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Lawyers, Professionalism, and Rules of Ethics: How Did We Get Here?
By Michael S. Ariens
Introduction
In mid-1989, the State Bar of Texas adopted, by referendum, the Texas Disciplinary Rules of Professional Conduct. In November of that same year, the Supreme Court of Texas and the Texas Court of Criminal Appeals jointly adopted the Texas Lawyers’ Creed of Professionalism. The former was adapted from the Model Rules of Professional Conduct, approved in August 1983 by the American Bar Association (ABA). The latter was touted as the first of its kind: The order of its two highest courts made Texas the first state to adopt a statewide creed of professionalism.
Though both documents sought to channel the behavior of Texas lawyers, their titles gave away their opposing approaches. In marked contrast to Texas’s Disciplinary Rules—which were minimum standards that subjected a lawyer failing to meet such standards to reprimand (private or public), suspension, or disbarment—the Lawyers’ Creed was a statement of faith in lawyers as professionals. The Lawyers’ Creed was “primarily aspirational,”1 and the goal of its framers was to assist lawyers in attaining “the highest degree of ethical and professional conduct.”2
This carrot-and-stick approach to shaping lawyer behavior was not new. It had been commonplace since the Revolutionary era. When Thomas Paine wrote, “In America THE LAW IS KING” in Common Sense (1776), he justified popular sovereignty and implicitly acknowledged the extraordinary power possessed by American lawyers. But power tends to corrupt, so how did lawyers justify the possession of power against the public’s charges of corruption? The most prominent justification lawyers offered was the claim that they acted only under a dual duty, serving their paying clients and the public as “officers of the court” or “servants of the law.” Lawyers who failed to serve both client and the public were unprofessional, subjecting themselves to sanction.
Over time, three basic standards developed for determining whether a lawyer’s actions are subject to disbarment or other sanctions. First, a lawyer could be disbarred for acting dishonorably. Honor and dishonor were determined based on one’s reputation—specifically, one’s reputation among peers. Second, as the nation (and the legal profession) grew in population and size, what one’s peers thought—an external standard—was displaced by an internal standard—conscience. Conscience remained the touchstone in assessing lawyer behavior for over a century. Third, a system of sanctioning lawyers based on whether they violated rules of ethics began to emerge. This essay briefly explains each of these three approaches, as well as why Texas lawyers and judges adopted both a set of Disciplinary Rules and a Creed at the same time.
The Divided Lawyer
The 1701 Massachusetts attorney oath of office ended with an injunction that the lawyer pledge “all good fidelity as well to the courts as to your clients.” Lawyers were their clients’ agents, but not ordinary agents, for they were also officers of the courts. They were to be faithful to both client and court. Further, as officers of the court, they were bound to obey standards higher than the marketplace. What about those lawyers who failed to serve as officers of the court? Often called pettifoggers and later shysters, mouthpieces, and hired guns, they were accountable to their fellow lawyers, and subject to disbarment when they failed to meet their dual duties.
Honor
For much of American legal history, disbarment proceedings took place in the court where the lawyer practiced law. Someone (another lawyer, the judge, occasionally clients) complained. Through the 1830s, the complaint included a claim that the lawyer failed to behave honorably. In theory, lawyers protected themselves and—indirectly—the people by disbarring dishonorable lawyers. For example, in an 1823 disbarment proceeding, the main charge against the lawyer was that he had a “general reputation as to . . . ill-conduct in [his] profession.” Disbarment proceedings were few, however.
Conscience
By the 1840s, the standard of honor had dissipated. It was replaced by conscience, which assessed whether the lawyer had acted consistently with his conscience. The lawyer’s conscience was formed by one’s character and, more broadly, one’s moral education. It was internal; no lawyer could be questioned by others for acting according to one’s formed conscience. However, a lawyer acting contrary to conscience, by acting contrary to law, was subject to disbarment.
The idea of conscience as the touchstone for lawyer behavior lasted for well over a century. In a rapidly changing society, a lawyer’s internal conscience was the only significant check on much lawyer behavior. Bar associations did not arise until the last three decades of the nineteenth century, and all were voluntary. The first mandatory bar associations (possessing some authority to disbar its members) were created in the 1920s and rose in fits and starts.
Claims of conscience could also be abused, and lawyers from the 1840s to the early twentieth century tested the boundaries of ethical behavior. This test often amounted to de-valuing one’s duty to serve the public as an officer of the court in favor of acting as a zealous representative of one’s paying clients. How far could a lawyer go when representing a client without violating the lawyer’s duty to serve the public?
