Ethical limits on civil litigation advocacy: a historical perspective.
CONTENTS INTRODUCTION I. DEFINING A LAWYER'S BASIC DUTIES IN CIVIL LITIGATION A. A Civil Litigator's Duties to the Client B. A Civil Litigator's Duties to the Court II. EARLY LITIGATION ETHICS STANDARDS IN EUROPE A. Ancient Litigation Oaths B. Early English Litigation Conduct Standards 1. The Litigation Oaths of English Ecclesiastical Courts 2. The Litigation Standards of the Early English Lay Courts C. French (and later Swiss) Litigation Oaths III. LITIGATION ETHICS STANDARDS IN THE UNITED STATES THROUGH THE NINETEENTH CENTURY A. American Litigation Standards Before the Nineteenth Century B. Nineteenth-Century Academic Discourse on Litigation Ethics 1. The Client-Oriented View 2. The Lawyer Morality View 3. The Middle View C. The Field Code Statutory Duties of Lawyers D. The Litigation Standards of the 1887 Alabama Code of Ethics IV. MODERN ABA MODEL LITIGATION STANDARDS A. The 1908 ABA National Model Standards B. The ABA Model Code of Professional Responsibility C. The Model Oath and the Just-Cause Duty D. The ABA Model Rules of Professional Conduct CONCLUSION
What are the ethical limits of a lawyer's advocacy in civil litigation? Lawyers, courts, and scholars struggle with this question, (1) but the concern is not new. It is centuries old. Most modern studies of historical legal-ethics debate focus on the early twentieth century, when the American Bar Association (ABA) formulated its first set of national model ethical standards. (2) Some scholars have studied the ethical discourse in the nineteenth century, (3) when the likes of Lord Brougham (in 1820), (4) David Hoffman (in 1836), (5) David Dudley Field (in 1850), (6) and George Sharswood (in 1854) (7) expressed their views of proper litigation advocacy. The concern for proper litigation conduct, however, long predated the nineteenth century, perhaps extending back to ancient times. The actual ethical and practical struggles of lawyers in earlier eras are difficult to capture today, but the regulatory standards for their conduct give some insights to the litigation ethos of the period. In this Article, I explore the early history of formalized civil litigation duties and track these standards to the present day.
In a previous article, I explored the general history of legal ethics standards and identified six core ethical principles that have governed lawyer conduct for centuries: litigation fairness, competence, loyalty, confidentiality, reasonable fees, and public service. (8) In the present Article, I look more closely at the core value of litigation fairness in civil cases. Over the centuries, the concept of litigation fairness has included different duties and standards of conduct, including reasonable behavior, truth, just cause, proper motive, and objective merit. When imposed, these duties have been paramount over any conflicting client duties. Indeed, society has consistently limited a lawyer's advocacy in civil litigation, through the duties of reasonable behavior and truth. The variance or evolution has come, in which additional duties--just cause, proper motive, and objective merit also limit a lawyer's advocacy.
I start, in Part I, by giving definition to the historical account. I identify and describe in general terms the various duties that might apply to a civil litigator. These duties fall in two broad groups: litigation duties to the client (competence, confidentiality, loyalty, and zealous advocacy) and duties to the court and opposing party (reasonable behavior, honesty, objective merit, proper motive, and just cause). The duties overlap somewhat, but each represents distinct values. Some of these litigation duties can be in tension with each other.
In Part II, I examine historical litigation standards in Europe, from ancient times to the colonial era. The thin record of legal ethics duties in this broad time frame provides only a glimpse at the standards of the respective eras. Even these cursory records, however, reveal multiple litigation duties to the court and, importantly, the priority of the duties. The early European advocate's duties to the court, which included reasonable behavior, truth, and often just cause, were paramount over duties owed to the client.
In Part III, I discuss litigation-ethics standards in the United States before the twentieth century. Early regulation was modest, but it tended to follow the English model of prioritizing reasonable and truthful litigation conduct. New attention to counsel in criminal cases prompted deeper consideration of all litigation duties. By the mid-nineteenth century, scholars, lawyers, and regulators, such as Brougham, Hoffman, Field, and Sharswood, attempted to detail the ethical limits of litigation advocacy, in a variety of civil and criminal litigation settings. These attempts exposed some uncertainty, especially concerning zealous advocacy, on the one hand, and just cause, on the other. In the second half of the nineteenth century, new ethics regulation addressed litigation conduct in unprecedented detail. The new regulation continued to prioritize truth and reasonable behavior, but it did not conclusively settle the proper balance between zealous advocacy and other court duties. The new regulation experimented with different limits, including just cause, proper motive, and objective merit.
In Part IV, I track the development of civil litigation duties in the twentieth century in the ABA model ethics standards. The initial ABA 1908 standards built upon the works of the late nineteenth century and stated a nuanced, arguably conflicting, set of civil-litigation duties. Over the next century the ABA further refined and revised its model litigation standards, culminating in the current Model Rules of Professional Conduct. Reasonable behavior and truth, as always, remain paramount duties. Zealous advocacy rose and ebbed as an ideal in the model standards and has today become a concept of diligence. Likewise, just cause faded as an affirmative duty and morphed into, first, a proper-motive standard and then, today, a standard of objective merit. Yet, because the ABA standards are merely models, the older standards linger in actual regulatory standards, including many state oaths that impose a just-cause duty.
Despite this evolution, or perhaps because of it, modern observers, particularly those in the academy, are not in agreement as to the proper standards for a civil litigator's conduct. (9) This debate is not unique to our generation. The debate did not start in 1908 or the nineteenth century. The concern for proper litigation conduct seemingly began with the profession itself. The debate, though centuries old, is fairly narrow. It is not whether a lawyer has a duty of full-out zealous advocacy on behalf of the client. The formal standards never have imposed such an unlimited duty. The question has not been whether a lawyer owes primary duties of truth and reasonable behavior. Lawyers always have had those duties. The question is instead which other duties, beyond reasonable behavior and truth, also limit a lawyer's civil litigation advocacy.
I. DEFINING A LAWYER'S BASIC DUTIES IN CIVIL LITIGATION
No one can define or label all of a lawyer's potential litigation duties with precision or with universal acceptance. Indeed, the definition of the lawyer's ethical duties in litigation is at the heart of the debate both today and in preceding centuries. Nevertheless, some description is necessary to distinguish the duties from each other, and labels are useful shorthand references for study of the historical litigation ethics standards.
My description of the duties here is necessarily general. I do not intend to capture every nuance of the duty or anticipate all applications of the duty. My intent is to describe each duty, in broad strokes, in order to contrast each from other litigation duties. I do not mean to suggest that a civil litigator is bound by all of the listed duties. My aim is to identify the duties that have frequently appeared, over time, in standards for litigation conduct.
Further, I limit my description of the duties to civil litigation, as opposed to criminal cases. Many of the core ideals are the same in both contexts, but a lawyer's duties may vary depending on whether the litigation is civil or criminal. In my discussion of the historical standards, I occasionally note the different context of criminal cases where that difference helped define the duty on the civil side.
Finally, in my labelling of duties, I do not mean to suggest that the historical standards use the same terms. It is precisely because the terms vary over time and place that I attempt to provide consistent terminology for my exploration and comparison of the standards of conduct. My aims are to report on the different standards over time and to categorize them. This involves guesswork as to some standards. We cannot know with any certainty what particular terms meant in their respective eras. Even today, we do not have a uniform understanding of proper litigation conduct.
