'Public service must begin at home': the lawyer as civics teacher in everyday practice.

• Author: Green, Bruce A.

TABLE OF CONTENTS INTRODUCTION I. THE IDEA OF THE LAWYER AS CIVICS TEACHER II. WHY LAWYERS SHOULD TEACH CIVICS WELL A. Teaching Civics Well as a Public Service B. Teaching Civics Well as Intrinsic to the Lawyer's Social Function 1. The ABA/AALS Report's Idea of Lawyers' Pedagogic Role as Derived from Their Social Function 2. Antecedents to the ABA/AALS Report's Idea of Lawyers' Pedagogic Role 3. The Perpetuation of the ABA/AALS Report's Idea of Lawyers' Pedagogic Role III. THE SIGNIFICANCE OF THE CONCEPT IN PROFESSIONAL AND ACADEMIC DISCOURSE A. Serving the Public Good B. The Lawyer's Role in a Democracy C. The Lawyer's Counseling Function D. The Lawyer's Relationship with Professional Colleagues CONCLUSION INTRODUCTION

Fifty years ago, the leading national representatives of the American legal profession, the American Bar Association (ABA), and the Association of American Law Schools (AALS), issued a joint report (the Report) on the nature of lawyers' professional responsibility in the context of the adversary system. (1) Principally authored by legal philosopher Lon Fuller, (2) who co-chaired the joint conference that issued it, the Report's premise was that the legal profession's inherited traditions provided only indirect guidance to lawyers in light of their changing roles, and that a "true sense of professional responsibility" must derive from an understanding of the "special services" that the legal profession "renders to society and the services it might render if its full capacities were realized." (3) A decade later, the Report was quoted throughout the footnotes to the Preamble and Ethical Considerations of the ABA Code of Professional Responsibility, (4) suggesting that the Report captured or influenced understandings that continued at least through the early 1970s.

The Report was short on examples and long on abstraction. It included only one story of an exemplary lawyer. (5) That story came not from domestic law practice but from abroad from "the life of Thomas Talfourd," an early nineteenth-century English barrister, judge, author, and member of Parliament: (6)

As a barrister Talfourd had successfully represented a father in a suit over the custody of a child. Judgment for Talfourd's client was based on his superior legal right, though the court recognized in the case at bar that the mother had a stronger moral claim to custody than the father. Having thus encountered in the course of his practice an injustice in the law as then applied by the courts, Talfourd later as a member of parliament secured the enactment of a statute that would make impossible a repetition of the result his own advocacy had helped bring about. (7) The Report used Talfourd's story to illustrate the "sense in which the lawyer must keep his obligations of public service distinct from the involvements of his private practice." (8)

The Report's account of Greenhill v. Greenhill, (9) the 1836 case that Talfourd argued, is too abbreviated to capture the extent of the injustice he helped achieve. (10) In 1835, six years after her marriage, and while caring for three infant daughters, Mrs. Greenhill learned that her husband, whom she believed to be off yachting, had in fact been living for more than a year with another woman whom he passed off as his wife. (11) When Mrs. Greenhill brought divorce proceedings, Mr. Greenhill retaliated by demanding that she relinquish the children. (12) Custody proceedings followed. (13) Despite Mr. Greenhill's refusal to end his adulterous relationship and despite Mrs. Greenhill's undeniable fitness as a parent, Mr. Greenhill had the superior legal right under precedents that regarded children as the husband's chattel. (14) Mr. Greenhill demanded that the children be delivered to his mother, with whom he had formerly been estranged and who had until then refused to see her grandchildren. (15) Further, he sought to prevent his wife from seeing the children, as was his legal right. (16) When Mrs. Greenhill refused to comply with a court order to deliver up the children, her husband sought her imprisonment for contempt of court. (17) Mrs. Greenhill offered to live anywhere and to make any arrangement for Mr. Greenhill to visit the children, but Mr. Greenhill, spurred on by his mother, refused even at the judge's urging to reach an accommodation. (18) This was the matter in which Talfourd successfully advocated the husband's custody claim. (19) As a contemporary put it: Talfourd "had been compelled to support that as an advocate, which as a man, possessed of the same generous sympathies as his fellow men, he must have felt to be iniquitous and absurd." (20)

From our own perspective, the Report's choice of this particular story among all the possibilities was unfortunate in five respects. (21) First, Talfourd's story seems to portray the lawyer's self-conscious civic engagement as work performed entirely outside the ordinary, everyday private practice of law. (22) In this account, only outside private practice did Talfourd dedicate his knowledge and skills explicitly to public ends. Elsewhere, the Report expresses the presumption that zealous advocacy properly provided on behalf of private clients promotes the public good. (23) But, Talfourd's example seems to test that presumption, given the iniquitous result.

