Henry Brougham and Legal Ethics

Michael S. Ariens, St. Mary's University School of Law, has published Brougham's Ghost in volume 35 of North Illinois University Law Review (2015). Here is the abstract.

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to a client, nor did it represent a traditional view within the American legal profession. It was consciously rejected in nearly all writings of American lawyers for most of American history, and was not explicitly embraced until the 1970s. Reminding lawyers of the duty of zealous representation was promoted in the 1960s in part to solidify the Supreme Court’s Constitutional Criminal Procedure revolution, for only zealous lawyers could protect the rights of the criminally accused. Brougham’s ethic of advocacy was used to provide a historical justification for a revived zeal in criminal defense practice, an effort to make those lawyers more professional. This justification was transformed in the 1970s by two events: first, the American legal profession became enmeshed in a professionalism crisis as a consequence of the Watergate affair. Second, that professionalism crisis was exacerbated by a fear of diminishing economic prospects for American lawyers.

This essay is divided into three parts. First, it offers a full assessment of Brougham’s representation of Queen Caroline. Second, it traces the published and negative reaction of American lawyers to Brougham’s statement of the duty of zealous representation from the 1840s on. Third, the essay explains why the consistent rejection of Brougham by American lawyers became the “classic statement” of the duty of the advocate beginning in the 1970s.

Download the article from SSRN at the link.