David Hoffman and mauvaise honte and timidity and bashfulness

**David Hoffman's Fifty Resolutions IX**

Bill Long 12/14/05

Resolutions 43-46

43. "I will never enter into any conversation with my opponent's client, relative to his claim or defense, except with the consent and in the presence of his counsel."

COMMENT: This is the stuff of the later Canons and Codes and Rules. For example, Canon 9 (1908) provides: "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law." As we see, the Canons take Hoffman's advice one step further. They don't imagine a time when it is proper for counsel to speak directly with an opposing party. In addition, they stress the "gentleness" needed if you, a laywer, deal directly with an unrepresented party. When I conducted a deposition once of an unrepresented party, I felt instinctively the correctness of Hoffman's advice. I could get what I wanted from him but, at the same time, explain clearly what was going on and what general rights he had under the law (e.g., to seek counsel, to take breaks when he wanted, etc). A lawyer today never, or very rarely (outside of an official legal proceeding) speaks directly to an opposing party represented by counsel. This is such a clear duty that Hoffman doesn't think he even needs to explain it.

44. "Should the party just mentioned have no counsel, and my client's interest demand that I should still commune with him, it shall be done in writing only, and no verbal response will be received. And if such person be unable to commune in writing, I will either delay the matter until he employs counsel, or take down in writing his reply in the presence of others; so that if occasion should make it essential to avail myself of his answer, it may be done through the testimony of others, and not by mine. Even such cases should be regarded as the result of unavoidable necessity, and are to be resorted to only to guard against great risk, the artifces of fraud, or with the hope of obviating litigation."

COMMENT: See remarks to the preceding Resolution. Hoffman brings up the point that if an attorney speaks directly to an unrepresented party without witnesses, he might become a witness in a subsequent proceeding about the nature of the interaction.

45. "Success in any profession will be much promoted by good address. Even the most cautious and discriminating minds are not exempt from its influence: the wisest judges, the most disapssionate juries, and the most wary opponents being made thereby, at least, more willing auditors--and this, of itself, is a valuable end. But whilst address is deservedly prized, and merits the highest culitvation, I fully concur in sentiment with a high authority, that we should be 'respectful without meanness, easy without too much familiarity, genteel without affectation, and insinuating without any art or design.'"

COMMENT: The word "address" is a wonderfully rich word in English, most of whose signfications we have lost in the past 150 years. The two ways we use it most prominently now are as a speech (or to give a speech) and as one's street residence. But the word comes from the Latin, through the French, and literally means to make straight or right; to order, prepare or array. The three ways that the noun address were used in 1836 that stand behind Hoffman's use are: address as (1) manner of self-presentation; (2) one's garb; and (3) one's actual words. Sometimes the first and third run together such as in Johnson's quotation in the Life of Boswell, "I was overpowered...by the enchantment of your address." Or, from Carlyle (1851): "His address, I perceved, was abrupt, unceremonious." We are probably to see Hoffman's use of the term here in its widest signfication, including the lawyer's words, deportment and dress. Yet, his closing quotation aims for the Aristotelian mean in self-presentation.

46. "Nothing is more unfriendly to the art of pleasing than morbid timidity (bashfulness--mauvaise honte). All life teems with examples of its prejudicial influence, showing that the art of rising in life has no greater enemy than this nervous and senseless defect of education. Self-possession, calmness, steady assurance, intrepidity--are all perfectly consistent iwth the most amiable modesty, and none but vulgar and illiterate minds are prone to attribute to presumptuous assurance the apparently cool and unconcerned exertions of young men at the bar. A great connoisseur in such matters says that 'what is done under concern and embarrassment is sure to be ill done'; and the judge (I have known some) who can scowl on the early endeavors of the youthful advocate who has fortified himself with resolution, must be a man poor in the knowledge of human character, and, perhaps still more so in good feelings. Whilst, therefore, I shall ever cherish these opinions, I hold myself bound to distinguish the arrogant, noisy, shallow, and dictatorial impudence of some, from the gentle, though firm and manly, confidence of others--they who bear the white banner of modesty, fringed with resolution."

COMMENT: You wonder as you read some of Hoffman's moral advice whether he was just "cribbing" some of what he said from advice manuals which were available at the time. This notion of mauvaise honte sure sounds like something that some respected English writer condemned and Hoffman dutifully followed suit. A striking appearance of the words address, timidity, bashfulness and mauvaise honte (Resolutions 45, 46 is in Act III of Oliver Goldsmith's She Stoops to Conquer (ca. 1910). Miss Hardcastle is speaking. "Sure you mistake, papa! A French dancing-master could never have taught him that timid look--that awkward address--that bashful manner--. HARDCASTLE: Whose look? whose manner, child? MISS HARDCASTLE: Mr. Marlow's: his mauvaise honte, his timidity, struck me at the first sight." And then, from an 1817 source on the value of dancing: "The domain of dancin..enhances, embellishes, and perfects the work of nature. To enter an assemby and salute the company with unaffected ease; to approach a person with affection; to present or receive anything; to sit down with an agreeable deportment; to do away with awkward timidity and mauvaise honte which denote weakness of character..." So, botcrdh dancers and lawyers need to overcome timidity, I suppose.

These quotations tend to "historicize" Hoffman's advice, don't they? What would be the ways we speak of how a lawyer should deport him/herself today? What are the images from popular culture and literature which inform that? I am sure that mauvaise honte went out when students stopped learning French (or looking back to the 19th century for moral or intellectual guidance). So, Hoffman's Resoutions can be studied also from the perspective of conventions of giving ethical advice in the 19th century and not merely in connection with a tradition of legal ethics from then to now. Charming.

I will need one more essay to complete my presentation of and commentary on Hoffman's Fifty Resolutions.

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