Boyd on Storied Pleadings: The Power of Narrative Introductions @LadyLegalWriter @GeorgiaStateLaw

Megan Boyd, Georgia State University College of Law, is publishing Storied Pleadings: The Power of Narrative Introductions as a Georgia State University College of Law Legal Studies Research Paper. Here is the abstract.

This article sits at the intersection of civil procedure, professional responsibility, and legal writing. Narratives, or stories, are essential to the human experience and thus essential to law. While storytelling has typically been reserved for motions practice and trial, lawyers are now beginning to include narrative techniques in complaints and, specifically, in complaint introductions. Narrative Introductions, which employ multiple narrative techniques to paint a more complete and persuasive picture of the plaintiff’s factual or legal contentions, seek to persuade the reader from the outset that the plaintiff’s claims are worth paying attention to. Part I of this article outlines the importance of first impressions in legal writing. Strong first impressions are created through a concept known as priming in which the writer uses narrative techniques to present a particular view of the plaintiff’s case through which all subsequent information will be filtered. Part II of this article considers Narrative Introductions in 12 complaints filed in federal and state courts across the country and demonstrates the ways the complaint drafters use narrative techniques to frame the facts and legal claims that follow. Part III of this article outlines the requirements of Rules 8, 9, 10, 11, and 12 of the Federal Rules of Civil Procedure and considers whether the use of Narrative Introductions is consistent with or violates those rules, using the Narrative Introductions studied as examples. Part III also considers certain Model Rules of Professional Conduct and addresses ethical issues that may arise in the use of Narrative Introductions. This article concludes by explaining why lawyers should not be concerned that well-researched and carefully written Narrative Introductions violate any procedural or ethical rules and advocating for their use more widely. Funder Statement This article was made possible by a grant from the Legal Writing Institute, the Association of Legal Writing Directors, and LexisNexis.

Download the article from SSRN at the link.

Bulleit on Rumpole and the Dissatified Client @RopesGray

Thomas Bulleit, Ropes & Gray LLP, has published Rumpole and the Dissatisfied Client: Four Case Studies in Client Objectives v. Lawyer Means at 14 St. Mary's Journal on Legal Malpractice & Ethics 1 (2024). Here is the abstract.

Fictional barrister-at-law Horace Rumpole is a skillful, tenacious, and even fearsome courtroom advocate for his criminal defense clients. He cares deeply about winning. But Rumpole departs from the stereotypical heroes and antiheroes of fictional courtroom drama in that he typically complies fully with the ethical constraints on advocacy and the truth-finding process. When Rumpole does occasionally stumble, it is in the other direction: by losing track of his client, and presenting often unwanted truths to elevate victory above other needs or interests that the client considers just as, or sometimes much more, important than a favorable verdict. Using several of John Mortimer’s Rumpole of the Bailey short stories to illustrate, this Article explores the sometimes-awkward interaction of the client’s right to control decisions about the objectives of a legal representation, with the lawyer’s duty to make decisions about the means. The Article tries to show how this interaction surfaces client self-determination as a positive, if not always properly-appreciated, principle of justice in our legal system, and closes with a discussion of lessons the Rumpole stories may have for so-called movement lawyering.

Download the article from SSRN at the link.

For more on Rumpole and law and literature, see 

Paul Bergman, Rumpole's Ethics, 1 Berkeley J. Ent. & Sports L. 117 (2012).

Christine A. Corcos, Law and Silence in the Legal Drama: Rumpole of the Bailey, 1 Compar(a)ison 145 (2003).

John A. Flood, Rake and Rumpole: Mavericks for Justice--Purity and Impuity in Legal Professionalism, in Law, Lawyers, and Justice: Through Australian Lenses 17.

Davis on Legal Ethics, Legal Dualism, and Fidelity to Law @usflaw

Joshua P. Davis, University of San Francisco School of Law, has published Legal Ethics, Legal Dualism, and Fidelity to Law. Here is the abstract.

This Article argues that there is an important relationship between the nature of law and legal ethics. A crucial claim in support of this thesis is that the nature of law varies with the purpose for which it is being interpreted. In particular, the Article contends that natural law provides the best account of the nature of law when an interpreter seeks moral guidance from the law, and legal positivism provides the best account when an interpreter seeks instead to describe the law or to predict how others will interpret it. This philosophical position it labels “legal dualism.” Legal dualism has a significant implication for legal ethics: to the extent the law serves as a source of moral guidance for interpreters, they must act as natural lawyers. The Article tests legal dualism and its corollary for legal ethics against Bradley Wendel’s justly lauded book, LAWYERS AND FIDELITY TO LAW. Wendel pairs legal positivism and the moral legitimacy of law, commitments that legal dualism suggests are incompatible. The Article argues that, while Wendel makes many important contributions, his argument is not fully successful to the extent it conflicts with legal dualism. It concludes that he—and others—should acknowledge and address the need for ethical attorneys to act as natural lawyers. That means lawyers sometimes must make moral judgments in saying what the law is.