Two of the most famous lawyers of their time, Rufus Choate of Boston and David Dudley Field of New York, believed a lawyer could go quite far when representing clients. Both were highly sought after, and thus highly paid. Both were credibly accused by some lawyers of serving their paying clients at the expense of the public’s interest, and both were defended by other lawyers. In assessing the behavior of Choate before the Civil War (18611865) and of Field after it, the central issue was determining when zealous representation of one’s clients demonstrated disloyalty to the lawyer’s duty as an officer of the court. The challengers and defenders of both reached predictably opposing conclusions.
As much of the nation moved decisively into the industrial revolution, lawyers became more crucial to the business world. Their work also became more fungible, leading many lawyers to complain bitterly that they had become “little more than a paid employee, bound hand and foot to the service of his employer.” Relatedly, as allegedly said by the robber baron Jay Gould, “brains were the cheapest meat in the market.” These changes in the relationship between lawyer and (powerful) client were one reason American lawyers began crafting canons of ethical conduct.
Conscience and Rules
The earliest code of lawyer ethics was adopted by the Alabama State Bar Association in 1887. This code consisted of fifty-seven rules and seven sworn duties (such as keeping inviolate a client’s communications), which were intended to serve as guidelines, not as ethical standards. That is, they were framed to assist a lawyer unsure about his particular duties. Additionally, the Alabama code of ethics divided the rules into those related to the lawyer’s duties to the courts and those concerning their duties to opposing counsel, client, and the public.
Two other bar associations quickly adopted the Alabama code. By 1907, nine other bar associations joined their predecessors, and others were considering adopting a code of ethics. Jumping in front of a forming crowd, the American Bar Association (ABA) began to lead the way and, in 1908, approved its Canons of Ethics. These early canons of ethics were largely guidelines developed to aid a lawyer whose conscience was uncertain. The development of codes of ethics occurred as the legal profession was being transformed. Between 1870 and 1890, the number of lawyers had tripled, outstripping the nation’s population growth. The increased supply of lawyers and the Panic of 1893 had a lengthy and adverse impact on lawyer income. These economic stressors led some lawyers to ask, can a lawyer be honest and successful? For many, the answer was at best uncertain. Lawyers complained about unprofessional pettifoggers, shysters, ambulance chasers (coined at the end of the nineteenth century) and—on the corporate side—“corporation tricksters,” lawyers who defended railroads and other businesses in personal injury matters.
The ABA Canons of Ethics, adopted by most state bar associations by the mid1920s, generally followed the Alabama code: It offered guidelines a troubled lawyer might consider in shaping one’s conscience. The 1908 Canons of Ethics remained the guide to lawyer behavior in most states for over six decades. For much of this time, amendments to these Canons focused on trivialities, most often an overzealous policing of bans on advertising, “direct, or indirect.” One perceptive contemporary critic, though, complained that the Canons failed because they focused on what a lawyer may not do. What lawyers needed instead, he concluded, was an expression of some worthy ideals in the practice of law, for “ideals of some kind, lawyers, like other men, necessarily must have.”
Aspirations and Duties
The “golden age” of American lawyers dates from 1946, after the end of World War II, to 1969. It was, at least, a golden age in economic terms, though not otherwise. The supply of lawyers (due both to the Great Depression and the war) was low, and the demand for legal services was high. Consequently, lawyer income rose tremendously. By 1969, median lawyer income was $47,638 in real 1983 dollars, an increase in real income of 87.4% in twenty-two years. During those plentiful times, the ABA successfully adopted a Code of Professional Responsibility (1969), which most states adopted as law by 1972.
Then the economics of the legal profession fell apart. From 1970-1983, the legal profession grew by 75%, but real median lawyer income in 1979 was 21% less than it had been in 1969. While some lawyers greatly prospered, many struggled, and this struggle helped lead to the ABA’s creation of another committee to write ethics rules. The 1969 Code of Professional Responsibility was divided into three parts: nine Canons listing “axiomatic principles,” a series of Ethical Considerations “aspirational in character,” and a set of black-letter Disciplinary Rules “mandatory in character.” The Code was intentionally structured to encourage lawyers to think beyond the mandatory minimum standards as set forth in the Disciplinary Rules; they were to consider how to “aspire” to a more informed professional judgment in the practice of law. They assisted a lawyer in forming one’s conscience.
