The Jurisprudence of Ethics:
Should Legal Professionalism be in Accordance with Public Justice?
by Leonard W. Schroeter
Schroeter, Goldmark & Bender
500 Central Building
810 Third Avenue
Seattle, WA 98104
206-622-8000; Fax: 682-2305
schrogold1@aol.com
LEONARD W. SCHROETER is of counsel to the Seattle law firm of Schroeter, Goldmark & Bender, P.S., of which he was the founding partner. He is actively involved in constitutional, human rights, and public interest law, frequently writing, lecturing and teaching in those areas. He serves on the National Boards of the Association of Trial Lawyers of America (ATLA); Trial Lawyers for Public Justice (TLPJ); National Voting Rights Institute, Government Accountability Project; Cancer Prevention Coalition; and the ATLA Mutual Insurance Company. He is on the Board of Governors of the Washington State Trial Lawyers Association (WSTLA). He is a former President of WSTLA, and of the Washington affiliate of the American Civil Liberties Union (ACLU), and a former National Board member of ACLU. He is the chair of the Jurisprudence Committee of the Washington Access to Justice Board, and an active member and officer of Sections, Committees and Task Forces of ATLA; TLPJ; WSTLA; the Washington State Bar Association (WSBA), the King County Bar Association (KCBA), and American Bar Association (ABA).
Preamble
A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.
Constitution of the State of Washington, Article 1, Declaration of Rights, Section 32, Fundamental Principles
INTRODUCTION
As we near the end of the century, there is heightened concern among lawyers as to the nature and future of the legal profession. The practice of law, within the definitions and borders of an organized bar, has only developed within this past century. The importance, wealth and power of the profession has outpaced even its numerical growth. Yet there is extreme disquietude, heightened by the lack of public confidence, distrust, and even hatred of lawyers and the law. For many, there are questions as to what it means to be a lawyer, and what is meant by professionalism. It therefore seems appropriate to heed the mandatory admonition of our state constitution to revisit our most fundamental principles. After weeks of thought and research, I have found historic principles to be difficult to isolate, and contentious when iterated.
However, a reasonable starting point seems to be to determine how terms such as jurisprudence, professionalism, ethics, justice and rights were defined a century ago. When we turn to A Dictionary of Law, by Henry Campbell Black, published by West Publishing Company in 1891, we find in this nobly bound classic the most "official" of the Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern. Black's Dictionary for generations was resorted to by lawyers, law students, and judges, defining what words meant. E.g.: Jurisprudence is the philosophy of law, or the science which treats of the principles of positive law and legal relations.
We are told that the term is not appropriately applied to actual systems of law, or to current views of law, or to suggestions for its amendment, but is the name of a science. It is the science of actual or positive law. That science which has for its function to ascertain the principles on which legal rules are based. . . . It has no direct concern with questions of moral or political policy, for they fall under the province of ethics and legislation. We are then led to see what is meant by the term "ethics." But at least in Black, in 1891, this was not an important enough word to even be defined. It did not exist between "et habuit" and "et hoc paratus est verificare." Nor could its definition be found anywhere despite diligent search.
One might then ask, well, what is a "profession"? We are told that "profession" means a public declaration respecting something. In ecclesiastical law, the act of entering into a religious order. Also a calling, vocation, known employment; divinity, medicine, and law are called the "learned professions." "Professionalism" is not defined at all. Thus, the values, ethics, and morality of the practice of law and the legal profession appear to have been wholly neglected, or at least not worthy enough to be defined.
However, we have found a major clue, namely, that the idea of a profession had its roots in ecclesiastical law. It meant, since it described "the act of entering into a religious order," as a "calling," that it was a commitment. And explicitly it was a "learned profession." It was also an extraordinarily exclusive commitment, selfless in character, and totally removed from the marketplace. The legal profession, like the other two learned professions -- the divinity and medicine -- were required to be commitment to the service of others. Although we did not find a definition of ethics, we did find in Black's Dictionary of Law, the term "etiquette of the profession." This means: the code of honor agreed on by mutual understanding, tacitly accepted by members of the legal profession, especially by the bar. And even though the idea of jurisprudence abjured anything but positive law, i.e., law as it is, Black provided us with extensive definitions of the ideas of "justice" and "rights." Justice "in jurisprudence" is:
The constant and perpetual disposition to render every man his due. The conformity of our actions and our will to the law. In the most extensive sense of the word, it differs little from "virtue"; for it includes within itself the whole circle of virtues. As to "rights," Black states: the term means justice, ethical correctness, or consonance with the rules of law or the principles of morals. Black further defines the concept of rights as a major purpose of the law which must be "considered as the foundation of all rights, or the complex of underlying moral principles which impart the character of justice to all positive law, or give it an ethical content." We are not here to discuss the jurisprudence of, or meaning of rights, except to note that Black defines rights as inclusive of natural, civil and political rights, and as the primary purpose of law. Thus, in turn, he makes implicit that the preservation and furtherance of those rights must be essential to a learned profession whose calling is the law.