Download the article from SSRN at the link.

Davis on [Classical] Lawyers as [Digital] Public Speakers: Classical Rhetoric and Lawyer Digital Public Commentary @MyLegWriting

Kirsten K. Davis, Stetson University College of Law, is publishing [Classical] Lawyers As [Digital] Public Speakers: Classical Rhetoric and Lawyer Digital Public Commentary in the Nevada Law Journal. Here is the abstract.

Arguably the contexts of speaking and writing for lawyers of ancient Greece and Rome and lawyers of today could not be more different. But, classical rhetorical theory, developed 2,000 years ago for face-to-face interactions in public squares and courtrooms, can be productively applied to improve our understanding of modern lawyers’ digital communication practices. This article first argues that lawyers have an ethical responsibility to write as “citizen lawyers” and provide legal commentary in the digital public sphere. Then, applying classical rhetorical theory, this article explores the problems and possibilities of lawyers’ digital rhetoric. The article is not a handbook of rhetorical techniques; rather it offers lawyers a rhetorical perspective on public commentary in a digital environment.

Download the article from SSRN at the link.

Millemann, Rauh, and Bowle on Teaching Professional Responsibility Through Theater @MikeMillemann @robertbowiejr

Michael A. Millemann, University of Maryland School of Law, Elliott Rauh, and Robert Bowle, Jr., are publishing Teaching Professional Responsibility Through Theater in the Hastings Race and Poverty Law Journal (2020). Here is the abstract.

This article is about ethics-focused law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two). The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to partially vindicate the rights of those wrongfully convicted, but could not provide any real remedy for decades of wrongfully deprived freedom. In sharp contrast, the worst and best of the legal profession were on display. We argue that reproducing these extraordinary stories as plays, with students playing the roles of prosecutors, defense counsel, defendants (with not only wrongful convictions but also decades of wrongful incarceration), family members, crime victims, and people in the affected communities, is a powerful way to teach both law students and public audiences about the direct connections between legal ethics rules and the Rule of Law. It teaches as well the ripple effects on many people and communities, not just the parties, of unethical lawyer behavior. The students learned about legal ethics through in depth analysis of the actual case records, from pretrial motions through trial transcripts and appellate briefs (in the nature of ethics autopsies), and from the personal presentations in class by the exonerated men and their families. As important, the students learned about professional responsibility and irresponsibilities, from their immersion in the roles of the lawyers and “secondary” characters, like the affected families of the four men and the crime victims and their communities. The students also learned about competence, including how to work collaboratively to develop and to tell stories, to appreciate cultural differences, to examine witnesses, and to deal with performance anxiety. Because the men, all African Americans, were tried in 1968 (two), 1975, and 1983, the plays served as important points of comparison of criminal justice — criminal law and procedure — then and now. In this respect, the courses also were virtual laboratories in which to explore legal realism and critical legal theory, especially race theory; the true stories were powerful critiques of the romanticized, theoretical model of due process that underlies the formal criminal justice curricula.

Download the article from SSRN at the link.

Neto on the (dis)Similar Properties of Legal and Moral Duties in Law and Morals: Proceedings of the Special Workshop Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy (2017)

Joao Andrade Neto, Universität Hamburg; Albrecht Mendelssohn Bartholdy Graduate School of Law; Pontifical Catholic University of Minas Gerais, is publishing On the (dis)Similar Properties of Legal and Moral Duties in Paula, André Ferreira Leite de; Santacoloma Santacoloma, Andrés (eds.). Law and Morals: Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017. Stuttgart: Franz Steiner Verlag, 2019.

