This is the second in a series of three blog posts this week by Marquette law faculty on a new book.

In The Lawyer’s Conscience: A History of American Lawyer Ethics (University of Kansas Press 2022), Professor Michael Ariens provides a history of lawyer ethics and identifies problems that make it difficult for modern lawyers to live up to the ideals of an ethical lawyer. Conceptions of the ideal lawyer have changed from the late 1700s to the present day, and the book provides historical examples of lawyer ideals at different points in history. Broadly speaking, the historic honorable lawyer was motivated primarily by a sense of duty to conscience and regard for the public good. The honorable lawyer was committed to serve as a professional and did not attach undue importance to matters such as fees or client preference.

Through classroom discussions in courses such as The Law Governing Lawyers and Professional Identity Formation (and even Legal Writing and Research), I know that students yearn to practice in an age when the public perceived lawyers as esteemed community members safeguarding the public good. The Lawyer’s Conscience has inspired me to bring more historical perspective into these discussions. I want my students to know, for example, that the problem of lawyer misuse of power is not new and not reserved for the modern age, even if modern developments have introduced new and different problems. For a very long time, lawyers have had to embody conflicting roles, serving as advocate and counselor but also as an officer of the court and legal system reformer.

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.