Professor David Hoffman (1784-1854) II
Bill Long 12/11/05
The Text of Hoffman's Fifty Resolutions I
They are known as Fifty Resolutions in Regard to Professional Deportment (1836), though where they appear in Note 18 of Division IX, they are called "Observations on Professional Deportment, with some Rules for a Lawyer's Conduct through Life" (pages 744-75). Hoffman first listed several books that he thought would be valuable for the student to read: Proverbs, Ecclesiastes, Ecclesiasticus and Wisdom (of Solomon). A few pages later, he gave his "Observations." Here they are, with some of my comments.
1. "I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that 'if a river swell beyong its banks, it loseth its own channel.'"
COMMENT: I was taught in law school, and the Code and Rules teach, that "zealous advocacy" on behalf of a client was the paramount duty of a lawyer. This principle was presented to me ahistorically, as if it just was the case, even though one could debate the issue. Hoffman brings us into another world and by doing so challenges us to be clear in our mind where our primary allegiance lies as an attorney. Hoffman's first words, though not expressly supporting the more service orientation of the law, stress that there are higher values than mere "professional zeal." What do you think?
2. "I will espouse no man's cause out of envy hatred, or malice toward his antagonist."
3. "To all judges, when in court, I will ever be respectful. They are the law's vicegerents; and whatever may be their character and deportment the individual should be lost in the majesty of the office."
COMMENT: Note the first Canon of the 1908 ABA Canons of Ethics. "It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance." The thought is fully Hoffman's. The Canons, however, go on to state an interesting reason for this. "Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the bar against unjust criticism and clamor." One gets the impression that for Hoffman it is the Platonic ideal of judge, and the integrity of the system of justice that merits respect for the judge; by the time you get to 1908 you have an explanation that sounds like it comes from nascent "legal realism."
4. "Should judges, while on the bench, forget that, as an officer of their court, I have rights, and treat me even with disrespect, I shall value myself too highly to deal with them in like manner. A firm and temperate remonstrance is all that I will ever allow myself."
COMMENT: Not bad advice, really, to young lawyers who are usually very aware of how they are being "slighted."
5. "In all intercourse with my professional brethren, I will always be courteous. No man's passion shall intimidate me from asserting fully my own or my client's rights, and no man's ignorance or folly shall induce me to take any advantage of him. I shall deal with them all as honorable men, ministering at our common altar. But an act of unequivocal meanness or dishonesty, though it shall wholly sever any personal relation that may subsist between us, shall produce no change in my deportment when brought in professional connection with them. My client's rights, and not my own feelings, are then alone to be consulted."
COMMENT: This is similar to Canon 17 in the 1908 Canons. What is apparent is that Hoffman sees character as essential to the lawyer, and this character is manifest not simply in making decisions but in dealing with slights and maltreatment. The notion of not taking advantage of another person is something which might profitably be rediscovered today. There is a quiet sense in Hoffman's words that dignified conduct is the proper modus vivendi for the attorney.
6. "To the various officers of the court I will be studiously respectful, and specially regardful of their rights and privileges."
7. "As a general rule, I will not allow myself to be engaged in a cause to the exclusion of, or even in participation with, the counsel previously engaged, unless at his own special instance, in union with his client's wishes; and it must, indeed, be a strong case of gross neglect or of fatal inability in the counsel, that shall induce me to take the cause to myself."
COMMENT: This Resolution highlights an issue of importance in the 19th century. Professor Kalish comments: "this [Resolution] was to avoid client piracy..Except for extreme cases, Resolution VII gave the first attorney a veto over whether the client could retain a second attorney. This was consistent with those cases which required court approval to change attorneys in order to protect the rights of the first attorney," 61 NeLR at 63-64. This Resolution has echoes in Canon 7.
8. "If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist. Nor shall any change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for being found on the opposite side, that the present is but the ghost of the former cause."
COMMENT: Though not worded with the kind of 20th century linguistic precision of a code, this Resolution foreshadows rules of conflicting interests that are the staple of present-day legal ethics. It is also discussed in Canon 6.
9. "Any promise or pledge made by me to the adverse counsel shall be strictly adhered to by me; nor shall the subsequent instructions of my client induce me to depart from it, unless I am well satisfied it was made in error, or that the rights of my client would be materially impaired by its performance."
COMMENT: I don't think that the "unless" swallows the rule here. The basic point is one of straightforward honesty with adverse counsel. It is interesting to me that Hoffman emphasizes so strongly what I might characterize our "orientation" to the legal process, which is pretty strongly lacking in the Rules. We are to be courteous, faithful to promises, committed to making the legal process an honorable proceeding.
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