Do legal and moral duties share exactly the same properties? Moral philosophers such as Hare, Searle, and W. D. Ross believe that moral conflicts exist in which an individual has equally good reasons to fulfil two or more obligations that cannot be simultaneously satisfied. In such cases, they say, one has “reasons other things being equal” to act one way or another. These so-called “prima-facie duties” contrast with “definitive” moral duties, which remain after all reasons were considered. Some legal philosophers affirm that this separation applies to legal duties, as well. Alexy employs the same classification to differentiate two types of constitutional norms: principles and rules. As the differentiation originally had a philosophical scope, it is relevant to ask whether the separation between prima facie and definitive moral duties can ground a similar differentiation between types of legal norms. This essay addresses this question. Rather than denying the difference between “prima facie” and “definitive” moral duties, it asks whether prima facie legal duties actually exist. The aim is to demonstrate that, from the internal perspective, a possible consequence of legal differentiation and institutionalization is that only definitive duties are to be regarded as law.

Download the essay from SSRN at the link. 

Solan on Lies, Deceit, and Bullshit in Law

Lawrence M. Solan, Brooklyn Law School, has published Lies, Deceit, and Bullshit in Law at 56 Duquesne L. Rev. 73 (2018). Here is the abstract.

The law purports to disapprove of dishonesty. But not all species of dishonesty are created equal, and not all contexts are equivalent when it comes to the law’s intolerance of dishonest conduct. This article distinguishes among three types of dishonesty: lies, deceit, and bullshit. Lying is a statement that the speaker projects as true, while believing it to be false. Deceit depends on altering the hearer’s state of mind to believe something the speaker believes to be false, regardless of whether the deceitful statement is true or false. Bullshit, following the work of philosopher Harry Frankfurt, is a statement made without regard to its truth or falsity. The article touches on such areas of law as perjury, making false statements to government agents, fraud, pleading requirements, as well as political speech.

Download the article from SSRN at the link.

Bond on Atticus Finch in the Law School Classroom

Cynthia D. Bond, The John Marshall Law School, is publishing To Kill a Lawyer-Hero: Atticus Finch in the Law School Classroom in volume 45 of the Rutgers Law Record (2018). Here is the abstract.

This article addresses the well-known lawyer character from Harper Lee’s novel and subsequent film, To Kill a Mockingbird. For years, legal scholars have rhapsodized about Atticus Finch as the ultimate “lawyer-hero” and role model for aspiring attorneys, with little dissent. When Lee’s literary executor published an early draft version of the novel entitled Go Set a Watchman in 2015, many readers were shocked to encounter an Atticus Finch who was an apologist for segregation and the leader of a White Citizens Council chapter. This article reflects on evolving views of Finch as lawyer-hero, examining how he plays in the contemporary law school classroom. This article argues that, regardless of Go Set a Watchman, law professors should be teaching Atticus Finch critically given the unacknowledged white privilege embedded in To Kill a Mockingbird. Yet how can we critique Finch and still nurture students’ interest in and admiration of social justice lawyering, embodied for some in the mythic lawyer-hero? This article proposes techniques to dismantle the heroic construct surrounding Atticus Finch, shifting the focus from fictional images of the socially-engaged lawyer to students’ own professional aspirations.

The full text is not available from SSRN.

Newman on the Legality of the Agreement in The Merchant of Venice @WFULawSchool

Joel S. Newman, Wake Forest University School of Law, has published If Shylock Had a Lawyer at 7 Wake Forest J. L. & Pol'y S. S. 21 (2016). Here is the abstract.

In Shakespeare’s “Merchant of Venice,” the “pound of flesh” agreement was notarized. Presumably, pursuant to European custom, the notary would have drafted the agreement. Had the events of the play taken place today, any notary who drafted such an agreement would be in violation of Italian law. Had Shylock consulted a modern American lawyer, drafting the agreement, or even agreeing to the representation in the first place, would have been a violation of the ABA Model Rules of Professional Conduct.

Download the article from SSRN at the link.

Little on The Big Lebowski's Lessons in Law and Leadership for Military and National Security Attorneys

Ryan Little, United States Military Academy, is publishing The Big Lebowski -- The Dude's Lessons in Law and Leadership for Military and National Security Attorneys in the Pace Law Review. Here is the abstract.

The Big Lebowski is a cultural phenomenon that has prompted academic research into the nature of cult cinema, provided fodder for a host of law review quotes, and motivated a tradition of fan festivals and midnight screenings. However, most viewers do not realize that The Big Lebowski also serves as an engaging training tool for military and national security attorneys. Disguised as an impish play on film noir and hard-boiled detective fiction, The Big Lebowski’s unpretentious treatment of delicate topics contains poignant lessons for military and national security attorneys that include: (1) the risks facing national security attorneys when they lose focus on their professional and moral responsibilities, (2) military attorneys should expect to encounter mental health concerns and post-traumatic stress disorder (PTSD) in unexpected ways; (3) the importance of values and how they impact the success of a national security legal office, and (4) the role of the attorney in military operations. Military and national security attorneys who adopt the lessons of The Big Lebowski will be better lawyers and leaders.

