Indiana Law Review


In the Public Interest: The Precedents and Standards
of a Lawyer's Public Responsibility

James F. Smurl*

Even the most casual observer of the legal profession quickly
becomes impressed with the extent and depth of the changes which
have begun to occur in the American bar during the last decade.
The 1977 Supreme Court decision' allowing advertising of legal ser-
vices and the impact it has already had on the structure and func-

tioning of the bar is but one, in a significant series of changes which

have occurred in response to a publicly-perceived need for a fairer

distribution of legal services.

As an observer who is a social ethicist, I have been intrigued by
the reasons offered for these changes — especially by the reasons
supporting claims that the profession has a moral obligation to make
legal services fully available. With often stirring rhetoric, but
sometimes confused explanations of public responsibility, the more
institutionalized forms of legal practice in America— government
and corporate lawyers, large private firms, and the bar associa-
tions^— have sought to assure first the poor, and increasingly those

of moderate income as well, that legal services will be much more
accessible to them. In this effort, the profession has helped create

some new patterns of delivery, which are supported by reasons as
little understood as they are discussed.^ This Article will seek to

remedy some of that neglect by giving extended attention to the ra-
tionales behind changing patterns in the delivery of legal services.

Despite the progress already made and developments antici-
pated through plans now only in the experimental stage, a number
of practical and theoretical problems remain unresolved, but in such
a way that a steady and continuous progress depends upon their
resolution. The policies and practices necessary to finance and
regulate newly-developing patterns of delivery are surely some of
the most challenging practical considerations. High on the list of

*Associate Professor of Religious Ethics, Indiana University —Purdue Univeristy
at Indianapolis.

The research for this Article was supported by a faculty improvement grant
from Indiana University —Purdue University at Indianapolis. The author wishes to ex-
press his appreciation to the library staffs of the American Bar Center and the Univer-

sity of Chicago and of the contributions of James F. Bresnahan.
'Bates V. State Bar, 433 U.S. 350 (1977) (5-4 decision).

Trivate practitioners are probably less influential on the social and institutional

shape of the profession.

'See M. Schwartz. Law and the American Future 9 (1976).



798 INDIANA LAW REVIEW [Vol. 11:797

theoretical issues with great practical significance — especially in the
formulation of policy — are social-ethical considerations concerning
the nature and requirement of fairness in the distribution of the

benefits and burdens of legal services if they are to be made fully
available to the public.

As an ethicist observer of both the changes wrought in legal ser-
vices since the mid-1960's and the explanations offered for them, I

am puzzled by what I apprehend as some confusing and not always
logically justifiable judgments concerning the meaning and applica-

tion of one of the legal profession's "important functions[:] to assist

in making legal services fully available."^ Whether that function is
to be considered an obligation, and whether it involves an appeal to

distributive justice are questions not always answered clearly.

There are few clear answers to questions regarding the subject of

this putative obligation. Even if this question is answered clearly,
there remains some ambiguity concerning its logical warrants. To
the degree that ambiguity and unclear reasoning prevails in the

answers to such questions, I believe that the progress already made,

as well as that which is anticipated in the delivery of legal services,

perforce will be impaired — especially since the policies that are to
guide delivery practices depend in large part upon reasonably clear

answers to the questions posed above. Assuming, then, that there is

an important, albeit not always effective, connection between having

answers to such questions and the policies and practices developed

to deliver legal services, this Article will seek to explore analytical-

ly some judgments about the nature of the obligation to make legal
services "fully available."

In this Article, I propose consideration of some traditional and
precedent-setting moral judgments that have animated the profes-
sion's efforts to assure that legal services will be available. One such
judgment alleges an obligation to be benevolent and to do works of
charity or almsgiving. It encourages the cultivation of internal
states — dispositions and intentions — but fails to state a rule of ac-
tion. Thus, the subject of this obligation will not always be clear
about what is precisely required. In addition to this intuitive judg-
ment there is another which assumes that, by working zealously for
the interests of the individual client, lawyers are thereby serving
the public interest or that the gains made for the individual will
transfer automatically to the common good. Finally, Canon 2 of the
American Bar Association Code of Professional Responsibility will

*ABA Code of Professional Responsibility, EC 2-1 (1977 version) [hereinafter
cited as ABA Code].



1978] PROFESSIONAL RESPONSIBILITY 799

be analyzed in order to determine how the above judgments con-
tinue in force.

Two recent facts related to the provision of legal services in the
last decade serve as proximate boundaries in an historically impor-

tant symbiosis of values shared by the leadership of the legal profes-

sion and those persons whose declarations about the key values in
American culture have been given normative status. One is the fact
that, while legal aid in various voluntary and associational forms

dates back to the late 19th century and gained momentum in the
early part of this century, organized and stable efforts to provide

legal services for those persons who needed aid but were unable to
pay for it did not reach meaningful levels until 1965. Before the

creation of the Legal Services Program under the auspices of the Of-
fice of Economic Opportunity, the history of legal aid was largely a
story of voluntarism or elective benevolence, ad libitum, and

depended upon the irregular stirrings of altruistic motivations. The
continuing significance of that record must be recalled in order to
grasp the source of the paradox that what the American Bar
Association today refers to as an "important function[:] to assist in

making legal services fully available"^— others argue is a much
more determinate kind of "imperative" (either moral or constitu-
tional).*

The other bracketing fact is the recent publication of a national
survey entitled The Legal Needs of the PuhlicJ A joint undertaking
of the American Bar Association and the American Bar Foundation,

but funded as well by five other agencies, the survey has been one

of the most expensive, thoroughgoing, and perhaps the last need-

study of its kind.^ Surveys, occasioned by a governmentally-

supported desire to identify and to meet better the needs of the
poor, expanded to include information about those persons with

above-poverty or mid-level incomes.® They now seem to be con-
cluding with a study which seeks to obtain a representative sampl-

ing of need across a very broad economic spectrum.^"

7d.

*See, e.g., Anderson, Indigents' Right to Appointed Counsel in Civil Litigation,

66 Geo. L.J. 113 (1977).

^. CuRRAN, The Legal Needs of the Public (1977).
'See Resource Center for Consumers of Legal Services, The Role of

Research in the Delivery of Legal Services. Working Papers and Conference Pro-
ceedings 217 (1976) [hereinafter cited as ROLE OF Research].

'B. Christensen. Lawyers for People of Moderate Means (1970). Christensen's
judgment is that very few "people of modest means really see the practice of law as a
'noncommerical' enterprise, or that they would be especially shocked or alienated by
advertising or solicitation by lawyers." Id. at 152-53, cited in Bates v. State Bar, 433

U.S. at 369.

'"See B. CuRRAN. supra note 7, at 70-74.



800 INDIANA LAW REVIEW [Vol. 11:797

While granting that these surveys enlarged the data base

and that the most recent study is, methodologically speaking, much
more sophisticated than its predecessors, critics still point to certain
seriously defective assumptions operative in all such need-studies."

Leaving discussion of those flaws to persons more skilled in the
techniques of the social sciences, I draw attention to some control-
ling assumptions which are more directly related to social ethical
concerns. In particular, I should like to highlight the surveys'

assumptions that past use of legal services and client-centered

perceptions of need ought to be normative in determining the kinds

of services needed. According to one writer, until these assumptions

are challenged and new goals, priorities, and methods are estab-
lished for the study of needs, surveys of the problem of legal ser-

vices will be dominated by a "flat, static view of but one part of an

extremely complex network of political, economic and social institu-

tions which, in the final analysis, tend to determine our view of con-

flict, injury and redress, and either validate or invalidate individual

or group isolation."^^

Because the surveys generally do not question traditional

assumptions about the ways in which legal services are organized
and distributed, they tend to suggest incremental, rather than

radical changes.'^ Therefore, these studies leave unexamined poten-

tially crucial flaws in the system of rules, the institutions designed

to apply them, and the capabilities of people who seek to use them.'^
Left unattended as well are issues such as the quality and effec-

tiveness of the services provided,'^ bar-imposed impediments to new
forms of public responsibility, static definitions of property and

property rights, and the meaning and application of notions of social

justice — a term which includes, but is not limited to, questions about
how fairly to redistribute wealth and power in this society.'^

There is obviously a great deal to be considered in the area of

legal aid. In this Article I shall consider only three interrelated

social ethical judgments which have animated the legal profession's

expressed desire to honor constitutional commitments to "due pro-

cess" and "equal protection of the laws" through legal services. The

"See, e.g.. Role of Research, supra note 8, at 217.
"Marks, Some research perspectives for looking at legal need and legal delivery

systems: old forms or new?, in Role of Research, supra note 8, at 34.
"Id.

"Galanter, Delivering legality: some proposals for the direction of research, in
Role of Research, supra note 8, at 68.

'^Carlson, Measuring the quality of legal services: an idea whose time has not
come, in Role of Research, supra note 8, at 145.

"See Brickman, Preface, supra note 8, at viii; Marks, supra note 12, at 47-48.



1978] PROFESSIONAL RESPONSIBILITY 801

three judgments concern: (1) The elective, voluntary and benevolent
character of the pro bono requirement; (2) the causal connection be-

tween litigation in the adversary system and the achievement of

social justice; and (3) the ethical considerations which form a part of

Canon 2 of the Code. While not exhaustive, and while not fully at-
tentive to the more specifically political and economic dimensions in
these judgments, this selection of certain ethically interesting am-

biguities can serve at least to draw attention to such matters and to
suggest further consideration by others more conversant with those
areas.

