Catalogue of Hebraica and Judaica in the library of the Corporation of the City of London

by A. Löwy

Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client)

Three usually unexpressed, and too often unnoticed, conceptual dichotomies underlie our perception and understanding of lawyers’ ethics. First, the existence of a special body of professional ethics and professional regulation presupposes some special need or risk. Criminal and civil law are apparently insufficient. Ordinary day-to-day morality and ordinary ethics, likewise, are not considered to be enough. What is the risk entailed by the notion of a profession that is special; who needs protection, and from what? Two quite different possible answers to this question provide the first of the three dichotomies examined in this article: one can understand the risk as primarily to a vulnerable client from a powerful professional; or, to the contrary, from a powerful client-lawyer combination toward vulnerable others. Second, what is the foundational orientation of lawyers? Are lawyers serving primarily their particular clients, and those clients’ preferences, choices and autonomy? Or is the primary allegiance of lawyers to some community or collective goal or interest distinct from the particular goals or interests of the client? The third dichotomy concerns not the substance of the risk, or the primary orientation, but the appropriate means of responding to that risk or that fundamental obligation. Should professional ethics be implemented primarily through rules? Or, should we rely on character and the discretion of lawyers to make a thought out, all things considered, decision? Each of these three presents a fundamental difference in how we perceive and address issues of lawyers’ ethics. Each affects our understanding and analysis on multiple levels, from (1) determining the appropriate or requisite conduct in a particular situation, to (2) framing a specific rule or approach for a particular category of situations, to (3) more general or abstract theory or policy. A person’s inclinations in regard to the dichotomies affects the conclusions that person will reach on each of those levels of analysis, yet those inclinations and assumptions are frequently unexamined and unarticulated. One’s position on each of the dichotomies tends to structure the approach and outcome without the issues and choice having been explicitly addressed or possibly even noticed. This article is an effort to ameliorate that problem. Part I addresses the question of what is the risk in the work of lawyers, or the function of lawyers, for which professional ethics is the answer. The concluding section focuses on the particular problem of the corporation as client. Part II then asks the related and possibly consequent question of what is the foundational orientation or allegiance of the lawyer? Is it to the individual client? Or is it to some larger community interest? Again, the concluding section focuses on the corporation. Part III turns to the means or method for addressing the obligations and possible problems of the professional ethics of lawyers. Should lawyers’ ethics guide and confine the conduct of lawyers primarily through rules? Or should it function primarily through reliance on the knowledge, judgment and character of lawyers? If the latter were the guide, ethical decisions would be made on a situation by situation basis under the discretion of each lawyer. Toward the end of each discussion possibilities for bridging the dichotomy are considered (and with such bridges each dichotomy may come to look more like a spectrum or continuum.). At several points after its introduction in Parts I and II, the special problem of the corporation as client is revisited and possible solutions suggested. Illustrating the usefulness of keeping the dichotomies in view, Part IV applies them to several exemplary situations of ethical difficulty in actual lawyer practice. For readers finding it difficult to envision the consequences of these distinctions, turning ahead to Part IV may be useful in making the discussion more concrete. Some commonalities across the dichotomies and connections among them are then developed in the concluding section, Part V.

Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client)