A. A Civil Litigator's Duties to the Client
In this study, I consider four client duties in litigation: competence, confidentiality, loyalty, and zealous advocacy. The first three are relatively well understood, perhaps because they apply in all aspects of legal practice, not just civil litigation. Competence as applied to civil litigation requires the advocate to possess the basic skill and knowledge to litigate and to take steps to ensure such skill and knowledge. Confidentiality means both voluntary preservation of the client's private information and proper assertion of privilege during discovery and trial. Loyalty requires that the lawyer not have a conflict between the client's interests and those of the lawyer or other parties represented by the lawyer.
The most difficult client litigation duty to define is zealous advocacy. Zealous advocacy requires competence, confidentiality, and loyalty, but to most observers, it means something more. Zealous advocacy suggests a push for excellence. Zealous advocacy, to some observers, requires a strong desire to win and a willingness to "do all" to accomplish the client's goals. It suggests a primacy of the client's interests, perhaps above all others.
The first three duties--competence, confidentiality and loyalty--are not the focus of this historical analysis. I note them as they appear in the historical works, but I do not detail their content or development over time. My aim in noting these duties is both to distinguish them from zeal and to demonstrate their position relative to the duties that the lawyer owed to the court. Zealous advocacy, on the other hand, is a primary focus of my review of the historical ethics standards, for it is the duty most at odds with the lawyer's duties to the court.
B. A Civil Litigator's Duties to the Court
A lawyer in civil litigation also owes duties to the court and to the opposing party. I use the shorthand "duties to the court" to encompass both, because, in a broad sense, the judicial system benefits when a lawyer acts appropriately with regard to both the court and opposing party. (10) For this study, I identify five court duties: reasonable behavior, truth, objective merit, proper motive, and just cause.
One duty is reasonable behavior. The broad concept of reasonableness could describe all of the court-oriented duties. My description of this reasonableness duty here focuses on the lawyer's behavior, rather than the litigation positions that the lawyer asserts or the objectives that the lawyer seeks on behalf of the client. It is a duty directed more toward means than ends. Reasonable behavior includes acting with respect to the court and civility to the opposing side.
Another duty to the court is one of truth, as to both law and fact. This duty usually turns on subjective knowledge and requires a lawyer not to knowingly misstate law or fact in civil pleadings and other filings. It extends to evidence, barring a civil lawyer from knowingly offering any form of false evidence, including testimony of witnesses and sometimes the client. The truth duty also may require a lawyer to affirmatively remedy any falsehoods of which the lawyer later gains knowledge.
A third court duty is objective merit, which, like truth, extends to both law and fact. This standard looks to the objective reasonableness of the position, apart from its literal truth. A knowingly false claim cannot have objective merit, but a position can lack objective merit even if it does not include known falsehoods. Likewise, in contrast to reasonable behavior, the focus of this duty is the merit of the legal and factual positions that the lawyer asserts on behalf of the client, not the tactics.
A fourth duty that might arise in civil litigation is one of proper motive. This duty might extend to the motives of both client and lawyer or it might be limited to either the client or the lawyer. It is a duty distinct from truth or objective merit. Under some versions of this duty as applied to civil pleadings, a lawyer cannot present even a truthful and colorable claim or defense if his or the client's motive is improper. More typically, a motive duty applies to civil papers after the initial pleadings, and it therefore overlaps with the duty of reasonable behavior, in that an improperly motivated tactic is not reasonable. Yet a duty of proper motive has distinct application. The duty of reasonable behavior looks more at effect than motive. An evidentiary objection in a civil trial, for example, might be reasonably stated and presented but improperly motivated, or it might be properly motivated but unreasonably disruptive.
A final duty that a civil litigator may owe to the court is one of just cause. This duty is difficult to define. It arguably encompasses all of the foregoing duties to the court. In other words, a cause (or tactic) is not just if it is not reasonable, honest, objectively meritorious, and properly motivated. Yet the concept of just cause may mean more. For example, a cause might be unjust--from a social, religious, or moral perspective even if it has objective merit and does not involve falsehoods. I do not attempt here to define the proper criterion for just cause because that issue is a principal question in the history and development of litigation advocacy ethics.
The lawyer's court duties all tend to limit the lawyer's client duties, particularly zealous advocacy, in different degrees. If a lawyer has a duty to independently assess the justness of a client's cause from the lawyer's own sense of moral justice, that duty impedes the lawyer's ability to zealously advocate the client's cause. If the lawyer is bound by only a duty of objective merit, rather than moral justice, the lawyer has greater leeway for advocacy. If the lawyer is bound only by a duty of technical truth or reasonable tactics, the lawyer has even more leeway. A duty of proper motive puts a slightly different limit on the lawyer's zealous advocacy. All of these duties act as a limit on zealous advocacy, and, at one time or another, formal regulatory standards have used each of these court duties to limit advocacy.
II. EARLY LITIGATION ETHICS STANDARDS IN EUROPE
Regulatory standards for lawyers began with the profession itself. Some isolated accounts report that ancient advocates took oaths of truth and reasonable behavior. The historical record becomes fuller in the thirteenth century in England and France. The early English and French standards, usually stated in the form of a litigation oath (in essence, "a condensed code of legal ethics"), (11) reflected a reasonably sophisticated array of litigation duties. These standards in turn significantly influenced the development of litigation ethics standards in the United States. Some of the English standards came to America with the English colonists, (12) and the French standards became law in the nineteenth century as many states adopted the Field Code. (13)
Only a few of the early litigation standards spoke directly of duties to the client. This lack of attention to client concerns may reflect society's conception that clients did not merit or need protection, but the focus on court, rather than client, also may be because the primary source of the standards was the litigation oath, mandated and administered by the courts. For whatever reason, in the formal regulatory standards, duties to the court were far more prominent and complex than duties to the client.
The early European standards most commonly demanded truth and reasonable behavior, but some, particularly those in France, also required the lawyer to assess whether the client's cause was just. The precise meaning of this just-cause standard is not known. In most oaths, the just-cause standard suggested something more than mere truth. In some oaths, the term might have connoted objective merit, but often the phrase suggested a broader sense of justness.
A. Ancient Litigation Oaths
Oaths performed many functions in ancient society. (14) Office holders and professionals took oaths to promise proper future conduct, such as in the Greek physicians' Hippocratic oath. (15) Ancient citizens also took oaths to swear to the truth of matters, particularly in the ancient forms of litigation. The early legal professionals, who assisted in litigation, almost certainly took both forms of oaths.
Some historical accounts report that early Roman advocates swore "to avoid artifice and circumlocution," (16) to "only speak that which he believed to be true," not use "injurious language or malicious declamations against his adversary," and not "to employ any trick to prolong the cause." (17) Likewise, ancient Greek advocates reportedly swore to "represent the bare truth, without any preface or epilogue, without any ornament or figure of rhetoric, or insinuating means to win the favor or move the affection of the judges." (18) These oaths stated duties of reasonable behavior and truth that the advocate owed to the system, rather than client. The primacy of these two duties continues today.
An oath reportedly used in the Justinian era suggests further development of the ancient advocate's oath. The Justinian Code, written in the sixth century (AD), purported to codify previous Roman law, and the Justinian oath therefore might provide some insight to older oath practice. (19) The Justinian oath, translated from Latin, is as follows:
[T]hey will undertake with all their power and strength, to carry out for their clients what they consider to be just and true, doing everything which it is possible for them to do. However, they, with their knowledge and skill, shall not prosecute a lawsuit with a bad conscience when they know that the case entrusted to them is dishonest or utterly hopeless or composed of false allegations. But even if, while the suit is proceeding, it were to become known that it is of that sort, let them withdraw from the case, utterly separating themselves from any such common cause. (20)
This litigation oath stated duties to both client and court. First, it stated a fairly recognizable duty of zealous advocacy that went beyond mere competence and loyalty. Lawyers had to swear to "use all their power and strength" to do "everything possible" on behalf of their clients. Yet the duty was limited. The next sentence of the oath expressly conditioned the zeal command with a "however" clause that prioritized truth. Lawyers had to ensure that their causes were "true," not "dishonest" and not "composed of false allegations." Moreover, if the lawyers later learned that a case was dishonest, they had to withdraw and "utterly separate themselves" from the case.