I. "Pro bono" as Character-forming Elective Benevolence
WITH Beneficial Social Consequences

"Pro bono publico" is a slogan or maxim used to express a sense
of public responsibility in the practice of law in western civilization.

In its usage by members of the American bar, it has been truncated
linguistically to "pro bono" — "in behalf of good" (perhaps akin to
"doing good") with no substantive content assigned to the verb or

the substantive adjective. In this abbreviated form, the formula

symbolizes a potential diminution in content as well as form. The
nature of the obligation symbolized in this slogan has been trans-

muted verbally and conceptually to signify almost any kind of good-
will gesture in the general direction of the community and arising
from most generic and inchoate senses of altruism. Thus, it is now
associated with behaviors that are related very indirectly, if at all,

to the specific kind of contributions a legal professional might make
toward the common good. For instance, few would find a specifically
legal contribution in acts some lawyers have regarded as pro bono
work— umpiring Little League or serving on the boards of charit-
able organizations." Additionally, the obligation to serve the public

interest has not always been associated with the characteristic daily

activities of "lawyering," but has come to be regarded as an after-
hours activity. Thus, it currently means a voluntary, free, but poten-
tially and personally enriching or ennobling experience — and one
which is quite apart from the income-generating business of zealous-

ly advocating a client's interests.

Some important causal factors and certain allied, though prob-
lematic, social ethical judgments leading to this situation can be
found in a consideration of the American legal aid movement, which
began in the late 19th century. A more complete record of this

"F. Marks, K. Leswing & B. Fortinsky, The Lawyer, The Public, and Profes-
sional Responsibility 8-9 (1972) [hereinafter cited as F. Marks]; E. Smigel, The Wall
Street Lawyer: Professional Organization Man? 10 (1964).



802 INDIANA LAW REVIEW [Vol. 11:797

movement is available in various reliable sources.'* A thumbnail
sketch is given here to create a context for the discussion of the not-

fully-supportable ethical judgments entailed in the movement and
which continue to influence contemporary considerations of the

scope of "pro bono publico."

Originally, there were two protective agencies which restricted
legal services to certain categorical groups: the New York German
Society established in 1876 to fend off the exploitation of German
immigrants, and the Chicago Protective Agency for Women and
Children begun in 1886 to seek redress for female victims of seduc-
tion and debauchery. The first true legal aid society — one with
neither ethnic nor sexual eligibility requirements — was established
by the Chicago Ethical Culture Society and was called the Bureau of
Justice. With the exception of another such legal aid office opened
in Jersey City in 1894, organized service was restricted to two
geographical areas by the turn of the century.'^ Legal service agen-

cies expanded slowly into four or five additional major cities by 1909
and rather rapidly to twenty-four other cities between 1909 and
1913. At the end of that period, only one agency was not private,
voluntary, and supported by charitable donations of money and pro-
fessional time. The Kansas City Bureau was the only agency
operating as a municipal office and funded with public monies.^"

Although shortly thereafter the Kansas City pattern was emulated
by several other cities,^' this method remained atypical as an
organized way of assuring legal aid to indigents. With respect to
funding and management, the typical agency was the legal counter-
part of the early 20th century charitable hospital and dispensary

both of which were attempts to make medical care available on a
more organized and predictable basis in urban areas where the in-
itiatives of private practioners were insufficient to meet health care
needs. Although changes in the case of medicine began to occur

after the Depression, organized legal aid efforts did not begin to

lose their almost complete dependence upon voluntarism and elec-

tive benevolence for funding and personnel until the 1960's.

The legal aid movement grew very rapidly between 1914 and
1918 under the diligent leadership of Reginald Heber Smith and

achieved a measure of national unity through an organization he

"See, e.g., J. AuERBACH, Unequal Justice: Lawyers and Social Change in
Modern America (1976); Cappelletti, Legal Aid: The Emergence of a Modem Theme,
24 Stan. L. Rev. 347 (1971-1972).

"R. Smith. Justice and the Poor. 134-40 (1924).
""Id. at 145-47.

"In 1919 there were 9 such offices; there were 12 in 1932 and only 5 in 1962. E.

Johnson, Justice and Reform 17 (1974).



1978] PROFESSIONAL RESPONSIBILITY 803

launched in 1923: The National Association of Legal Aid Organiza-
tions, later to be known as the National Legal Aid and Defender
Association. But there were very few experiments akin to that of
Kansas City. Most of the agencies were known as "departments of
organized charities" and were perceived by the bar and the com-
munity as institutionalized forms of almsgiving.^^ Like other such

organizations which were completely dependent upon voluntary con-
tributions but which were not as crucial to survival as bread and
soup lines, the legal aid societies declined during the Depression.

This decline continued into the 1950's when, paradoxically, during

the McCarthy era, these societies prospered, perhaps due to the at-
mosphere created therein — namely, the distrust of any sign of
"creeping socialism."^^ That they should prosper in such an environ-

ment was, in part, a result of a prevalent national preference for
traditional American forms of voluntary and associational self-help
movements, and, in part, a consequence of the stature and per-
suasive voice of Roscoe Pound, who maintained that efforts to
develop a socialized legal service would be tantamount to making
the legal profession into a trade union.^"

Hence, events conspired to prohibit serious consideration of

governmental, especially federal, subsidization of legal aid until the

experiment of the Office of Economic Opportunity in the 1960's.
Related to, but still somewhat independent of these events and the
socio-political forces they entailed, are certain ethical notions and

judgments which animated the leadership of the legal aid movement
and which were used as grounds for convincing others that a public
need existed for which the profession had some responsibility. In its
most national, organized, and true form, under the impulses of

Smith, the movement was imbued with a sense of compassion for
the poor and was animated by Roscoe Pound's definition of a profes-

sion as a learned group serving the public interest.^^ This compas-

"R. Smith, supra note 19, at 145-49.

^See, e.g., J. Auerbach, supra note 18, at 230-62. See also, E. Johnson, supra

note 21, at 17-18. Johnson maintains that, until 1950, publicly funded legal aid offices,

though never very extensive, were still a "respectable alternative." Id.

"ABA Standing Committee on Legal Aid Work Publications (Sept. 1, 1950)
(unpublished typescript in Cromwell Library of American Bar Center, Chicago, 111.).

This opposition to "socialized legal service" is reflected in Smith, Introduction to E.

Brownell, Legal Aid in the United States at xvi-xvii (1951).

*^R. Pound, The Lawyer from Antiquity to Modern Times 5 (1953) (prepared for
and published by the Survey of the Legal Profession) (copyright held by R. Smith). To
clarify the Smith-Pound interdependence prior to the 1950's we should consider the
following: Pound taught Smith at Harvard and was his consultant on jurisprudential

dimensions in the survey of legal aid reported in his 1919 publication of Justice and

the Poor, in which Smith refers to Pound as a "voice crying in the wilderness." R.

Smith, supra note 19, at 7-8 (citing Pound, The Causes of Popular Dissatisfaction with

the Administration of Justice, 29 A.B.A. Rev. 395 (1906)).



804 INDIANA LAW REVIEW [Vol. 11:797

sionate idealism may have dulled the sense of urgency for law
reform and for the structural changes some believed essential to a
more just system of rules and applications. In fact, even Smith ex-
hibited a curious ambiguity in his simultaneous insistence that there

was some unfairness in substantive law affecting the poor, but that
such law was reasonably sound for the moment. Arguing further
that substantive law is impotent finally to safeguard equality unless

impartial administration is guaranteed, he urged that the adminis-
• trative machinery be overhauled and that the movement concen-
trate on the elimination of such procedural barriers as delays, court

costs, and the expense of counsel.^^ Concentrating primarily on the

latter barrier and attempting to eliminate it through voluntary and

associational donations, Smith was dismayed by the "poor" attitudes
as well as the degree of personal, fiscal, and moral support in both

the lawyers he tried to enlist and the general public." From the
start he encouraged attorneys to acknowledge a duty to the poor,

but he did so in more motivational than demonstrable forms of ap-
peal.^*

The irregular rationality and the ineffectiveness of this approach
comes more clearly to the fore both in comments made by Smith and
in events surrounding him in the 1950's. In his introduction to
Emery Brownell's 1951 study of legal aid needs,^' Smith noted that
these needs were then more critical than ever, especially consider-
ing worldwide "tensions and restiveness."*" In the foreward to the

same study, Harrison Tweed maintained that, if not promptly met,
these needs would occasion a government "take-over" with predic-
tably undesirable consequences for the autonomous self-regulation of
the profession.'^ While Smith continued to give primacy to idealistic

motivational appeals, Tweed and Brownell attempted to make the
case on much more pragmatic and utilitarian — indeed, even ego-
istic—grounds. They argued that legal aid agencies, if well sup-

^R. Smith, supra note 19, at 15-16.

