History of Legal Ethics II
Bill Long 12/11/05
The Light Goes On
When the aforementioned confusion settled on me, I didn't do in 1997 what I am doing now. At that time I just learned the rules, did well on the test and moved on to the next course. That is all you really can expect from a law student in an "exam-based" class. But I have come to believe that by just learning the rules, I learned nothing. What I have done since then, however, is to try to see law as primarily an expression of what some people thought at a particular time. If I don't understand something, then, it means that I don't understand fully the time of enactment or something about certain values of the profession that are passed down over time.
Thus, I saw that if I really was going to try to understand the profession's queasiness about face-to-face lawyer solicitation of business, I had to go deeper into history. I realized that the predecessor code to the Model Rules (1983) was the Model Code of Professional Responsibility (1969).* Before the 1969 code was
[*People get the names of the two confused all the time. For example, it is not unusual for someone to speak of the Model Rules of Professional Responsibility, even though they never existed. Here is an example, by a law school professor.]
the 1908 Canons of Professional Ethics, the first formal attempt of the American Bar Association to put ethical advice in a series of principles or rules. Once I began to study these two predecessor codes or canons, I was confronted with a methodological problem. Why are the 1908 Canons in hortatory form, the 1969 Code in mixed form (ethical considerations and rules) and the 1983 Rules only in "rule" form? Does that say something about how we look at the nature of a code? Or, does it mean that in 1908 the enforcement mechanism within the profession against those who broke the rules was so inadequate that all you could give is hortatory advice? What, in fact, is the difference between canons and rules? And, what does it say about our age that we are interested in "rules" regarding attorney conduct? Simply by being aware of the form of previous ethical codes/canons for American lawyers presents us with a bevy of new questions which study of the Rules alone doesn't present.
And these differences lead to other questions. What is the philosophy, for example, behind the Code (1969)? As Professor Stephen Kalish shows, the Code was driven by the notion of "zealous advocacy," and the lawyer's responsbility to the client above all. "David Hoffman's Essay on Professional Deportment and the Current Legal Ethics Debate," 61 NeLR 54, 54-59 (1982). However, there was a reaction to this in the profession, which led to an early (1980) draft of the Rules which would have emphasized the duty of the lawyer as officer of the court. Yet, so strong was the reaction to the suggested changes to the Code in an early draft of the Rules that the ABA committee backed down from its historic reforms and mostly reaffirmed the approach of the Code in the Rules. By stating the issue this way, Prof. Kalish hints that a perennial theme in the study of American legal ethics is the tension between primary commitment to the client and primarly allegiance to the legal system or the court.
The 1908 Canons on Lawyer Solicitation
Armed with this helpful insight into the way that history can help give these "flat" Codes or Rules some texture, I was ready to dive back into the 1908 Canons to see if they could help clarify the problem that bedeviled me in the previous essay: the prohibition on face-to-face lawyer solicitation of clients. I found the following canon quoted in a helpful article by Katherine A. Laroe, "Much Ado About Barratry: State Regulation of Attorneys' Targeted Direct-Mail Solicitation," 25 St.Mary's LJ 1513, n. 21 (1994). Canon 28 of the Canons of Professional Ethics provided:
"It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship, or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit or collect judgment, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the Bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof, to the end that the offender may be disbarred."
What a wonderful text, I thought. The 1908 Canon prohibited the "stirring up" of strife and litigation which not only was unprofessional but was indictable at common law. And, these last four words pointed to the crime of barratry, which I have written about elsewhere. Barratry was condemned since the 16th century in the common law. I emphasized the theological reasons for it in my essay, but one could also posit economic and political reasons for it--by "stirring up" lawsuits one would tend to haul the landed aristocracy into court more than they wished to be impleaded, and they had to put a stop to it. Inventing the "crime" of barratry-- stirring up lawsuits--which the 1908 Canons dutifully prohibit was the means to help the aristocracy four hundred years ago. And, our prohibition of face-to-face lawyer solicitation of clients dimly echoes this tradition. Note also the final words of the quoted material. The 1908 Canons left no doubt that the attorney's primary loyalty lay with the public, and not with the client.
Conclusion--Getting to Hoffman
This one example was so much fun for me to develop that it almost left out of sight the real purpose of all these essays--to get to the work of David Hoffman. Hoffman drafted the first series of principles, which he called "Resolutions," on legal ethics in American history (1836). Let's look at Hoffman's work in the next several essays, and patiently see how the ethical task of the lawyer was articulated at the beginning of the American tradition.
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