<Table Of Contents

An Ethical Vision for Lawyers in the 21st Century

by Kevin Frazier, 2023 Law Fellow

INTRODUCTION

The American Bar Associations1 (ABA)’s Model Rules of Professional Conduct (MRPC) have become an ethical scapegoat. Many legal practitioners—as instructed by MRPC—act “with zeal in advocacy upon the client's behalf”2 and justify any ethically questionable results as unfortunate byproducts of their adherence to the rules. A profession-wide re-examination of the ethical rules and principles that govern and guide lawyers is overdue. 

FORGOTTEN VIRTUE AND THE RISE OF THE LAWYER-ADVOCATE

Previous versions of legal ethics codes expressly sought to balance lawyers’ roles (by, for example, limiting a lawyer’s duties to their clients vis-à-vis other societal roles). Over time, the order of these duties has flipped. Amendments to the MRPC over the course of several decades have incrementally but substantially deprioritized a lawyer’s responsibility to the general administration of law. Caused in part by zealous representation of their client, today MRPC-compliant lawyers can “ethically” remain indifferent to injustices visited on society. A brief historical overview, however, shows that this client-advocacy-focused approach is something of an aberration. 

Before 1836, when David Hoffman published his Fifty Resolutions on Professional

Deportment,3 little if any work had been done to govern and guide American lawyers.4 Hoffman’s Resolutions emerged in an age of increasing individualism and deprofessionalization of the Bar.5 In response to those trends, Hoffman identified an aspirational set of rules that have influenced every subsequent iteration of generally applicable ethical rules and principles for the profession in the US.6 

Several of these resolutions pertain to questions of balance in advocacy. Resolution I directed lawyers not to allow “professional zeal . . .[to] carry [them] beyond the limits of sobriety and decorum.”7 Next, Resolution XI urged lawyers not to become “partner[s] in [their clients’] knavery.”8 And, perhaps most importantly, Resolution XXXIII stated that “[w]hat is morally wrong, cannot be professionally right, however it may be sanctioned by time or custom.”9 Considered as a whole, these Resolutions reflect Hoffman’s belief that a lawyer “should do nothing to advance injustice,” as paraphrased by Professor Stephen Kalish.10

Judge George Sharswood’s An Essay on Professional Ethics (1854)11 attempted to carry Hoffman’s work into a future in which the de-professionalization wave had crested, bringing about the creation of legal institutions and practices still extant today.12 One of the central questions for the increasingly formal profession was to what extent lawyers should serve merely as agents of their clients’ interests.13 Despite the substantial economic, political, and cultural changes that transpired between Hoffman and Sharswood’s respective ethical works, Sharswood perpetuated the prioritization of a lawyer’s societal obligations and provided a conception of legal ethics that conflicts with the contemporary consensus.14 

Sharswood did not deny the existence of an adversarial system, nor the need for a lawyer to zealously advocate for clients; he made clear, however, that “a lawyer’s first obligation […is] to the common good.”15 Only once that obligation had been satisfied did Sharswood think a lawyer had to zealously represent their client.16 Both Hoffman and Sharswood advance a republican ideal of lawyering, one that spread in the postrevolutionary era.17 This broad-role conception of lawyering reflected a general republican belief that lawyers—by virtue of their “public prominence and professional skill”—had a responsibility to foster a “culture of respect for and compliance with the purposes of the laws.”18 

In 1908, the general prioritization of professional duties manifested yet again: this time in the first national code, the American Bar Association’s Canons of Ethics.19 The Canons relied extensively on the work done by Hoffman and Sharswood. Twenty-five of the 32 Canons embodied principles originally set forth by Sharswood.20 Given this extensive reliance on Sharswood, it is unsurprising that the Canons echoed his emphasis on a paramount duty to society, specifically in Canon 32, which instructs that regardless of the importance of any client, a lawyer "will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen."21 

This emphasis on lawyers’ republican duties was in direct response to the state of the profession at that time. As noted by Professor Russel Pearce, the drafters of the Canons sought to "reverse what they perceived as the decline of law from its professional role to the status of a business."22 Despite the efforts of the Canon drafters, though, the profession’s move toward the “status of a business” continued in the following decades.