"M at 226-39.
'''Smith sought to ground his case for the lawyer's duty to the poor on the fact

that a lawyer is a minister of justice and an agent of the court, but also tried to find

support in "accepted standards of ethics," in professional codes including an early 19th

century code by David Hoffman. Since Smith cites the following passage, and since it

is prototypical of the ambiguities in his motivational appeals to "duty," I cite the en-

tire passage here: "I shall never close my ear or heart because my clients' means are
low. Those who have none, and who have just causes, are, of all others, the best entitl-
ed to sue or be defended; and they shall receive a due portion of my services, cheerful-
ly given." R. Smith supra note 19, at 233.

""E. Brownell, Legal Aid in the United States (1951).
'"Smith, supra note 24, at xiv.

"Tweed, Forward to E. Brownell, Legal Aid in the United States, at iii (1951).



1978] PROFESSIONAL RESPONSIBILITY 805

ported and active, would help keep people off the relief rolls; would

keep nonpaying clients out of private offices; would offer young at-
torneys valuable experience, and would help build a better public

relations image for the bar.^^ Although Smith exhibited considerable
talent and interest in organization and practical affairs,''^ he pressed

the case for the support of the legal aid movement in lofty, idealistic
and rhetorical terms. This is nowhere clearer, perhaps, than in an
appeal to law students in 1953. Relying importantly on religious

metaphors, he asked law students to remember that they were to
become the stewards of people's liberties and properties and urged
them to be faithful in the bearing of this chalice.^* Finally, near the
end of this somewhat stylized urging, he offered the students
reasons to reject the theory that a lawyer might proceed, first, to

become financially secure and, then, as a supplement, might become
devoted to public service. As a retort to such a "philosophy" he told
the young lawyers: "[W]hen you reach that point, the people won't
trust you. They'll say 'What has this rascal been doing all his [sic]
life, and what is the sudden need for conversion and forgiveness.' "'^

Implying, of course, that prodigals are considered less virtuous

than good, faithful, and generous stewards, Smith lays bare some
characteristic premises in his undaunted idealism. Appealing to
what he believed to be the higher-or better and nobler-dimension in
humans, he rested his case for public service on the grounds that it

could do much to enhance one's self-image and public regard. Thus,
just as he invoked Roscoe Pound's idealism in his use of Pound's

definition of the professional, so too he appealed to a very particular

kind of religiously-grounded moral viewpoint which, I think, was
centrally important in his leadership and its continuing influences.

Ethics is usually defined as the systematic and disciplined criti-

cal analysis of moral arguments — namely, those cases which people
make in support of moral claims, or what is morally to be done or
avoided, with justifying reasons given, and which are built upon a

set of premises or assumptions. In turning the light of ethics upon

what I previously have called in more "everyday" terms ethical no-
tions and judgments in the legal aid movement, I shall try now to
use the more precise language given in the definition above. I invite
the legal professional to "inhabit" another field of study for a brief

time, primarily in order to understand not only how ambiguities
might arise but also how they may be resolved in the legal profes-

'''See E. Johnson, supra note 21, at 9.

^See Smith, Law Office Organization (pts. 1-4) 26 A.B.A. J. 393, 494, 610, 648
(1940).

**R. Smith, The Opportunity is Yours 1-5 (1953).
^/d at 4 (emphasis added).



806 INDIANA LAW REVIEW [Vol. 11:797

sional's effort to express and justify what Smith called "the lawyer's
duty to the poor" and what others have called, still more generical-
ly, an obligation to serve the public interest.

Not every statement concerning alleged obligations is, or is in-
tended to be, a moral claim. Some such statements are intended only
to communicate a generic judgment that ''something ought to be
done" for some reason on any grounds. Others express a more
specific judgment which suggests particular reasons and grounds for
the obligation, but not all such specific claims are moral. Some are
political, social, customary, economic or constitutional. These state-
ments are sometimes called "nonmoral" to distinguish them from
more stringently and properly designated moral judgments. There
are also some judgments which fall between the moral and the non-
moral— judgments in which the intentions and words of the claim-
ants are not entirely clear or in which both moral and nonmoral

statements are mixed, at least in the reasons given to support the

claims. For example, some statements urge a moral duty to do some-
thing but also contain references to professional, political, economic,

or other forms of obligation. Finally, and distinguishable from both

nonmoral and semimoral claims, there are those statements which

are most specifically and properly moral — namely, those which are
not only normative ("ought") but also universalizable and other-

regarding claims about what is to be done or avoided. In this more
stringent form, moral claims are difficult to make precisely and are
found primarily in professional ethical treatises. Unfortunately,

however, moral claims are often most inchoate, imprecise, and

rhetorical in the urgings of public and political leaders.

With these clarifications in mind, I should like to submit a dis-
claimer. What follows should not be taken to be a reckless or ar-
rogant reading by an outsider who fails to understand how ordinary
language functions or who is unwilling to acknowledge that, even
among professional ethicists, there is always some nagging uneasi-
ness about the clarity of their own work, as well as a certainty that
even those rare cases of completely unambiguous argument will cer-

tainly draw critical rejoinders. Rather, what follows is an attempt to

do what ethicists have learned humbly to accept as one of their

major contributions in public policy discussions — namely, to press
certain kinds of questions upon claimants and their arguments

(especially those which either are or appear to be moral), to ask for

clarification of the claims, warrants, and grounds of those

arguments, and to suggest how better to make a moral case, if in-
deed such is possible in the issue at hand.

Just as law has its rules for legal rules, so too does ethics have

rules for moral rules. Unlike the power which accrues to certain



1978] PROFESSIONAL RESPONSIBILITY 807

rule-making decisions in the law — to wit, a power to declare certain
laws invalid or illegitimate — there is an absence of similar authority
in the field of ethics. More tentatively, but not always without
precedents, ethicists must argue for the reasons behind and the ap-
plications of their rules for moral rules. Unlike certain legal guides
for rule-making, however, these ethical rules are not as highly insti-
tutionalized (excepting, perhaps, some very few examples of academic
or religious forms of ethics). Thus, ethical rules do not enjoy the
same degree of social staying-power and certainty which accrues to
the institutions of legal rule-making and application.

Granting some of the major differences cited above, it seems
possible, nonetheless, for professionals in law and ethics to address
each other from the vantage point of the reasons rather than the
power behind the rules for their respective disciplines. It is not
unreasonable to hope that we may be able to understand each other
and to suggest both possible causes and remedies for errors of fact
or judgment in each other's field. With hope so grounded and in
light of the preceding set of premises, I propose the following ways
of identifying problematic moral claims and assumptions in the tradi-
tional and still influential judgments regarding the obligation to
public service.

Criteria or action-guides, devised to express what people judge
to be morally right or wrong and grounded in a theory of morality,
can be classified according to the degree of objectivity they embody.
The more demonstrable and determinate the criteria, the more they
are independent of the relativities of time, place, and circumstance.

They are, thus, more universalizable and debatable on reasonably
objective grounds. Such are the moral criteria and theories of law

(natural, moral, religious, and civil insofar as it entails one of the

other three), utility (act and rule determinations of harms and

benefits) and formal moral principles (such as reciprocity and

fairness). Less demonstrable, determinate, and, thus, more complete-
ly dependent criteria are those found in the moral action-guides and

theories of perfectionism, intuitionism, naturalism, and developmen-

tal evolution. These latter theories tend to emphasize growth,

development, attitudes, sentiments, and dispositions. Thus, they are

sometimes associated with a theory of morality called "the ethics of

virtue," as contrasted with "the ethics of duty" which is more com-
monly associated with the more determinate and demonstrable cri-
teria.'*

While these categories are not so hard and fast as to prohibit

the presence of each in any one particular argument or moral

''See W. Frankena. Ethics 63-65 (2 ed. 1973).



808 INDIANA LAW REVIEW [Vol. 11:797

system, most positions tend to be predominantly one or the other.
And, while the designations "ethics of virtue/duty" can mislead one

to oversimplify some arguments, they provide nonetheless a work-
able way in which to discuss the classification of criteria explained
above in less readily oversimplified terms. With those disclaimers in
mind, I should like to acknowledge that, in using these designations

in an effort to evaluate the cases made for the pro bono obligation, I
subscribe to a theory that the more demonstrable, determinate, and
less completely dependent set of criteria called "formal moral prin-

ciples" are the most defensible theoretically. While acknowledging

that formal principles are lacking in the motivational power possible
in other more lyrical action guides, I find that they are much more
rational and defensible. The "whys" and "wherefores" of this posi-
tion are not entirely pertinent here, but shall be apparent nonethe-

less in the following critical analysis.

