Policy Review

COPYRIGHT 1996 Heritage Foundation

Wednesday, July 17, 1996

The lawyer's conscience. (19th century attorney David Hoffman)

Michael Krauss

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.