If we go beyond the legal profession's own definition of ideas such as jurisprudence, we find, from the Encyclopedia Britannica, that the usual sense of the word [jurisprudence] in English is that which makes it roughly equivalent to legal philosophy. Jurisprudence is concerned with the nature of law, its purposes, the means (institutional and conceptual) necessary to effectuate those purposes, the limits of the law's efficacy, the relation of law to justice and morality, and the modes by which law changes and grows historically. Why then did Black and the legal profession shy away from morality, ethics, and philosophy, and define jurisprudence simply in terms of the language of "what is," i.e., positive law? We can do more than infer that a century ago, the organized legal profession wanted to be as free as possible from meaningful ethics, social morals, or any concept of public justice. And the Encyclopedia Britannica makes it clear that during the 19th Century and into the 20th, the preferred view of jurisprudence by the law teachers and the legal establishment was to "describe and analyze law without reference to its goodness or badness." Its "interest was a positive law, the law that is, in contrast with the law that ought to be." The reasons for these views are found in the important histories of American law. Morton Horwitz's prize-winning "The Transformation of American Law" notes that although the legal profession during the 19th Century grew into "a position of political and intellectual domination," simultaneously there was "the development of an important new set of relationships that made this position of domination possible: the forging of an alliance between legal and commercial interests." The legal profession fully allied itself with the rising forces of capitalism. Horwitz writes: As political and economics power shifted to merchant and entrepreneurial groups, they began to forge an alliance with the legal profession to advance their own interests through a transformation of the legal system. By around 1850, that transformation was largely complete. Legal rules provided for the subsidization of enterprise and permitted the legal destruction of old forms of property. Anti-commercial legal doctrines had been destroyed or undermined, and the legal system had almost completely shed its 18th Century commitment to regulation, and the substantive fairness of economic exchange. Legal relations that had once been conceived of as deriving from natural law or custom were increasingly subordinated to the disproportionate economic powers of individuals or corporations that were allowed the right to "contract out" of many existing legal obligations. Law, once conceived of as protective, regulative, paternalistic, and, above all, a paramount expression of the moral sense of the community, had come to be thought of as facilitative of individual desires and as simply reflective of the existing organization of economic and political power.
Black's Dictionary, like law school education, reinforced that status quo, and the organized bar was its primary bulwark. This remained true well into the 20th Century, despite its incompatibility with the Nation's democratic values, its constitutional principles, and the inherited rights of our tradition from English constitutionalism and the common law. Those most powerfully motivated to support traditional values of justice, included our great judicial dissenters, and increasing numbers of new immigrants brought to our shores by the American promise of justice and democracy. For them, the promise of American law was defined by:
We hold these Truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- that to secure these Rights Governments are instituted among men, deriving their just powers from the consent of the governed.
Thus, the battle lines were drawn between the vision of American law, and those who saw law as the protector of the marketplace, whose clients were the rich and powerful; and whose jurisprudence was the maintenance of the status quo -- law as it is, not as it should be. The legal profession mirrored this conflict. In its organized form, it, and the courts, created a jurisprudence that reflected these broad divisions. Historians of American law and the American legal profession reflect and report this struggle, although it tended to be papered over by the noble rhetoric lawyers, judges, legal teachers and legal writers employ with great ease. But at bottom, how we see a profession, and the development of our law, is a reflection of our social values, and far too often our self interests. When we discuss "Ethics, Conflicts, and the Modern Law Practice" as we do at this seminar, this background must be within our contemplation. My views on these matters have been expressed before in book reviews, or at seminars and conferences. I attach as Appendixes A, B, and C, those articles and papers.
WHAT IS MEANT BY PROFESSIONAL RESPONSIBILITY?
A dozen years ago, the phrase de jour for the American legal profession was "professional responsibility." That term had a nice ring. It inferred social duty and accountability. It was based on what conduct ought to be rather than what it was. Thus, in preparing a casebook of materials to teach legal ethics and the rules for the profession, Professor Robert Aronson and others prepared a book entitled "Problems, Cases and Materials in Professional Responsibility." In their January 1985 preface, they noted that professional responsibility included "common themes and underpinnings," such as, confidentiality, competency, judicial disqualification and solicitation [which] appear to be discreet and unrelated subjects, yet they all implicate the proper functioning of the legal system and the role which lawyers must play in that system in order for it to perform its task. In fact, the topic of "professional responsibility" includes concepts of morality, ethics, etiquette, competence and education. In a more philosophic sense it involves an examination of the utility and acceptability of roles lawyers serve or might serve in society. The concepts of profession and professionalism, the adversary system and its constitutional framework, fairness, justice, equality and fundamental morality are likely to be significant factors in the solution of any problem of lawyers professional responsibility.
