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For most of American history, the work of the big-business lawyer was understood as public service. Louis Brandeis’ “people’s lawyer,” the guardian of the common good, was a business lawyer. Erwin Smigel’s classic 1963 study, “The Wall Street Lawyer,” found that big-business lawyers believed that their obligations as the American governing class placed limits on their duties to clients. Today, in contrast, the public good is the mandate of lawyers who work in public service full time. Big-business lawyers generally view themselves as hired guns whose contribution to the public good is defined by their pro bono work, much of which is performed on behalf of public interest law offices. It is possible to restore the vision of the business lawyer’s work as public service — but only if we move beyond the cliches of professionalism. Many commentators mistakenly believe that lawyers have long thought of themselves primarily as hired guns serving only the interests of their clients. Although this conception did exist as a minority view, the dominant conception of the legal elite from the time of the Constitution through the 1960s was that lawyers were America’s governing class. This conception began soon after the American Revolution, when political leaders lost faith that deliberative majorities would rise above self-interest to seek the common good. They concluded that only a disinterested governing class could guarantee pursuit of the common good and the rule of law. As a matter of virtue and authority, the group best qualified to serve as this governing class was American lawyers. In contrast to businesspeople, who put their self-interest first, lawyers placed the public good above their own. As a practical matter, lawyers were central to governance. They had exclusive control of the judicial branch, and leading roles in the legislature and the executive branches. They were also the focus of informal governance. In their daily work, they were the primary intermediaries between the government and the people. For clients, juries and the public, they were instructors on the citizen’s proper attitude toward law and government. The first major American legal ethicists — David Hoffman, a professor at the University of Maryland Law School, and George Sharswood, dean of the University of Pennsylvania Law School and later justice of the Pennsylvania Supreme Court — embraced the governing class perspective to fashion a republican vision of the lawyer’s role. Their works placed the lawyers’ duty to the public good above their duties to their clients, and both trusted that elite lawyers would inevitably fulfill this obligation. Hoffman labeled zealous efforts on behalf of “atrocious” criminals as unethical and urged lawyers not to pursue or defend claims that “ought not … be sustained.” Sharswood rejected Hoffman’s approach as inconsistent with the adversary system. He saw zealous representation of criminal and civil defendants as part of a governing class obligation to ensure that the rights of defendants were protected. But, as the governing class, Sharswood’s lawyers had to subordinate client representation to their obligations to the court, to maintain their personal integrity in their arguments and their treatment of all persons, and — in civil matters — to avoid undermining legitimate assertions of property rights. Prosecutors, both public and private, as well as plaintiffs’ lawyers, who sought to employ the coercive power of the state on behalf of their clients, were obligated to seek only justice. Not all lawyers embraced the governing class view. Some sought to rely on the hired gun approach attributed to Lord Brougham’s famous credo. In 1820 Brougham was a leader of those in the House of Lords who defended Queen Caroline against King George IV’s charges of adultery. Threatening to reveal the king’s previous secret marriage to a Roman Catholic, even though this information could trigger civil unrest, Brougham articulated his classic statement of the lawyer’s role: “An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” Brougham asserted that a lawyer should pursue his client’s interests “reckless of consequences” to his country. To be sure, even in the 19th century, many members of the public and nonelite lawyers questioned whether lawyers were disinterested proponents of the public good. By the end of the century, many elite lawyers had come to question lawyers’ ability to fulfill this mission. Professor Robert Gordon of Yale Law School has described how lawyers and nonlawyers alike had concluded that law had become a business, with lawyers placing self-interest above the public good. The republican perspective was in jeopardy. To rescue the lawyer’s role, the legal elite introduced an ideological innovation. The new doctrine of professionalism both accounted for some lawyers’ errant pursuit of self-interest and prescribed a strategy for guaranteeing lawyers’ commitment to the public good. Three assumptions composed the foundation for professionalism. First, lawyers had expertise that was not accessible to nonlawyers. Second, most lawyers, in contrast to businesspeople, worked for the common good and not to maximize self-interest. Third, lawyers would regulate themselves in the public interest. These three elements were interdependent. Lawyers’ expertise, in this view, made external regulation infeasible. And the commitment of lawyers to the common good meant that society could trust lawyers, unlike businesspeople, to regulate themselves. Under professionalism, bar associations led by the “best men” would determine who would be permitted to practice law; they would articulate ethical standards; and they would discipline violators. As the 1907 ABA Canons of Ethics explained, the “future of the Republic” depended upon the conduct of lawyers. Armed with the ideology of professionalism, elite lawyers were able to maintain their allegiance to the governing class role. Perhaps the best-known exemplar of this generation was corporate lawyer and future Supreme Court Justice Louis Brandeis. He urged the business lawyer to serve as the “people’s lawyer,” balancing the interests of “the wealthy and the people” during legislative and policy debates. In representing clients, Brandeis would similarly seek the best result not only for his client, but for all concerned parties. For example, when representing a shoe manufacturer in responding to employees’ complaints that their employment should be annual, rather than seasonal, Brandeis determined that the workers’ complaints were legitimate and devised a plan for an annual manufacturing schedule. Even critics who thought Brandeis went too far in promoting the public’s interest shared a commitment to the governing class conception. ABA president and leading big-business lawyer Elihu Root, who opposed Brandeis’ nomination to the Supreme Court, stated that “law was not a business … . One did not just give the customer what he wanted, but what was needed.” Root asserted that “about half the practice of a decent lawyer … consists in telling would-be clients that they are damned fools and should stop.” The governing class conception continued as the dominant understanding of big-business lawyers through the early 1960s, when sociologist Erwin Smigel found that Wall Street lawyers viewed themselves as guardians of the public good. By the 1980s, however, most of the legal elite had abandoned the governing class ideal. Participants in a 1985 Stanford Law School symposium on lawyers for