I recall the salient characteristics of Smith's case for the

"lawyer's duty to help the poor." The language is that of a moral
claim. It is, at the very least, semimoral and, clearly, is not entirely

nonmoral. Furthermore, it is buttressed with reasons which tend to
make the claim less truly determinate and demonstrable — to wit, by
emphasizing the character-building and personally enriching divi-

dends for the lawyers who donate their services. Thus, a claim
which appears on first glance to be in accord with an "ethics of

duty" accords better, in its supporting justifications, with an "ethics

of virtue." That virtue and not duty is central to Smith's perspec-
tive can be seen in his emphasis on notions of fidelity and conver-

sion in the 1953 address to law students, and is still more obvious in
the premises upon which he tried to organize the National Associa-
tion of Legal Aid Organizations. Relying almost completely upon

volunteered funds and personal services, the movement under
Smith's tutelage relied upon the presence and regularity of impulses

of elective benevolence in both legal professionals and in other sup-

porters of the movement. Assuming people could and would choose
consistently to assist those in need of legal counsel, he fashioned a

strategy to bring this need to people's attention and to appeal to

their senses of compassion and fair play. And this strategy had to be
able both to stir and to direct the other-regarding impulses of the

people he had targeted as "volunteers." One way to prick such sen-
sibilities and movements of the heart is, as Smith seems to have

discovered, to note the personal satisfactions and community regard

which sometimes accrue to persons acting altruistically. While

dividends such as these need not be regarded as entirely egoistic,

they are nonetheless somewhat traditional and conventional ingre-
dients in popular views of the rewards attendant upon a life of vir-



1978] PROFESSIONAL RESPONSIBILITY 809

tue. Linked to a proverbial biblical wisdom, hallowed, in part, by

knowledge of its source and, in part, because of its extensive in-

fluence in our culture, this kind of virtue is accompanied by an ex-

pectation of a return for the bread cast upon the waters and, thus, is

finally egoistic or in one's own best interests.
I should like to offer a critical appraisal of Smith's case.

Reiterating my position that the more demonstrable arguments are
the most defensible theoretically, I now single out two ways in
which Smith's case must be considered rationally indefensible. First,
compassion or love is terminologically and notionally indeterminate.

Until a more specific content is assigned the "obligation" to love
others, it is inchoate and an expression of an ideal whose approxima-
tion is not indicated. Thus, ethicists who promote this ideal — in
terms of "love" by those whose grounds are primarily religious, and
as "beneficence" by those whose premises are more exclusively
philosophicaF^— seek to explain it in the more specific terms of
justice. Smith did not make this connection and interpretation; his
case rests on an indistinct and indeterminate action-guide. In fact, as

contrasted with the term used by some philosphical ethicists,
Smith's claims are associated more with the word '"benevolence"
than with the term "beneficence" with a significant difference be-
tween the italicized roots — namely, willing and doing. A second
criticism rests on the premise that, when attempting to assign a
specific content to "love" or "beneficence" people generally have

recourse to the more determinate notions and criteria of justice. In
order to develop a moral argument for an obligation in this fashion,
one must distinguish between several different notions of moral
justice — namely, justice as reciprocity, as regularity, and as fairness
in both exchanges and distributions. Were I to make such a case, I
would select the notion of fairness in distributions or dis-

tributive justice — as the one most applicable to legal services, and
the profession's formal commitment to make them "fully available."

Thus, a major problem in Smith's argument stems from a failure
either to distinguish between notions of justice or to use one of
them systematically to make his point. If his urgings appeal at all to
the moral conceptions and criteria of justice, they do so only im-

plicitly—and then only to some undeveloped notion of justice as
reciprocity or fairness in exchanges.'* These appeals can be inferred

"See G. OuTKA, Agape: An Ethical Analysis 44-54 (1972).
'^'It is quite possible that in mentioning reciprocity Smith is not giving a justifica-

tion for a particular duty, but rather is suggesting reasons why one ought to be moral.

Rather than using a notion of reciprocal justice (and its principles) to justify a par-

ticular claim, he may be making a case for the return expected from being moral. If so,

then the reciprocation of "good turns" done to others is what he has in mind, and that



810 INDIANA LAW REVIEW [Vol. 11:797

from his arguments that freely donated legal services will yield
satisfying personal and social dividends — or, something in exchange
for something else. In the inference drawn from Smith's argument is
a less relevant and cogent notion upon which to build a case for
beneficence as fairness. If we perceive that some common or public
set of goods should be distributed, and that everyone, or some pro-
fessionals in particular, have a duty to see that distribution effected,

then it is a mistake to select the notion of justice as reciprocity or

that of fairness in exchanges as the conception upon which to make
such a case. Even granting, as we must, the cultural persuasiveness
of reciprocity notions in the United States, such conceptions are not

nearly as applicable as are notions of distributive justice. Thus,

Smith's case for the obligation to fairly distribute legal services

rests not only upon less rationally demonstrable justifications but
also upon a less applicable and less accurate conception of justice.

Fairness to Smith, however, requires some further elaboration
of the comment that his notions and justifications are culturally per-
suasive in America. Even more so than at the present, there was, in
Smith's time, a strong predilection for highly motivational and ideal-

istic appeals for charity. As in his argument, most such appeals
relied heavily on supporting "reasons" which were more intuitive
than demonstrable and which tended to confuse benevolence (good
willingness) with beneficence (good action). Thus, Smith's argument
would have been conventional and, therefore, more persuasive in the
short run among those whose moral sensibilities were akin to his.
His argument, however, was culturally relative and dependent upon
the particular impulses of a particular audience.

That Smith made an argument that fit the conventions of his
day is not surprising, but the tenaciousness of such arguments in to-

day's discussions of responsibility for the public interest is some-

what shocking. For example, in a statement entitled "Professional

Responsibility," the 1958 Report of the Joint Conference of the

American Bar Association and the Association of American Law
Schools, the writers reiterate the obligation to make legal services
available to all citizens but do so in the traditional terms of senti-

ment and voluntarism. After suggesting that the mechanisms by
which to assure this service are of secondary importance, they main-

tain, "It is of great importance, however, that the impulse to render

this service, and the plan for making that impulse effective, should

arise within the legal profession itself."^® This statement not only

is sometimes given as an answer to the question, "Why be moral?" and not to the
question, "How to justify this alleged duty?"

'^Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159,

1216 (1958) (emphasis added).



1978] PROFESSIONAL RESPONSIBILITY 811

echoes the sentiments of Smith, but also indicates the tenacity and

continuing impact of his perspective and set of premises regarding

legal aid. Some reasons for this tenacity are found, in part, in the in-
terdependence of elective benevolence and judgments about the
adversary system as well as about the criteria of professional

responsibility — two sets of judgments we shall now examine.

II. "Pro bono": A By-product of
Adversarial Representation

It may seem paradoxical to suggest that professionals whose daily
business requires the skillful and zealous representation of clients in

the pursuit of civil justice may, by advancing this cause,
simultaneously serve to undermine it — at least in its broader social
and political potential. The vigorous promotion of one kind of justice

may work against and at times be diametrically opposed to other
important and interdependent species of justice.

This paradox may elicit a number of standard retorts which, as I
shall demonstrate, neither explain the puzzle nor offer grounds suffi-

cient to resolve it in the future. For example, one might say that
lawyers cannot and ought not to work simultaneously on every front
in the effort to build a more just society and that no profession
ought to be given responsibility for goals to which their specific

skills are related only tangentially or indirectly. Lawyers, after all,

are neither social workers nor philosophers. As attorneys, they are
required only to represent clients by taking one side in a legal con-

flict and helping that side "win" (and, by so doing, to help preserve

clients' confidence in the system, as well as the jobs for which they

trained). Thus, one plausible retort is to claim that in order to do

the job expected of legal counsel well, the lawyer can ill afford to be

looking over his or her shoulder at the effects this zealous advocacy

may be creating on other people and institutions. And it seems sen-
sible that some should believe that advocacy is itself for the benefit
of the common good or public interest.

Beliefs such as this could and did remain largely tacit in the early

and middle years of the legal aid movement: from the 1910's through
the 1950's. The assumption that zealous and partisan advocacy of
one individual's interests automatically transfers to the public

benefit and serves the common interests of all went unchallenged
until the 1950's. In 1952, however, members of the Joint Conference
on Professional Responsibility found the adversary system to be the

major obstacle both in efforts to understand the lawyers' profes-

sional responsibility and in the communications they initiated be-
tween lawyers and the professional philosophers and theologians



812 INDIANA LAW REVIEW [Vol. 11:797

participating in the conference." Conceding the difficulties of ex-
plaining the system's benefits to students as well as to colleagues

from other disciplines, and acknowledging that lawyers are not

generally very "philosophic" about the system, the co-chairmen

reported the major conclusion of the conference as a judgment that
the "first need was for a reasoned statement of the lawyer's respon-
sibilities, set in the context of the adversary system."^'

Arguing that "[t]here is a sense in which the lawyer must keep
his obligations of public service distinct from the involvements of

his private practice,' " but that the latter can be truly a form of

public service, the writers illustrated their thesis first with an example

drawn from the life of barrister Thomas Talfourd and then with a
catalog of attitudes which they considered characteristic of a truly

public orientation in private advocacy. Talfourd helped a client win

a suit in a case in which he judged that the law that favored his

client's cause was, nonetheless, immoral. Later, as a member of
Parliament, he helped secure passage of a statute which revised the

previous immoral law. His work as barrister is depicted as one
which embodies the characteristics of an enlightened, skillful

awareness of the broader public issues and responsibilities facing

the profession. Using Talfourd as a model of the kind of private

practice which is deemed to be inevitably a form of public service,
the writers characterized this practice as one which is animated by

a "sense" and "appreciation" of public service as well as by actions

which "advance" and "facilitate" rather than "obstruct" the channels

of "collaborative effort."" These hallmarks are interconnected with

affirmations of the importance of the "impulse" to render services to

all who need them, and are interrelated with an obligation to repre-
sent publicly unpopular clients or causes while asserting that this

duty is one of the "highest services a lawyer can render to

society.""