Download the article from SSRN at the link.

Dodek, Woolley, and Wells on Ethical Lawyering: Stories From the Canadian Legal Profession

Adam M. Dodek, University of Ottawa, Common Law Section, Alice Woolley, University of Calgary, and Paul Wells, Maclean's, have published Front Matter for In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession, in In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession (UBC Press, 2016). Here is the abstract.

This paper contains the front matter - Table of Contents, Foreword by Paul Wells of Maclean's and the Introduction - to this book. We wrote this book in order to attempt to tell the stories about some important cases and people in Canadian legal ethics. All too often appellate cases and texts strip out the facts from cases. However, as any good lawyer will attest, the facts matter. Our goal in writing this book was to put the people back into the conversation about law, at least when it comes to Canadian legal ethics. In Search of the Ethical Lawyer contains stories about important cases, issues and people in Canadian legal ethics. It includes chapters by David Asper, Constance Backhouse, Janine Benedet, Brent Cotter, Richard Devlin, Adam Dodek, Trevor Farrow, Allan Hutchinson, Micah Rankin, Lorne Sossin and Alice Woolley. Here is the Table of Contents: Foreword / Paul Wells Introduction / Adam Dodek and Alice Woolley 1 Keeping Secrets or Saving Lives: What Is a Lawyer to Do? / Adam Dodek 2 Putting Up a Defence: Sex, Murder, and Videotapes / Allan C. Hutchinson 3 "No One’s Interested in Something You Didn’t Do": Freeing David Milgaard the Ugly Way / David Asper 4 "Begun in Faith, Continued in Determination": Burnley Allan (Rocky) Jones and the Egalitarian Practice of Law / Richard F. Devlin 5 Feminist Lawyering: Insiders and Outsiders / Janine Benedet 6 Gender and Race in the Construction of "Legal Professionalism": Historical Perspectives / Constance Backhouse 7 The Helping Profession: Can Pro Bono Lawyers Make Sick Children Well? / Lorne Sossin 8 A New Wave of Access to Justice Reform in Canada / Trevor C.W. Farrow 9 Michelle’s Story: Creativity and Meaning in Legal Practice / Alice Woolley 10 Ian Scott: Renaissance Man, Consummate Advocate, Attorney General Extraordinaire / W. Brent Cotter 11 Gerry Laarakker: From Rustic Rambo to Rebel with a Cause / Micah Rankin

Download a sample from SSRN at the link.



 

Rapping on Atticus Finch as Legal Hero After "Go Set a Watchman"

Jonathan Rapping, Atlanta's John Marshall Law School, is publishing It's a Sin to Kill a Mockingbird: The Need for Idealism in the Legal Profession in volume 114 of the Michigan Law Review (2016). Here is the abstract.

To Kill a Mockingbird's Atticus Finch has served as a role model and inspiration for law students and lawyers for over fifty years. When Go Set a Watchmen was published last year, Finch's status as legal hero was threatened. In this essay I argue that Finch is a uniquely important role model to lawyers committed to social justice and that he has the ability to inspire attorneys seeking to live lives of purpose. We desperately need this inspiration in our profession. I conclude that in a profession that has lost its way we should continue to view Finch in this light and resist the temptation to destroy this fictional hero.

Download the article from SSRN at the link.

Ayers on Atticus Finch's "Half-Virtuous" Integrity

Andrew B. Ayers, Office of the Solicitor General of New York, has published The Half-Virtuous Integrity of Atticus Finch. Here is the abstract.

Atticus Finch has two kinds of integrity, but only one of them is genuinely admirable. On one hand, he is rightly admired for standing up for the things he values. On the other hand, Atticus is also praised for being true to himself — being “the same in his house as he is on the public streets.” But this kind of integrity, contrary to what many lawyers and legal ethicists believe, is not a virtue. Far from being virtuous, a solidly integrated self, like Atticus’s, can sometimes make it harder to act virtuously. For example, Atticus’s self-understanding is solidly integrated around his commitment to the justice system. But this self-integration prevents him from noticing his only chance to save Tom Robinson’s life. To Kill a Mockingbird shows that it is sometimes better to have tension in our identities. The identities of characters like Calpurnia, Maudie, and others are conflicted or divided; but these tensions allow them to be admirable in ways that Atticus is not. They can cross social boundaries, subvert their own social roles, and radically criticize their community precisely because their identities are fragmented or in flux. This should be inspiring to lawyers, and to the legal ethicists who have long worried that lawyers’ roles will cause schisms in their identities. Sometimes tension in the self is exactly what we need to be good.

