This is the first in a series of three blog posts this week by Marquette law faculty on a new book.
Over a distinguished career Professor Michael S. Ariens of St. Mary’s University has made rich contributions to the scholarship devoted to American constitutional law, legal history, his adoptive home state of Texas, navigating the challenges of law school, and, central for our purposes, the practice of law and the American legal profession.
Professor Ariens’s new volume—The Lawyer’s Conscience: A History of American Legal Ethics (University Press of Kansas 2022)—continues a theme that animates much of his recent scholarship. Put succinctly, that theme is this: The American legal profession has veered off course. It has done so, according to Ariens, in a host of ways. Among them, he contends, are these:
- Commitment to clients has supplanted commitment to the public good.
- The pursuit of profit-maximization has transformed the enterprise from a profession into a business.
- The day-to-day touchstones of (first) honor and (then) conscience that impelled lawyers up through the middle of the twentieth century have melted away, replaced for the typical lawyer by an impoverished set of minimum standards of conduct promulgated by the American Bar Association in the early 1980s.
- Independence from client interests—independence that enabled lawyers and their firms to both be and be perceived as being separate from those client interests—has been supplanted by a sort of shotgun marriage that leaves today’s law firms unable or unwilling to maintain appropriate distance from client interests.
- A profession whose members once shared a common vision of what it means to be a lawyer and found ways to speak in something of a unified voice has “fractured,” creating the sorts of factions James Madison described in Federalist 10. Such fracture, Ariens submits, has dissolved this once-unified vision and rendered it virtually impossible to achieve meaningful consensus on principles that matter.
It’s a devastating indictment—at least from the perspective of Professor Ariens. Whether the picture of a glass-considerably-more-than-half-empty vocation is indeed as bleak as Ariens would have us believe nevertheless remains for each reader, and each lawyer, to decide.
The story Ariens tells proceeds chronologically. But saying that by no means is to suggest that the book, or its argument, is easy to follow.
The work begins by probing the role of the American lawyer from before the Revolution to the dawn of Jacksonian times. Here Ariens sheds light on several prominent trials, among them those arising out of the Boston Massacre, the Philadelphia Treason prosecutions, Aaron Burr’s defense of Levi Weeks in connection with the murder of Elma Sands, and Daniel Webster’s representation of the Knapp brothers in connection with the brutal stabbing death of an eighty-two-year-old merchant. He likewise devotes substantial time demonstrating the ease with which misbehaving lawyers managed to continue to practice law despite efforts to strip them of the privilege of doing so.
Next up for Ariens comes David Hoffman, whose volume A Course of Legal Study—published in 1817 (with what Ariens tells us is praise from Justice Joseph Story) and revised two decades later—announced an understanding of the honorable lawyer with which Ariens seems taken. This understanding Ariens captures as follows: To act not merely to benefit the client’s interests “but also to do what was morally right for society.” Putting some meat on the bones of the notion, Ariens informs us that, for Hoffman, the honorable lawyer will “never” plead the statute of limitations or the defense of infancy. Moreover, insofar as representing a criminal defendant about whom a lawyer entertains “no just doubt of . . . guilt,” the honorable lawyer so situated likewise refrains from “impeding the cause of justice” by resorting to “ingenuity” likely to maximize the prospects that the client get too strong a defense.
For Hoffman—and it seems for Ariens—a lawyer who employed “artifices of eloquence” to induce a favorable verdict from a jury that “perpetuated an unjust result” was a lawyer worthy of scorn. In this section of the book, Ariens proceeds to trace a cluster of other major players, works, and developments in the middle part of the nineteenth century, among them Timothy Walker, David Paul Brown, Lord Henry Brougham, Richard Henry Dana, the homicide trial of Harvard chemistry professor John Webster, the 1850 Field Code, and Rufus Choate’s conception of zeal. Ariens calls particular attention to George Sharswood, a devout Presbyterian judge who constituted a law faculty of one at the University of Pennsylvania. (Ah—to have experienced the brevity and efficiency of those faculty meetings.) From Sharswood’s 1854 lectures on legal ethics, Ariens identifies the beginnings of a movement from honor to conscience.
Ariens next flags several “crises” unfolding within the profession during the Gilded Age. One concerned the conduct of lawyers who represented the nation’s railroads. A second stemmed from the confluence of (a) an increase in personal injury actions, (b) the existence of the contingent fee that often accompanied the plaintiff’s side of such actions, and (c) the hostility of defendants and their counsel to the contingent fee. A third—at least as Ariens tells it—emerged from the increasing “zeal” with which lawyers had come to represent clients. Noteworthy, too, was the appearance of Alabama’s code of ethics, spurred by the pathbreaking work of Thomas Goode Jones. In that code Ariens discerns “the emerging concept of the lawyer as a professional.” Yet he also seeks to convince us that the move toward codifying even broad general guidelines for lawyer conduct itself reflected still another crisis, one he dubs the crisis of professionalism.
The volume turns next to the first half of the twentieth century. There, with the arrival and aftermath of the ABA’s 1908 Canons of Ethics, Ariens identifies several specific impulses he contends animated lawyers and their profession. And he makes little effort to conceal his disdain for each and all. One is the notion that the enterprise of lawyering continued to “drift from profession to business,” taking on the attributes of a mere “trade,” with the pursuit of “profit” driving out commitment to public service. A second is his contention that the profession seemed unable or unwilling to enunciate meaningful nontrivial standards of practice beyond a cluster of shall-nots devoted to securing clients. Hence the low esteem Ariens manifests for the 1908 Canons. A third—a return to the independence point—is the claim that lawyers who represented particular categories of clients undertook to advocate policies good for their clients but, alas, perhaps not quite as good for other constituencies or the nation as a whole. One example he seeks to unravel focuses on the bankruptcy bar. Here Ariens engages in a detailed sort of “inside baseball” analysis, as he seeks to persuade us that commercial lawyers had become captive of their clients.