Initially, the 1969 Code was eagerly embraced, but by 1977 it was attacked as an immature and “transitional document.” The attack was particularly directed toward the Ethical Considerations, considered the heart of the Code. Though the Code and the Ethical Considerations had major problems, the ABA decided against salvaging them. Instead, the ABA embarked on a third effort to re-state the rules of ethics. The debates on these rules exposed a yawning divide among lawyers, one that resonates today.
Model Rules as Rules
It was not until the ABA adopted the Model Rules of Professional Conduct, though, that rules were crafted to displace conscience. The members of the Kutak Commission, which the ABA charged in 1977 with revising ethics rules, initially rejected the “basic posture of ‘my client, first, last and always,’ [which] allowed little room for development of the attorney’s role as an officer of the court.” Instead, it began its work by emphasizing the “theme” of the lawyer as social trustee, as one who represented private clients as well as a “determinable public interest.” At one of its early meetings, one anonymous member asserted, “[O]ur Committee ought not to hesitate to promulgate statements of ethics it believes to be correct but which may not meet with the general approval of the Bar.” By the time the proposed final draft of the Model Rules of Professional Conduct was released in May 1981, the Kutak Commission had largely capitulated. This draft made few references to a duty to serve a determinable public interest, and by the time the ABA House of Delegates approved the Model Rules in August 1983, even those few mentions had been excised.
The Model Rules ignored ethical considerations; the Rules were about rules, standards below which no lawyer was to act. The lawyer was not to read the Model Rules to inform one’s conscience, but to read them in order to follow them so as to avoid any disciplinary charge. The Model Rules marked an inward turn of the legal profession; no lawyer was bound (or even encouraged) to inquire into any determinable public interest or one’s conscience. Yet somehow bar leaders were surprised when lawyers subsequently looked “at nothing but the rules.”
The Professionalism Crisis and Core Values
At the same 1983 annual meeting at which the Model Rules were adopted, the ABA promoted a “Presidential Showcase” on the lawyer’s professional independence. This Showcase illuminated what was called the “professionalism” crisis, a sense that lawyers were merely agents of clients who did not serve the public. This professionalism crisis eventually led to the adoption of the Texas Lawyers’ Creed of Professionalism in November 1989, which sought to fill the gap left by the Texas Disciplinary Rules of Professional Conduct, adopted in mid-1989.
The Disciplinary Rules followed the general approach of the ABA Model Rules—they were thou-shalt-nots. These minimum standards offered little to aid a lawyer in forming a professional judgment. Instead, these Rules operated in that small slice of actions that constituted misconduct. For the much larger number of decisions requiring judgment, no assistance was provided. This was troublesome because lawyers during the 1980s were faced with significant economic insecurity and reputational decline. Such insecurity was exacerbated by legal specialization, which often narrowed the number of clients a lawyer was competent to serve. Legal specialization tied lawyers more closely to their clients, and that led litigators to engage in “winning at any cost.”
Creeds like the Texas Lawyers’ Creed have been popular. In a 2015 count, 123 courts and lawyer organizations had adopted some sort of creed. But this alone was insufficient. Another suggested solution was to define the profession’s “core values.” The core values issue was brought into the spotlight at the end of the twentieth century. In looking at both the ethical requirement that lawyers maintain their professional independence—thus, banning the sharing of legal fees with nonlawyers— and the issue of the breadth of exceptions to the duty to maintain client confidences, lawyers found themselves again at odds. The contestants agreed that the profession’s core values served as the foundation for ethics rules, and both sides claimed they were protecting the profession’s core values. They disagreed, however, on what those core values were. What was the duty the lawyer had to serve as “servant of the law” and as a zealous representative of one’s private, paying clients?
Today, the Texas legal profession remains trapped by two documents that are thirtyfour years old. Lawyers who were young when those documents were created are senior (or retired) lawyers now. Few are ready to argue that the Disciplinary Rules and the Texas Lawyers’ Creed have solved the problems of lawyer misconduct. Most lawyers simply appear to ignore them, seemingly content that they are untouched by concerns listed four decades ago.
Conclusion
American lawyers have always struggled to serve both client and the public. That struggle is never-ending. But some approaches are, I believe, better than others. Ethics rules condemning certain acts can guide us in what not to do, but they do not provide lawyers with any ideals. A return to conscience, though an imperfect guide, may help us understand what to consider doing, and why we might so act.
ENDNOTES
Order of the Supreme Court of Texas and the Texas Court of Criminal Appeals, 52 Tex. B.J. 1303, 1303 (1989).
