: An Introspective …………………….…7 A: The Imprecise Roots of Decline and Conception of the Ideal…………………...7 B: The Lawyer‐Statesman in Tripartite Service of Government: Re‐Evaluating The Definition of Public Service………………………………………...………….14 C: The Lawyer‐Statesman in Alternative Civic Service Positions……...…..........23 Part II: An Empirical Look at Lawyers in Greater New Haven. …………………..…………25 A: Why New Haven: Beacon of Hope for Legal Affairs……………………...………..26 B: Explanation of the Study’s Methodological Approach……………………...…….29 C: Findings……………………………………………………………………………………..……….30 Part III: Pressure Points: Theories of Lawyer‐Statesman Rate Fluctuation…….……..43 A: Supply and Demand: The Effects of Normal Population Growth………..…..43 B: The Rise of the Firm and Corporate Law……………………………………………...45 C: Beyond the Horizon: A Shift to Federal Government……………………….…….46 D: Change in the Social Fabric: A Booming Population of Immigrants………..47 E: The Growth of Fraternal Organizations…………………………………………...…...50 Part IV: Concluding Remarks: The Dangers and Advantages of Legal Mythology…..52 Appendices……………………………………………………………………………………………..56 The story told is a familiar one: lawyers founded our nation, with the cheers and fanfares of a supportive populace, built up our legal and legislative codes, and attained countless measures of high office. Then, the era of industrialization and manufacturing sprung upon the profession, consuming the members of the bar to the ambitions of corporations, big business, and greed.3 In‐house counsel, the rise of the firm, and contract creation all became the bread and butter of the legal profession.4 By 1900 lawyers in the urban centers of the East by and large had shed 3 See HEİNZ EULAU & JOHN D. SPRAGUE, LAWYERS İN POLİTİCS: A STUDY İN PROFESSİONAL CONVERGENCE 12 (1964); L. RAY PATTERSON & ELLİOTT E. CHEATHAM, THE PROFESSİON OF LAW 10, 398 (1971) (declaring that the U.S. system was created as a legal polity in direct opposition to King George’s violation of legal rights, and noting that lawyers occupied a large share of the initial federal government positions); JULİUS STONE, LEGAL EDUCATİON AND PUBLİC RESPONSİBİLİTY 15‐19 (1959). 4 LAWRENCE M. FRİEDMAN, A HİSTORY OF AMERİCAN LAW: THİRD EDİTİON 329, 484 (2005) (noting the growth of administrative law and business regulation and recognizing the post‐Civil War lawyer‐ statesman ideal morphed into that of the corporation lawyer). 2 their profession’s ethos of public service.5 Thus the prolonged saga of the disappearance of the lawyer‐statesman reached an apex, turning the great statesmen such as Thomas Jefferson, Alexander Hamilton, James Madison, and John Adams into mythical characters of a different time.6 To this day, the profession struggles to define itself introspectively on both the national and state levels and must reach centuries backwards in time in hopes of finding a character‐portrait of the selfless lawyer to proudly resurrect.7 In New Haven, one man demonstrates this story of the nineteenth century’s shift in the legal profession’s stature: Mr. George H. Watrous. A New Haven surname of repute, the Watrous family left its mark on the city courts, on Yale, and on the city’s public utility management systems.8 George H. Watrous married into another 5 See Edwin F. Sweet, Municipal Government and Its Demands on Good Citizenship, 9 YALE L.J. 73, 81 (1899). 6 See RON CHERNOW, ALEXANDER HAMİLTON 160 (2005); NORMAN GROSSMAN, AMERİCA’S LAWYER‐ PRESİDENTS: FROM LAW OFFİCE TO OVAL OFFİCE ii (2009); America’s Founding Fathers: Delegates to the Constitutional Convention, THE CHARTERS OF FREEDOM: U.S. NAT’L ARCHİVES, http://www.archives.gov/exhibits/charters/constitution_founding_fathers.html (last visited April 15, 2013). Interestingly, the reification of the lawyers during the constitutional period may not itself be consistent with historical truths, underscoring the dangers of blindly following legal mythology. ORIE L. PHILLIPS & PHILBRICK MCCOY, CONDUCT OF JUDGES AND LAWYERS: A STUDY OF PROFESSIONAL ETHICS DISCIPLINE AND DISBARMENT 188‐89 (1952) (remarking that in the colonial days of America “to be a lawyer was to incur social opprobrium. for example, in Connecticut, they were included in discriminatory legislation in company with drunkards and keepers of brothels”). See also Thomas Thacher, Yale in Its Relation to Law: An Address Delivered at the Bi‐Centennial Celebration at New Haven 5 (Oct. 21, 1901) (“In those days [the 1700s]….the law presented little attraction compared with the later times). 7 Quintin Johnstone, An Overview of the Legal Profession in the United States, How That Profession Recently Has Been Changing, and Its Future Prospects, FACULTY SCHOLARSHIP SERIES (2008), available at http://digitalcommons.law.yale.edu/fss_papers/1888 (analyzing from the modern day examples of the legal profession in Connecticut, what changes the field has undergone, and how to sustain the profession in a manner consistent with its goals of societal improvement); The Lost Lawyer & the Lawyer‐Statesman Ideal‐AALS 2014‐New York, NY, Call for Papers, LEGAL SCHOLARSHİP BLOG: A SERVİCE FROM THE OHİO STATE UNİVERSİTY MORİTZ COLLEGE OF LAW, UNİVERSİTY OF GEORGİA SCHOOL OF LAW, UNİVERSİTY OF PİTTSBURGH SCHOOL OF LAW, AND UNİVERSİTY OF WASHİNGTON SCHOOL OF LAW (Mar. 26, 2013), http://legalscholarshipblog.com/?p=10711. 8 The Watrous family owned the New Haven Water Company, New aven Gas Light Company, the first trolley companies, and have the lake that provides freshwater to New Haven named in their honor. 3 powerhouse family of the time, the Duttons, solidifying the family’s good fortune and influence.9 Born into a well‐off family already steeped in the world of law (his father was a judge), 10 Watrous graduated from Yale in 1853. He joined the firm Dutton & Watrous for a time, continued practice on his own after the firm disbanded, and in the 1860s branched into government affairs. He represented New Haven in the General Assembly, served as Corporation Counsel for the City of New Haven, and “at various times…was elected to municipal offices in that city.”11 In the mid‐1870s he advanced to president of the New York, New Haven and Hartford Railroad Company and held the position nearly until his death, in 1889.12 In his years at the bar, mirrored onto the years of the lawyer‐statesman’s decline, Watrous shifted from solo practitioner with public service responsibilities to the corporate world, leaving behind both the use of legal reasoning in the service of government and the use of legal reasoning in client advocacy entirely. Watrous’s diverse pursuits chart the story of the arc of privatization and conglomeration to the detriment of community values in law.13 Lawyers, praised in their own community for the qualities affixed to them that imbued civic service See OBİTUARY SKETCH OF GEORGE DUTTON WATROUS, 127 CONNECTİCUT REPORTS 735‐6, available at http://www.cslib.org/memorials/watrousgd.htm (last updated July 24, 2012). 9 OBITUARY SKETCH OF GEORGE H. WATROUS, 57 CONNECTICUT REPORTS 592‐95, available at http://www.cslib.org/memorials/watrousgh.htm (last updated July 24, 2012). George H. Watrous’s wife, Harriet J. Dutton, was the daughter of Henry Dutton, Governor of Connecticut and Judge of the Supreme Court of Connecticut.