The explanation of this latter duty as one which rests finally
upon a decision of the "individual conscience" but one which is a

"clear moral obligation ... of the legal profession as a whole,"*^ is a

very significant and seemingly essential judgment at the heart of

the Conference's views of the public value of the adversary system,

and is one which will be discussed more fully in the following sec-
tion. For the moment, however, I should like to appraise critically

°/d. at 1159.

"M (The co-chairmen were Lon L. Fuller and John D. Randall.)
"/d. at 1162 (emphasis added).

"Id. at 1216.

"M at 1217.



1978] PROFESSIONAL RESPONSIBILITY 813

some of the moral premises which can be inferred readily from the
Joint Conference's interpretation of pro bono as a product of the
adversary system.

Just as in the case made by Smith, the terms of the argument are
highly ambiguous and appeal primarily to intuitions, sentiments, and
attitudes. Hallowing the tradition of the "ethics of virtue," the Con-

ference's statements tend to foreclose upon the possibility of gaining
the precision necessary for more demonstrable and more completely
"independent" moral criteria. Again, just as with Smith, the obliga-

tion for public service is made to rest finally upon the decisions of
individual lawyers, but in such a way that they are given no specific
direction in the form of decision or action-guiding criteria of fair

distribution. In fact, they are told, paradoxically, that the represen-

tation of unpopular clients or causes is a moral duty of the profes-

sion as a whole.

Because this latter paradox will be discussed in a later section, I

concentrate here on the lack, or at least the apparent absence, of

criteria for the fair distribution of legal services. The failure even to
mention moral criteria for fairness in these distributions rests in

part upon a set of interrelated assumptions. One is that ethical ap-
peals for public service ought to ask only that lawyers do their jobs

well, assuming this will redound to the public interest. This assump-

tion entails the implication that the skillful advocacy of one client's

interests transfers to outcomes which serve the common good, or,
put differently, that when law is well practiced, the public "chips" of
zealous advocacy will fall automatically and correctly in the in-

terests of all. A second assumption concerns the nature of ethics and
seems to imply that moral action-guides are finally and fundamentally
only ideals put before individuals who must decide how "high" they
wish to reach. This assumption belies a commitment to a theory of
perfectionism and perhaps a purely private conception of
morality — implying that there are no social-ethical action-guides
which are both publicly debatable and capable of guiding the

behavior of social institutions, as policies to be honored in the ac-

tions of individual agents. There is yet a third, and perhaps largely

tacit, assumption related to the implication of the adversary system

that lawyers are free to choose their clients and cases and that they

will make these selections on the basis of several interrelated fac-
tors—such as the likelihood of winning the case, the economic
payoffs, and the public renown anticipated. This tacit assumption,
furthermore, is to be inferred from the fact that, when discussing
public service in the context of the adversary system, the Joint Con-

ference offers no specific guidelines for fair distribution and employs

only aspirational and attitudinal suggestions for individual decisions.



814 INDIANA LAW REVIEW [Vol. 11:797

I believe that there must be other, more determinate, and possibly
more influential, criteria which function to fill this vacuum, and upon
which the individual lawyer might be able to decide and act with a

measure of certainty.
We do not have to look very far to discover the possibility that

this third and tacit assumption is allied to a set of criteria by which

individual lawyers are guided and by which they make decisions on
the basis of at least one kind of distributional criteria: minimum fee
schedules. As Barlow Christensen suggests, these schedules function
to determine both what is "ethically acceptable" and what is "in the
public interest."''* If "ethically acceptable" means customarily accep-
table, and "public interest" means that the public has a need for the
profession and that it cannot sustain itself unless it occupies a sound

economic position, then the function assigned these fee schedules

may be built on sound ethical reasoning. If not, the grounds are
spurious to say the least. Nonetheless, and this is the main point,

where moral criteria for fairness in these distributions seem to be
rationally necessary there may be a functional substitute for
them — namely, economic criteria. Fixed fees, determined by bar
associations at the local and other levels are not moral criteria,

unless the "ersatz" is to be equated with the "genuine." Still, they

may be perceived as moral or "ethical," co-opting consideration of
the more specifically moral criteria of equality and fairness in
distributions. Recalling comments regarding the influence of
business on the bar and made by Louis D, Brandeis,^^ economic
criteria imply more than a narrow vision of professional responsibility,
the adversary system, and the means necessary to protect the
private bar. They imply as well a first-class confusion about the
meaning of "ethical," and ambiguity aggravated by the failure to

suggest specific moral criteria for the public service of the private

bar, and one which seems to be dictated by a compulsion to defend

the adversary system against all odds.

In this connection we must consider still another major factor in
the statements of the Joint Conference: the assumption that there is

a split, perhaps even a dichotomy, between the private and the

public bars. At least a mental distinction can be seen in a previously

cited proposition — "[t]here is a sense in which the lawyer must keep
his obligations of public service distinct from the involvements of

his private practice."*^ Partaking, perhaps, of a perspective which,

"B. Christensen, supra note 9, at 56-57.

"F. Marks, supra note 17, at 28 n.48 (citing L. Brandeis, Business — a Profession
318. 321 (1914)).

"Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159,

1162 (1958) (emphasis added).



1978] PROFESSIONAL RESPONSIBILITY 815

as mentioned above, maintains a too rigid dichotomy between the
personal and the social in ethics, there is an additional and

historically very influential source of a similar dichotomy between
the social structure and the ethos*^ which characterizes the private

bar and that which is the hallmark of the public bar.

Such a source can be found readily in the socialization and

values historically transmitted by training in the common law tradi-
tion. With an emphasis on precedent, and upon what one writer calls
the "relentless doctrinal analysis of appellate opinions . . .,"™ the

range and depth of inquiry becomes restricted in the common law
tradition, with the results that broader social issues hardly can be

considered and professional adaptation to changing social needs or

alternative methods of conflict resolution is hampered. In a profes-
sional environment which rewards craft over choice and process

over purpose, it would not be difficult for the individual lawyer to

come to believe that the proper decisions in cases are simply those
which the system produces.^' With little opportunity and increasingly
less skill in asking whether or not there might be other rules which
are also applicable — moral ones, for instance — or which ought to
override the procedural rules of the common law method, the lawyer
could become morally myopic. It could become second-nature to
disown the results, to become committed to process over substance,
and to be animated by the functional equivalent of a rationally

justifiable moral system — by an ethos, and, in this case, one with
almost "religious" or unhesitating faith in the centrality of the com-

mon law method in democratic systems of civil justice.^^
Some maintain that these convictions have animated the private

bar since 1870, that they are institutionalized in the case method of
teaching, but that they also impede the private lawyer's capacity to

deal with contemporary social, economic, and political issues.^^ In

1888 and 1905 respectively, Lord Bryce and Louis D. Brandeis

targeted this incapacity as one of the major causes in the decline of

the public influence of the American bar.^ However, with the dawn
of the era of governmental regulation and dispensation of powers,

there also arose a new cadre of specialized professionals — govern-
ment lawyers — or the beginnings of a "public" bar dedicated to

"Ethos is used here to refer to the subtle web of values, meanings, purposes, ex-
pectations, obligations, and legitimations which constitute the operating norms of a
culture or one of its sub-groupings.

"J. AUERBACH, supra note 18, at 276.
"Stone, Legal Education on the Couch, 85 Harv. L. Rev. 393-94 (1971-1972).

^T. Marks, supra note 17, at 27.

"/d. at 27-28.



816 INDIANA LAW REVIEW [Vol. 11:797

public service, and "charged" with representing the whole profes-

sion's concern with public policy. The private bar did not fail entirely
in helping to draft legislation or in conducting investigations and
hearings on public matters. But when they did, it was in behalf of
the interests of their individual business clients. Similar tasks, done

primarily for more common interests, were assigned to the public
bar, which, therefore, became more completely responsible for the
bulk of the legal profession's activities in public policy discussions

and decisions.^* Thus, the public bar developed a "conscience — or
policy-laden" ethos, which was competitive with that of the private
bar. Applauded by figures like Brandeis, but a source of chagrin for

a figure like Abe Fortas, the public bar emerged to focus attention
on and to stimulate debate about public interest issues.^*

Nonetheless, and despite its public-interest character, the existence

of a public bar separated from the private bar served to obscure the

fact that all legal professionals have responsibility for the general

welfare. As late as 1967 at a Harvard Law School conference,
Justice Brennan stated that a certain amount of "shuttling" between
public service and private practice should be encouraged to increase

the "cross-fertilization" of each group by the respectively different

perspectives and talents they cultivated." This had already begun
under the auspices of the Legal Services Program, a program which
involved the private sector significantly in the creation and control

of its policies and organization — especially through the involvement
of the local bar associations.^ This cross-fertilization has also begun
to occur in some quite different and as yet unpredictable ways
through the public interest commitments of some private law firms,
and in some experimental forms of open-panel group practice.^' But
it is still too early to know whether or not the profession will be
able to shed easily the accumulated burden of a somewhat
schizophrenic split between the public and private bars, their differ-

ing social structure and ethos. Clearly such a move will be most dif-

"M at 25-26.
"Fortas, Thurman Arnold and the Theatre of the Law, 79 Yale L.J. 988, 1002

(1970); F. Marks, supra note 17, at 34.

"Brennan, The Responsibilities of the Legal Profession, in The Path OF THE Law
From 1967, 96-97 (A. Sutherland ed. 1968).