Download the article from SSRN at the link.

Merritt on Professional Obligations to Educate the Next Generation

Deborah Jones Merritt, Ohio State University College of Law, is publishing Hippocrates and Socrates: Professional Obligations to Educate the Next Generation in the Wake Forest Law Review. Here is the abstract.

Do professionals have an ethical obligation to educate new members of their profession? The ancient Hippocratic oath recognized such a commitment, requiring all doctors “to give a share of precepts and oral instruction and all the other learning...to pupils who have signed the covenant.” Contemporary theories of professionalism point to the same result, identifying intergenerational education as an essential feature of professional status. Moral theory and economic policy, finally, underscore this outcome: In return for the exclusive right to practice a profession, established members of the profession must agree to share their knowledge, skills, and other expertise with newcomers. The rules of professional conduct governing lawyers, sadly, do not mention this duty to educate. Equally unfortunate, mounting evidence suggests that neither law schools nor the practicing bar are fulfilling their ethical obligation to educate new members of the profession. This Article explores both the nature of that ethical gap and ways that law schools could restore their ethical commitment to educate new members of the bar. To provide background for that discussion, Part I of the Article examines the historical, social, moral, and economic roots of a professional obligation to educate. Part II then analyzes the status of this obligation within the legal profession. Part III, finally, proposes six ways that legal educators can improve our ethical commitment to educating new lawyers.

Download the article from SSRN at the link.

Machiavelli and the Nature of Law Practice

David Barnhizer, Cleveland-Marshall College of Law, has published The Moral Lawyer and the Machiavellian Nature of Law Practice as Cleveland-Marshall Legal Studies Paper 15-288. Here is the abstract.

In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and the Machiavellian to communicate insights into the essence of the legal strategist, this does not signify that “anything goes.” This is particularly important to emphasize because becoming an effective legal strategist gives an individual more power, which for the responsible lawyer also means there is a greater need to be constantly aware of the dangers of going too far. Strategy as practiced by Sun Tzu in The Art of War and Musashi in A Book of Five Rings evolved in a different era and culture. Sun Tzu reportedly had two women who mocked him executed as his payment for winning the bet that elevated him to prominence with the Chinese emperor. Musashi claims to have killed more than sixty opponents in duels and has often been referred to as “a bloody old man.” In one situation he is reported to have accepted a duel from a challenger and set it up for a small island on the following morning. When the man landed on the island the skulking Musashi won the duel by sneaking up behind him and smashing his head in with an oar. The idea of a “fair fight” was obviously not at the core of the “bushwhacking” Musashi’s system of strategy. A fair number of lawyers most likely see nothing wrong with equivalent tactics in representing their clients and depending on the circumstances honesty requires me to include myself in that group. Lawyers work within a culture of deception, manipulation, and power. The advocate’s role is inherently deceptive rather than truth-directed. Aristotle captured this idea more than two millennia ago in describing the role of the advocate as one in which: “you must render the audience well-disposed to yourself, and ill-disposed to your opponent; you must magnify and depreciate [make whatever forms your case seem more important and whatever forms his case seem less].” Plato phrased it more poetically in saying the advocate “enchants the minds” of the courts of law, remarking, “rhetoric [is]...a universal act of enchanting the mind by arguments...[H]e who would be a skillful rhetorician has no need of truth — for that in courts of law men literally care nothing about truth, but only about conviction.” As these observations clearly suggest, manipulation of other humans is an inevitable and inescapable fact of our personal and professional lives. But there are moral limits to manipulation. All lawyers manipulate words, concepts, symbols, people and institutions. So do other people. If you practice law and don't manipulate the conditions of the environment in which you are operating (and especially other people), you aren't a very good lawyer. You may like to think of yourself as being a non-manipulative human being who doesn't take advantage of other people, but, for a lawyer, that is a disingenuous posture. We continually manipulate in our pleadings, interviews, investigations, discovery, and negotiations. We manipulate in trial, or we ought not be there. It is impossible for an effective advocate to avoid manipulating people, but not impossible to make moral choices about the limits of our behavior, and how far we are personally willing to go.

Download the article from SSRN at the link.

