Printer Friendly

The lawyer's conscience.

To early generations of Americans, republicanism conveyed two concepts of citizenship: "rights," which limited government, and "responsibilities," which constituted civic virtue. If the former is divorced from the latter, the law becomes a collection of morally neutral legalisms and lawyers mere technicians of the law. The disrepute of the legal profession today comes largely from this very separation. One lawyer who spent his life trying to maintain the proper connection between rights and responsibilities within the legal profession was David Hoffman.

Hoffman was born in 1784, the 11th of 12 children of Dorothea and Peter Hoffman, a prosperous Baltimore merchant. He attended St. John's College in Annapolis for three years before returning to Baltimore, where he apprenticed in law for another three years. Hoffman was the only son who declined to enter the family business, but Hoffman & Sons Dry Goods sometimes needed legal help, so his choice of profession suited the family. By 1816, his practice in bustling Baltimore (then the nation's third largest city) was bringing in $9,000 a year, a lucrative sum at the time. Inclined toward scholarship, Hoffman was unhappy with commercial practice, and in 1814 he accepted a part-time position as the only professor of law at the University of Maryland.

In the early 19th century, law courses were available only at a few law schools and colleges, one usually entered the legal profession through an apprenticeship with a practicing lawyer. Yet Hoffman was convinced that jurists of the new republic needed to study history and philosophy to learn the timeless principles that supplemented the laws and made legal precedents intelligible. He also feared that his generation of legal practitioners was becoming too detached from the philosophical underpinnings of the Founding to appreciate the vision of law and lawyering required in republican America.

Hoffman set aside a growing share of his professional time to develop a curriculum for the Maryland Law Institute. His Course of Legal Study, published in 1817, was widely circulated and admired by America's legal educators.

Even more than his insistence on substantive legal education, however, Hoffman was concerned about the condition of ethical standards in the legal profession. In his view, legal questions ultimately resolved themselves into moral questions, and so his Course grounded the discipline on clear, objective standards: "[W]e assume it as undeniable that pure Ethics and Natural Law lie at the very foundation of all laws." He believed that Jacksonian democracy was weakening the barriers to excessive populism, and feared it would end in "mob rule," a situation incompatible with both legal order and objective truth.

Hoffman resolved that the lawyers he educated would not serve as accessories to this crime and, as volume two of his Course of Legal Study, he published Fifty Resolutions in Regard to Professional Deportment. This book was America's first code of legal ethics.

Fifty Resolutions is remarkable for its unrelenting contention that representation of clients in no way absolves lawyers from the dictates of conscience. "What is wrong is not less so from being common," states Resolution 33. "What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom." "If, after duly examining a case" admonishes Resolution 11, "I am persuaded that my client's claim, or defense (as the case may be) cannot, or rather ought not, be sustained, I will promptly advise him to abandon it." Although a statute of limitations had a legitimate purpose, Hoffman maintained in Resolution 41 that it was unethical for a lawyer to invoke it if his client had acknowledged the plaintiff's claim. Another resolution forbade lawyers from using their intellectual prowess to mislead jurors into accepting unsound arguments.

In today's judicial arena, legal positivism - the view that there are no legal obligations beyond statutory law - has triumphed. Codes of professional responsibility" (laws prescribing state sanctions for disobedience) have displaced canons of ethics. Compare Fifty Resolutions with the American Bar Association's "Model Rules of Professional Responsibility." For Hoffman, the existence of a knowable truth obliged all officers of the court, including lawyers, to assist in its discovery; for the ABA's "Model Rules" moral ambiguity frees attorneys to act as result-oriented "hired guns." Under the Model Rules," an attorney who refuses to invoke a statute of limitations on behalf of a bad-faith debtor or who declines to advance an unsound but convincing argument for his client can be disbarred. If an act is legal, under the Model Rules, it must be ethical.

Hoffman's law school stagnated, the victim of underfunding and bureaucracy. He ceased teaching, wrote popular essays, and lived in England for several years. He died in 1854, discouraged at the prospects for republican virtue in America. Despite limited success in his lifetime, Hoffman was not a failure. A growing number of legal educators today insist that ethics be taught to lawyers again. And Hoffman - an obscure lawyer writing some 150 years ago - has emerged as both an exemplar of good lawyering and the true father of legal ethics in America.

Michael Krauss is a professor of law at George Mason University, in Arlington, Virginia.
COPYRIGHT 1996 Hoover Institution Press
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:19th century attorney David Hoffman
Author:Krauss, Michael
Publication:Policy Review
Date:Jul 1, 1996
Previous Article:Social contract or social covenant.
Next Article:A morningstar for human services.

Terms of use | Copyright © 2017 Farlex, Inc. | Feedback | For webmasters