Second, the story implicitly portrays civic engagement--in Talfourd's case, endeavoring to improve the law as a member of Parliament--as a pastime for the professional elite. Third, and again implicitly, the story portrays civic engagement as a concept from a distant place and time that presumably needs to be planted or resurrected on American soil. Fourth, the story of Talfourd's success as an advocate in achieving an immoral result for a private client is entirely silent about a lawyer's role in counseling the client, including regarding moral and other nonlegal considerations such as, in this case, the children's best interests and the husband's moral obligations to his wife. (24) Finally, the story is equally silent about the possibility of refusing to engage in a representation that is morally repugnant. (25)

Talfourd's work to reform the child custody law exemplifies a conception of the "citizen-lawyer" that has prevailed since our country's founding. (26) This is the idea of the lawyer as patriotic leader outside the everyday professional work of representing clients. (27) Our Essay explores an alternative conception of the citizen-lawyer, also rooted in earlier American law practice but less explicitly identified, and also given expression in the 1958 ABA/AALS Report. (28) That is the idea that a lawyer's civic obligation is expressed in the manner in which the lawyer conducts everyday private practice and includes an obligation to convey to clients the lawyer's understanding of proper civic conduct. We call this the idea of the lawyer as "civics teacher." In recent years, this conception has largely dropped out of the legal profession's conversation about lawyers' obligations to serve the public. (29) Rather, the organized bar emphasizes the American lawyer's civic role as expressed in law reform, pro bono work, and other efforts outside daily private practice. (30) Our aim is not to take issue with this effort, the importance of which we do not dispute, but rather to suggest that the lawyer's civic role has an additional dimension. (31)

The conception of the lawyer as civics teacher directly addresses the lawyer's role as client counselor in the daily private practice of law, regardless of whether the matter relates to a transaction or to litigation. It emphasizes that when lawyers counsel clients about their legal rights and obligations, and about how to act within the framework of the law, lawyers invariably teach clients not only about the law and legal institutions, but also, for better or worse, about rights and obligations in a civil society that may not be established by enforceable law--including ideas about fair dealing, respect for others, and, generally, concern for the public good. This conception also addresses aspects of lawyers' work aside from client counseling, because lawyers teach clients by example, especially when lawyers address their own legal obligations in the course of a representation. Adopting and elaborating upon the idea of the lawyer's role as civics teacher, we suggest, would lead lawyers to perform this function more self-consciously and, therefore, more often for the better.

This Essay begins in Part I by sketching the concept of the lawyer as civics teacher. Part II offers two reasons why lawyers should make a self-conscious effort to teach civics well and shows how this conception is rooted in Fuller's Report as well as in writings that both predate and postdate it. Finally, Part III places the conception in the context of contemporary professional and academic discussion of four subjects: the lawyer's duty to serve the public, the lawyer's role in a democracy, the lawyer's counseling function, and the lawyer's dealings with professional colleagues.

1. THE IDEA OF THE LAWYER AS CIVICS TEACHER

   In his dissenting opinion in Olmstead v. United States, (32) Justice Brandeis wrote that: "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." (33) Justice Brandeis was responding to the Court's decision to authorize the government's use of evidence secured through wiretapping. (34) His point was that the government teaches by example whether or not it means to do so, and that in this case, its example of indifference to the law would encourage public lawlessness. (35) Almost seventy years later, the Court described this statement, in which "Justice Brandeis recognized the importance of teaching by example," as "pathmarking." (36)

   Borrowing Justice Brandeis's phrase, we would describe lawyers also as potent and omnipresent teachers, particularly on the subject of civic norms...