The More Things Change the More They Stay the Same: Mr. Tutt and the Distrust of Lawyers in the Early Twentieth Century

AuthorMolly A. Guptill
PositionExecutive Editor
Pages305-351

Page 305

Introduction

"Does the lawyer of today hold as high a place and exercise as commanding influence in this country as did the lawyer of fifty years ago?"1 Over the course of the last century, the legal profession has grappled with this question and its distressing answer. At the center of the profession's concern over the image of lawyers in the twentieth century was the growing expression of public dissatisfaction with lawyers.2 Newspapers, magazines, and popular literature were the main sources for discussion about the negative image of lawyers. One of the most popular authors of legal literature during the first half of the twentieth century was Arthur Cheney Train. This article explores how Train attempted to use his writing to improve the public's perception of lawyers,Page 306 and how his writing ultimately created greater dissatisfaction with modern lawyers.

From the beginning of his literary career, Arthur Train wrote stories that revealed the problems that prevented lawyers from attaining the public's respect. Over the years, Train began to shape an image of an ideal version of the legal profession and spent the latter portion of his writing career elaborating and reinforcing this image.3 Although Train initially anticipated his books to be read exclusively by lawyers, his writing was widely embraced by the public as it nourished the public's desire for higher moral and ethical standards for lawyers. The public became especially endeared to Train's most famous character, Ephraim Tutt, who resembled the mythical nineteenth-century country lawyer.4 The popularity of this nostalgic character created a dilemma for twentieth-century lawyers, who were trying to modernize their legal practices to adjust to recent change, yet were plagued by Tutt and his representation of an idealized past.5 One way in which the legal profession responded to this dilemma was through the implementation and revision of ethical regulations, which were supposed to bridge the gap between the esteem for the mythical legal past and the growing disrepute of lawyers in the twentieth century.6 Arthur Train's writing acted as an intermediary be-Page 307tween the public and the legal profession, and was integral in fostering discussion on the improvement of the legal profession.

From approximately 1870 through the 1920s, America experienced tremendous change that both transformed the country and what was required of the legal profession. Stalemate seemed inevitable as the legal profession felt pressure to modernize, yet the popularity of the image of an idealized legal past rallied against change. While the "serpents of industrialization, urbanization and immigration" transformed America, the legal profession tended to "drink[ ] so deeply from the cup of nostalgia" that it "impaired [its] ability to cope with social change."7 Tutt existed in a nostalgic landscape and was very popular for doing so. However, his popularity8 was problematic as Tutt fortified the growing tension between the allure of an ideal, romanticized past, and the need for the profession to modernize to remain functional.

Despite the appeal of the past, the legal profession slowly yielded to change. One of the most glaring examples of such change was the development of urban law firms that began to specialize in a relatively new area-corporate law. Although the number of corporate firms originally remained small, "their power-economically and professionally- was considerable."9 The corporate bar posed a new and tempting option for law school graduates at the turn of the twentieth century, and many "[y]oung lawyers responded with alacrity to the challenge and income that awaited them in metropolitan corporate practice."10 Corporate law firms soon became the public's scapegoat for their discontent with lawyers and the growing problem of the maldistribution of justice; for corporate firms directed their attention to the rising commercial power of big business and corporations, not to the needs of the under-Page 308privileged or the public.11 On the whole, the public became frustrated as many people viewed lawyers as catering to the interests of big business and money-making, while casting aside their general responsibility to the public.12 In the face of these changes, the public took comfort in images that reinforced and reminded them of the stability, homogeneity, and tranquility associated with the dissipating rural past.13 In this respect, the image of the nineteenth-century country lawyer was enormously appealing to the public, but was an impractical standard to which the legal profession was held in the twentieth century. The public distrusted and loathed corporate lawyers who "[we]re not looked upon as were the lawyers of fifty years ago, as men whose eminent talents are at the service of any or every citizen who may desire to employ them in the protection or enforcement of his rights."14