Importantly, this oath apparently imposed a just-cause duty. It required a lawyer to not proceed with a "bad conscience," to consider whether the case was "just and true" and whether it was "utterly hopeless." It is possible that the terms were simply synonyms for truth, in that a case was just if true, a case was utterly hopeless if not true, and a lawyer could not have a good conscience if he made false statements. Yet the juxtaposition of these terms suggests a duty that went beyond truth. These terms also could have connoted objective merit. A case that lacked objective merit could have been described as utterly hopeless or unjust. Lawyers and courts of the era may have understood this duty and its limits, or perhaps they debated the proper meaning and practical application of their litigation duties, as lawyers do today. In any event, the Justinian oath unquestionably put limits on advocacy, and those limits likely went beyond mere truth.
B. Early English Litigation Conduct Standards
The legal profession faded in Europe during the "dark ages." (21) By the early thirteenth century, lawyers began to reemerge in England, (22) and when lawyers returned, so did their regulation. The regulation in the early period is most evident in the records of the ecclesiastical courts of England, but English lay courts also regulated litigation conduct. The emphasis of this regulation was truth, but the regulation also varyingly imposed duties of reasonable behavior, proper motive, objective merit, and just cause.
1. The Litigation Oaths of English Ecclesiastical Courts
In England, in 1237, the council in St. Paul's, London, decreed a litigation oath for ecclesiastical advocates. This decree primarily required litigation honesty: "Let all advocates beware that they do not themselves, or by means of others, suborn witnesses, or instruct the parties to give false evidence, or to suppress the truth." (23) The advocate also swore that he would "plead faithfully, not to delay justice or to deprive the other party of it; but to defend his client both according to law and reason. (24) The delay phrase reflected a reasonableness duty. The last portion--defense of the client according to "law and reason"--may have reflected a client-oriented competence duty, but its context suggests a duty to the court. The preceding claus--the requirement that the lawyer not "deprive the other party" of "justice"--unquestionably stated a duty to the court that might include a just-cause duty. Indeed, Professor Brand characterized this as requiring advocates to not prevent opponents "from getting justice if they had right on their side." (25)
Professor Brand reported that in 1273, Archbishop Kilwardby imposed upon advocates practicing in the Court of Arches in London a "much fuller" oath that consisted of five clauses. (26) The first clause, according to Professor Brand, stated duties to the client--"faithful and diligent service to their clients." (27) This suggests duties of competence, loyalty, and perhaps zealous advocacy. A second clause reportedly stated an explicit just-cause duty: advocates reportedly swore "not to knowingly accept unjust causes and to relinguish [sic] such causes if they only discovered this after they had agreed to act." (28) The third clause stated a duty of reasonable behavior and tactics: not to seek unjust delays or unnecessarily protract litigation. (29) A fourth clause, unique in English precedent according to Professor Brand, required advocates to not knowingly infringe upon ecclesiastical liberties. (30) In the last clause, advocates swore to a client duty regarding fees. (31) Thus, although this oath had some regard for the client, duties to the court, including truth, reasonable behavior, and just cause, were paramount.
In 1295, the Archbishop of Canterbury imposed an oath that emphasized the lawyer's duty to conduct a prefiling inquiry. Under this oath, lawyers swore
that they will bring no case to trial, unless they believe it to be true and honest, upon the information on the part of their clients; that, in receiving informations from their clients, they will elicit from them, with all possible caution, the truth of the case, and they will clearly show their clients the dangers to which they expose themselves in legal proceedings as far as they know, declining to prosecute any further desperate, bad cases; and as soon as the cases or surrounding conditions show themselves to be unjust (dishonest) from the point of view of the law, they shall relinquish them entirely. (32)
A duty of pre-filing inquiry can help the client, but the phrasing of this duty suggests it primarily served the court, rather than client. The lawyer had to use "all possible caution" when talking to the client to elicit "the truth of the case" and counsel the client as to "the dangers to which they expose themselves in legal proceedings." (33)
This 1295 oath referred to a duty of both truth and just cause, but the just-cause duty may have been narrow. One translator of the oath--Josiah Benton in 1909--included a parenthetical stating "dishonest" after the word "unjust," which may or may not have reflected the original understanding of the term in 1295. (34) Moreover, this oath expressly linked its just-cause duty to objective merit: the lawyer had to withdraw when the case showed itself as unjust "from the point of view of the law." (35)
Although this record of English ecclesiastical oaths is not full, it suggests some important elements of the litigation standards for lawyers practicing in those courts. First, the client was not the primary concern. Only fleeting reference is given to client protection. Second, duties to the court expressly overrode any client concerns. The lawyer at times had to refrain from taking actions that might benefit his client, including withdrawing altogether. Third, the emphasis was truth, with suggestions of just cause, objective merit, and reasonable behavior.
2. The Litigation Standards of the Early English Lay Courts
The English Parliament soon followed with regulation of lawyers practicing in the King's courts. In 1275, the first Statute of Westminster set forth a variety of legal reforms, aimed primarily at regulating "serjeants," also known as "countors" (early predecessors to modern barristers). (36) A few sections dealt with specific issues, such as champerty and court delays. Chapter 29, entitled "Deceits by Pleaders," more broadly regulated the conduct of lawyers:
That if any Serjeant, Pleader, or other, do any manner of Deceit or Collusion in the King's Court, or consent [unto it,] in deceit of the Court, [or] to beguile the Court, or the Party, and thereof be attainted, he shall be imprisoned for a Year and a Day, and from thenceforth shall not be heard to plead in [that] Court for any Man.... (37)
This statute's use of the term "deceit" obviously imposed a duty of truth, but, according to Professors Brand and Rose, English courts applied this provision to develop "detailed norms" of conduct, which included not only duties to the court but also to the client. (38)
According to Professor Brand, courts used the statute to impose prohibitions against not only "knowingly misleading the court" (a truth duty), but also against "persisting with lines of argument which the court had told them were unacceptable or wasting the time of the court" (a reasonable behavior duty). (39) On the client side, Professor Rose reported that courts developed the concept of "ambidexterity," to connote a loyalty duty similar to modern notions of conflicts of interest. (40) Ambidexterity in turn included the concept of confidentiality. (41) This confidentiality principle, although indirectly stated, is one of the earliest formal English recognitions of a client confidentiality duty. (42)
A 1280 London ordinance supplemented the Statute of Westminster, by setting standards of litigation conduct for lawyers who practiced in the courts of London. (43) The ordinance complained of "ignorance" and of "foolish" pleaders who created a "scandal of the Courts," (44) and focused primarily on reasonable behavior and tactics. The ordinance, for example, required lawyers "to plead and ... make proffers (profres) at the bar (la bare) without baseness (vileinie) and without reproach and foul (lede) words and without slandering (mesdire : reviling?) any man." (45)
Some informal sources, in the nature of academic discourse, more broadly outlined the lawyer's litigation duties. One early example is the Mirroir Des Justice or Mirror of Justices, which is believed to have been written about 1285. (46) Scholars disagree about the nature of this work, some calling it a treatise and others calling it a critique or parody of lawyers. (47) In any event, it provided a glimpse into litigation standards of the era. It reported a serjeant's oath that stated a primary duty of honesty owed to the court: he "will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrongdoing." (48)
The Mirror of Justices also listed other litigation duties:
[H]e will never have recourse to false delays or false witnesses, and never allege, proffer, or consent to any corruption, deceit, lie, or falsified law, but loyally will maintain the right of his client, so that he may not fail through his folly, or negligence, nor by default of him, nor by default of any argument that he could urge; and that he will not by blow, contumely, brawl, threat, noise, or villain conduct disturb any judge, party, serjeant, or other in court, nor impede the hearing or the course of justice. (49)
This listing included duties to the client, including competence ("folly or negligence") and zealous advocacy ("default of any argument that he could urge"). Its duties to the court included truth ("false delays or witnesses," "deceit, lie or falsified law"), reasonable behavior ("blow, contumely, brawl," contemptuous rudeness) and just cause ("the course of justice").