"F. Marks, supra note 17, at 42.

""Open-panel" refers to experiments in which members of group plans may select
lawyers other than those regularly employed by the group. If the latter were the only

alternative, the designation would be "closed-panel." "Unpredictable" in this same

statement refers to a judgment that, with respect to funding and organization as well

as the causes of their beginnings in private firms, the future of "public interest"

members, and departments, is really quite uncertain.



1978] PROFESSIONAL RESPONSIBILITY 817

ficult, if not impossible, without simultaneous revisions in related

judgments about pro bono as an elective benevolence or as an in-
evitable outcome in the adversary system. If changes in these
judgments are, indeed, essential, I suspect many will conclude that
the gravity of the situation is such that the changes cannot be ef-
fected without dramatic and far-reaching, and undesirable conse-
quences on the public shape and functions of lawyering.

III. "Pro Bono" in Cannon Two

The following comment by Andrew L. Kaufman helps explain
the considerable attention I gave to the Joint Conference in the

preceding section. The statement also creates a setting in which to
grasp more firmly my appraisal of the bar's judgments of public ser-
vice and the public interest as found in the Code.

The Statement of the Joint Conference on Professional
Responsibility of the Association of American Law Schools
and the American Bar Association ... is offered as an in-
stitutional view of the lawyer's role in the legal system. If

one were vilifying it, one might call it the "establishment"

view. If one were lauding it, one might call it a statement
representing a consensus of the views of progressive leaders

of the profession about its highest ideals. However one
characterizes it, the Statement is often looked to when pro-
fessional ideals are sought or questioned, and it is also useful

as a foil against which to test one's own thoughts.™

Kaufman helps set the stage for the declaration of a set of
premises which will guide the following critical analysis of Canon 2.
My analysis presupposes that the Code is a product of the hopes and
fears of a nationally influential cadre of leaders in the American bar.

But, differing somewhat from the laudatory view mentioned above
as one possible interpretation, I do not assume that this leadership
is necessarily progressive, at least not entirely and un-
ambiguously so. I further presuppose that the ideas of Lon L. Fuller
and Henry S. Drinker have greatly influenced the leadership and
that their views were incorporated in the Code.

I also assume that, irrespective of whose thoughts it incor-
porates, the Code is an imperfect mirror of what all lawyers hold to
be morally binding. And this I believe for two reasons. First, the
Code is not binding on all lawyers unless ratified by state bar

"A. Kaufman, Problems in Professional Responsibility 1 (1976) (emphasis add-

ed).



818 INDIANA LAW REVIEW [Vol. 11:797

associatons.*' Second, even if ratified in its entirety, there is always

a measure of selectivity and inconsistency in local interpretations

and applications of the disciplinary regulations. In fact, it would ap-

pear that only a select set of the most flagrant violations results in

disbarment. In the recently quoted view of Eric Schnapper:

One searches in vain for a lawyer disciplined for failing to
give free legal service to the indigent, for failing to disclose

legal precedent contrary to his clients' interests, for

misrepresenting facts to judges, juries or opposing counsel,

or for using political office or connections to attract clients,

although the frequency of these occurrences is common
knowledge.^^

Finally, in what follows, I assume that, irrespective of whose

thoughts it incorporates and whose interests it promotes and the
degree of adherence which local bars accord it, the Code is designed
and used as the major and formal educational tool both for the

teaching and for the sanctioning of a professional ethos. Hence, the

Code merits careful and critical attention, and, in particular,
scrutiny of the moral ideals (ethical considerations) and the
disciplinary rules with which the bar seeks to enforce a certain

minimum achievement of professional standards. Because the sub-
ject of this Article is the profession's institutional understanding of

the pro bono requirement, I shall focus critically upon the reasons
why the Code's Canon 2 may lead logically and inevitably to one of
the inconsistencies Schnapper underscores — namely, the vanity of
searching for an instance in which a lawyer is disciplined for failing

to make legal services available to one who needs but cannot afford
them.

Certain terms and conditions are imposed upon the Code's inter-

pretation of pro bono — by virtue of historically influential thought
patterns and by commitments to elective benevolence and to the
adversary system as the principal instruments by which to assure

adequate service of the public interest. Some of the still-influential
ideas and values of the profession's historical past are tantamount to
being shibboleths or social atavisms. The preference for explaining
public obligations in terms of traditional notions of elective

benevolence and the adversary system are clearly examples of just
such an ideological residue. But so too are the Code's conceptions of

"M at 29. Note that there is "Some evidence that a counter-bar association is
emerging to perform the central function of brokering professional responsibility. The

Chicago Council of Lawyers typifies such a counter-bar." F. Marks, supra note 17, at

147.

«^TlME, Apr. 10, 1978, at 56. 59.



1978] PROFESSIONAL RESPONSIBILITY 819

ethics and what is "ethical" in the considerations which precede
each set of disciplinary rules. In other words, there are limitations

set by the very notions essential to the structure of the Code — that
is, some general and guiding principles which run through the entire
Code.

Invoking clarifications and precisions suggested earlier in this

Article, I should like now to discuss several mistaken, or at least
highly ambiguous, moral notions which form in the structural glue of

the Code. In preparing the new Code, adopted in 1969, the Committee
sought to include areas previously omitted or only partially treated,

to clarify editorially some previous statements, to add new proposi-
tions with which to address the peculiarities of modern society,
and to provide more practical and effective sanctions than were
available previously.*^ It divided the Code into Canons (axiomatic
norms), ethical considerations (ideals or goals which are "aspira-

tional in character") and disciplinary rules (mandatory minimum
standards of duty).*^ In reaching toward its objectives and in so

dividing the contents of the Code, however, the Committee created

a number of potentially serious confusions. It identified the "ethical"
with the "aspirational," the idealistic, or the "ethics of virtue."

Similarly, it equated "duty" with "disciplinary rules" and, therein,

risked a double subordinate ambiguity. Determinate obligations are

confused with statutory rules, thus, blurring an important distinc-

tion between law and morality; they also confuse custom and morality

and tend to equate the profession's traditional, conventional and

customary ethos with rationally justifiable moral rules. Seeming to
pay little or no attention to professional ethicists' explanations of

the rules for moral rules ("ethics"), the Committee improved the
form and content of the 1908 Code, but simultaneously undermined

the content of the new version by failing to substantially incor-
porate the efforts of contemporary ethical scholarship to clarify

necessary distinctions between law, etiquette, morality, and ethics.
The Code's confusion of moral and nonmoral action-guides is ag-

gravated by a still more puzzling theory of morality which
distinguishes aspiration and duty rather stringently and becomes
the structural skeleton to be fleshed out in ethical considerations

and disciplinary rules. The preface declares that the committee
"relied heavily upon the monumental Legal Ethics ... of Henry S.
Drinker, who served with great distinction for nine years as Chair-
man of the Committee on Professional Ethics (known in his day as
the Committee on Professional Ethics and Grievances) of the

''ABA Code, Preface at i (1977 version)

"/d, at Preliminary Statement at 1.



820 INDIANA LAW REVIEW [Vol. 11:797

American Bar Association."*^ Careful scrutiny of Drinker's book,
however, reveals nothing comparable to the Committee's theory of

morality/* Drinker's primary contributions seem to have been his
useful and abundant catalogue of American Bar Association "Opin-

ions" on ethical problems in professional conduct and in his correla-

tion of these opinions with the 1908 Canons which provide a com-

prehensive and systematic record of the revisions that changing

social and cultural conditions had prompted between 1908 and 1953.®^

This realization of Drinker's contribution created some curiosity
about the source of the moral theory and was preface to an
hypothesis which emerges from two interrelated sets of facts. First,
the footnotes to the Code demonstrate that the Committee relied

heavily upon the Statement of the Joint Conference on Professional

Responsibility. This Statement is cited, for example, in three of

twelve footnotes for the Preamble-Preliminary Statement which

establishes the focus of the Code, and is cited four times in support

of Canon 2's ethical considerations,** Second, if we recall that Lon L.
Fuller was one of the co-chairmen of that conference and that the
concluding peroration of the Statement appeals for more than
understanding — namely, for "a sense of attachment to something
larger . . . habitual vision of greatness"*'— we can infer that Fuller's
perspectives influenced the drafting of the 1969 Code. The most per-
suasive piece of evidence in support of such an inference is Fuller's

1964 publication The Morality of Law. First published in the year of

the drafting committee's preliminary deliberations, this book

elaborates the very same theory found in the structural standpoint
of the Code— a morality of aspiration as distinguished from one of
duty.^° Therein Fuller maintained that duty embodied the basic

minimum and the most obvious demands of social life." By contrast,
he portrayed aspiration as the way of perfection, excellence, or the
form of morality calling for the fullest realization of human powers."
Considering the morality of duty as one which entails prohibitory

and somewhat inflexible but enforceable action-guides, he maintained
that the morality of aspiration embodies affirmative, more pliable
but nonenforceable guides and is, therefore, more completely subjec-

"/A, Preface at i.

"See H. Drinker, Legal Ethics (1953).
"E.g., id. at 257-59 (on advertising and solicitation).
"ABA Code, Preamble & Preliminary Statement, n.n.3, 4, 7, EC 2-1 n.4, EC 2-25

n.40, EC 2-27 n.45, EC 2-30 n.51 (1977 version).
"See A. Kaufman, supra note 60, at 28.
'"L. Fuller, The Morality of Law 3-32 (2d ed. 1969).
"M at 5-6.
"M at 5, 6.