Since 1908, serial emendations to national legal ethics codes have pushed lawyers closer to their clients and pulled them further from the broader community. By 1970 when the ABA published its Model Code of Professional Responsibility (MCPR), the transition from a profession that aspired to a lofty social role to a business oriented around its clients had reached its zenith. In doing so, it had infected legal ethics. Pearce stands among few others (if not alone) who argue that the MCPR and subsequent ethics codes contain more strands of republican virtue than is typically acknowledged; most commentators advance a different interpretation.23 Pearce recognizes that “most commentators view legal ethics as having its origins in the lawyer's obligation to the client, with the object being maximization of the client's goals within the limits of the law."24

The majority view finds ample support in the text and interpretation of the ABA’s MRPC. Published in 1983 and regularly revised since then, the MRPC highlights a lawyer’s obligation to zealously defend their client. Lawyers and courts alike have interpreted the MRPC as a shortcut, bypassing concerns about having to grapple with the ethical qualms inherent in such advocacy.25 For instance, Judge Frederick Martone of the Superior Court of Arizona admitted that the role of a lawyer as "an officer of the court has become a metaphor with little substance."26 Under this interpretation, lawyers have become free to ignore how their zealous advocacy may exacerbate collective action problems and mar the public perception of legal institutions and practitioners.27 

What’s more, whatever the MRPC possesses in terms of specific ethical rules, it lacks in guiding principles. This absence of vision has left lawyers without a “clear sense of what the legal profession ‘is,’” per Professor George Hazard.28 Generally though, Hazard reports that lawyers now perceive themselves as “partisan agent[s] acting with the sanction of the Constitution to defend a private party against the government.”29

HOW OVERZEALOUS ADVOCACY BURDENS THE LEGAL PROFESSION

Amid a swing in legal ethics from republican virtue to client advocacy, the public's own expectations of lawyers have not wavered—they expect more from lawyers than simply being advocates in an adversarial system.30 Though lawyers may cite the MRPC to justify seeking out loopholes and technicalities in the name of winning, the public holds lawyers to a different, higher standard. This mismatch has fostered public distrust in lawyers and, by extension, the legal system. 

This suspicion manifests in several ways: fewer lawyers have been elected to legislative offices at the state and federal level, more private parties opt to resolve their disputes outside the formal civil system, and a lack of faith in the courts and law enforcement has spread.31 The shortcomings of the MRPC do not account for all that distrust. Many argue that the necessary reforms to restore trust in the legal system cut to the core of the legal profession itself. For instance, Rebecca Kourlis, executive director of the Institute for the Advancement in the American Legal System at the University of Denver, insists that the entire legal system requires rebuilding and a reorientation around “open[ness], transparen[cy], and accessib[ility].”32 Kourlis admits that incremental and marginal change will not achieve that goal, which means lawyers must “invite disruption into [their] midst” and learn to “tell a [better] story” about their profession.33 

The story undergirding legal ethics is where the MRPC does play a role. Akin to the setting in any other story, the MRPC provides the background for the story the legal profession tells itself. Though Model Rule 1.16 permits lawyers to withdraw from representation for “good cause,”34 the Rules on the whole contribute to “[t]he image of lawyers engaged in advocacy divorced from the moral quality of the client's cause or case.”35 Effectively unchallenged by the MPRC, adversarialism has been accepted by the profession as an “uncontestable ‘good’, a pragmatic means to justice.”36 This divorce from morality in turn fuels a narrative that lawyers can zealously defend any client and, in doing so, actually promote justice!