The bar and inns also informed lawyers of their ethical duties. In 1648, Lord Commissioner Whitelocke lectured new serjeants regarding their three "general" duties--"Secrecy, Diligence, and Fidelity." (50) This list of general duties reflected a greater concern for client than the formal standards of this and preceding eras. This concern might be attributable to the nature of Lord Whitelocke's speech--inspirational training of new serjeants--but it also could have reflected an increasing awareness of client concerns. These duties included the full litany of client duties--competence ("diligence"), loyalty ("fidelity"), and confidentiality ("secrecy")--and together they hinted at zealous advocacy. Indeed, Lord Whitelocke used the word "zeal," one of the earliest express references to "zeal" in advocacy in reported ethical statements. (51) But Lord Whitelocke made this reference in the context of limiting the advocate's zeal: "An Advocate owes to the Court a just and true Information, the zeal of his Clients Cause, as it must not transport him to Irreverence, so it must not mislead him to untruths in his Information of the Court." (52) Thus, despite recognition of zeal on behalf of clients, the serjeant had greater duties to the court. These higher duties included duties of truth and just causes (a "just and true Information") and a duty of reasonable behavior (owing "great Respect and Reverence" to the court).
The other branch of the early English bar--attorneys (predecessors to modern solicitors) had similar ethical duties. The best-known source of legal ethics standards for early attorneys is the following "do no falsehood" litigation oath:
You shall doe hoe Falshood, nor consent to anie to be done in the Office of Pleas of this Courte wherein you are admitted an Attorney And if you shall know of anie to be done you shall give Knowledge thereof to the Lord Chiefe Baron or other his Brethren that it may be reformed you shall Delay noe Man for Lucre Gaine or Malice you shall increase noe Fee but you shall be contented with the old Fee accustomed And further you shall use your selfe in the Office of Attorney in the said office of Pleas in this Courte according to your best Learninge and Discrecion. So helpe you God. (53)
English attorneys took a form of this oath for centuries, starting perhaps as early as the thirteenth century. (54) The language varied, but the English attorney's "do no falsehood" oath typically included a competence duty--"best learning and discretion"--which phrasing also hinted at zealous advocacy. Yet the oath prominently stated a specific duty of truth (a prohibition against false evidence and claims) and a combined duty of reasonable behavior and proper motive (to not delay litigation for "gain" or "malice"). These duties expressly overrode the attorney's duty to his client: the oath required an attorney to report falsehoods to the court. This oath in its original form did not include either a just-cause duty or a duty of objective merit.
This overall history of litigation standards in England, from the Middle Ages until the colonial period, shows a relatively detailed set of ethical standards for lawyers in litigation. These standards usually emphasized the primary duties to the court, rather than the client. The duties to the court were typically truth and reasonable behavior. Objective merit and proper motive also were suggested. Only a very few English statements, primarily the early ecclesiastical oaths, urged a distinct duty of just cause.
C. French (and later Swiss) Litigation Oaths
The early history of litigation standards in France paralleled that of England. Litigation oaths were the primary source of ethical standards, and the French oaths reflected the same concerns as the English standards. They included some duties to client, but the emphasis was duties to the court. In comparison to the English standards, the French oaths more prominently stated a just-cause duty.
Two French ecclesiastical oaths, both dictated in 1231, stated relatively sophisticated litigation duties. One required that
[e]very single advocate shall swear that he will faithfully perform his duties; that he will not support cases that are unjust or militate against his conscience; that he will not abstract (embezzle) documents of his party (client) nor cause such to be abstracted; that he will not, to his knowledge, use false pleas, or such as have been malitiously excogitated; that he will not bring it about that falsehoods and surreptions be made, or that false documents be produced in his case; nor that he will prolong (delay) the case of his client as long as he believes that he is acting in the interest of the client himself; and that in those matters which shall be transacted in court and concerning which requirements are made of him by the Judges, he will not silence the truth according to his belief; and that if he become convinced of being inadequate to the handling of the case, he will have conference with the procurators; and that he will prepare with his own hand a journal and the acts in cases which he has taken, as faithfully as possible; or that he will cause them to be written out, in case he be neither able nor willing to do so himself. (55)
The other, "Oath of the Advocates," provided
[t]hat they shall not favor (take) knowingly cases that are not just; nor shall they bring about, with malice aforethought, undue delay or haste in the conduct of cases by means of false oath, rather than stand by the truth. Nor shall they instruct their client toward malitious answer or statement; nor shall they after the published attestations, or at any stage of the trial, nor even before the oath suborn witnesses, or cause them to be suborned. Nor shall they permit their client to produce false witnesses; and if they should gain knowledge thereof, they shall reveal such to the court. If memorials (briefs) are to be made they shall do so in good faith, and not withdraw from court malitiously, until the memorial be completed and admitted in court. Clients they shall expedite to the best of their ability, and in good faith. Nor shall they bother (literally burden) the Judge with objections, believing that they will give in to them. They shall sustain the honor of the court, nor perpetrate in court a falsehood. (56)
These 1231 oaths stated duties to both client and court. The client duties included forms of competence ("inadequate ... handling" of cases), loyalty (not "embezzle" client documents) and zealous advocacy ("expedite to the best of their ability"). The duties to the court were more plentiful. They enumerated multiple aspects of the truth duty: to not use false pleas, to not offer false documents, to not suborn perjury, and to maintain the honor of the court by not perpetrating falsehoods. They stated duties of reasonable behavior and proper motive, including to not burden judges with undue objections and to not use malicious pleas. Both oaths also stated duties to not bring unjust cases ("unjust or militate against his conscience" and "not just"). The several duties to the court were paramount and required affirmative reporting to the court: a lawyer must not "permit [a] client to produce false witnesses" and if he learns later of false evidence, he "[should] reveal such to the court."
In 1278, an ecclesiastical oath added a more explicit statement of zealous advocacy. It required lawyers to give "their clients as faithful defense as is in their power." (57) Once again, this duty was joined with the duty "to not favor cases that are unjust." (58)
In 1274, King Phillip III enacted an ordinance that regulated lawyers in the general courts. His stated purpose was to give his subjects the "lawful right in cases at law" and "to deter those who ... offer their professional services, from maliciously protracting legal contests or charging immoderate fees." (59) The principal mode of regulation was an oath, by which the lawyer swore every year to abide by duties owed to both the client and the court:
That in all cases which are being tried in said courts before which they have practiced in the past or shall practice, they will perform their duties bona fide diligently and faithfully as long as they have reason to believe their case to be just. They shall not bring any case into said courts either as defending or counseling lawyers unless they shall have believed it to be just; and, if at any stage of the trial the case appears to them unjust, or even intrinsically bad, they shall discontinue to further defend it, withdrawing from said case entirely as defending or counseling lawyers. (60)
The duty owed to the client ("[to] diligently and faithfully [act]") suggested competence, loyalty, and zealous advocacy, but it was expressly subordinate to a duty to the court ("as long as they have reason to believe their case to be just"). The priority of duties to the court also was reflected by the duty to withdraw from a case if the lawyer came to believe that a cause was unjust or "even intrinsically bad." By distinguishing between these two standards, this oath's withdrawal duty suggested both a just-cause and an objective-merit standard.