A substantial part of the corpus of this book on professional responsibility includes formal statements, canons, rules, quotes and declarations of the organized bar. And although both bar pronouncements and other legal writings necessarily incorporate judicial decisions and legislative enactment's, the primary source of the definition of what professional responsibility is, comes from the organized bar and its leaders. Thus, the preface of the casebook quotes the "1958 Statement of the Joint Conference on Professional Responsibility," which arose out of the felt needs of the American Bar Association (ABA) leadership. It stated:
A true sense of professional responsibility must derive from an understanding of the reasons that lie back of specific restraints, such as those embodied in the Canons. The grounds for the lawyer's peculiar obligations are to be found in the nature of his calling, The lawyer who seeks a clear understanding of his duties will be led to reflect on the special services his profession renders to society and the services it might render if its full capacities were realized. When the lawyer fully understands the nature of his office, he will then discern what restraints are necessary to keep that office wholesome and effective.
Of course, neither that statement, nor subsequent Model Codes of Professional Responsibility, nor subsequent Rules of Professional Conduct, spelled out the complex reasons for the restraints and obligations of the lawyer's "calling"; nor of his office as an officer of the court; nor her duty to society. These pronouncements do not really answer the ultimate value questions that underlie a lawyer's professional responsibility; nor do they adequately explain the reasons for the rules of conduct the organized profession imposes. Indeed, the most important clue may be that when the first American professional rules came into existence, they were called "Canons of Ethics." Canons are of course "a law or body of laws of the church." They are ancient and ecclesiastical in character and in purpose. They are authoritative and accepted and because their source is eternal, they are natural law, rather than reportage of current behavior. They are for a priesthood -- an elite group serving humankind, and abnegating any self interest. This was the high calling and responsibility that the organized bar sought to represent as their jurisprudence. The ABA began promoting nationally uniform standards in the early part of this century, although only a tiny part of the legal profession had been admitted to its rolls. It warned, however, that,
We cannot be blind to the fact that, however high may be the motives of some, the trend of many is away from the ideals of the past, and a tendency more and more to reduce our high calling to the level of a trade, to a mere means of livelihood, or of personal aggrandizement. Members of the Bar are officers of the courts, and like judges should hold office only during good behavior. It should be defined and measured by such ethical standards, however high, as are necessary to keep the administration of justice pure and unsullied. Such standards may be crystallized into a written code of professional ethics, and a lawyer failing to conform thereto should not be permitted to practice or to retain membership in professional organizations, local or national, formed, as is the American Bar Association, to promote the administration of justice and uphold the honor of the profession.
Yet at the same time that the exclusive, prestigious leadership of the ABA announced its self-righteous, nativist, elitist and rigorous standards, Louis D. Brandeis, in an address to Harvard undergraduates in the spring of 1905, in describing the popular distrust of the bar explained that
[i]nstead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have to a great extent allowed themselves to be adjuncts of great corporations and have neglected their obligation to use their power for the protection of the people. We hear much of the "corporation lawyer" and far too little of the "people's lawyer."
Brandeis documented that for at least a generation the leaders of the bar had opposed all constructive legislative proposals in the public interest, and promoted legislation in behalf of "selfish interests." Preparation and adoption of the Canons of Ethics were contemporaneous with torturing of the law by the conversion of the private corporation into a legal "person"; the reworking of the Fourteenth Amendment into a shield for corporate power, and, as Thorstein Veblen wrote,
The lawyer was not only a surrogate for the corporations, but the profession of law itself was nothing more than a form of employment "immediately subservient to ownership and financiering."
Even President Theodore Roosevelt, in 1905, in an address at Harvard, described this new professional elite as "influential" and charged that
the most highly remunerated members of the bar have made their special task to work out bold and ingenious schemes by which their very wealthy clients can evade the laws which are made to regulate the interests of the public, from the abuse of great wealth.
These lawyers, President Roosevelt concluded, were encouraging the growth of a "spirit of dumb anger against all laws and of disbelief in their efficacy." Even the conservative Dean of Columbia University Law School, Harlan F. Stone, characterized the bar leadership as "the mere hired man of corporations." And Woodrow Wilson, in an address to the ABA in 1910, lamented that:
the constitutional advocate, once the pride of the profession, has virtually disappeared. In his place stands lawyers who have been sucked into the maelstrom of the new business system of the country. They do not practice law. They do not handle the general, miscellaneous interests of society. They are not general counselors of right and obligation. The country holds them largely responsible for it distrusts every corporation lawyer.