Professor James Elkins and others maintain that any enduring change to the profession must include changing the stories lawyers tell themselves. Stories work in an “infinitely subtle process.”37 In the context of the legal profession, a story in which zealous advocates no longer play the part of heroes could “shap[e] [lawyers’ collective] imagination and anchor […them] against the undertow of an unbounded adversarial zeal that teaches that [lawyers] need not care for others.”38 Unless the story of the legal profession changes, lawyers will continue to lean on the adversarial ethic as a "guise for amorality, relativism, and self-deception."39

Given the tall order of the suggested reforms, Kourlis thankfully provides the profession with a starting point: “focus on the people using the system.”40 What is clear is that the public disdains the win-at-all-costs story that pervades the legal profession.41 The public has become aware that “legal ethics” may constitute an oxymoron.42 Lawyerly insistence on adversarial ethics has in turn gotten the profession into a “mess.”43 Despite popular discontent with the profession’s ethical code (or lack thereof), lawyers remain obstinate in their belief in adversarialism, even as that approach chips away at the legitimacy of the legal system as a whole.44

CHANGING THE NARRATIVE: THE FIRST STEP TO A NEW STORY ABOUT THE LEGAL PROFESSION

A new story about the legal profession must restore its reputation. To persuade the public, this story will have to catch on in law school classrooms, law firm boardrooms, and wherever lawyers hold themselves out as representatives of the profession. A revised preamble of the MRPC should provide the entire legal community with a starting point for a different, public-oriented narrative. 

The first section of the current preamble does little to Inspire public confidence in lawyers and even less to dispel public doubts about the priorities of the profession. Read it yourself: “[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”45 

A skeptical member of the public could easily find support for their doubts about lawyers by referring to this section. For one, as a professional, the lawyer bears no responsibility to society writ large—only when a lawyer removes their legal hat and becomes a “public citizen” must they accept a “special responsibility for the quality of justice.” Relatedly, when lawyers act in their professional capacity, the preamble stresses their obligation to their fellow attorneys, their clients, and, lastly, the courts. This ordering aligns with the public’s perception that lawyers pay exorbitant attention to one another and to their clients. Perhaps worst of all, this role conception refrains from imposing any explicit affirmative duty on lawyers to seek justice or, at a minimum, attempt to limit injustice. 

The revised preamble corrects these faults and sets lawyers up to tell a story about themselves that has the potential to earn the public’s trust:

Revised Preamble

[1] A lawyer, as a member of the community first and legal professional second, has a primary duty to serve the interests of society by furthering the rule of law, maintaining public confidence in the legal system, and preventing injustice. The performance of all legal services must comport with that primary duty and be done in a way that upholds the integrity of the profession and public confidence in the administration of law. 

A lawyer who strives to practice pursuant to this revised preamble does not embrace indifference. Indeed, this draft preamble directs lawyers to act as guardians of the law. In practice, this looks like supporting the various functions of the law as well as those intended to benefit most from the protections of the law. In other words, if lawyers complied with this revised preamble, they would begin to more fully meet the public’s expectations. In turn, a virtuous cycle would take hold: lawyers would defend the law, the public would benefit from the protection of the law, and lawyers would consequently earn the respect and trust of the public. 

This lofty conception of the legal profession may seem overly ambitious. Skeptics could make a strong argument that lawyers have grown too accustomed to their current duties to embrace any other role. But not every lawyer has to see themselves in the revised preamble for a different story to take hold in the profession. So, here’s to a few good storytellers reviving the dignity and integrity of lawyers. 

Kevin Frazier was a 2023 FASPE Law Fellow. He is an assistant professor at the Crump College of Law at St. Thomas University.