1978] PROFESSIONAL RESPONSIBILITY 821

tive and intuitive," i.e., it is less determinate and demonstrable and
is more completely dependent upon variables.

I have indicated earlier some of my reasons for judging that
dependent moral criteria are less justifiable than others; I shall,

therefore, now forego all but the briefest comment on Fuller's
theory and shall focus, rather, upon how this theory gives structural
coherence to a host of ambiguous and unjustifiable claims in Canon

2, the public interest canon. In addition to critical comments made
earlier regarding indeterminancy in aspirational, perfectionist and

intuitionist forms of ethics, I supplement those comments here by in-
dicating some further problems in Fuller's theory, particularly its
tendency to skew Canon 2's account of the lawyer's public respon-
sibilities. In particular, I note the unsatisfactory character of a

distinction between maximums and minimums in morality especially
when they are correlated with aspiration and duty — as if excellence
and virtue may not be considered duties, or conversely, as if a per-
son cannot aspire to the fulfillment of moral duties. Furthermore,

the equation of aspiration with positive obligations and of duties

with negative prohibitions misses the fact that ordinary usage most

often confines duty to an affirmative action and that philosophers

rightly distinguish between moral duties and moral prohibitions.
Finally, excellence and its corresponding ideals ought not to be

restricted solely to the guidance of personal ways of life as implied
by a morality of aspiration. They can and should apply as well to
social ends such as justice, equality, peace and so forth.^^

Because of the Committee's preference for the theory of morality

articulated in the Preamble-Preliminary Statement, and because it

used this theory to structure the content of Canon 2, the Code's

judgments about professional obligations to serve the public interest

partake of all the ethical problems embodied in the prefatory

general theory. For example. Canon 2's disciplinary rules carry for-

ward traditional forms of etiquette concerning professional notices,
letterheads and offices, solicitation, and the recently-amended sec-

tion on publicity.^^ These are not properly called "moral duties."

They may well be obligatory for the professional, but they are
decidedly nonmoral and have only the most tenuous connection to

the Canon's ethical considerations which, according to the Code's

Preliminary Statement, "constitute a body of principles upon which

the lawyer can rely for guidance in many specific situations."^*

''Id. at 30-31.

"See a similar assessment in Summers, Professor Fuller on Morality and Law, in

More Essays in Legal Philosophy 104-10 (R. Summers ed. 1971).
"ABA Code, DRs 2-101 to 104 (1977 version). DR 2-101 has been revised substan-

tially due to the decision in Bates.

''ABA Code, Preliminary Statement at 1 (1977 version).



822 INDIANA LAW REVIEW [Vol. 11:797

The disciplinary rules guide professional activity by means of
mandatory standards the violation of which risks disciplinary sanc-
tions, but they fail to mention, much less sanction, a mandated
minimum for the public service set forth in the "principles" mentioned
above. Hence, discipline of a lawyer for failing to make legal ser-
vices fully available is unlikely. Consequently, the public service

obligation rests completely upon the "principles" set forth in the
"ethical considerations." Thus, the nature of those principles and

their potential for effectively guiding professional activity toward

greater public responsibility must be questioned.
The maxim in Canon 2 contends: "[A] lawyer should assist the

legal profession in fulfilling its duty to make legal counsel
available."" I grant that the ethical considerations following this

maxim seek to expand upon this obligation and maintain that it en-
tails helping to educate people to recognize legal problems and to

select lawyers intelligently as well as the duty of professionals to

represent socially unpopular clients and causes. Nonetheless, the

availability mentioned in the Canon is associated principally and
recurrently with the business of "making legal services fully
available"^* to "persons unable to pay reasonable fees."" Having
made all of these points, however, the Canon modifies the initial
maxim to read: "The basic responsibility for providing legal services
for those unable to pay ultimately rests upon the individual lawyer .

"80

To grasp the implications of this transmutation—/row assisting
the profession in its responsibility to accepting what is fundamentally
a personal obligation — two things should be recalled. First, no
disciplinary rules correspond to this ethical consideration; thus, in

accordance with the moral theory structuring the Code, there are no

mandatory and minimum duties, ie., transgression is not subject to
sanctions. Second, the Code's ethical considerations are "aspirational,"

and the obligation to help the indigent is sandwiched between

statements reminding lawyers, on the one hand, that this need has

been met historically by means of donated services and, on the other
hand, that such benevolence is often not sufficient and must be sup-

plemented with organized efforts to which lawyers should lend sup-

port—but only if they are "proper" and if participation in them

upholds "the basic tenets of the profession: independence, integrity,

competence and devotion to the interests of individual clients."*^

"M. Canon 2.
''Id., EC 2-1.
"M. EC 2-25.
'"/d (emphasis added).

"M. EC 2-33.



1978] PROFESSIONAL RESPONSIBILITY 823

The lawyer is given a very confusing and somewhat contra-
dictory set of standards to follow in pursuit of public responsibility.

The profession is said to have a duty in the fulfillment of which the
lawyer must assist, but only and finally by striving for personal virtue
in benevolent altruism which is called "one of the most rewarding

experiences in the life of a lawyer."*^ Precisely how or why the in-
dividual lawyer is a representative of the whole profession in accep-

ting or refusing any particular opportunity to be benevolent is not

clear. Should a particular lawyer or group of them find this kind of
altruism not very "rewarding" finally, then the major and

consequence-based form of justification for the duty alleged is

undermined by contradictory empirical evidence. Should cooperation

with agencies which regularly provide free or reduced-fee legal ser-

vices appear to conflict with the very indefinite or indeterminate

traits of independence and integrity — and such conflicts would not
be hard to imagine when the traits are so relative — then the latter
and characteristic virtues are to have priority over the putative

public need. Indeterminacy in locating the subject and the grounds

of the obligation is coupled with a corresponding indefiniteness in

the characterization of ideal traits which are to take precedent over

public service obligations. Thus, the ethical considerations are little

more than prayerful suggestions, optatives rather than imperatives.
They are by no means prescriptive and, in their indeterminancy, are
surely not universalizable or generalizable. Failing most of the con-

ventional tests of moral rules and wanting as they are in correspon-

ding mandates, ie., disciplinary rules, the "standards" of Canon 2
are little more than pious platitudes. This is not surprising in view
of the historically important and still influential precedents of the

profession's conceptions of public service.

Having previously discussed Smith, Pound, and Fuller as

precedent-setting figures, I mention here only one other, the

authority whose voice is acknowledged in the preface to the Code:

Henry S. Drinker. In his book's very brief remarks about public ser-
vice, Drinker recalled Pound's definition of a profes-
sion—characterized among other things by a dedication to the public
interest — and he invoked tradition as a support for the public
obligation and concluded that this is "[a] duty ... of which the
emolument is a by-product, and in which one may attain the highest
eminence without making much money."*'

After Drinker's 1953 rhetorical appeal supporting the 1908

Canon 4 which upheld a duty toward the indigent, a series of events

''Id., EC 2-25.
"^H. Drinker, supra note 66, at 5.



824 INDIANA LAW REVIEW [Vol. 11:797

and movements in the 1960's pressured the bar to remove obstacles
to equal opportunity and to make the legal redress of violated rights
more accessible to people "closed out" by the system.*^ Thus, greatly
expanded and updated in form and content, Canon 2 of the 1969
Code was launched in response to rapidly occurring and highly
charged social, political, and cultural changes. It has been buffeted

about in the 1970's and was central to a series of challenges to the
adversary system coming from experimental public interest law

practice and zealous class-action advocacy, and has been the prin-

cipal casualty of the storm which preceded a series of four amend-

ments to the Code — one every year since 1974, with the most recent
being the 1977 Supreme Court decision on advertising.*^ And, by virtue
of related and continuing tensions in these areas. Canon 2 pro-
mises to be at the center of any number of socially and professionally
threatening squalls for some time to come. One very good reason for
this supposition is to be found in the very difficult dilemma at the
heart of the recent decision concerning advertising of legal services.

The disciplinary rules on "Publicity in General" and their supporting
ethical considerations had, prior to amendment, prohibited all but
the most circumspect advertising of legal talents and services,
restraining competition from customary forms of open-market

business and trade.** Prior to the 1977 amended version of the 1969
Code, Canon 2 maintained that this traditional ban was "rooted in
the public interest" — oddly enough the only place this interest is
mentioned in the entire Canon — and claimed that competitive adver-
tising would impair public confidence in the legal system as well as

undermine the uniqueness of the lawyer-client relationship.*^

Disputing this reasoning in its decision, the majority of the Supreme
Court held that it was anachronistic to believe that the profession

was somehow above trade and a free-market economy.** The Court,
thus, landed a major blow against a long-standing and very pliable

interpretation of Roscoe Pound's definition of a profession; the

public interest component of the definition had been interpreted in

such a way that it meant in effect aristocratic and elitist self-service
fortified by an array of rules of etiquette which served anything but

the public welfare.

"See, e.g., J. Auebbach, supra note 18, at 263-306; H. Stumpf, Community
Politics and Legal Services: The Other Side of the Law (1975).