Lawyer/Parodist Entertainers at the ABA Bar Association Annual Meeting

The ABA made certain that CLE was more fun than usual at this year's Annual Meeting by inviting Ethics Follies, a group of lawyer/musicians from Texas who put legal ethics to music, to perform. The group put on an entertainment called Scamalot, inspired by (of course) Monty Python's Spamalot (but by not the legendary luncheon meat, we're sure...). There's serious stuff amid the frivolity: "The Holy Grail means the ethical treatment of our clients and each other,” says one of the characters.

Well, we knew a lot of lawyers are hams underneath. (Sorry....)  More here from the ABA Journal.

Rethinking Atticus Finch

In the National Law Journal,  some law faculty discuss the character of Atticus Finch in Harper Lee's Go Set a Watchman.

The article begins:

Atticus Finch — unimpeachable lawyer and civil rights champion, or unapologetic racist? Readers have struggled to reconcile these two versions of fiction's most iconic attorney since the July 14 publication of Harper Lee's "Go Set A Watchman," set some 20 years after the events of "To Kill A Mockingbird."

A particularly lively debate broke out within the legal academy, where Finch served as an inspiration for more than a half-century, not to mention a staple of legal ethics courses.

"Over the years, Atticus Finch has remained the most famous, iconic representative of what is good in the legal profession," said Margaret Russell, a ­professor at Santa Clara University School of Law who recommends "Mockingbird" to her students. "My first reaction [to "Watchman"] was, 'Oh no, a hero has fallen.' "

Law professors parsed the new novel on blogs, in op-eds and in conversations with colleagues. Some rejected the Finch presented in "Watchman" — who attended Ku Klux Klan meetings and decries the NAACP — or viewed him as a completely separate character from the Finch in the first novel. Others welcomed a more nuanced and perhaps realistic portrayal of a white attorney in the Jim Crow South.

See also this article, also in the NLJ.

Monroe Freedman and Atticus Finch

As Go Set a Watchman passes one million copies in sales, the National Law Journal notes that Monroe Freedman took the position in 1992 suggesting that Atticus Finch was not quite the heroic character everyone else has made him out to be.

“If we don’t do something fast, lawyers are going to start taking him seriously as someone to emulate. And that would be a bad mistake,” Freedman wrote. “I would have more respect for Atticus Finch if he had never been compelled by the court to represent Robinson (a black defendant) but if, instead, he had undertaken voluntarily to establish the right of the black citizens of Maycomb to sit freely in their county courthouse.”

Does Scout's portrait of Atticus in Harper Lee's newly published novel vindicate Professor Freedman's view of him? What do you think?

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.

David Hoffman and American Legal Ethics

Michael S. Ariens, St. Mary's University School of Law, has published Lost and Found: David Hoffman and the History of American Legal Ethics, in volume 67 of the Arkansas Law Review (2014). Here is the abstract.

David Hoffman was a successful Baltimore lawyer who wrote the first study of American law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A lawyer acted honorably if his actions were morally sanctioned. Thus, Hoffman concluded a lawyer should refuse to plead the statute of limitations because, though legal, such action was dishonorable. When Hoffman wrote his maxims of legal ethics, the concept of honor was being displaced by individualism. The test of lawyer behavior became private conscience rather than public honor. This turn was accompanied by a second shift, in which lawyers accepted that legal ethics differed from public morality. Though an “officer of the court,” the lawyer’s foremost duty was to serve his client’s private interests, and the lawyer was not morally accountable to the public for the client’s goals. One consequence of these changes was the profession’s agreement that lawyers owed a duty to their clients to plead all legal claims and defenses. This vision left Hoffman behind.

Hoffman was found in response to a crisis within the modern American legal profession. By the late 1970s, many lawyers feared that the liberal ideal of the lawyer as a morally neutral, zealous agent (or “hired-gun”) effectuating a client’s goals ignored the lawyer’s duties to the public. This crisis was exacerbated by two events: Watergate, in which lawyers blindly followed the demands of their client, the President, to society’s detriment, and the ABA’s decision in 1978 to replace its 1969 Code of Professional Responsibility, because the Code embraced the “fiction” that ethical issues were “matters of ethics rather than law.” Because Hoffman concluded a lawyer’s duty to a client was limited by his duties to society, he was used as a relevant, historical example of an ethics of advocacy contrary to the “standard conception” of liberal neutrality. Hoffman was a touchstone justifying an ethics of virtue, of lawyers serving the ends of justice, not merely serving their client’s goals.

Download the article from SSRN at the link.