Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 2008 American Legal Ethics in an Age of Anxiety Michael S. Ariens St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Legal Ethics and Professional Responsibility Commons Recommended Citation Michael S. Ariens, American Legal Ethics in an Age of Anxiety, 40 St. Mary’s L.J. 343 (2008). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. ST. MARY'S LAW JOURNAL VOLUME 40 2008 NUMBER 2 ARTICLES AMERICAN LEGAL ETHICS IN AN AGE OF ANXIETY MICHAEL S. ARIENS* I. Introduction ..................................... 344 II. American Legal Ethics from Hoffman to the Canons... 349 A . Introduction .................................. 349 B. David Hoffman's Legal Ethics ................... 353 C. Lawyerly Zeal in the Mid-19th Century ........... 364 D. Defending the Guilty Client ..................... 375 E. Sharswood, Lawyers and Professional Ethics in the 1850s ........................................ 384 F. David Dudley Field and Professional Honor ....... 394 * Professor, St. Mary's University School of Law, San Antonio, Texas. Thanks to Leslie Griffin and Russ Pearce, and to my colleagues Dorie Klein and Colin Marks, for their comments, and to my colleague Vincent Johnson for his comments on an earlier draft. Thanks also, to Judith Maute for her assistance in obtaining the oral history interviews of the American Bar Foundation. Thanks to the librarians at Special Collections at the Harvard Law School, Jordon Steele at the Biddle Law Library at the University of Pennsylvania School of Law and Allen Streicker at the Northwestern University Library for their kind assistance with my requests, and to the American Bar Foundation for allowing me to use a number of interviews from its Oral History Program. Thanks also to Stacy Fowler for her assistance with my many inter-library loan requests. ST MARY'S LAW JOURNAL [Vol. 40:343 III. The March to Modernity ........................... 407 IV. From a Golden Age to an Age of Anxiety ............ 418 A . Introduction .................................. 419 B. The Golden Age .............................. 420 C. Surveying the Legal Profession .................. 423 D. Joint Conference on Professional Responsibility .... 426 E. The Code of Professional Responsibility .......... 433 F. Anxiety and the Model Rules ................... 444 V . Conclusion ...................................... 451 A notion that lectures on legal ethics conjure ethics into the listener is childish, in almost the exact measure in which the listener is he whom it is wished to cure. K.N. Llewellyn, The Bar Specializes-With What Results?1 I. INTRODUCTION The rule of law constrains lawgivers. It requires, at a minimum, that the government be one of laws, and not of men.2 Those constraints on lawgivers are both internal and external. Internal constraints such as humility, selflessness, and civic virtue have all been posited as necessary to limit the exercise of power by lawgivers. Because men are not angels,3 external constraints also exist to limit their exercise of power. One of the external constraints is a watchful eye from those in the daily law business- 1. K.N. Llewellyn, The Bar Specializes-With What Results?, 39 COM. L.J. 336, 340 (1934). This is a reprint of Llewellyn's article published in the May 1933 issue of Annals of the American Academy of Political and Social Science. K.N. Llewellyn, The Bar Specializes-With What Results?, 167 ANNALS AM. ACAD. POL. & SOC. SCi. 177 (1933). 2. See MASS. CONST. pt. 1, art. XXX (1780), reprinted in 1 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAW OF THE UNITED STATES 956, 960 (Ben Perley Poore ed., 2d ed. Washington, Gov't Printing Office 1878) ("In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men."); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The government of the United States has been emphatically termed a government of laws, and not of men."). 3. See THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961) ("If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."). 