corporations concluded that Smigel’s findings were no longer valid. Big-business lawyers now understood themselves primarily as hired guns who promoted their clients’ interests without concern for the public good. Critics chided elite lawyers as profit maximizers and servants of big business who were willing to sell their law reform agenda to their clients and to collude with clients in fraudulent conduct that resulted in well-publicized scandals, such as the savings and loan debacle. Professors Murray Schwartz of UCLA and David Luban of Georgetown described the new “standard conception of the lawyer’s role.” It had two elements: “extreme partisan zeal” on the client’s behalf and moral “nonaccountability” for the consequences of the lawyer’s conduct. Leadership of the bar acknowledged the diminished commitment to public good in a vast outpouring of speeches, articles, books and reports bemoaning the decline of professionalism. Commentators have blamed this decline on lawyer advertising, the increasingly business-oriented nature of law practice, the increased diversity of the profession (which somehow was supposed to have undermined the traditional white Protestant male elite’s ability to perpetuate commitment to the common good), and law schools’ disdain for law practice and the study of ethics. None of these explanations survive serious scrutiny. The governing class ideal developed during a period of widespread lawyer advertising. The University of Maryland’s David Hoffman himself published advertisements that included a testimonial by John Marshall, then sitting chief justice of the U.S. Supreme Court. Business lawyers have previously adjusted their practice to changing market conditions. In the late 19th century, when the elite fashioned the ideology of professionalism, they also created the large law firm to serve the interests of their business clients. Diversity and the public good need not have an inverse relation. Members of groups outside the traditional white Protestant male elite have championed commitment to the common good. Since at least the end of the last century, elite legal education has disdained the teaching of ethics. This is not new. Contrary to the established wisdom in the bar today, the developments in the profession that made the greatest contribution to the declining role of the public good in law practice were the growth of public interest law and the pro bono duty. Although a few public interest law offices, such as those of the ACLU and the NAACP, had existed for many years, the growth of public interest law as a separate career track encompassing a significant number of lawyers dates back only to the 1960s. Especially in the early years, the vast majority of public interest lawyers promoted environmental concerns, the interests of the poor, or the rights of historically oppressed groups — causes generally associated with left-of-center politics. The very term “public interest law” suggested that these lawyers, and not big-business lawyers, were the guardians of the public interest. Additionally, where pre-1960s big-business lawyers had an understanding of the public good similar to that of their clients, many post-1960s big-business lawyers turned to the public interest bar’s left-of-center definition of the public good. The resulting gulf between lawyer and client conceptions encouraged business lawyers to avoid conflict with their clients by dropping the governing class role and working as hired guns. The pro bono duty, a product of the 1970s, also encouraged elite lawyers to shrink their obligation to the public good. The governing class perspective had always included the provision of free legal services to those who could not afford them. In the 1970s this notion became the only surviving aspect of the elite lawyer’s role in serving the public. In their real work for paying clients, business lawyers would work as hired guns. They would be public servants only in the very limited realm of pro bono work. The development of public interest practice and the pro bono duty have greatly benefited society. They are responsible, in whole or in part, for some of the most important political and legal developments of the 20th century. Nonetheless, they have helped diminish big-business lawyers’ commitment to a governing class role. Is that aspiration worth reviving? The decision of elite lawyers either to continue as hired guns or to find some way to revive their commitment to the public good has significant implications. Whether or not lawyers understand themselves as the American governing class, they still function as one, playing a primary role in the formal and informal mechanisms of governance. This is certainly true for big-business lawyers. As Louis Brandeis observed early in the last century, large corporations are so important to consumers, employees, business, the American public and the world, that their representation generally involves questions of “statesmanship.” The opportunity for greatness exists in all aspects of business law, and not just in the narrow context of valuable pro bono contributions. Can the aspiration be revived? Since at least the 1980s, leading members of the bench, bar, and academy have urged lawyers to recommit themselves to being members of a profession promoting the public good and not self-interest. To date, these efforts have had little effect. Their failure is not surprising. The changes wrought by the growth of public interest law and pro bono have facilitated a shift in lawyers’ understanding of themselves. The vast majority of lawyers believe that law is a business. To them, the assertion that lawyers are a disinterested governing class is absurd. Persuading today’s elite lawyers of an obligation to the public good requires a new understanding, with two objectives. First, commitment to the public good must be reconciled with the acknowledgement that law is a business. Second, the hired gun’s principle of moral “nonaccountability” must end. What difference would it make if lawyers embraced moral accountability? Accepting, like Sharswood and Brandeis, that the adversarial system itself contributes to the public good, big-business lawyers would have to determine the proper balance between zealous advocacy and moral accountability. In contrast to the current ethos in which lawyers can generally excuse their conduct as just following the client’s orders, morally accountable lawyers would have to examine their responsibility for client conduct that is legal but subject to moral dispute, such as litigation tactics that delay the cleanup of a toxic waste site, plant closings and layoffs resulting from a merger, and personnel policies denying health benefits to lesbian and gay partners of employees. Questions such as these are difficult and would generate great controversy within the bar. But if they enter the mainstream of bar debates and CLE courses on legal ethics, both the debates and the courses will become far more interesting and far more important to the public good. Perhaps then the bar could better satisfy Brandeis’ charge at the start of the 20th century: “There is a call upon the legal profession to do a great work for this country.” Russell G. Pearce is professor of law and co-director of the Louis Stein Center for Law and Ethics at New York’s Fordham University School of Law. This essay is adapted from “Lawyers as America’s Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer’s Role,” forthcoming from the University of Chicago Law School.

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