Three usually unexpressed, and too often unnoticed, conceptual dichotomies underlie our perception and understanding of lawyers’ ethics. First, the existence of a special body of professional ethics and professional regulation presupposes some special need or risk. Criminal and civil law are apparently insufficient. Ordinary day-to-day morality and ordinary ethics, likewise, are not considered to be enough. What is the risk entailed by the notion of a profession that is special; who needs protection, and from what? Two quite different possible answers to this question provide the first of the three dichotomies examined in this article: one can understand the risk as primarily to a vulnerable client from a powerful professional; or, to the contrary, from a powerful client-lawyer combination toward vulnerable others. Second, what is the foundational orientation of lawyers? Are lawyers serving primarily their particular clients, and those clients’ preferences, choices and autonomy? Or is the primary allegiance of lawyers to some community or collective goal or interest distinct from the particular goals or interests of the client? The third dichotomy concerns not the substance of therisk, or the primary orientation, but the appropriate means of responding to that risk or that fundamental obligation. Should professional ethics be implemented primarily through rules? Or, should we rely on character and the discretion of lawyers to make a thought out, all things considered, decision? Each of these three presents a fundamental difference in how we perceive and address issues of lawyers’ ethics. Each affects our understanding and analysis on multiple levels, from (1) determining the appropriate or requisite conduct in aparticular situation, to (2) framing a specific rule or approach for a particular category of situations, to (3) more general or abstract theory or policy. A person’s inclinations in regard to the dichotomies affects the conclusions that person will reach on each of those levels of analysis, yet those inclinations and assumptions are frequently unexamined and unarticulated. One’s position on each of the dichotomies tends to structure the approach and outcome without the issues and choice having been explicitly addressed or possibly even noticed. This article is an effort to ameliorate that problem. Part I addresses the question of what is the risk in the work of lawyers, or the function of lawyers, for which professional ethics is the answer. The concluding section focuses on the particular problem of the corporation as client. Part II then asks the related and possibly consequent question of what is the foundational orientation or allegiance of the lawyer? Is it to the individual client? Or is it to some larger community interest? Again, the concluding section focuses on thecorporation. Part III turns to the means or method for addressing the obligations and possible problems of the professional ethics of lawyers. Should lawyers’ ethics guide and confine the conduct of lawyers primarily through rules? Or should it function primarily through reliance on the knowledge, judgment and character of lawyers? If the latter were the guide, ethical decisions would be made on a situation by situation basis under the discretion of each lawyer. Toward the end of each discussion possibilities for bridging the dichotomy are considered (and with such bridges each dichotomy may come to look more like a spectrum or continuum.). At several points after its introduction in Parts I and II, the special problem of the corporation as client is revisited and possible solutions suggested. Illustrating the usefulness of keeping the dichotomies in view, Part IV applies them to several exemplary situations of ethical difficulty in actual lawyer practice. For readers finding it difficult to envision the consequences of these distinctions, turning ahead to Part IV may be useful in making the discussion more concrete. Some commonalities across the dichotomies and connections among them are then developed in the concluding section, Part V.

Note from William Croswell to President Kirkland and the Corporation of Harvard College, 1817-1821

This folder contains six documents: three drafts of a brief March 10, 1817, note to Harvard President John Kirkland, with two of the drafts followed by an October 25, 1819, note to the Harvard College Corporation concerning Croswell's work on Harvard's Library Catalogue.

Letters to the Corporation of Harvard College, 1819-1829

Paper notebook containing copies of letters sent by Croswell to the Harvard Corporation in relation to his work on the Harvard Library Catalogue.

Draft of report from Committee appointed by the Corporation to revise the Laws relating to Commons at the meeting of April 6, 1778, April 17, 1778

This report contains changes to the regulations proposed by a Committee of the Corporation at the April 6, 1778 meeting of the Corporation (these regulations can be found in the College commons records, Box 1). The proposed changes were to the articles concerning the reporting of damages to utensils by the waiters, and the requirement for the Steward to present a quarterly inventory of the utensils.

Report of a Committee of the Corporation of Harvard College appointed “to consider the expediency of making further regulations relative to Commons,” May 19, 1807

This report expressed the opinion of the Committee that, despite the students' complaints, Commons should be not changed in any meaningful regard (save for the method of purchasing beef). Among other reasons for explaining the inflexible position of the Corporation, they stated, “alacrity, cheerfulness and docility are the companions of temperance; petulance, disquietude and perverseness are the intractable offspring of indulgence.” In addition, they suggested that students should refrain from sampling delicacies in town to better appreciate the "plain, simple, and wholesome food of the hall."

Draft of a petition to the General Court from the Corporation, 1743 October 26-27

Two-page handwritten draft of a petition to the General Court signed by President Edward Holyoke, and a half-page letter that accompanied the draft from President Holyoke to Tutor Flynt, a member of the Committee to draft the petition.

Vote of the Corporation respecting the readmission of Tudor and others, 1768 July 5

Handwritten copy of the vote of the Corporation to readmit Austin, Tudor, and Peabody, with the note that "The President entered his protest against the above vote." The document also transcribes a vote to amend the College Law Chapter V, Law 1 regarding students' quarterly charges from the Steward and Butler.

[Letter from Jason Haven to the Corporation of Harvard College], 1780 July 15

Handwritten letter from Jason Haven requesting the Corporation to grant Draper a degree.

[Letter from Nathaniel Robbins to the Corporation of Harvard College], 1780 July 15

Handwritten letter from Nathaniel Robbins regarding Philip Draper.

[Letter from William Allen to the Corporation of Harvard College], 1806 April 29

Letter requesting a proctor for the west end of Massachusetts Hall.

Vote of the Corporation, 1799 June 10

Two octavo-sized leaves containing a handwritten copy of the vote of the Harvard Corporation during the June 10, 1799 meeting authorizing Judge John Lowell and Judge Oliver Wendell to be a committee to attend to business with the state legislature related to the pending bill before the General Court regarding the College's real estate tax exemptions. The vote also authorized Professor Pearson to work with the Committee as needed. The document is addressed to Professor Pearson and signed by President Willard.