Class Not Race in Legal Ethics: Or Why Hierarchy Makes Strange Bedfellows

DAVID B. WILKINS

Susan Carle has given us a fascinating, thoroughly researched, and well-argued examination of the early history of the modern civil rights movement. She frames her inquiry of this rarely investigated period in terms of the tension between the NAACP's litigation tactics during the early part of the twentieth century and the professed ethics of the establishment lawyers who authored and approved these controversial measures. How, she asks, could leading corporate lawyers such as Charles Boston justify authorizing the NAACP's concerted campaign to solicit plaintiffs and create test cases while at the same time serving on ethics committees that expressly condemned such practices?	1
In this brief comment, I want to ask a different question, one that I believe is a logical extension of the careful and insightful answer that Carle gives to the one she poses: Why have elite lawyers frequently granted public interest organizations like the NAACP the kind of express or implied exemption from the reach of the ethics rules that they have always implicitly granted their own practices? As a commentator, I have the luxury of posing this intriguing question without having to answer it. Instead, I want to set forth why Carle's thoughtful essay made me think about this problem and why I believe exploring the enduring connection between the elite bar and the public interest community promises to shed some badly needed light on the complex relationship among class, race, and professional ideology in American legal ethics discourse.	2
Carle offers a complex and nuanced explanation, including elements of individual biography and broader notions of class privilege and political philosophy, for Boston's willingness to overlook the inconvenient restrictions imposed by the solicitation rules. I Find almost everything that she says in this regard convincing. Yet, as I read her account, I could not help thinking about a simpler, admittedly more vulgar explanation for the paradox Carle describes: with few exceptions, elite lawyers never believe that the restrictions in the ethics codes apply to them. As Jerold Auerbach demonstrates, the lawyers who drafted the original canons of ethics were quite clear in their belief that the rules they crafted were intended to stamp out the practices of the new generation of immigrant lawyers who these Brahmans viewed as a threat to their status as independent professionals.1 Given these origins, it is not surprising that Boston and his colleagues did not believe that rules against such "crass" commercial practices as ambulance chasing applied to their own noble endeavors.	3
The philosophical commitments identified by Carle that are left out of this more vulgar explanation--the fact that the NAACP was not litigating for "pecuniary gain" and the progressive era's belief in a unitary understanding of the public good--strike me as amplifying, rather than creating, the long-standing and often yawning gap between the professed ideals and actual practices of elite lawyers. Carle is clearly correct that these factors made it easier for Boston and his contemporaries to distance themselves from the otherwise inconvenient similarity between the NAACP's practices and those they had previously condemned by giving these elite lawyers credible grounds for telling themselves that the solicitation rules did not "really" apply in this instance. But I suspect that if these particular fig leaves had been unavailable, others would have been pressed into service.	4
One way of testing this intuition is to investigate whether the elite lawyers of Boston's day believed that the solicitation rules applied to the manner in which they recruited and serviced their own corporate clients. I know little about this period, but it certainly would not surprise me if Boston and his contemporaries felt perfectly free to solicit business from corporate executives in the private clubs and salons frequented by the business and legal elite. Yet corporate lawyers were never disciplined for such behavior, nor did they fear discipline, even though they were surely acting for "pecuniary gain."	5
If pressed (and the point is that they were not pressed), Boston might try to reconcile the bar's failure to investigate the commercial practices of elite lawyers by redefining the underlying purposes of the solicitation rules (as Carle sometimes hints) from a concern about "pecuniary gain" to preventing clients from being "exploited" by self-interested lawyers. Since sophisticated corporate clients are not likely to be exploited in the way that individuals might be, the argument would go, bar officials like Boston could claim that there was no reason to investigate the practices of corporate lawyers. Although there is some truth in this argument--just as there is something to the pro bono/pecuniary gain distinction Carle alludes to--it does not explain why (as Carle also notes) bar officials in both Boston's time and our own refuse to treat cases where an individual client benefits from the representation for which he or she has been solicited as falling outside the reach of the rule.	6
Once again, my point is not that the complexity that Carle adds to this simplified account is unimportant or unnecessary. Quite the contrary. Materialist accounts of legal ethics, while important, tell us little about the mechanisms through which self-interest and elite privilege become instantiated in ethical rules. Carle's nuanced analysis therefore provides important layers of detail. But in the end, I suppose I am not surprised that Boston and his contemporaries did not feel themselves bound by their own ethical rules.	7
What is surprising, upon reflection, is why these prominent practitioners extended the zone of elite privilege to the activities of a public interest organization like the NAACP? And why has this unusual alliance, which appears to transcend traditional boundaries of professional ideology and (with respect to the NAACP) of race, continued for the better part of a century? As Carle notes, the de facto permission extended by Boston and his contemporaries to the controversial litigation tactics pioneered by the NAACP has now been incorporated into the ethics rules.2 Like many similar changes, the impetus for drawing an official distinction between pro bono and for profit solicitation came from the courts and not from the bar.3 For my purposes, however, what is interesting is that by the time the Supreme Court turned back the ethical challenge to the practices of advocacy organizations like the NAACP--a challenge mounted almost exclusively by southern state bars--elite lawyers in the north had become some of the biggest supporters of these organizations. Similarly, the elite bar played a key role in defeating Ronald Regan's attempt to eliminate federally funded legal services for the poor during the 1980s. And in our own time, corporate lawyers frequently join with international human rights lawyers to promote rule of law projects around the world.	8