"See ABA Code, Preface at ii.
"M. ECs 2-9. 2-10, DR 2-101 (1975 version).
"Id, EC 2-9.
•^ates V. State Bar, 433 U.S. at 368-69 (citing B. Christensen, supra note 9, at

152-53).



1978] PROFESSIONAL RESPONSIBILITY 825

The full impact of the Court's decision cannot be estimated for
sometime. In particular, it would be reckless to suggest that the en-

couragement of a business ethos in the legal profession would il-

lumine the blind spots or eradicate the errors in a traditional ethos

grounded more in custom and convention than in rationally
justifiable moral arguments for fairness in the distributions as well

as the exchanges of professional services. What has not been true in
the business world is not likely to become true in a business-minded
legal profession. Nonetheless, as Raymond F. Marks has suggested,
it is paradoxical but logical that:

[I]t was when the bar acted more like a trade association
than a profession [with the adoption of minimum-fee

schedules] that it was forced for the first time formally to
take cognizance of the problems of making services available

to some by means other than a market-model for distribution
of these services.*'

IV. The "Is-Ought" Maze

Canon 2 has become the repository of the profession's tradi-
tional and ambiguous judgments about the obligation to serve the
public interest and, therefore, a potential target of dissatisfaction

with those judgments. As a repository of traditional conceptions, it
is a microcosm of the cultural lag identified by participants in the

most recent joint meeting of the American Bar Association and the
American Assembly.'" This disparity between inherited norms and
the present realities is encouraged by certain habits of legal institu-

tions: their orientation toward the past through dependence upon
precedent, previous legislative enactments and judicial interpreta-
tions. Furthermore, as our pre-eminent system of social symbols, the
law tends to reinforce cultural beliefs which have proven to be
dissonant with contemporary experience. For example, the law can
become a pedagogue for the beliefs, attitudes and values of adver-
sarial conflict and others which are incompatible with the reality of
an interdependent, vulnerable and technological world.

One of the causes of "cultural lag," is to be found in what Julius
Stone has discussed as an assumption that de facto beliefs are con-
clusive of what ought to be.'^ Called by moral philosophers the
naturalistic or "is-ought" fallacy, this assumption is a culturally

obstinate way of proceeding from assertions of what is to claims
about what ought to be. Thus, what merely happens to be the cur-

"F. Marks, supra note 17, at 16.
"M. Schwartz, supra note 3, at vii.
"J. Stone, Social Dimensions of Law and Justice 546 (1966).



826 INDIANA LAW REVIEW [Vol. 11:797

rent or traditional set of convictions about what is moral can come
to be expressed and defended formally as moral principles sup-
ported by moral theory. In this fashion, the axioms which a culture

or a profession uses to resolve intellectual and moral puzzles and

the not-always-morally-justifiable maxims by which we seek to guide
social behavior can acquire a somewhat specious intellectual respec-
tability.

Clearly, circumspection and selectivity are in order for those

persons who would trade the less-fully-thoughtful and customary
standards of a professional ethos for more formal philosophies of law
and morality. Having already suggested some reasons why the
ethical theories of Drinker and Fuller leave much to be desired, I
should like, further, to indicate why even the more recent offerings
of thinkers like Ronald Dworkin and John Rawls may not resolve
fully the is-ought dilemma and why, therefore, their positions may
aggravate, rather than relieve, the cultural lag hallowed by the

Code and by all who use it as their moral pedagogue.

In his critique of the "ruling theory of law," ie., contemporary

positivist and utilitarian theories, Dworkin reaffirms the common
law tradition of rights claimed over and against, but importantly

also as prior to, the state and its legislative enactments.^^ Although

H.L.A. Hart's "most powerful contemporary version of positivism"'^

is his major target, Dworkin is critically attentive to other recently
repopularized forms of Edmund Burke's theory emphasizing the
customary or conventional and promoting trust in the established

notions and values of our culture.'* He rightly assails the reasoning
in these two theories which would aggravate the confusion of de facto
beliefs and normative legal and moral judgments, but unhappily not

on that basis. Drawing upon Rawls' technique of "reflective
equilibrium,"'^ Dworkin seeks to account for the relationship be-
tween prevalent cultural beliefs and formal moral principles. While

he has elsewhere differed from Rawls — notably on the matter of a
hypothetical social contract and on the priority to be assigned either

liberty or equality**— he here adopts a technique which overlooks

the liabilities inherent in conventional beliefs and social axioms. In

the following view of the function of moral philosophy, and

then mediating Rawls' views, Dworkin establishes a structural and

formal philosophical method for investing some not fully justifiable
convictions with the warrant of a formal system — thereby also

*Tl. Dworkin, Taking Rights Seriously (1977).
"M at xi.
"/d at X.

''J. Rawls, A Theory of Justice 20-22. 48-51 (1971).
''R. Dworkin. supra note 92, at 150-54, 272-78.



1978] PROFESSIONAL RESPONSIBILITY 827

potentially and geometrically increasing the disparity between in-

herited values and the judgments necessary to confront contem-

porary realities.

It is the task of moral philosophy, according to the

technique of equilibrium, to provide a structure of principles

that supports these immediate convictions [moral beliefs

such as those concerning the injustice of slavery] about

which we are more or less secure, with two goals in mind.
First, this structure of principles must explain the convic-

tions by showing the underlying assumptions they reflect;

second, it must provide guidance in those cases about which

we have either no convictions or weak and contradictory
convictions. If we are unsure, for example, whether economic
institutions that allow great disparity of wealth are unjust,

we may turn to the principles that explain our confident con-
victions, and then apply these to that difficult issue.®^

Because some of these convictions express judgments about
rights prior to legislation or over and against the state, this technique

helps advance Dworkin's thesis of taking rights seriously. And
because equilibrium requires a series of "back and forth ad-

justments," now accommodating principles to convictions and again
adjusting conversely,'* there is little likelihood that customary or

conventional judgments will reign supreme over more rationally
justifiable convictions. With the possible exception of his explana-

tion of "the right to treatment as an equal,"'® Dworkin's reliance on

Rawls' technique sets the stage for an unwitting justification of

what are merely de facto beliefs or preferences. Even after granting
the critical potential in the seesaw movement of the equilibrium
technique, there remain some nagging doubts about public and pro-

fessional willingness to call into question some beliefs to which are

allied very strong interests of a political, economic and personal

sort. Furthermore, and in addition to the conative and retentive

powers of preferences, loyalties, and interests, there is another

source of obstinacy in cultural beliefs. Although Rawls emphasizes

the importance of deeply-held moral beliefs,'"" there is always the

chance that they may be mistaken. They can be the consequence of
oversight as well as insight,'"' the products of a false consciousness

"Id. at 155.

''Id. at 164.

"Id. at 273.

"^See Rawls, The Independence of Moral Theory, in 48 Proceedings and Ad^

DRESSES OF ThE AMERICAN PHILOSPHICAL ASSOCIATION 5-22 (1975).

""See B. LONERGAN. Insight xi, xiv (1958) (on flights from understanding); id. at

419-20 (on common sense's encouragement of judgment while discouraging understan-

ding).



828 INDIANA LAW REVIEW [Vol. 11:797

as well as its opposite. Irrespective of the depths of their roots or

the pervasiveness of their branches, immediate convictions are not

always correct. Thus, while differing somewhat from David Lyons'
critical review of Dworkin's thesis, and while not sharing Lyons'

utilitarian standpont, I agree with the following: "Right and wrong

are not subordinate in any systematic way to the moral beliefs that
people happen to have," and that such a subordination is implied in

Dworkin's thesis.'"^

Neither Dworkin nor Rawls indicates a clear and direct path
through the "is-ought" maze. They make decidedly valuable prog-
ress beyond Hart's positivism and the repopularized convetionalism

of Burke. They also make telling critical points in opposition to
perfectionist and intuitionist moral theories, and they advance a per-

suasive case for basing moral obligations on duties or rights rather

than, as do utilitarians, on goals. Nonetheless, and as noted above,

there remains at least one way in which this progress can be under-
mined—namely, by a less than fully thoughtful and critical accep-
tance of the community's current crop of moral beliefs.

If this Article has accomplished its objectives, it has

demonstrated the conceptual and other liabilities inherent in the
adoption and canonization of prevalent convictions about the public

responsibilities of the legal profession. I have pointed up the

historical and precedent-setting sources of pro bono as elective

benevolence, its correlation with convictions that the adversary

system's pursuit of one person's interests is necessarily in the in-

terests of the collective, and the hallowing of both these convictions

in Canon 2 of the Code.
There are other seemingly intractable alliances of cultural and

professional beliefs to be considered at another time— namely, con-
victions about the "deserving poor" and about the public value of

"procedural equality." Finally, and drawing upon the conclusions of

this Article's more analytical and critical discussion, I hope to
develop soon some constructive proposals for the creative reconcep-
tion of public service and social justice, as well as offer suggestions

for the modification of the adversary system and some ideas about
how the quality of legal services must be allied more stringently to
considerations of their accessibility. This Article serves only to in-

troduce considerations which are preliminary but necessary to an

improved understanding of a very complex, but very important set

of issues facing the American bar and the public it is licensed to
assist in the pursuit of increasingly greater approximations of the

ideal of justice.

*Lyons, Book Review, 87 Yale L. Rev. 415, 435 (1977).