This note analyzes the works of Arthur Train and how his writing created dissatisfaction with contemporary lawyers and applied pressure for the profession to react to this dissatisfaction. Part I discusses who Arthur Train was, and outlines the nature of his writing career. Part II examines the reality of early twentieth-century shyster firms by analyzing the Howe and Hummel law firm. Part III discusses the attributes associated with the mythical country lawyer in twentieth-century literature. Part IV analyzes Train's use of the Tutt character and explores the "life" of Tutt. Part V explores the public's belief in Tutt's existence and the ethical dilemma this belief created for the legal profession. Part VIPage 309 examines Tutt's legacy and the legal profession's response to the public's dissatisfaction with lawyers.

I Arthur Cheney Train and His Literary Progeny

Arthur Train was born in 1875 in Boston, Massachusetts. He graduated from Harvard University in 1896, and Harvard Law School in 1899.15 Upon graduation, he took a job in the New York District Attorney's Office. Despite his enthusiasm for the criminal bar, Train soon found writing about the law more enjoyable than practicing it.16 Thus, beginning in 1903, Train increasingly devoted his time to writing short stories and books, with his first published story appearing in Leslie's Magazine in 1904.17 Thereafter, Train gained publicity and popularity with each short story, book, or article he published, especially those that focused on law or lawyers.18 Before he died, Train published over 250 short stories and novels.19 Train's most popular and beloved works were those describing the life of a fictitious lawyer, Ephraim Tutt, who began to appear in Train's stories in 1919.20

Train adopted two strategies to create momentum for reform of the legal profession. The first was to expose the corrupt nature of the practices of shyster lawyers and incite moral indignation amongst his readersPage 310 against such practices.21 The second strategy was to create a paradigmatic "good lawyer"22 that would serve as an example to twentieth-century lawyers. During the early portion of his literary career, Train wrote articles and novels that explored the unruly practices of shysters, pettifoggers, and other lawyers who personally profited from the abuse of law.23 Train despised the underhanded and corrupt practices of such lawyers, and it seems that his writing was intended to reproach the actions of dishonest lawyers and discourage such behavior. In this regard, Train wrote several short stories and an entire book exposing the practices of the most disreputable, dishonest, and loathsome lawyers of his age, Abraham Howe and William Hummel.24 Then, beginning in 1919, Train turned his efforts to creating Tutt, his paradigmatic country lawyer.

II Undermining the Shyster Bar: The Attack on Howe & Hummel

Early in his literary career, Train attacked the practices of the two most notorious lawyers in nineteenth-century New York City: Abraham Howe and William Hummel.25 Howe and Hummel stooped to the lowest levels in order to win clients, cases, and large fees. Train found this duo so abominable that he included accounts of the shocking downfall of Hummel's legal career in several books and in articles published in popular periodicals.26 The biographer of Howe and Hummel suggested that they "owned reporters," and probably newspaper publishers as well, for even their smallest cases received wide publicity in nota-Page 311ble newspapers such as the Herald.27 Howe and Hummel wrote articles on racy cases and legal issues, which provided entertaining, and sometimes raunchy, reading. The message these articles impressed upon the public was that lawyers were exploiting the law to serve their own ends.28 It was this sort of message that caused the public to lose respect for lawyers and the profession. These stories confirmed the public's concern about the decline in the morals of lawyers, who no longer seemed "to be officers of a court seeking for truth and justice, but players of an unethical, intellectual game."29 Howe and Hummel had a mastery of playing such a game.Page 312

According to Howe and Hummel's biographer, the two men first met in 1863, when thirteen year-old Abraham Hummel sought employment with William Howe, and was given a job as an office boy.30 By the time Hummel turned twenty, he had become the law partner of forty-one-year-old Howe.31 "Between 1869, when the partnership was formed, and 1907, by which time Howe was dead and Hummel disbarred, they defended more than a thousand persons charged with murder or...

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