Over the next several centuries, French ordinances supplemented the 1274 oath with additional duties to court and client. In 1344, the oath included prohibitions against "false citations" and postponements "by subterfuge." (61) In 1536, the oath added provisions against conflicts of interest (62) and a confidentiality duty. (63)
Importantly for the development of legal ethics standards in the United States, the medieval French litigation oaths became the basis for an oath imposed by the Canton of Geneva, Switzerland, in 1816. (64) A few decades later, this Swiss oath in turn became the basis for a common set of statutory duties in the United States, embodied in the Field Code. (65) The 1816 Swiss oath required the lawyer to swear as follows:
1. I swear, before God, to be faithful to the Republic and the Canton of Geneva.
2. To never act without the respect due to the Tribunal and the Authority.
3. To not counsel or maintain any cause that I do not feel is just or equitable, as long as it does not refer to a criminal defense.
4. To not knowingly use any means outside of the truth, in order to maintain the causes brought before me, and to never trick Judges by any means, nor by any false presentation of facts and laws.
5. To absolve myself from any offensive personality, and to not advance any fact contrary to the honor and the reputation of the parties, unless it is a necessary for the advancement of our cause.
6. To not encourage or commence any lawsuit because of any personal interest.
7. To never refuse counsel based on personal considerations, causes of feeble, foreigners, or oppressed.
8. May God punish me if I break these rules. (66)
The Swiss oath only hinted at client concerns, in the sixth and seventh clauses. These clauses to some degree reflected loyalty in that they barred a lawyer from bringing suits for "any personal interest" and from declining cases for "personal considerations." Both of these also reflected other concerns. The sixth clause arguably sought also to protect the other party from suits motivated by the lawyer's personal interests. The seventh clause reflected the societal concern of availability of legal services.
The remainder of the Swiss oath focused on the court. It stated multiple duties of reasonable behavior. The second clause demanded respect to the court. The fifth clause required the lawyer to refrain from offensive personality. Interestingly, the fifth clause conditioned a reasonableness duty. It first stated a duty to not use facts to undermine the honor and reputation of the parties, but it concluded with a caveat, "unless ... necessary for the advancement of [the] cause." This is a rare example of a client-oriented duty qualifying a court duty.
The fourth clause stated an extensive truth duty. It barred false and misleading "means," providing that a lawyer may not use "means outside of the truth" to maintain causes and may never "trick Judges by any means." It also barred "false presentation of facts and laws."
Finally, the third clause of the Swiss oath stated a just-cause duty. In a distinction that soon would prove important to development of American legal ethics standards, the Swiss oath exempted criminal defense from the just-cause duty. Yet it did not exempt criminal defense lawyers from the other court duties of the second, fourth, and fifth clauses. Thus, the just-cause duty was distinct from and in addition to the reasonable behavior and truth duties.
In sum, the early French standards roughly paralleled the English standards, with the formal standards in France more prominently stating the just-cause duty. Truth and reasonable behavior were paramount duties from the very beginning of the profession in both cultures. The other court duties--objective merit and proper motive--appeared with less frequency. Client concerns were often unstated, and when stated, the client duties, including zealous advocacy, were expressly subordinate to the lawyer's duties to the court.
III. LITIGATION ETHICS STANDARDS IN THE UNITED STATES THROUGH THE NINETEENTH CENTURY
In America, the colonies and early states minimally regulated legal ethics, and to the extent that the regulation followed a European model, it used the English standards. The early regulation typically imposed only truth and reasonableness duties. In the early and mid-nineteenth century, academics began to discuss more broadly proper litigation advocacy, and, in doing so, they identified areas of uncertainty, particularly with regard to the proper limits on advocacy beyond truth and reasonable behavior. In the second half of the nineteenth century, states began to set regulatory standards of litigation conduct. The new regulation began with the Field Code, which brought the 1816 Swiss oath, including its just-cause standard, to the United States. Bar associations soon followed with new codes of legal ethics that experimented with other litigation standards.
A. American Litigation Standards Before the Nineteenth Century
Regulation of lawyers and their conduct was sporadic in early America. Many colonies used the English "do no falsehood" oath. (67) Some colonies had unique litigation oaths. A 1705 Rhode Island law, for example, mandated an oath that imposed a form of objective merit standard: "not to Plead for favour nor affection for any Person, but ye meritt of the Case according to Law." (68) During and after the revolution, many, but not all, colonies and early states moved to a simple oath that required lawyers only to swear allegiance and to promise to truly and honestly demean themselves. (69)
A few procedural statutes and court rules addressed lawyer behavior in litigation. In Maryland in 1682, the Upper House of the Assembly imposed a reasonable-behavior duty on lawyers arguing an appeal before them by ordering the lawyers to "speak distinctly to one Error first before they proceed to the next without Disturbing each other." (70) In 1813, the new federal Congress passed the "vexatious lawyer" statute, which imposed a duty that reflected both reasonable behavior and proper motive: a lawyer could not "multipl[y] the proceedings ... so as to increase costs unreasonably and vexatiously." (71) In 1842, the first set of codified federal equity rules required that a lawyer attest that there was "good ground for the suit," an objective merit standard. (72)
Most legal ethics guidance in this early era in the United States likely came through informal sources, such as speeches and office training. The record of the content of such discourse in this era is thin. One example is a work by Cotton Mather in 1710. (73) He instructed each lawyer to behave reasonably: "keep constantly a Court of Chancery in your own Breast" and "abominate the use of all unfair Arts to Confound Evidence, to Browbeat Testimonies, to Suppress what may give Light in the Case." (74) He similarly urged lawyers to think of their broader reputation and duty to society and to refute the "old Complaint, That a Good Lawyer seldom is a Good Neighbor ... by making your Skill in the Law a Blessing to your Neighborhood." (75)
In sum, the nineteenth century began with few formal dictates as to the litigation duties of American lawyers. These few standards tended to follow the English model of requiring honest and reasonable behavior in litigation. Client duties were rare. Some rules imposed objective merit or motive standards, but apparently no formalized early American standard imposed an explicit duty of just cause.
B. Nineteenth-Century Academic Discourse on Litigation Ethics
The nineteenth century was a transformative century for legal ethics in the United States. This transformation began largely with academic discussion of legal ethics. Lawyers and academics began to flesh out, in unprecedented detail, the broad inherited traditions of proper litigation conduct. As lawyers and scholars added detail to the broad standards and applied them in specific situations, they revealed some uncertainty as to the underlying litigation duties.
One area of uncertainty was the proper ethical role of criminal defense lawyers. American lawyers did not have a broad historical basis from which to draw ethical standards for criminal cases. Criminal defense had never been the focus of European litigation oaths. In England, legal representation in criminal cases was not as common as in civil cases. England did not extend a full right of criminal defense counsel until the nineteenth century. (76) In the United States, lawyers and academics discussed whether federal (77) and state (78) constitutional guarantees impacted the ethical standards governing criminal defense lawyers. This discussion typically compared a lawyer's duties in criminal cases and civil cases, which in turn prompted a reevaluation of the civil duties.
Today, scholars attempt to describe the nineteenth-century ethical discourse as falling into a particular model or view of proper litigation advocacy. (79) In broad strokes, modern scholars have classified the nineteenth-century discussion into three broad models of litigation behavior: a client-oriented view, a lawyer morality view, and a middle view. Although a spectrum of views may be a more accurate description of the nineteenth-century discourse, these three categories help identify the issues and the struggle to define the proper limits, if any, on litigation advocacy.
