Lost and Found: David Hoffman and the History of American Legal Ethics

55 Pages Posted: 20 May 2015

See all articles by Michael S. Ariens

Michael S. Ariens

St. Mary's University School of Law

Date Written: May 19, 2015

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.

Keywords: David Hoffman, American Legal Ethics, legal profession, duty to society, duty to client, Justice, ethics of virtue, American legal history, ethics of advocacy, Watergate, zealous advocacy, zealous representation

JEL Classification: K00

Suggested Citation

Ariens, Michael S., Lost and Found: David Hoffman and the History of American Legal Ethics (May 19, 2015). Arkansas Law Review, Vol. 67, 2014. Available at SSRN: https://ssrn.com/abstract=2608073

Michael S. Ariens (Contact Author)

St. Mary's University School of Law ( email )

One Camino Santa Maria
San Antonio, TX 78228-8602
United States

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