Tolerance
and the Adversary Ethic
by
Joseph Shaub
If one
were to set out to design a legal training program intended to
promote tolerance, the case method would be an excellent foundation.
Imagine, a course of study which explores the positions of all
sides in depth - with a view to instilling the ability to embrace
and promote any of the interests in a dispute.
So how
did legal training become, rather than a fertile bed for the growth
of tolerance, instead, the source of such rampant professional
cynicism? Well in the words of noted ethics scholar and University
of Notre Dame law professor Thomas Shaffer, we need look no further
than "The Unique, Novel, and Unsound Adversary Ethic."
[i]
We lawyers
labor under the misperception that our Anglo-American system of
jurisprudence is founded on this adversarial ethic, but in fact
this is far from the case.
The Original Paradigm
The first
treatise on legal ethics authored on American soil was David Hoffman’s
1817 A Course in Legal Study. Hoffman was the preeminent
legal ethicist during the early and middle parts of the 19th
Century and his message was distinctly non-adversarial. In his
Resolutions in Regard to Professional Deportment which
were set forth in the 1834 reissuance of his treatise, Hoffman
advises the American lawyer to counsel a client to abandon his
case or claim if it "ought not to be sustained." He
taught that a lawyer’s conscience should be a "distinct
entity" from their client’s and went on to state, "if
I am satisfied from the evidence that the fact is against my client,
he must excuse me if I do not see as he does, and do not press
it..." [ii]
The other
notable ethics writer/scholar of the 19th Century was
George Sharswood a lawyer, judge and professor of law at the University
of Pennsylvania. He gave a series of lectures at the law school
in the 1850's which were later published under the title Legal
Ethics. While Sharswood was not quite so supportive of the
lawyer’s independent obligation of critical personal exploration
of a client’s cause, he still found that an attorney was
duty bound, "to refuse to be concerned for a plaintiff in
the legal pursuit of a demand, which offends his sense of what
is just and right." [iii]
Suggested
as a paradigm of the 19th Century legal principle,
James Louis Petigru practiced in Charleston, South Carolina, where
he was a leader in the state’s bar and trained many of the
state’s legal elite in his office. An anonymous memorial
to Petigru arguably sums up the lawyer’s proper role with
her client and in society,
"[Petigru]
never was a mere lawyer to his clients. He was a friend, and a
sincere friend; and when called on for his counsel, he never stopped
at expounding the law, but placed before his clients the duties
their positions required. With him, honor was worth more
than property; and he frankly and freely counseled the course
that high morals required his clients to pursue, irrespective
of law...[H]e was ever assiduous to clear himself of any complicity
with moral crime which the profession of law sometimes produces"
[iv]
It is
suggested by Shaffer that in the evolving American republic of
the 19th Century, there was a deeply ingrained understanding
that "each person’s welfare remains a community concern
and the lawyer is a member of the concerned community." [v]
As Yale
Law School Dean Anthony Kronman (who has written extensively and
passionately about our search for meaning in this complex, challenging
profession) notes, the above ethic is grounded in the value of
tolerance.
"[I]t
is the sign of a wise political judgment that it promotes community,
not through the construction of a false and unattainable unanimity,
but in the only way that human beings with strongly divergent
interests are ever likely to achieve it: by strengthening the
capacity of each to entertain the views of those with whom he
disagrees...."
[vi]
The
Worm Turns
So when
and how did this ethic transform itself into the now almost universally
embraced charge of "zealous advocacy" and the ascendance
of the adversarial ethic? Well, like many American traditions,
this, too, came over from England.
In the
early 19th Century, King George IV had wearied of his
Queen Caroline, from whom he was estranged. She had been living
in Italy for some time and he sought to break his marital bond
by having her falsely accused of adultery. Caroline sought out
Lord Henry Brougham to mount her defense. It was said that Lord
Brougham had evidence that the king had a mistress who had been
mentioned in a will, a copy of which he implied that he possessed.
The notion that this advocate would defend against the King in
such an aggressive fashion was considered an outrage and close
to criminal itself in England. Brougham responded in the House
of Lords with an oration, portions of which are oft-quoted to
this day as evincing the foundation of the adversarial ethic.
"[A]n
advocate in the discharge of his duty, knows but one person in
all the world, and that person is his client. To save that client
by all means and expedients, and at all hazards and costs to other
persons, and among them, to himself, is his first and only duty;
and in performing this duty he must not regard the alarm, the
torments, the destruction which he may bring upon others. Separating
the duty of a patriot from that of an advocate, he must go on
reckless of consequences, though it should be his unhappy fate
to involve his country in confusion."
