Michael Ariens has long been one of the best informed and most acute observers of the legal profession. His ambitious new book surveys the ethics of American lawyers from the Revolution to the present day. More precisely, it is a history of how lawyers talked about ethics in the nineteenth century, and of how lawyers and their organized associations, especially the American Bar Association, have tried to regulate ethics in the twentieth and twenty-first centuries. On these topics Ariens is extremely well-informed, and his footnotes are a comprehensive treasure trove of primary materials. He seems to have found almost every speech, tract, report, or regulation uttered by lawyers on the ethical principles that ought to define their professional identity, and on how lawyers actually live up, or fail to live up, to those principles.
Lawyers have always claimed to follow professional principles superior to their own commercial self-interest. In the early 19th century, Ariens says, American lawyers asserted that gentlemanly ideals of “honor” kept them from abusing clients or the public interest. Gradually talk of honor faded out, to be replaced with the more Protestant notion of individual “conscience” as the restraint on self-serving conduct. Lawyers deflected criticism onto scapegoats, blaming abuses such as meritless lawsuits or forensic trickery or defrauding clients on “pettifoggers”. Writers on legal ethics like David Hoffmann and George Sharswood advised lawyers to limit their zeal to avoid assisting injustice, deploring Lord Brougham’s famous advice that a lawyer must further a client’s interest to the utmost, heedless of harms to opposing interests or third parties. But, says Ariens, such strictures “did not match reality.” (P. 63). Lawyers argued they could be disbarred for bad behavior, but this rarely happened; a lawyer disbarred by one court could appear before another; and “neither the judiciary nor practicing lawyers showed much interest in disbarring venal lawyers to protect either the public or the profession’s claim to integrity during this time.” (P. 29). The public might be made uneasy by seeing famous advocates like Rufus Choate use courtroom wizardry to secure the acquittals of robbers and murderers, but lawyers assured their critics that such results were the unavoidable costs of assuring due process for everyone.
In the later part of the 19th century, critiques of lawyers intensified, some of them originating inside the profession. Some elite lawyers were disturbed by the ethical stretches that other elite lawyers like David Dudley Field resorted to on behalf of robber-baron clients like the Erie Railroad – such as seeking injunctions against opponents from judges their clients had corrupted, or causing opposing counsel to be arrested and held with high bail. Others saw the major threat to ethical conduct as emanating from immigrant, mostly Jewish, lawyers, who formed the vanguard of the new, contingent-fee financed, plaintiffs’ personal-injury bar. Elite lawyers in response organized bar associations, some (like New York City’s) with disciplinary authority; others, like the ABA, determined to codify ethical standards.
Much of Ariens’s 20th century narrative is devoted to the ABA codes, starting with the 1906 Canons. The earliest ABA-sponsored codes were framed as general and vague hortatory standards, but gradually evolved to become more detailed statements of disciplinary rules in the 1969 Model Code and the 1983 Model Rules of Professional Conduct. The 1969 Code, influenced by Lon Fuller, combined high aspirational standards (ECs, or Ethical Considerations), with criminal-code-like Disciplinary Rules (DRs), meant to serve as a floor on conduct. (Some of the DRs aimed higher as well, such as DR -7(102B) (if Lawyer learns of Client fraud, Lawyer must tell Client to rectify and if Client doesn’t, Lawyer may reveal the fraud.) A reform commission (the Kutak Commission) formed in the wake of the Watergate scandals thought the Code insufficiently public-interest-oriented, and initiated a reform effort. The effort backfired; trial lawyers hijacked the reform, and minimized lawyers’ duties to the legal system, adversaries, and third parties. The resulting Model Rules parked all the aspirational duties in the Preamble and in the admonition (mostly unheeded) in MR 6.1 to volunteer for 50 hours of pro bono practice. The Kutak Commission had wanted to reinvigorate the role of the lawyer as a social trustee and guardian of the integrity of the legal framework. In the 1983 revisions, “the lawyer’s duty to the public largely disappeared” and “as adopted, the model rules spoke to private interests almost exclusively.” (Pp. 242-3). Even such mild ethical precepts such as that lawyers should refrain from trying, on cross-examination, to make witnesses they reasonably believe are telling the truth to look like liars, were voted down.
The collapse of Enron and other corporations as a result of frauds blessed by lawyers and accountants led to further attempts to amend the Rules and regulate lawyers, chiefly by broadening the exceptions to confidentiality to require lawyers to reveal ongoing (or even past) client frauds. Law firms and the organized bar defeated SEC proposals and Model Rules changes to mandate disclosure, though the changes did permit disclosure, as many state versions of the Rules already had. Besides exceptions to confidentiality, the other issue that obsessed rules reformers – both in the ABA and in the American Law Institute’s project to Restate the Law Governing Lawyers – was imputation of conflicts of interests by mobile lawyers, namely, whether a lawyer who moved from a firm that represented Client A to another firm would preclude any lawyer in the new firm from representing Client B with a conflicting interest unless Client A consented; or could avoid the unconsented-to-conflict by being screened off from any information about Client B.
While all these relatively trivial debates were going on, the legal profession was facing momentous challenges. Big corporate law firms were getting bigger and richer, though under intense competitive pressure from expanding in-house corporate law departments, accounting firms, and specialized boutiques. Rainmaking partners took home the fattest paychecks. Meanwhile, law schools doubled the supply of new entrants in the 1970s and 80s, while the 80 per cent of the bar organized in solo practice and small firms saw their incomes stagnate and tried to protect them by bringing unauthorized practice actions against lay competitors. This constituency, represented in the ABA by the House of Delegates, also voted down proposals to allow lawyers to practice with other specialists. Most lawyers, as Ariens points out, are not wealthy; and it is not surprising that they should want their guilds to focus on economic well-being; to adopt ethics codes that prioritize the interests of themselves and their customers; and to be lax in enforcing disciplinary complaints against lawyers on the margins of their profession.
