Rediscovering the Republican Origins of the Legal Ethics Codes
42 Pages Posted: 18 May 2010
Date Written: 1992
Many commentators wrongly assume that the hired gun ideal is the foundation of our legal ethics codes. This article explains that this assumption is based on an historical mistake that has consequences for interpreting the modern codes. Judge George Sharswood, the nineteenth century scholar whose work provided the basis for the 1908 A.B.A. Canons of Ethics, had a republican conception that rejected the adversarial ethic in favor of a more nuanced conception that combined loyalty to clients with a thick obligation to the public good that both bounded client representation and required lawyers to provide political leadership. Although the emphasis on the adversarial ethic increased as the bar replaced the Canons first with the Code of Professional Responsibility and later the Rules of Professional Conduct, the republican perspective survives in the broad discretion afforded lawyers with regard to disclosing confidences, withdrawal from representation, and moral counseling, as well as in a rule on following client instructions that is much narrower than the equivalent standards for doctors. Accordingly, under the ethics rules today, a lawyer could continue to follow Sharswood’s republican perspective on lawyering. Therefore, contrary to the approaches generally taken in the legal ethics literature, commentators who challenge the adversarial ethics should embrace the rules and those who defend the adversarial ethic should seek to revise the rules.
Keywords: George Sharswood, legal ethics, professional responsibility, legal history, Canons of Ethics, Code of Professional Responsibility, Rules of Professional Conduct, hired gun, adversarial ethic, public good, lawyers, legal profession
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