Lawyers' Ethics

Allan Gerson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351509466
• Edition: 1
• Topic: Droit
• Subtopic: Éthique et responsabilité professionnelle en droit

Frequently the ethical attorney finds himself in a position where he can no longer reconcile con-flicting responsibilities he owes to his clients with those he owes so-ciety and himself. Faced with the dilemma of choice among coun-tervailing and competing obliga-tions, he has little training and precedence to guide him. If he is over forty, the overwhelming probability is that he never took a course on legal ethics; if he looks for a general, up-to-date text to provide insight, he will look in vain. Nor is there a developed body of case law from which to glean an appropriate course of action.This vacuum of authoritative formulations of responsible be-havior is a matter of concern not only to the legal profession, but to all sectors of American society. Lawyers shape the mores and thoughts of all of us. Their will is exerted not only in modifying our national institutions, but ulti-mately our individual, personal sense of values.This volume serves two impor-tant purposes: it provides the interested professional and lay reader with an appreciation of thespectrum of the ethical dilemmas confronting the legal profession, and it provides a sense of balance about the competing consid-erations present in each of these dilemmas. At a time when the legal profession is under attack both from within and without, this book represents some of the best critical thinking by lawyers about their role and responsibilities in American society.

Part I

The Legal Profession’s Role in American Society

The United States: A Unique Government of Lawyers

Alexis de Tocqueville

In visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are together the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause which should be investigated, for it may be reproduced elsewhere.

The members of the legal profession have taken a part in all the movements of political society in Europe for the last five hundred years. At one time they have been the instruments of the political authorities, and at another they have succeeded in converting the political authorities into their instruments. In the Middle Ages they afforded a powerful support to the crown, and since that period they have exerted themselves effectively to limit the royal prerogative. In England they have contracted a close alliance with the aristocracy; in France they have shown themselves its most dangerous enemies. Under all these circumstances, have the members of the legal profession been swayed by sudden and fleeting impulses? Or have they been more or less impelled by instincts which are natural to them, and which will always recur in history? I am incited to this investigation, for perhaps this particular class of men will play a prominent part in the political society that is soon to be created.

Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.

The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known. They serve as arbiters between the citizens, and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body—not by any previous understanding, or by an agreement that directs them to a common end, but because the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.

Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly, for they, like most other men, are governed by their private interests and especially by the interests of the moment.

In a state of society in which the members of the legal profession cannot hold that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. But it must then be asked whether the cause that then induces them to innovate and destroy results from a permanent disposition, or from an accident. It is true that lawyers mainly contributed to the overthrow of the French monarchy in 1789, but it remains to be seen whether they acted thus because they had studied the laws, or because they were prohibited from making them.

Five hundred years ago the English nobles headed the people and spoke in their name; at the present time the aristocracy supports the throne and defends the royal prerogative. But notwithstanding this, aristocracy has its peculiar instincts and propensities. We must be careful not to confound isolated members of a body with the body itself. In all free governments, of whatever form they may be, members of the legal profession will be found in the front ranks of all parties. The same remark is also applicable to the aristocracy; almost all the democratic movements that have agitated the world have been directed by nobles. A privileged body can never satisfy the ambition of all its members: it has always more talents and more passions than it can find places to employ. A considerable number of individuals are usually to be met with who are inclined to attack those very privileges which they cannot soon enough turn to their own account.

I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community in which lawyers are allowed to occupy, without opposition, that high station which naturally belongs to them, their general spirit will be eminently conservative and antidemocratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable—as they are independent of the nobility by their labors, and feel themselves to be their equals in intelligence, though inferior in opulence and power. But whenever an aristocracy consents to impart some of its privileges to these same individuals, the two classes coalesce very readily and assume, as it were, family interests.

I am, in the like manner, inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of persons and the executive power than there is between them and the people, though they have often aided to overturn the former. Similarly, there is a greater natural affinity between the nobles and the monarch than between the nobles and the people, although the higher orders of society have often, in concert with the lower classes, resisted the prerogative of the crown.

Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must neither be forgotten that if they prize freedom much, they generally value legality still more. They are less afraid of tyranny than of arbitrary power, and provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.

I am therefore convinced that the prince who—in the presence of an encroaching democracy—should endeavor to impair the judicial authority in his dominions, and to diminish the political influence of lawyers, would commit a great mistake: he would let slip the substance of authority to grasp the shadow. He would act more wisely in introducing lawyers into the government; and if he entrusted despotism to them under the form of violence, perhaps he would find it again in their hands under the external features of justice and law.

The government of democracy is favorable to the political power of lawyers, for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it in their own right, as it were. They are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy, without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.

The profession of the law is the only aristocratic element that can be amalgamated—without violence—with the natural elements of democracy, and advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men, but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained. I cannot believe that a republic could hope to exist at the present time, if the influence of lawyers in public business did not increase in proportion to the power of the people.

This artistocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the law and the position which these interpreters of it occupy in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer, a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings.

This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done. The former produce precedents, the latter reasons. A French observer is surprised to hear how often an English or an American lawyer quotes the opinions of others, and how little he alludes to his own, for the reverse occurs in France. There, the most trifling litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed; and the fundamental principles of law are discussed in order to obtain a rod of land by the decision of the court. This abnegation of his own opinion; this implicit deference to the opinion of his forefathers; this servitude of thought which he is obliged to profess, necessarily give him more timid habits and more conservative inclinations in England and America than in France.

The French codes are often difficult to comprehend, but they can be read by everyone; nothing, on the other hand, can be more obscure and strange to the uninitiated than a legislation founded upon precedents. The absolute need of legal aid that is felt in England and the United States, and the high opinion that is entertained of the ability of the legal profession, tend to separate it more and more from the people, and to erect it into a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country, but the English or American laywer resembles the hierophants of Egypt. Like them, he is the sole interpreter of an occult science.

The position that lawyers occupy in England and America exercises no less influence upon their habits and opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and authority upon the members of the legal profession. In English society, lawyers do not occupy the first rank, but they are contented with the station assigned to them: they constitute, as it were, the younger branch of the English aristocracy, and are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle the aristocratic tastes and ideas of the circles in which they move with the aristocratic interests of their profession.

And, indeed, the lawyer-like character that I am endeavoring to depict is most distinctly to be met with in England. There laws are esteemed not so much because they are good, but because they are old. And if it is necessary to modify them in any respect, to adapt them to the changes that time operates in society, recourse is made to the most inconceivable subtleties, in order to uphold the traditionary fabric, and to maintain that nothing has been done which does not square with the intentions and complete the labors of former generations. The very individuals who conduct these changes disclaim any desire for innovation, and would rather resort to absurd expedients than plead guilty to so great a crime. This spirit appertains more especially to the English lawyers. They appear indifferent to the real meaning of what they treat, and direct all their attention to the letter; they seem inclined to abandon reason and humanity, rather than swerve one tittle from the law. English legislation may be compared to the stock of an old tree, upon which lawyers have engrafted the most dissimilar shoots in the hope that—although their fruits may differ—their foliage at least will be confused with the venerable trunk that supports them all.

In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.

The more we reflect upon all that occurs in the United States, the more we shall be persuaded that the lawyers, as a body, form the most powerful (if not the only) counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly pit their aristocratic propensities against the nation’s democratic instincts; their superstitious attachment to what is old against its love of novelty; their narrow views against its immense designs; and their habitual procrastination against its ardent impatience.

The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independent of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station, and gives him the instincts of the privileged classes.

Armed with the power of declaring the laws to be unconstitutional, the American magistrate perpetually interferes in political affairs. He cannot force the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table Of Contents
• Introduction
• Part I. The Legal Profession’s Role in American Society
• Part II. Lawyers and the Search for Truth: Conflict or Harmony?
• Part III. Regulating Professional Ethics: The Alger Hiss Reinstatement Controversy
• Part IV. Special Perspectives
• Contributors’ Acknowledgments
• Index