1. The Client-Oriented View
The nineteenth-century client-oriented view typically is associated with English Lord Brougham, who urged that the lawyer knew but one person, his client. Lord Brougham made this statement in 1820 in his defense of Queen Caroline against criminal adultery charges filed by the King. Lord Brougham had learned confidentially that the King was a "bigamist and a perjurer," which might have defeated the King's title to the crown. (80) Supporters of the King supposed that Lord Brougham would not expose the King, but Lord Brougham's famous statement revealed otherwise:
[L]et no man vainly suppose, that not only I, but that any, the youngest member of the profession would hesitate one moment in the fearless discharge of his paramount duty. I once before took leave to remind your Lordships--which was unnecessary, but there are many whom it may be needful to remind--that an advocate, by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means--to protect that client at all hazards and costs to all others, and among others to himself--is the highest and most unquestioned of his duties; and he must not regard the alarm the suffering--the torment--the destruction--which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client's protection! (81)
Although given in a narrow context (a high-profile criminal case in England) without full explanation, Lord Brougham's statement became a focal point of legal ethics debate in nineteenth-century America. The idealized (or more often demonized (82)) characterization of Lord Brougham's statement was that the lawyer's only duty was to his client and required full zealous advocacy. This characterization may not accurately reflect Lord Brougham's personal views, (83) but he nonetheless became the symbol of the client-oriented model of litigation. This model at a minimum put the client in greater prominence than did other views of the nineteenth century and more so than the historical standards from earlier eras. In addition, this model almost certainly rejected the just-cause duty, perhaps in all litigation but particularly in criminal defense.
2. The Lawyer Morality View
The man primarily associated with the lawyer morality view is David Hoffman, a professor of law at the University of Maryland. In 1836, Hoffman, as part of his Course of Legal Studies, stated fifty "Resolutions In Regard to Professional Deportment," which he urged each lawyer to regularly repeat. (84) His first resolution expressly downplayed zeal: "I will never permit professional zeal to carry me beyond the limits of sobriety and decorum." (85) Several other resolutions demanded reasonable behaviors (86) and truth in litigation. (87)
But Hoffman went beyond merely demanding reasonable and truthful litigation conduct. He is most known for his resolution that lawyers must use their own conscience, not the wishes of the client, to guide them in litigation:
My client's conscience, and my own, are distinct entities: and though my vocation may sometimes justify my maintaining as facts or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privileges of solely judging to what extent to go. In civil cases, if I am satisfied from the evidence that the fact is against my client, he must excuse me if I do not see as he does, and do not press it: and should the principle also be wholly at variance with sound law, it would be dishonourable folly in me to endeavour to incorporate it into the jurisprudence of the country, when, if successful, it would be a gangrene that might bring death to my cause of the succeeding day. (88)
Although framed in terms of the lawyer's own conscience, this statement arguably tied the lawyer's decision to objective merit. Hoffman permitted the lawyer to judge facts or principles in "doubtful cases" that could go either way. (89) He likewise condemned as "gangrene" and "dishonorable folly" legal arguments that were "wholly at variance with sound law." (90)
Elsewhere, however, Hoffman suggested a distinct just-cause standard, apart from objective merit and truth. In Resolution 11, Hoffman urged that a lawyer must abandon a claim or defense "[i]f, after duly examining a case" he is persuaded that the "client's claim or defence ... cannot, or rather ought not, to be sustained." (91) The last clause of this Resolution hinted at both an objective merit and a just-cause standard for judging whether the position "ought" to be pressed: "reason to believe" that the position "would be denied ... both by law and justice." (92) Hoffman's particular application of these principles to civil defenses exemplified a just-cause duty that turned on morality. Hoffman admonished lawyers in civil cases to intercede and not present defenses such as the statute of limitation (93) or infancy, (94) even if otherwise valid, if his client actually owed the debt. Hoffman claimed that a lawyer's assertion of either defense, at least in some cases, would make the lawyer a "partner in [the client's] knavery." (95) It would not be moral. (96) He therefore urged the lawyer to be "the sole judge (the pleas not being compulsory) of the occasions proper for their use." (97)
Hoffman did not ignore client concerns. Although he did not state a duty of confidentiality, he stated duties of both competence (98) and loyalty. (99) Moreover, Hoffman urged "zealous" advocacy: "[t]o my clients I will be faithful; and in their causes, zealous and industrious." (100) The major contrast to the view attributed to Lord Brougham was that Hoffman believed that a lawyer had many limits on his advocacy. Those limits seemingly included the lawyer's own assessment of what was "right," "moral," or just.
3. The Middle View
The man most often cited as advocating a middle view, between that of Lord Brougham and Hoffman, is George Sharswood. Sharswood was a Professor and Dean at the University of Pennsylvania, and he later served as the Chief Justice of the Pennsylvania Supreme Court from 1879 to 1883. (101) His 1854 An Essay on Professional Ethics was a seminal work. (102)
Sharswood was not the lone voice in the middle. In all likelihood, most nineteenth century lawyers had a form of middle view. For example, Professors Zacharias and Green attribute the middle view to Sharswood's predecessor as Chief Justice of the Pennsylvania Supreme Court, John Gibson. (103) They place particular reliance on an 1845 opinion by Chief Justice Gibson in Rush v. Cavenaugh: in which Chief Justice Gibson stated that
[i]t is a popular, but gross mistake, to suppose that a lawyer owes no fidelity to any one except his client; and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for the conviction of an innocent man. (104)
Professors Zacharias and Green take from this language, particularly the reference to "an unjust judgment," that Chief Justice Gibson's view of proper advocacy was imbued with a sense of "professional conscience" that derived from norms "not necessarily ... expressed in the law" and "not explicitly spelled out in the lawyer's oath" but instead transmitted "through professional socialization." (105) In a previous article, I took slight issue with their conclusion, but only to the extent that it overlooked or downplayed the significance of the litigation oaths, particularly the older European oaths that stated a just-cause duty. (106) Regardless of the source of the just-cause duty, Chief Justice Gibson's efforts could be fairly characterized as attempting to define that duty. Sharswood did the same, and he relied upon the work of Chief Justice Gibson in doing so. In fact, in his essay, Sharswood quoted the above passage from the Rush case. (107) Because Sharswood's essay is more developed and well known, I use Sharswood as the model for the middle view.