It was not only the venality of the elitist large city business and corporation lawyers, who were the partners in the rich, respected law firms, that led to such harsh public criticism. It was also their hypocrisy. The Canons they had written were not intended to question the ethics of those President Roosevelt had denounced as "the counselors of the malefactors of wealth," but instead, the Canons were designed to be applied to sole practitioners, many of immigrant background and night school education, who were hounded as "ambulance chasers," and "shysters." As early as the first decade of the 20th Century the struggling metropolitan solo lawyer who represented an injured workman, or a victim of negligence, or an indigent criminal defendant, was attacked as having inferior character and unethical behavior, soliciting business and participating in a money-grubbing trade. The beginning of contingent fee practice was subjected to stiff bar scrutiny. As Jerold S. Auerbach noted in his historical survey Unequal Justice: Lawyers and Social Change in Modern America:
the class and ethnic biases that appeared in the Canons were no more evident than in the special treatment reserved for contingent fees. Few other issues cut so deeply into social mores and professional concerns in an urban industrial age. An alarming proliferation of work and transportation accidents, most often borne by those least able to afford lawyer's fees, generated human tragedies which a profit economy and its legal doctrines exacerbated. Accident victims -- and the surviving members of their families -- were compelled to bear the full burden for the risks inherent in dangerous work. Corporate profit was the primary social value. Legal doctrine impeded the opportunity of an accident victim to recover damages; furthermore, legal services were available only to those who could afford to purchase them. The contingent fee was therefore a necessary financial mechanism for the provision of legal services to personal injury victims. Auerbach, in his chapter, "A Stratified Profession," describes in detail the legal environment during the earlier decades of this century:
The ethical crusade that produced the Canons concealed class and ethnic hostility. Jewish and Catholic new-immigrant lawyers of lower-class origin were concentrated among the urban solo practitioners whose behavior was unethical because established Protestant lawyers said it was. Although the alleged purpose of the Canons was "to elevate the standing of the profession," what they really did was to "reflect and reinforce an increasingly stratified profession." The single practitioners was almost always a generalist. His clients were people who had problems, and not much money. In that respect, these lawyers approximated the traditional professional ideal of early America, and of the independent country and frontier lawyer. As the Canons demonstrated, the faster the old order changed, the more tenaciously its defenders at the bar clung to it, and the more resolutely they attempted to build a professional structure that would be resistant to social change." For the better part of the first half of this century, the powerful American bar leadership was perceived by many attorneys, and much of the public, as elitist, racist, sexist, anti-semitic, and reactionary. Their Canons were seen as high walls to prevent the unwelcome entry of Jews, foreigners, blacks, new immigrants, and radicals into their private club.
THE ORGANIZED BAR DEFINES PROFESSIONALISM, IN WHOSE INTEREST?
It was not until 1964, that the ABA created a Special Committee on Evaluation of Ethical Standards to make recommendations for change. That Committee's deliberations took five years, and led to the Model Code of Professional Responsibility adopted in 1969. The Preface to that Code described the revision of the previous Canons, in four particular principal ways:
(1) there were important areas involving the conduct of lawyers that were either only partially covered in or totally omitted from the Canons; (2) many Canons that were sound in substance were in need of editorial revision; (3) most of the Canons did not lend themselves to practical sanctions for violations; and (4) changed and changing conditions in our legal system and urbanized society required new statements of professional principles. This explanation of need hardly squared with Justice Harlan Fiske Stone's earlier description of the Canons as "petty details of form and manners," rather than "more fundamental considerations of the way in which our professional activities affect the welfare of society as a whole. The Canon of Ethics for the most part are generalizations designed for an earlier era." This was 35 years earlier. And it had been generally admitted that the Canons through the years had essentially only dealt with "the etiquette of law practice." Unfortunately, the Special Committee, like the ABA itself, was void of diversity and highly elitist in makeup. It could hardly be viewed as a brave, forthright, or progressive instrument, although the first paragraph of its preamble was high-sounding and politically correct. It read:
The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law, grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self government is impossible. The Model Code consisted of three parts: Canons, Ethical Considerations, and Disciplinary Rules. The first Canon stated as its first ethical consideration, the following:
The basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and confidence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.
Canon Two read:
The need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate laymen to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available. So much for the unmentioned right of access to justice! As an ethical consideration, this modest piety is mixed with professional self interest, without a recognition of the fundamental right of every person to be able to access the justice system and the necessary duty of the society to act to make that right meaningful.
Canon Seven stated:
A lawyer should represent a client zealously within the bounds of the law. It acknowledges this important ethical duty without any contextual assistance in guidance as to the ethical considerations that are present in this most complex professional responsibility. For most lawyers, this canon is the dominant (and sometimes even the singular) professional responsibility. Diligently serving the interests of the client may almost be definitionally anti-social. At best, it is asocial and amoral. It is of course a comforting belief and a part of the ideology of lawyers that: out of combat, truth is served. How empirically real this is, is debatable; and certainly some have skepticism as to whether justice is done through legal combat. Historically, the concept appears to be related to the economic mythology about social benefits through competition. Just as the marketplace is clearly not an insurer of economic justice, the advocacy cockpit hardly ensures either civil or criminal justice. Canon Seven also has 39 parts involving qualifications and amplifications. None examine the underlying assumptions of the Canon itself. However, they do stimulate additional questions and place constraints upon outlaw behavior. That Canon was, therefore, the most important product of the five year process. Imperfect as it was, the Canon's mild obeisance to the fundamental right of access to justice can also be seen as helpful.
