A Refresher Course In Legal Ethics

Ever wonder how things get started? We all learned how Thomas Edison invented the light bulb, Alexander Bell the telephone, but no, Al Gore was not involved in the creation of the internet.

I had no idea about how our rules of professional conduct came to be (my professional responsibility class in law school was more than forty years ago) until I happened upon David Cameron Carr’s blog on legal ethics. 

Carr said that every year, on his anniversary of admission to the California Bar (ten years after me) he rereads Hoffman’s Fifty Resolutions in Regard to Professional Deportment. I had never heard of them, so I followed the link Carr provided. 

David C. Hoffman set forth these resolutions back in, wait for it, 1836, and if you can do basic math, that’s more than 175 years ago. Who was Hoffman and why did he set down these resolutions? Although originally they were part of two volumes Hoffman published on the law, this particular subject was extracted and titled “Hints on the Professional Deportment of Lawyers and Some Counsel to Law Students” when it was published separately in 1846. He knew how cutthroat law school can be and that behavior (aka deportment) doesn’t necessarily change once lawyers are in practice.

A Baltimore lawyer, Hoffman laid out in the Hints in a “Note to the Reader” his very simple and straightforward reason for publishing them separately. The reason arose “…from a deep conviction that the high tone of the Bar has suffered some impairment, consequent upon its immense increase in this country within the last ten years, a cause as well as an effect of the lamentable fact alluded to.” (Hoffman’s emphasis, not mine.)

It doesn’t sound like much, if anything, has changed since then. In fact, right now, the State Bar of California is looking at whether the bar passage rate in this state is too low, that the number of would be lawyers flunking the bar is too high. The state needs more lawyers? Please. The more lawyers, the nastier the profession seems to get.

In order to promote the widest circulation possible, the booklet’s price was set at the minimum. (Again, Hoffman’s emphasis, not mine.) 

Hoffman sets forth thirty hints for law students and fifty for those already engaged in practice. 

I’m going to choose several of the fifty for lawyers and leave the law student advice for another time. (I can hear my editor sighing in relief). 

For lawyers, where to start? So many to choose from, and so many have been repeated over and over again, ad nauseam, in our profession and we still seem to be tone deaf.

Here are just a few:

1.  “I will espouse no man’s cause out of envy, hatred or malice, towards his antagonist.” Very often in mediation the attorney on one side demonizes both the opposing party and counsel. What kind of behavior does that model for his client? Need I ask? Does that make my job harder? Need you ask?

2. How about this one? “Should my client be disposed to insist on captious requisitions or frivolous or vexatious defences [sic] they shall neither be enforced nor countenanced by me.”  How many times have we told the client, “No, we’re not doing that?” Hoffman says that if the client insists, he can find other counsel. The issue today is that there are too many lawyers and not enough work (apparently nothing really has changed), and not enough lawyers just say “No, there’s no case here.” Usually there’s other counsel more than willing to take over, regardless of the merits.

3. Even all those years ago, Hoffman knew that that we dinosaurs had the obligation both to mentor and to understand that we don’t necessarily know it all. “To my juniors…I shall ever be kind and encouraging; and never too proud to recognize distinctly that, on many occasions it is quite probable that their knowledge may be more accurate than my own and that they with their limited reading and experience have seen the matter more soundly than I with my much reading and long experience.” Newer lawyers, especially millennials, have different life experiences, different perspectives and knowledge bases. Senior lawyers, take heed.

4. “Every letter or note that is addressed to me shall receive a suitable response, and in proper time.” No phone, fax, or email then (could Hoffman have envisioned any or all of these more current ways to communicate)? However, this hint, like all the others, is still true. While a “suitable” response can be a question of fact, it does not mean one of the “f-you” kind. Hoffman says that “There can be no surer indication of vulgar education than neglect of letters and notes.” 

So, it doesn’t matter where you went to law school or your class rank or whether you’re in Biglaw or a solo or anywhere in between, a jerk who refuses to respond is still a jerk. Explain that “failure to communicate” at your next case management conference.

5.  To paraphrase Hoffman, “greed is not good.” Newer lawyers are not immune to avarice, Hoffman says, but if it’s seen early, “…it is sure, in the course of a long life, to work a great mass of oppression, and to end in both intellectual and moral desolation.” Perhaps that’s one reason why our profession has such a high rate of depression and substance abuse.

David Carr says that he rereads the Resolutions every year on the anniversary of his admission to the bar. A refresher course in basic professional deportment is always a good idea. It never hurts to remember why and how we do what we do.

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Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].