Ariens’s attention turns, finally, to the stretch of time from the end of World War II to today. A smorgasbord of developments within the profession gets discussed here. Two consume much of Ariens’s attention.
The first, led by Virginia lawyer Lewis Powell (yup: that Lewis Powell) beginning in 1964, concerns events leading up to and in the decade following the ABA’s adoption of the Code of Professional Responsibility in 1969. The second focuses on the surprisingly swift supersession of the Code with the ABA’s 1983 promulgation of the Model Rules of Professional Conduct.
Ariens admires the Code, in no small measure because, after each of its nine overarching canons, the Code enumerated a series of ethical considerations. The ethical considerations, as Ariens reminds us the Code’s Preamble itself reported, were “aspirational in character and represent the objectives toward which every member of the profession should strive.” He praises the aspirational structure of the Code, contending that such a structure conveyed to practicing lawyers that their professional lives should be devoted at least in part to grappling with the moral challenges of law practice and examining their consciences for answers to such challenges—as opposed to, say, merely ensuring that their conduct met the minimum prescribed standards.
Yet as quickly as 1977, with no fewer than 44 jurisdictions already having adopted the Code, the ABA began the process of supplanting it. Ariens claims that the debate triggered by what eventually would become the 1983 Model Rules reflected “a clear sign of the unraveling of a unified profession.” That bit of anthropological hyperbole aside, the volume presses forward to expose a range of more contemporary phenomena and developments—both real and alleged—that Ariens deems undesirable. A few of the author’s many grievances include:
- The problem of professional (in)competence. Ariens cites a 1973 statement by then Chief Justice Warren Burger (the temptation to observe that this indeed was a man with more than a passing familiarity with incompetence strikes me as too powerful to resist) to the effect that between one third and one half of lawyers “who appear in serious cases are not really qualified to render fully adequate representation.”
- The evolution—or as Ariens views it the devolution—of the Kutak Commission’s early drafts of the Model Rules. Regrettably to Ariens, later drafts moved from a vision of the lawyer with substantial duties to the public entirely apart from client interests to a vision of the lawyer whose duties were too strongly linked to, too dependent on, those narrow client interests.
- The profession’s treatment of the lawyer’s duty of confidentiality. In particular, Ariens’s ideal professional world would have lawyers required to disclose otherwise confidential information in more, apparently considerably more, circumstances than the 1983 Rules provide. Here too, in short, the current set of duties reflects what to Ariens bespeaks an insufficient level of independence from client interests.
- Whether it be the action for legal malpractice, the system of statewide discipline, or the motion to disqualify counsel on the basis of a conflict of interests, Ariens expresses a consistent gloom as to whether such mechanisms designed to police the substandard conduct of individual lawyers and their institutions are accomplishing very much constructive.
To be sure, Professor Ariens employs his keen critical and selective analysis to probe a good deal more than the items noted above. Yet the leitmotif remains undeniable.
Professor Ariens yearns for an American legal profession whose members speak in a unified voice about matters beyond the trivial or indisputable. That yearning perhaps seeks too much. A group whose membership numbers approach a million and a half individuals—with the current membership representing folks refreshingly more diverse from the profession’s membership in any previous generation—should be expected to have a difficult time coalescing around a particular solution to a particular problem. (Every now and then throughout my reading of the volume I gleaned the sense that Ariens wishes the American legal profession more greatly resembled the NFL, with about three dozen owners who experience strikingly little difficulty reaching decisions such as (say) extending the regular season to seventeen games notwithstanding the increase in the number of serious player injuries expected to accompany the expansion.) Sometimes the challenge of achieving consensus represents a strength rather than a shortcoming.
Professor Ariens yearns for American lawyers and their institutions to manifest a more robust spirit of independence from that which he discerns. For Ariens, to be clear, this means two things in particular. One is a greater commitment by lawyers and their institutions to the public interest (a phrase the volume never quite gets around to unpacking). The other is a greater willingness by lawyers and their institutions to put distance between the interests of their clients and the interests lawyers and their institutions pursue. As to the first: My own view is that the twenty-first century American lawyer manifests no less commitment to the public interest than lawyers of any earlier eras. Ditto for the commitment of the institutions in which today’s lawyers work. As to the second, which could trigger a rebuttal lengthier than the book itself, allow me to limit myself to this: Because so much of the American lawyer’s work unfolds in private—as it both should and must—my hunch is the reservoir of lawyers and law firms who have chosen to act in the admittedly vague conscience-driven manner Ariens recommends (by putting distance between what their clients want and what lawyers and their firms are in fact willing to do) is a good deal fuller than Ariens lets on.
Throughout the history of social science one measure of a work’s influence has been the vigor and quantity of the rebuttals the work produces. By that measure alone my sense is that, looking back a decade or two from now, the contribution Professor Ariens makes in this volume will be substantial, impressive, and enduring. Marquette Law School should be proud to count this native son of Wisconsin among its distinguished alumni.