However, shortly after adoption of the Code, as Professor Aronson's casebook notes, [t]the legal profession became embroiled in what has come to be known generically as "Watergate," a series of unethical and illegal activities by lawyers highly placed in American government . As a result of the Watergate affair and related matters, some 29 lawyers were the subject of disciplinary actions. The President of the United States resigned and was later disbarred in New York. The Vice President was convicted of corruption in county office. He resigned the Vice Presidency and was later disbarred in Maryland.
And, "the Code of Professional Responsibility came to be seen as a transitional document, between the more hortatory Canons and a final written Law of the Legal Profession. Continued dissatisfaction with the organized bar led to the ABA appointing the Commission on Evaluation of Professional Standards in 1977. That Commission was charged with evaluating "whether existing standards of professional conduct provide a comprehensive and consistent guidance for resolving the increasingly complex ethical problems and the practice of law." The Commission used the ABA Model Code of Professional Responsibility as a starting point, recognizing that most state and ethics professional codes also followed that model. It again took six years for the ABA to adopt the new rules. This ABA Model Rule of Professional Conduct was adopted in Washington State as Rules of Professional Conduct (RPC) in 1985. The Model Rules of Professional Conduct, together with its Comment sections, has been amended by the ABA 28 times since its initial adoption in 1983. Forty jurisdictions including Washington have adopted the Model Rules. However, not all the amendments have been considered and/or adopted by various states and some states have made their own specific amendments. The eight titles of the Model Rules and the RPC are: Client-Lawyer Relationship; Counselor; Advocate; Transactions with Persons Other than Clients; Law Firms and Associations; Public Service; Information About Legal Services; and Maintaining the Integrity of the Profession. The "Preamble" title of the Model Rules is: "A Lawyer's Responsibilities." It begins:
A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.
Both the Model Rules and the RPC Preamble are attached as Appendix D and E. The Model Rule Preamble is unique in that it recognizes that the lawyer's responsibilities are tripartite. Representing clients; as an officer (essential part) of the legal system; and, as a public citizen having a special responsibility for the character and quality of justice in our society. The jurisprudence of professionalism and ethics necessitates the reconciliation of each of these primary responsibilities and the resolution of conflicts between them. The RPC Preamble, however, recognizes that:
each lawyer must find within his or her own conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards.
These rules, addressing as they do important and often sensitive and controversial aspects of professionalism and lawyer responsibility, have led to growing discussion, and a body of opinion which can properly be denominated as jurisprudence. They mandate answers to: what is ethically and socially responsible in terms of fees; the maintenance of client confidentiality; conflicts of interest on the part of attorneys; discovery abuses; frivolous motions; stonewalling; attorney criticism of the judiciary; advertising; soliciting; misrepresentation; representation of unpopular or undesirable clients; public interest responsibilities. All a part of the lawyer's social responsibility, are identified even though some quite gingerly. In the initial section: "Preamble: A Lawyer's Responsibilities," there is an immediate following section on "Scope," and a lengthy section on "Scope Annotation." These portions are obsessively thorough, repeating over and over again that:
[v]iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules . . . are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons . . . Nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra- disciplinary consequences of violating such a duty. Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege.
Just to be certain that violations of ethics, even reprehensible conduct on the part of lawyers, can never be utilized to make these lawyers and their law firms accountable for the harm they do to others, there is a section clearly headed: "An Ethics Violation Does Not Establish Malpractice".
As if this were not enough in terms of the self-interest protectiveness of the bar, it was carefully stated that, "Nor does an ethics violation give grounds for an appeal or a collateral attack." In short, since the ABA carefully lays out in its "jurisprudence," that ethics violations cannot be used as rules of evidence; ethics violations cannot be used to evade a contract obligation; non-clients suing lawyers are not permitted to allege causes of action for violating ethics rules; and that ethics violations cannot be used (no matter how egregious) with respect to the constitutionality of a criminal conviction, or attorney misconduct in civil matters. The lawyer's protective society had immunized them from accountability and their liability insurance companies from diminution of profits.
Perhaps this massive limitation was the price extracted for the simple recognition that lawyers have some responsibility to their clients and to others in our society.