2008] AMERICAN LEGAL ETHICS IN ANAGE OFANXIETY 345 lawyers.4 As stated by Professor Brian Tamanaha, "[t]he legal profession, then, is located at the crux of the rule of law."' 5 But if lawyers are at the crux of the rule of law, as its guardians, "[w]ho will guard the guards?"6 One check on the conduct of lawyers is the command that they adhere to a code of ethics. A code of ethics is designed to constrain the self-interested exercise of power by lawyers while providing them with the authority to maintain a watchful eye over the exercise of authority by lawgivers. But the authority given lawyers in American society is tenuous, and it has often been challenged and even rejected in different eras of American history. The subject of this article focuses on the development of American legal ethics as a defense and response to challenges to the authority and power exercised by lawyers. The thesis of this article is that internal professional debates about codes of ethics largely have occurred during times of professional anxiety concerning the role of lawyers in a democratic society. Section II discusses the development of the self-policing limitations on the behavior of American lawyers, beginning in 1836 with David Hoffman's "Resolutions in Regard to Professional Deportment" in his book A Course of Legal Study7 and continuing through 1908, when the American Bar Association (ABA) adopted its Canons of Ethics.8 A study of Hoffman's Resolutions indicates they were offered as a measure to re-attain honor and status for a profession perceived by Hoffman to be under attack and in decline. In the two decades between the 4. Cf BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 58 (2004) ("[A]II liberal accounts of the rule of law presuppose the presence of a robust legal tradition."). 5. Id. at 59. 6. The Latin phrase is "Quis custodiet ipsos custodes?" and is attributed to Juvenal. JUVENAL, SATIRES VI, act 1, 1.347 (Niall Rudd trans., Clarendon Press 1991); JUVENAL, THE SATIRES OF JUVENAL 78 (Rolfe Humphries trans., Ind. Univ. Press 1958). 7. DAVID HOFFMAN, A COURSE OF LEGAL STUDY 752-77 (2d ed. Philadelphia, Thomas, Cowperthwait & Co. 1846) (reprinting the 1836 edition); see M.H. Hoeflich, Legal Ethics in the Nineteenth Century: The "Other Tradition," 47 U. KAN. L. REV. 793, 793-99 (1999) (offering statements of lawyers other than Hoffman concerning legal ethics); cf Norman W. Spaulding, The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics, 71 FORDHAM L. REV. 1397, 1415-16 (2003) ("[I]t is far from clear that [Hoffman's Resolutions] are representative either of practice at the time or the consensus of republican legal elites on the specific legal duties entailed by their self-appointed role as the 'governing class."'). 8. See Transactions of the Thirty-first Annual Meeting of the American Bar Association, 33 A.B.A. REP. 3, 55, 86 (1908) (adopting the Canons of Ethics). ST MARY'S LAW JOURNAL [Vol. 40:343 publication of Hoffman's Resolutions and the publication of Judge and Dean George Sharswood's October 2, 1854 Introductory Lecture to students at the University of Pennsylvania Department of Law, published as A Compend of Lectures on the Aims and Duties of the Profession of the Law: Delivered Before the Law Class of the University of Pennsylvania,9 a crisis of legal professionalism, including a crisis over the extent of the lawyer's duty to defend a guilty client, led Sharswood to modify substan- tially the standards of conduct embraced by Hoffman. Shortly after the end of the Civil War, the actions of preeminent lawyer David Dudley Field (and members of his law firm) in representing the speculators Jay Gould and Jim Fisk created another crisis of professionalism. Section II closes by discussing the adoption of the Canons of Ethics by the ABA in 1908, which are based on the 1887 Alabama Code of Ethics. 10 The adoption of the Canons was the culmination of the effort by elite lawyers to provide protection against attacks that lawyers were solely interested in protecting their own and their clients' interests. Section III analyzes why the heavily criticized Canons were not modified in the sixty years before the ABA's adoption of the Code of Professional Responsibility in 1969. The 1908 Canons of Ethics were thirty-two in number. In 1928, the ABA added thirteen Canons,1 1 and in the 1930s, it adopted the two final Canons.1 2 9. GEORGE SHARSWOOD, A COMPEND OF LECTURES ON THE AIMS AND DUTIES OF THE PROFESSION OF THE LAW (Philadelphia, T. & J.W. Johnson 1854). The same work was subsequently titled An Essay on ProfessionalEthics. I will cite both to the A Compend edition of 1854, and the fifth edition of An Essay on Professional Ethics reprinted in 32 A.B.A. REP. 1 (1907). 10. Transactionsof the Thirty-first Annual Meeting of the American Bar Association, 33 A.B.A.