[vii]
This ethic
was strongly defended and its reach expanded by David Dudley Field,
one of the pre-eminent attorneys in American history. Field is
noted for being the brother of a U.S. Supreme Court Justice and
the author of New York’s first code of civil procedure (the
"Field Code" was the model for the early 20th
Century’s revolution in civil pleading and practice). Yet
Field also ushered in another revolution - the firm implantation
of the adversarial ethic on American soil.
In the
late 19th Century, the post Civil War economic boom
saw the concentration of huge corporate interests in concerns
such as railroads, oil and steel. The railroads were in an extremely
bloody battle for control of the nation’s transport. Commodore
Vanderbilt, owner of the New York Central, sought to buy up the
Erie Railroad, thus solidifying complete control of that region’s
rails. The owners of the Erie, James Fisk and Jay Gould, began
printing unauthorized shares of Erie stock as fast as Vanderbilt
could buy them up. When Vanderbilt sought an injunction, Fisk
and Gould retained Field who engaged in months of jurisdiction-hopping
with Vanderbilt’s lawyers, obtaining injunctions and counter-injunctions
throughout the state. When the shenanigans were complete, Vanderbilt
had been staved off, but by less than honorable means.
Samuel
Bowles, a newspaper editor, began writing scathing commentaries
attacking Field -a battle joined by the lawyer, who offered perhaps
the clearest explication at the time of the lawyer’s adversarial
role. He claimed that, "I have done not only what I had a
right, but what I was bound to do," and he characterized
the criticism as "an attack upon the independence of the
bar." [viii] Thus, with
Field, we find the American legal ethic turning from its concentration
on the primacy of the community to that of the individual client.
Modern
Hoffmanites
Today,
the adversarial ethic is so firmly entrenched in our thinking
that only a protean effort can begin to shift the weight of its
enormous influence. There are a number of formidable thinkers
and writers who are up to the task, led by Thomas Shaffer, Anthony
Kronman, William Simon, David Luban and Carrie Menkel-Meadow.
Perhaps the most striking statement of this counter-philosophy
may be found in Menkel-Meadow’s Is Altruism Possible in
Lawyering? [ix]
As Menkel-Meadow
aptly notes, "To say that lawyers should consider, let alone
care, for the other side of a legal problem is probably close
to blasphemous in our lawyering practices...This is what I wish
to confront - the way our legal system asks us to wage war, without
seeing the person on the other side. For lawyer’s work, like
soldier’s work, has been justified by its role morality.
We permit these specific actors to engage in behaviors that we
would ordinarily condemn because their roles , performed with
a morally defensible situation, war or litigation, require it.
We might examine how the imagery of war, scarcity, and zero-sum
assumptions is also the imagery of our legal system." [x]
In a remarkable
statement, so at odds with our conventional training, she adds,
"Beyond the complaints and debates about the treatment opposing
lawyers afford each other and each others’ clients is the
deeper problem of trying to understand what the actors on the
other side are trying to accomplish with their lawsuit or legal
matter as an expression of their humanity...finding out what the
other side really wants, as opposed to making general assumptions
about the other side, could facilitate more effective dispute
resolution, as well as transaction planning." [xi]
Imagine....a
system of legal education and training which creates experts in
conflict resolution - not in the sense of the advocate who can
promote one side and cut down the other - but in the service of
more republican values. Imagine, further, that we lawyers seek
to understand the other side’s best arguments, not for the
purpose of destroying them, but for the purpose of educating our
clients about what is noteworthy and supportable in the other
side’s cause, as well as their own. Imagine, finally,
the extraordinary notion of lawyers as agents of tolerance rather
than ardent advocates for a single position.
[i]
41 Vand. L.Rev. 697 (1988)
[ii] Hoeflich, M.H., Legal Ethics in the Nineteenth Century:
The "Other Tradition", 47 Kan. L.Rev. 793 (1999).
[iii] Ibid.
[iv] Ibid.
[v] Shaffer, note 1 at 700-701.
[vi] Kronman, A., Living the Law, 54 U.Chi. L. Rev. 835,
861.
[vii] Hoeflich, note 2, at 794-795.
[viii] Schudson, M., Public, Private, and Professional Lives:
The Correspondence of David Dudley Field and Samuel Bowles,
21 Am. J. Legal History 191 (1977).
[ix] Ga. S. U. L. Rev. 835 (1992).
[x] Ibid., at 387, 407.
[xi] Ibid, at 409.