The ABA Commission on Evaluation of Professional Standards, having produced the Model Rule for Professional Conduct, and having attempted to protect the profession from the consequences of its own malpractice, in 1985 created a Commission on Professionalism. The Commission came into being as the result of a recommendation by then-Chief Justice Warren E. Burger because of general concern that the Bar "might be moving away from the principles of professionalism," or at least that that was the perception of the public. Specifically the Commission was to examine and report on such matters as, advertising and other forms of solicitation, fee structures, so-called commercialization, competence and the duty of the lawyer to his or her client and to the courts. The report of the Commission, presented in August 1986 is entitled, "In the Spirit of Public Service: a Blueprint for the Rekindling of Lawyer Professionalism." The Report is found at 112 F.R.D. 243. It covers 80 pages. The Commission included numbers of legal academics and judges, a representative of the American Medical Association, and a lay member from the Rand Corporation. Most of the rest were partners in large corporate firms. Its introduction asks the question, Has our profession abandoned principle for profit, professionalism for commercialism? The answer cannot be a simple yes or no. Lawyers, like any other group of citizens, are affected by the mores of the time. There is something for everyone in this report, including a section on "The Economics of Practicing Law Today." It, like most of the Report, is apologetic. It stated:
We do not mean to suggest that lawyers have a right to a given level of earnings. The illustrations suggest in concrete terms, however, the enormous pressure felt by many lawyers today to generate fees. Overhead costs in law firms are rising and putting a continuing squeeze on lawyer income. Increasing the number of hours billed by each lawyer, trying to increase the hourly rate, or both, have seemed to many to be the only solutions.
A section on "The Meaning of Professionalism" notes that it is "an elastic concept, the meaning and application of which are hard to pin down." Dean Roscoe Pound is quoted:
The term refers to a group pursuing a learned art as a common calling in the spirit of public service -- no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.
Also quoted was the New York Court of Appeals' statement in Matter of Freeman, 311 N.E.2d 480 (1974):
A profession is not a business. It is distinguished by the requirements of extensive formal training and learning, admission to practice by qualifying licensure, a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a system for discipline of its members for violation of the code of ethics, a duty to subordinate financial reward to social responsibility, and notably, an obligation on its members, even in non-professional matters, to conduct themselves as members of a learned, disciplined, and honorable occupation.
This definition was not adopted by the Commission, who concluded that their proposals: "taken individually may not appear substantial, but in the aggregate, we believe they can have a significant impact." Among their proposals was that, "the bar should place increasing emphasis on the role of lawyers as officers of the court, or more broadly, as officers of the system of justice." They also recommended that trial judges should take a more active role in the conduct of litigation and that greater authority be given to judges who should impose sanctions for abuse of the litigation process. The Committee enthusiastically supported judicial activism, in particular the use of Rule 11. More generally, they encouraged a devotion to the public interest, increased participation of lawyers in pro bono activity; resisting "the temptation to make the acquisition of wealth a primary goal of law practice"; and educating the public about legal processes and the legal system. Specifically, the Commission looked askance at legal advertising. They condemned law firms using sophisticated brochures, which were perceived as a public relations abuse. Engaging public relations advisers was a practice they thought should be condemned, and they urged prosecuting advertising which could be seen as false, fraudulent, or misleading. In a substantial discussion of lawyers as "officers of the system of justice," they were critical of discovery abuse, obstruction, and stonewalling, and quoted favorably Judge Fay of the Eleventh Circuit: Too many practitioners have `sold out to the client. What we must never forget is that we all serve as officers of the court. With respect to "scorched earth" tactics, the Commission opined that the lawyer's obligation is to dissuade the client from pursuing matters that should not be in court in the first place, and from using tactics geared primarily to drain the financial resources of the other side. . . . The duty to the system of justice must transcend the duty to the client.
The Commission also expressed their concern about increased participation by lawyers in business activities, and recommended increased participation of lawyers in pro bono activities, including public interest law, which was defined as including "representation of clients in matters involving `poverty law,' `civil rights law,' and `public rights law.'" It also includes representation of charitable organizations and work to improve the administration of justice. They favorably cited to the ABA Special Committee on Public Interest Practice Report on "Implementing the Lawyers' Public Interest Practice Obligation (1977), quoting Whitney North Seymour as to the attorney's duty to contribute his talent to the public good:
The origin of this broad duty is in the special nature of the profession. It is a necessary corollary of the lawyer's exclusive franchise to practice law, and its vital role in the administration of justice. The public has given the franchise to a select group, deemed by learning and character worthy to enjoy it exclusively, and there arises a duty to use these qualities to serve both the private and public interest in exchange. In their Conclusion, they quoted Justice Brandeis' comments in 1905:
Lawyers are now to a greater extent than formerly, business men, a part of the great organized system of industrial and financial enterprise. They are less than formerly the students of a particular learning, the practitioners of a particular art. And they do not seem to be so much of a distinct professional class.
As the Commission concluded, despite the grave problems within the profession, "the challenge for individual lawyers and the organized Bar is to preserve those principles of professionalism which endure despite the changing landscape." The future of the legal profession is with those "lawyers who have given of themselves unselfishly at a considerable personal sacrifice to provide their services to the public at large."
The Report "In the Spirit of Public Service" led to state and local bar association activity, including their adoption of new statements relating to professionalism. However, many of the bar associations that responded wound up preparing Codes of Professional Courtesy. Fortunately, the Washington State Bar Association (WSBA) received and adopted a report by its Task Force on Professionalism. (See Report, 43 Washington State Bar News 3, at 9, 11-12 (March 1989), which was of a more substantive and useful quality. Unfortunately, its recommendations appear to have been minimally implemented.)