Notes

  1. A version of this article will appear in Volume 45 of the University of La Verne Law Review.
  2. Comment 1 to Rule 1.3, MODEL RULES OF PROFESSIONAL CONDUCT (1983) [hereinafter MODEL RULES].
  3. David Hoffman, A Course of Legal Study Addressed to Students and the Professions Generally (2d ed. 1836).
  4. Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Codes, 6 Geo. J. Legal Ethics 241, 250 n.60 (1993).
  5. Stephen Kalish, David Hoffman's Essay on Professional Deportment and the Current Legal Ethics Debate, 61 Neb. L. Rev. 54, 61 (1982).
  6. Id.
  7. Hoffman, supra note 2, Resolution I. 
  8. Id., Resolution XI, at 754. 
  9. Id. Resolution XXXIII, 765.
  10. Kalish, supra note 4, at 67.
  11. George Sharswood, An Essay on Professional Ethics, 32 A.B.A. REP. 1 (5th ed. 1907).
  12. Pearce, supra note 3, at 249.
  13. Id.
  14. See id. at 241; cf Sharswood, supra note 10, at 78-79 (discussing a lawyer’s obligation to be entirely devoted to the interest of their client). 
  15. See Pearce, supra note 3, at 250.
  16. See id. at 250.
  17. See id. at 254.
  18. Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 14 (1988). Sharswood was not alone among his contemporaries in advancing this broad role. Chief Justice Gibson of the Pennsylvania Supreme Court stated that it was a "popular but gross mistake to suppose that a lawyer owes no fidelity to anyone except his client." Justice Gibson advocated against a role conception that required a lawyer to adhere to the "biddings of his client against the dictates of his conscience." Sharswood, supra note 3, at 96-97 (quoting various opinions by the Pennsylvania Supreme Court). 
  19. CANONS OF ETHICS, 33 A.B.A. REP. 575 (1908) [hereinafter CANONS]. 
  20. Pearce, supra note 3, at 243.
  21. CANONS, supra note 18, at Canon 32.
  22. Pearce, supra note 3, at 267 (internal citation omitted).
  23. See id. at 276.
  24. Id.
  25. See generally Forest J. Bowman, The Proposed Model Rules of Professional Conduct: What Hath the ABA Wrought?, 13 Pac. L. J. 273 (1982); Robin West, Review: The Zealous Advocacy of Justice in a Less Than Ideal Legal World, 51 Stan. L. Rev. 973 (1999).
  26. Frederick J. Martone, Adversary Adjudication on Trial, 21 Ariz. St. L. J. 227, 228 (1989).
  27. See generally James Elkins, The Moral Labyrinth of Zealous Advocacy, 20 Cap. Univ. L. Rev. 735, 735 (1992).
  28. Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1242 (1991).
  29. Id. at 1244; see also Kalish, supra note 4, at 54 (stating that the current ethical codes define "the attorney's role primarily [as] an advocate in an adversarial setting," and that whatever limits on that role exist, "in balance the tone [of the ethical codes] is adversarial").
  30. See, e.g., William Rochelle & Harvey Payne, The Struggle of Public Understanding, 25 Texas B.J. 109, 159 (1962); Elkins, supra note 26, at 737; Matthew Kim, For Appearance's Sake: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession, 83 Ohio St. L. Rev. 530, 532 (2022). 
  31. Rebecca Kourlis, Public Trust and Confidence in the Legal System: The Way Forward (Sept. 13, 2019), https://iaals.du.edu/blog/public-trust-and-confidence-legal-system-way-forward
  32. Id.
  33. Id. 
  34. Rule 1.16, MODEL RULES, supra note 1. 
  35. Elkins, supra note 26, at 752; see, e.g., Comments to Rule 1.2, MODEL RULES, supra note 1 (insisting that representing a client in no way means the lawyer approves of the client’s positions).
  36. Elkins, supra note 26, at 737.
  37. Id. at 764.
  38. Id. 
  39. See id. at 738.
  40. 39. Kourlis, supra note 30.
  41. See, e.g., Elkins, supra note 26, at 735-37.
  42. Id. at 737.
  43. Id.; see generally Liwen Mah, The Legal Profession Faces New Faces: How Lawyers' Professional Norms Should Change to Serve a Changing American Population, 93 Cal. L. Rev. 1721 (2005). Note that Americans are not alone in distrusting lawyers. See, e.g., Melissa Coade, Why don't people trust lawyers?, LSJ (Dec. 1, 2018), https://lsj.com.au/articles/a-matter-of-trust/ (reporting a lack of trust in lawyers among the Australian public). 
  44. See Elkins, supra note 26, at 737.; Susan Fiske and Cydney Dupree, Gaining trust as well as respect in communicating to motivated audiences about science topics, PNAS (Sept. 15, 2014), https://www.pnas.org/doi/abs/10.1073/pnas.1317505111
  45. Preamble, MODEL RULES, supra note 33.