Sharswood structured his essay around three fundamental obligations: "[f]idelity to the court, fidelity to the client, fidelity to the claims of truth and honor." (108) This statement conceived of truth as an independent duty (the third on his list), but Sharswood also featured truth prominently in his discussion of the first listed duty, that of fidelity to the court. (109) His discussion of duties to the court also included multiple aspects of reasonable behavior, such as "respect" and equal temper. (110)
Sharswood's discussion of the second obligation (that to client) was a lengthy exposition in which he attempted to balance client needs against the lawyer's other duties. According to Sharswood, the "topic of fidelity to the client involves the most difficult questions in the consideration of the duty of a lawyer." (111) He described competence as only a baseline duty to avoid legal malpractice liability. (112) The duty to the client went beyond mere technical competence: it required zeal. "Entire devotion to the interest of the client, warm zeal in the maintenance and defence of his rights, and the exertion of the utmost learning and ability" were, according to Sharswood, the moral responsibility of lawyers. (113)
Warm zeal notwithstanding, Sharswood did not endorse the full client-oriented view. To the contrary, Sharswood characterized Lord Brougham's statement as one "led by the excitement of so great an occasion to say what cool reflection and sober reason certainly never can approve." (114) Sharswood believed that there were limits on a lawyer's zeal. He framed the question in terms of what was "just and right" (115) (a just-cause duty), but he also acknowledged the difficulty in defining these limits with any specificity. "It may be delicate and dangerous ground to ... descend to particulars upon such a subject." (116) Despite this danger, Sharswood offered his views, and to do so, he made several distinctions: between criminal and civil cases, between civil plaintiffs and civil defendants, between substantive defenses and defense tactics, and between tactics in defending just and unjust civil claims. (117)
One of Sharswood's concerns was reconciling the constitutional rights of criminal defendants with the personal beliefs of the lawyer. He concluded that a lawyer may "exert all of his ability, learning and ingenuity, ... even if he should be perfectly assured in his own mind of the actual guilt" of the criminal defense client. (118) Sharswood continued by imposing a strong just-cause duty on private prosecutors: "It is a different thing to engage as private counsel in a prosecution against a man whom he knows or believes to be innocent. ... It ought never to be done against the counsel's own opinions of its merits." (119)
On the civil side, Sharswood based much of his discussion on the distinction between just and unjust causes, and in doing so, he seemingly used a moral standard for "just." As to proper litigation advocacy on behalf of civil plaintiffs, Sharswood's position was similar to that of Hoffman. Sharswood began by noting that "the claim of a plaintiff stands upon a somewhat different footing" than a civil defendant. (120) He explained that the "courts are open to the party in person to prosecute his own claim, and plead his own cause," and a plaintiff chose to go to court, but the defendant did not. (121) Sharswood believed that a lawyer had a duty to decline to represent plaintiffs in prosecuting claims that the lawyer considered unjust. "Counsel have an undoubted right, and are in duty bound, to refuse to be concerned for a plaintiff in the legal pursuit of a demand, which offends his sense of what is just and right." (122)
In contrast to Hoffman, Sharswood believed that a civil defense lawyer properly could assert defenses, such as the statute of limitation: "the legislature has seen fit in certain cases to assign a limit to the period within which actions shall be brought" and the "party has a right to have his cases decided upon the law and the evidence, and to have every view presented to the minds of the judges, which can legitimately bear upon the question." (123) According to Sharswood, the client himself perhaps should decide not to plead these defenses in some cases, (124) but the client, not the lawyer, should make this decision. The lawyer is "not morally responsible" for the client's decision. (125) Moreover, to decline to assert the defense would be improper because to refuse "his professional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury." (126)
Sharswood's discussion of legal defense tactics, rather than the defense objectives, is subtle and not easy to grasp. He built his discussion on the distinction between modes of defending a just claim and an unjust claim. According to Sharswood, a lawyer defending a just claim should refrain from "insisting upon the slips of the opposite party, by sharp practice, or special pleading." (127) By contrast, to defend an unjust claim, "the advocate may justly avail himself of every honorable ground to defeat" the claim. (128) The distinction between "sharp practice" and "honorable ground" is hard to decipher today, but Sharswood seemingly intended a difference in proper defense tactics, based on whether the defense lawyer perceived the plaintiff's claim to be just.
In sum, although Sharswood believed that the lawyer should act with zeal on behalf of his client, he also believed, like Hoffman, that zeal had important limits. A lawyer had higher duties, which included reasonable behavior, truth, and just-cause duties. Sharswood was more restrained than Hoffman on the application of the just-cause duty. Sharswood applied this duty fully to plaintiffs but not to civil defendants. A lawyer was duty bound to decline a civil claim that the lawyer believed was unjust, but the lawyer was duty bound to present civil defenses even if the defense violated the lawyer's sense of justice.
The nineteenth-century discourse thus has much richer detail regarding proper litigation advocacy than the formal ethics statements of earlier eras. Much of the discussion involved subtle distinctions. The views of Lord Brougham, Hoffman, and Sharswood are not necessarily three distinct categories, but they are good shorthand references to different positions on the proper balance of zealous advocacy, on the one hand, and just cause, on the other. The view attributed to Lord Brougham symbolized a rejection of the just-cause duty in favor of strong notions of zealous advocacy. The view attributed to Hoffman represented a strong duty of just cause and a limited conception of zealous advocacy. Sharswood symbolized a more nuanced position and a more delicate balance between zealous advocacy and just cause, although one tilted in favor of just cause. All three would influence and inform the next era of legal ethics standards--the regulations of the Field Code and of the bar codes.
C. The Field Code Statutory Duties of Lawyers
A major development in legal ethics in the United States came in the second half of the nineteenth century, when many states adopted the Field Code statement of duties of a lawyer. David Dudley Field drafted the "Field Code" in 1848, and it served as a model code for many states and territories in the second half of the nineteenth century. (129) The Field Code is famous for its provisions governing civil procedure, but it also regulated attorney admission. Section 511 stated eight statutory duties of a lawyer:
1. To support the constitution and laws of the United States, and of this state
2. To maintain the respect due to the courts of justice and judicial officers
3. To counsel or maintain such actions, proceedings or defences, only as appear to him legal and just, except the defence of a person charged with a public offence
4. To employ for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of fact or law
5. To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets, of his clients
6. To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged
7. Not to encourage either the commencement or the continuance of an action or proceeding, from any motive of passion or interest and
8. Never to reject, for any consideration personal to himself, the cause of the defenceless or the oppressed. (130)
Field based his eight duties directly on the 1816 Swiss oath. (131) The Field Code stated the same truth and reasonableness duties to the court as did the Swiss oath, including the unique "unless" qualification on the reasonableness duty in the sixth clause. (132) The key difference in content between the Field Code and the Swiss oath was the addition of a client duty--confidentiality--in the fifth clause. The Field Code also converted the oath vows to statutory obligations and provided for disbarment or suspension of a lawyer for the "wilful violation" of any of the duties. (133)
The Field Code had a significant impact on American legal ethics. Within a few decades, seventeen states adopted the Field Code in some form. (134) This was at a time of few formal regulatory standards of conduct for lawyers. Moreover, the Field Code added new content to standards of legal ethics in the United States. Its confidentiality duty was one of the earliest formal statements of confidentiality as a professional duty, and the just-cause duty was unique.
The Field Code was the first codification of the just-cause duty in the United States. Justice Story, in 1832, had commended the just-cause duty of the Justinian oath as an ideal, (135) but the Field Code seemingly was the first regulatory statement of the duty. The Field Code just-cause clause also seemingly was the first formal regulatory distinction made for the ethical duties of criminal defense lawyers, as opposed to lawyers in civil litigation. Under the Field Code, as in the Swiss oath, criminal defense lawyers were subject to other court duties, such as truth and reasonable behavior, but they did not have to consider whether their client's cause was just. (136) This distinction demonstrated not only that litigation standards differed in the civil and criminal context, but also that the just-cause duty was separate from other litigation duties owed to the court.
This leaves the question of the meaning of the just-cause duty in civil litigation under the Field Code, particularly the criterion for determining what was just or unjust. Field's commentary to the Code provides some insight. Field began by rejecting the view, which he attributed to Lord Brougham, that the lawyer must "lose sight of every other consideration than of success" as a doctrine "unsound in theory, and most pernicious in practice." (137)
Field then gave the example of a civil case in which the lawyer's client claims title to land possessed by another. In this example, the lawyer knows, through confidential communications, that his client does not have a "just claim" to the land. (138) The client and lawyer both know that the possessor owns the land but accidentally lost his proof of title. Field argued that this extreme example--which "[f]ew persons" would argue should be prosecuted--proved the unsoundness of the extreme view of advocacy attributed to Lord Brougham. (139) "But if the doctrine is a sound one, does not this follow? ... If the advocate is to overlook the moral aspects of the claim, he must recover this property for his client." (140) Field's use of the terms "just" and "moral aspects" suggested that he was interpreting the Field Code's just cause clause. Yet condemnation of the land title case did not need to rest on notions of justness apart from truth and objective merit. The land title claim was false.