In Oregon, there was substantial discussion of the relationship between zealous advocacy and the lawyer's role as officer of the court. The Oregon Bar Journal in The Ethical Oregon Lawyer quoted Robert Sayler's article in The ABA Journal (March 1, 1988), which cited an Illinois decision, declaring: Zealous advocacy is the modern-day plague which infects and weakens the truth-finding process and which makes a mockery of the lawyer's claim to officer of the court status. In early 1991, the Oregon Bar adopted their Statement of Professionalism, incorporating many of the proposals of the ABA Task Force. The Supreme Court of Oregon officially approved the Bar's Statement of Professionalism.
In May 1989, the Florida Bar Commission on Lawyer Professionalism was published as "a recommitment of the bench, the bar, and the law schools of Florida." Florida's Rule of Professional Conduct, in its Preamble and Purpose, stated: The purpose of the Florida bar shall be to inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.
A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
IS THE LEGAL PROFESSION BECOMING SOCIALLY RESPONSIBLE?
As we entered the last decade of this century, the jurisprudence of professionalism appeared to be as unsettled and insecure as it was at the century's beginning. The recent book by Ralph Nader and Wesley Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (see review in Appendix C), and its indictment of America's large corporate law firms, simply elaborated upon what had deeply disturbed Justice Brandeis, and President Theodore Roosevelt at the century's inception. Whether the studies were the Lincoln Caplan in-depth look at Skadden Arps, which was described as having "led the pack of law firms into the entrepreneurial, hard-ball, exhausting, meritocratic but money-hungry culture of corporate practice that now prevails," (see Appendix A); the book Conduct Unbecoming: The Rise and Ruin of Finley Kumble, or its companion book, Shark Tank: Greed, Politics and the Collapse of Finley Kumble, One of America's Largest Law Firms; or the book A Law Onto Itself: The Untold Story of the Law Firm of Sullivan & Cromwell; or the hundreds of other books; articles; studies; criminal and civil proceedings indicting, fining, and even imprisoning rich, powerful and prestigious lawyers; the evidence was overwhelming: The legal profession remained in a crisis more than a century old, stemming from the fact that it had become a business, rather than a calling. Given this sordid reality, there could be no jurisprudence of ethics, because meaningful ethics have always been incompatible with materialistic self-interest. Yet, young people still became lawyers with a sense of hope and service, and often with an altruism that led them into Legal Services, and public interest law. Increasingly, their voices were heard and, remarkably, the bar establishment has become ameliorated by such voices. Law schools, increasingly have been accepting responsibility for public service, and for teaching their students the importance of public interest law. Almost half a century ago, when I entered Harvard Law School, it still refused to accept women as students. The message we young lawyers received was that the duty of an attorney was to make rich people richer, and that our success would be measured by becoming a partner in still burgeoning corporate firms in our largest cities. Today, other choice and alternatives are offered to students who think of law as a calling rather than a rapid road to riches and social prestige.
If the responsibility of the organized bar is reflected by its policy determination, its statements, its organizational priorities, and its leadership, we have increased bases for optimism. The Washington State Bar News, in April 1989, published a "Special Report: Access to Justice in Washington." It reported the recommendation of WSBA Committees and a Task Force with respect to the enormous unmet legal needs of the poor. This led to the Washington State Supreme Court creating and appointing an Access to Justice Board, staffed by the WSBA -- the first such state-created instrument to implement the fundamental right of all people to access the justice system and to benefit from the promise of the rule of law. Certainly this is the primary requirement of any justice system, and the first commandment of the "Jurisprudence of Legal Ethics." Access to justice concerns and activities have been strongly supported and implemented by the ABA, and other states are showing signs of interest in following Washington's State's example.
The Model Rules of Professional Conduct contains a section called "Maintaining the Integrity of the Profession." Rule 8.4 deals with "misconduct" and states that it is professional misconduct for a lawyer to violate rules or engage in disfavored conduct. In 1993, Washington Court Rules of Professional Conduct added 8.4(g) which makes it professional misconduct for a lawyer to commit a discriminatory act prohibited by law on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status, where the act of discrimination is committed in connection with the lawyer's professional activities.
Thus, Washington State was among the first in the country that appropriately recognized that professionalism and legal ethics required inclusiveness and diversity within the profession, as well as respect for these values in our legal activity. "In Pursuit of Equality: The Final Report of the King County Bar Association Task Force on Lesbian and Gay Issues in the Legal Profession" was published on September 6, 1995. It criticized the limiting language in Rule 8.4(g), and made additional recommendation and proposals for a broader definition of professional conduct.
