History of Legal Ethics
Bill Long 12/11/05
The Problem
I will always treasure my legal education for providing me the basic tools to become a practicing trial lawyer in a distinguished firm. But as I turn more and more of my attention to understanding law, and not simply preparing for a final or bar exam, I see how inadequate that education was. A case in point is the study of legal ethics. Ever since lawyers almost caused America to self-destruct during the Nixon Presidency law schools have been scrupulously attentive to offering courses on legal ethics or, as they are generally now called, courses on "professional responsibility." When I was a law student the scuttlebutt was that no one wanted to teach this course because all it consisted of was going over "the rules." What "the rules" meant in this instance were the ABA's Model Rules of Professional Conduct (1983) with up-to-date amendments (1997 is when I took the class). As a result of student expectations, then, this course would probably be pretty hard to teach. The course consisted, in fact, in a rather pedestrian plowing through the Model Rules, with occasional Supreme Court cases or exercises that would help us try to understand the rules. Our task was to learn what the rules said.
No attention was given to the question of why a particular rule was in fact a rule, whether the form and words of of it had been the subject of hot or tepid debate, the nature of a code of ethics, the history of codes of ethics for American lawyers, the way that a code of ethics incorporates commitments to basic principles, the identification of these principles or a discussion of whether these basic principles were ones that should inform our understanding of law today. In short, the course did not touch on some topics that I consider to be important today.
An Example
Let me give you an example of a rule we considered that, in my mind, could have opened worlds of understanding but which we just learned as "a rule." Rule 7.3(a) provided at the time (it was slightly amended in 2002):
"(a) A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain."
I recall my first reaction when studying this rule was, "This is sure a dumb rule." I had come to law school in 1996 after spending 15 years in the teaching/ministry/editorial page writing world. I was also politically active, having been elected to public office. I had thoroughly imbibed the theory of the 1980s and 1990s, that in order to "become somebody" you had to "sell yourself," you had to be "out there" taking risks and drumming up business. If you didn't do so, someone else was going to take your business. It was as simple as that. You could sit on your butt and wait for the world to come to you but, if you did, you would be waiting for a very long time.
So, I came across this rule, which prohibited me from doing the very thing that I knew was right to do in every other situation I confronted. I then did what any good student would do--I read the comments prepared by the ABA on the rule. Here is the first comment to 7.3.
"[1] There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately . The situation is fraught with the possibility of undue influence, intimidation, and over-reaching."
The more I read and re-read those words, the more confused I became with the prohibition. What did it mean that the potential for abuse was "inherent" in face-to-face solicitations? It made it sound like almost a sexual abuse situation, where one figure has so much power over another that the person with lesser power is "inherently" more vulnerable. I think I nearly hit the ceiling on this one. Did the Model Rules think that lawyers were so skilled in the arts of persuasion that other people were just helpless victims not only of whatever circumstances bogged them down in life but also of the wily ways of attorneys? That people in fact couldn't say "no" to a lawyer? And what was with the moralistic flourish of the last bolded sentence? That if you make yourself available to people you are putting yourself into a situation of over-reaching?
I thought for a split second that I really ought to abandon the study of law because the teacher presented the material and the students diligently wrote it down as if this was the most natural thing in the world. What planet, I thought, are lawyers from anyway? I asked a question. I said, "Most students are in law school to make money (the "pecuniary gain" of the rule), and is the rule telling us that I can't go to a Chamber of Commerce meeting, introduce myself to people and ask them individually if they would like attorney services?" The answer I got was "That is what the rule forbids." To me it made no sense at all.
Until....I began to study history, and I realized something about the legal profession that was really not presented to me in school--that we have a history. I began to see that once upon a time someone, somewhere (about 400 years ago, I later learned) was concerned that lawyers should not "stir up" strife and seek out lawsuits, and that we, in 1997, were still living with someone's hangups from another period. I began to see the history of the legal profession like a family's history--that traces of generations long dead still appear in the most interesting and unpredictable ways in later generations. And, so I set out to find out something about this problem.
The next essay takes us a little further.
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