The contrast that Ariens keeps drawing throughout the book is between ethical principles narrowly focused on lawyer’s economic self-interest and those expressing some view of the public’s interests, which lawyers have always asserted their monopoly of practice and their zeal in representing clients are needed to protect. The master public principle is that of equal justice under law, which in turn as a practical matter requires equal, or at least minimal, access to the services of lawyers or effective lawyer-equivalents. But lawyers’ services are expensive, and, as Gillian Hadfield points out, made more so by having their price bid up by their high-end users, corporate clients;1 and most people can’t afford them except for routine matters. Over 80 per cent of litigants appear in court pro se. Inequality has been compounded by pariah clients – such as accused Communists in the Red Scare period of the Cold War, and Black clients in the Jim Crow and Civil Rights eras facing white adversaries – who could not find lawyers willing to take their causes. But even if not pariahs, clients without money are stranded unless they can make a plausible claim for a contingent share of a losing party’s damages; and plaintiffs’ lawyers must turn away most claimants as unprofitable.
One obvious path to solutions is insurance pooling, as once provided by auto clubs for auto accidents until the bar shut it down,2 and still provided by some labor unions’ group legal services plans. Another, of course, common in Western European welfare states, is public provision or public subsidies to legal services. The USA has of course some public funding – through the Legal Services Corporation, hobbled by low budgets and many restrictions on types of service, and through the Sixth Amendment’s mandate to states to fund indigent criminal defense, funding in most jurisdictions so stingy as virtually to compel malpractice. There is now some experimentation with lower-cost lawyer-substitutes such as paralegal providers, though these in most states are still blocked by the bar. Finally, there is a charitable sector – Legal Aid programs funded in part by the organized bar, in part by charities like the United Way; and volunteered pro bono time, chiefly by lawyers at Biglaw firms. The overall supply is very meager in relation to any plausible measure of the need.
Ariens’s core story is one of a lot of brave talk about law as a public profession serving the public good, belied by the reality of law as a business serving the interests largely of lawyers themselves, and then, at least insofar as these are congruent with their own interests, the interests of clients. Ariens sometimes hints (as lawyers often do) that public service may have been more prominent in the mix of lawyers’ motives in earlier times, and has declined as competition has increased. But more often he suggests that the public-serving rhetoric has always been hollow. And this is my one serious quarrel with this fascinating book.3 It is true that in its ethical codes and turf-protectionist activity, the American legal profession has more than most others been oriented to its own interests and those of its private clients. But it has also, in comparison to legal professions in other societies, and to other professions in its own, devoted a disproportionate share of its members’ time and effort to public projects.
Lawyers argued the case for Revolution, wrote the federal and state constitutions, and designed the legal architecture of national capitalism and the modern regulatory state, as well as (rather less admirably) of racial enslavement and “massive resistance” to racial equality and of America’s overseas empire. ”59% of U.S. presidents have been lawyers although just four of the last ten and 68% of vice presidents. Since Independence, some 63% of cabinet positions have been occupied by lawyers, ranging from 100% of Attorney Generals, 78% of Secretaries of State, 70% of Secretaries of the Treasury, 25% of Secretaries of Veterans Affairs and 23% of Secretaries of Labor. And all Supreme Court judges have come from a law background.” In 1849, an astonishing 79% of members of the national Congress were lawyers – though that number is down to 36% today.4 This doesn’t count innumerable positions as state and local legislators, civil servants, administrative agency heads, or counsel to public entities. And to these public-sector jobs, we obviously have to add service as public-interest advocates. Between them, the NAACP Legal Defense Fund, the American Civil Liberties Union, and environmental organizations have made, as litigants, a very large share of the constitutional and administrative law of the 20th century. (Litigants affiliated with the Federalist Society bid fair to do the same in the 21st century.)
Lawyers still step forward to provide emergency representation of unpopular clients, such as the Guantanamo Bay detainees and the Muslim immigrants trapped in airports by Trump’s travel ban. It is this record that continues to attract a substantial contingent of applicants to law schools, and to inspire even those who choose (or anyway start off in) corporate-law careers to look for opportunities for pro bono and government service. When jobs have opened up for public-minded lawyers, as they did for example during the New Deal, lawyers in private practice have applied for them in droves.
This record of service is something to bear in mind while appreciating Ariens’s astute and comprehensive survey of lawyers’ private practice ethics.
- See generally, Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justce System, 98 MICH. L. REV. 953 (2000).
- See Nora Freeman Engstrom & James Stone, Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, forthcoming.
- Actually I have another quarrel as well, though I put it in a footnote to avoid seeming petty and self-serving. Ariens is as I’ve said quite comprehensive in his survey of the literatures on legal ethics. He even includes some sociological studies of ethics-in-practice, such as Jerome Carlin’s classic works. But he almost entirely ignores academic work on legal ethics; and that is a pity, because in the last 40 years that field has for the first time attracted a substantial body of first-rate scholarship, some philosophical, some sociological. I would imagine that Ariens might give as a reason for ignoring this very rich literature is that it has had limited practical influence in shaping the everyday regulation of the bar’s ethics; and that is, unfortunately, probably mostly true.
- See Nicholas Robinson, The Decline of the Lawyer-Politician, 65 Buff. L Rev. 657, 667 (2017).