Although the jurisprudence of legal ethics would seem to mandate the recognition by the profession that any contemporary understanding of the responsibilities of lawyers and the profession must include positive commitment to: access to equal justice; the protection of the law for all; and the inclusion within the profession of those desiring to commit themselves to this calling, despite their diversity; these broadening steps have as yet not received wide-spread professional support. What there is instead, is much activity, pronunciamentos, resolutions and task force reports concerning the issue of civility. Undoubtedly, civility is a virtue arising out of the sensitivities all people living in organized society owe to each other. Its benefits for the profession as an amelioration of the "Rambo" conduct of many lawyers in the adversary process, is evident. But just as a century ago, "etiquette," rather than meaningful ethics constituted the profession's only concern about lawyer conduct, civility is hardly the gut issue in professionalism today, where equal justice under law for all is the imperative. Amy R. Mashburn, Professor of Law, University of Florida, in her article, "Professionalism as Class Ideology: Civility Codes and Bar Hierarchy," 28 VALPARAISO UNIV. LAW REVIEW 657 (1994), begins her 50-page analysis as follows:
Many commentators describe and define the professionalism crisis as if it were a disease -- a cancer-like growth of unprofessional behavior that has invaded the previously healthy body of the legal profession, is distorting and disabling its essential functions, and will, if unchecked, cause its demise. Lawyers have been complaining about the symptoms for several years. Among other things, they point to escalating rudeness among attorneys, misbehavior at depositions, discovery abuse, misuse of Rule 11 motions, repetitive filing of frivolous claims, advancement of meritless legal positions, flagrant disregard for judicial authority, the prevalence of Rambo litigation tactics, and the abandonment's of common courtesy.
This straightforward description of the ailment -- a decline in professional behavior -- seems accurate if one assesses the problem solely from the perspective of the patient, and unfortunately, that is what the majority of the examinations of the professionalism problem do. The legal profession is a very powerful and autonomous patient. By monopolizing legal services, protecting the right to regulate itself, and engaging in de facto private law-making, the legal profession has consistently been able to make its concerns and perceptions about itself paramount. Predictably, however, the profession's self-assessment is constrained by a certain circularity in its diagnostic logic. The literature in legal trade journals reveals an almost obsessive focus upon the behavior of lawyers to the virtual exclusion of all other social, cultural, historical and economic factors affecting the health of the profession and the well-being of its relationships with those whom it serves. Although the reason for the profession's tendency to concentrate its rhetorical fervor exclusively on the conduct of its members are debatable, at least one consequence seems apparent: Lawyers have found the very "crisis" for which they were looking, and little else.
The detailed survey of the profession's malaise is discussed by Mashburn, in a five part analysis. Part One is descriptive of the bar as a "power elite," which "functions like a privileged class within the legal profession," determining the contents of regulative codes which are directed against the interests of those who have less power in the bar and fail to "conform to an upper middle class code of conduct." She then considers four ways in which the "resultant class bias taints civility codes." Part Two argues that: the codes manifest the privileged minority's desire to avoid confronting directly the economic difficulties and moral ambiguities of rendering essential legal services in a capitalistic society where the majority of people are poor, working class, and middle class.
Part Three contends that "civility codes are a patrician reaction to the shortcomings of the attorney disciplinary and regulatory systems." Part Four explores "how the professionalism crisis furthers the interests of large law firms by deflecting attentions away from the problems generated by the way they do business," and by creating artificial crises which justify their support of "reform," most particularly of the tort system, which makes their clients accountable.
Part Five suggests that civility codes have a tendency to impose a reactionary and authoritarian conformity upon a rapidly diversifying profession and to resist redistribution of power to those who have been historically excluded from the practice of law and denied access to legal services. As she delineates the sometimes schizoid tokenism of the legal establishment to professionalism, Mashburn decries "the singularity of the focus on pro bono service as the symbolic centerpiece of the profession's commitment to public service."
She claims that it "betrays an aristocratic noblesse oblige attitude toward societal problems." Pro bono service can be viewed as token charity to stave off more far-reaching reform efforts. In other words, the privileged are philanthropic to ensure that the public does not seriously challenge a system that guarantees lawyers a monopoly and authorizes them to extract exorbitant fees for their services.
Her analysis of the contingent fee system, advertising, soliciting, and the other hot points in the bar's concerns over professionalism are sometimes harsh, always controversial, but extremely stimulating and useful. I would nominate Mashburn as a necessary candidate for all Bar Task Forces in the area of professionalism.
CONCLUSION
This presentation at most is an over-hasty challenge to attorneys who care deeply about their profession, to pay attention to the complexities of its agonizing throes. Our profession is in trouble. So is our society. We cannot separate the two, nor can we ignore the importance of what we do as a profession, and what happens to our country, as the gap between rich and poor precipitously widens. Law cannot separate itself from the unavoidable constitutional relevance of wealth and power, any more than professionalism can ignore the reality of the unfulfilled promise of equal justice under law. The jurisprudence of ethics/professionalism, requires more arduous historical and sociologic analysis within the context of a jurisprudence based on "what ought to be."