Field also explained that a lawyer could present a statute of limitation defense on behalf of a civil defendant: a lawyer may "in civil cases present defences recognised and provided by law, although he may himself disapprove of the principle and policy of the law." (141) The distinction between the statute of limitation defense, which he permitted, and the land title hypothetical, which he condemned, gives insight to Field's interpretation of the just-cause duty. In contrast to the land title hypothetical, the statute of limitation defense had factual and legal merit, even if the lawyer considered it morally unjust in a particular setting. The lawyer would not have to lie or misstate the law to present the defense. These examples suggested that Field, despite his use of the word "moral" in the land title discussion, took a restrained view of the just-cause duty, one of objective merit.
Interestingly, Field's own views may have evolved on the proper balance between zealous advocacy and duties to court. In his commentary to the Field Code, Field condemned the extreme view of advocacy attributed to Lord Brougham, but many modern commentators argue that Field later adopted this view when he defended corporations and railroads in high profile cases. (142) Thus, if anything, Field later took an even more restrained view (or rejection) of the just-cause duty of his Field Code.
Restrained interpretations notwithstanding, the Field Code, as the first regulatory statement of a just-cause duty, arguably was a catalyst for further debate as to the proper limits on litigation advocacy. An important example came from Alabama. Alabama did not include the just-cause duty in its version of the Field Code statement of duties. (143) The Alabama State Bar Association instead elaborated and set alternative limits on advocacy when it adopted a detailed code of ethics in 1887.
D. The Litigation Standards of the 1887 Alabama Code of Ethics
In 1881, Thomas Goode Jones, who later served as both a federal judge and Alabama governor, proposed that the Alabama bar association commission a code of legal ethics. (144) Jones argued that a code of ethics was necessary because, although Sharswood and others had written "standard works of great eminence and authority upon legal ethics," these works were "not always accessible." (145) Jones believed that many cases of improper conduct could be avoided if the lawyers had "in easy reach" a "short, concise Code of Legal Ethics, stamped with the approval of the Bar." (146) In 1887, the Alabama bar membership debated and approved a "Code of Ethics." (147) It was the first of its kind. (148)
The 1887 Alabama Code was far more detailed than any that had come before. The preamble to the code began by reprinting Alabama's version of the Field Code duties, which the code described as a "comprehensive summary of the duties specifically enjoined by law upon attorneys." (149) This single page of Field Code duties was followed by fifty-seven rules, spanning thirteen pages. (150)
These rules stated many basic duties to the client, including litigation duties. The Alabama Code indirectly addressed competence, by specifying a number of good practices, such as punctuality. (151) It also stated duties of loyalty (152) and confidentiality in litigation. (153)
As to zeal and its limits, the Alabama rules tended to follow the views of Sharswood. Rule 10 of the 1887 Alabama Code followed Sharswood in rejecting the all-out view attributed to Lord Brougham. Rule 10 complained that the "popular prejudice against lawyers" stemmed from the "false claim" that "it is an attorney's duty to do everything to succeed in his client's cause." (154) Yet, like Sharswood, the 1887 Alabama Code did not abandon zeal but rather endorsed zeal with limits. Alabama Rule 10 quoted Sharswood's "warm zeal" exhortation and immediately stated limits on that zeal:
An attorney "owes entire devotion to the interest of his client, warm zeal in the maintenance and defense of his cause, and the exertion of the utmost skill and ability," to the end, that nothing may be taken or withheld from him, save by the rules of law, legally applied. No sacrifice or peril, even to loss of life itself, can absolve [the lawyer] from the fearless discharge of this duty. Nevertheless, it is steadfastly to be borne in mind that the great trust is to be performed within, and not without the bounds of the law which creates it ... and it does not permit, much less demand, violation of law, or any manner of fraud or chicanery, for the client's sake. (155)
Many other rules stated duties that limited advocacy. The primary limits were truth and reasonable behavior. Rule 5 stated that "the utmost candor and fairness should characterize the dealings of attorneys with the courts and with each other." (156) Rule 5 also enumerated several "deceits and evasions unworthy of attorneys," including "[k]nowingly citing as authority an overruled case, or treating a repealed statute as in existence," "knowingly misstating the contents of a paper, the testimony of a witness, or the language or argument of opposite counsel," and "offering evidence which it is known the court must reject as illegal, to get it before the jury." (157)
As to reasonable behavior and tactics, the 1887 Alabama Code was filled with rules of decorum, including a warning against a "display [of] temper." (158) Rule 1 demanded respect for the courts, (159) and Rule 3 urged lawyers to avoid "[m]arked attention and unusual hospitality" to a judge. (160) Rule 5 condemned a number of practices, such as "'side-bar' remarks and sparring discourse." (161) Rule 30 provided that the lawyer "must be allowed to judge" matters of means, which the 1887 Alabama Code characterized as "incidental matters ... not affecting the merits of the cause." (162)
Like the Alabama version of the Field Code, the 1887 Alabama Code did not state a just-cause duty. (163) Rule 14 seemingly was the replacement for the just-cause duty, at least as applied to civil plaintiffs. (164) The 1887 Alabama Code did not impose any standard for civil defendants other than the various duties of reasonable and truthful conduct, applicable to all litigation. As to civil plaintiffs, Rule 14 provided that an attorney "must decline in a civil cause to conduct a prosecution, when satisfied that the purpose is merely to harass or injure the opposite party, or to work oppression and wrong." (165) To some extent, the Alabama rule standard--"to work oppression and wrong"--connoted a just-cause duty, but Alabama Rule 14 turned on specific ill motives of the plaintiff, not the lawyer's sense of justice. Sharswood, by contrast, framed the lawyer's decision to represent a civil plaintiff as a question of whether the cause "offends [the lawyer's] sense of what is just and right." (166)
Rule 14 seemingly imposed on the plaintiff's lawyer both an affirmative duty to decline and a continuing duty to withdraw from improperly motivated causes. This is particularly evident from the drafting history of Rule 14. A proposed version of Rule 14 phrased the initial ability to decline as a matter as discretion ("may" instead of "must"), but the Alabama bar membership made it mandatory. (167) The initial proposal also would have required greater zeal after taking on a plaintiffs cause. It would have required a lawyer "to avail himself of all lawful advantages" and forbade the lawyer from withdrawing. (168) The bar membership also rejected that proposal. (169)
In sum, the 1887 Alabama Code required, but limited, zeal by imposing duties of reasonable behavior and truth on all litigation advocacy. The 1887 Alabama Code followed Sharswood's distinctions between civil plaintiffs and defendants and imposed higher standards on plaintiff's lawyers, but Alabama modified the standard. In Alabama, which rejected the Field Code just-cause duty, the lawyer had to assess whether the plaintiff was bringing the claim for improper motives, rather than whether the lawyer believed it to be just. As to the underlying defense objectives, a lawyer, under the 1887 Alabama Code, could assert civil defenses so long as the lawyer complied with the truth and reasonableness standards.
The 1887 Alabama Code thus set a balance of proper litigation advocacy different from that of Lord Brougham, David Hoffman, George Sharswood, and David Dudley Field. Some differences were subtle, but its detail and regulatory effect were important steps in the evolution of ethics standards for proper litigation advocacy. By the beginning of the twentieth century, ten states had adopted codes modeled on the 1887 Alabama Code, and others were considering adopting similar codes. (170) The 1887 Alabama Code soon would become the model for the national standards of the American Bar Association.
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|Title Annotation:||Introduction through III. Litigation Ethics Standards in the United States Through the Nineteenth Century, p. 381-419|
|Author:||Andrews, Carol Rice|
|Publication:||Case Western Reserve Law Review|
|Date:||Dec 22, 2012|
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