What explains this odd alliance? At first blush, lawyers who serve corporate interest would appear to have little in common with those who claim to act on behalf of the public. Indeed, law students typically view these two camps as polar opposites, dividing themselves into those who will "save the world" and those who will become "corporate tools." But as Carle's careful analysis underscores, there is much more to the relationship between corporate and public interest lawyers than this common caricature suggests.	9
Three interconnected aspects of the history Carle recounts provide tantalizing clues to the causes and attributes of the complex connection between these two seemingly opposed sectors of the bar. First, public interest lawyers frequently are themselves members of the elite. Carle reminds us that this was certainly the case for the original public interest bar. The NAACP's legal committee, the progenitor of all advocacy organizations, was founded and, until the 1930s, run by elite white lawyers, many of whom were independently wealthy. Although most of the current generation of public interest practitioners do not have the bank accounts (or the standing in the social registry) of their predecessors in the early twentieth century, the great majority nevertheless come from backgrounds that are virtually indistinguishable from their classmates and friends practicing in corporate law firms.4 And, like Boston, many of today's corporate lawyers continue to serve on the boards of, and do pro bono work for, public interest organizations such as the NAACP Legal Defense Fund and the ACLU. These social, educational, and professional connections arguably contribute to the sharp distinction that the corporate bar draws between the work of "public interest" organizations and the often similar activities of the plaintiff's tort bar with whom these elite lawyers share few connections.	10
Moreover, as the contrasting analogy to the plaintiff's bar underscores, public interest organizations have traditionally targeted a different class of defendant than those typically represented by elite corporate lawyers. Once again, this was clear during the era that Carle describes. The test cases that Boston authorized were against southern railroads or small northern theater owners, not the large banks and northern captains of industry who constituted the majority of the clients in Boston's firm and those like it on Wall Street. Even today, with the notable exception of environmental organizations, public interest advocates tend to sue public actors such as school districts and prisons, or in the case of international human rights lawyers, corrupt governments, as opposed to the private corporate interests represented by large law firms. The fact that advocacy organizations (as opposed to plaintiff's tort lawyers) seldom threaten the economic interests of the clients of corporate firms has undoubtedly helped to cement the social and professional connections between the public interest and corporate bars. Indeed, on some occasions--for example, when human rights lawyers help to spread rule of law norms in countries dominated by connections and corruption--the efforts of public interest lawyers may actually further the interests of the multinational corporations represented by the elite bar.	11
Finally, the corporate bar's stake in preserving the image of a unitary profession dedicated to the public interest helps to explain why elite lawyers sometimes support public interest advocates even in circumstances where their immediate economic interests might dictate a contrary stance. From its earliest days, the bar has consistently staked its claims to self-regulation and professional autonomy on the ground that law is a "public" profession committed to preserving the fundamental public purposes of the legal framework. This deeply held professional ideology, I suspect, underlay and reinforced the progressive era sense of nobless oblige that Carle suggests characterized Boston's world view. By supporting the work of public interest organizations like the NAACP, elite lawyers from Boston's day to our own have been able to portray the bar's public aspirations as reality without having to significantly alter their own practices, which frequently undermine the public framework that advocacy organizations seek to protect.5 Similarly, by linking themselves to those public interest lawyers who do preserve the legal framework, elite lawyers have been able to ward off potentially effective external regulation by the SEC and other administrative agencies. Restrictions on the ability of corporate lawyers to zealously serve the interests of their powerful clients, the elite bar has skillfully argued, would necessarily curtail the ability of lawyers for powerless individuals to adequately protect the rights of their vulnerable clients from the authoritarian power of the state.	12
On each of these three grounds--class, economics, and professional ideology--Carle's analysis of the ethical paradox imbedded in the formation of the NAACP's early litigation strategy provides an informative window on the more general relationship between the elite bar and the public interest community. A definitive understanding of this fascinating and enduring relationship will have to await the kind of careful, historically grounded scholarship that Carle has brought to her topic.	13
David B. Wilkins is Kirkland and Ellis Professor of Law and director of the Program on the Legal Profession, Harvard Law School. Notes 1 Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976). 2 Model Rules for Professional Conduct, MR 7.3(a) (prohibiting solicitation "when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain"). 3 See In re Primus, 436 U.S. 412 (1978). 4 For example, a study of New York University law school graduates found that students with the highest grades were disproportionately more likely than their peers in the middle and bottom of the class to begin their careers in public interest organizations. See Lewis A. Kornhauser and Richard L. Revesz, "Legal Education and Entry into the Legal Profession: The Role of Race, Gender, and Educational Debt," New York University Law Review 70 (1995): 829–909. 5 Indeed, in one of the more ironic aspects of the connection between the corporate and public interest bars, elite firms now frequently employ for the benefit of their powerful clients many of the techniques pioneered by the NAACP and other civil rights organizations to give their powerless clients access to the power of law. Thus, corporate lawyers routinely counsel corporate clients to solicit industry-wide cooperation, to pursue a coordinated litigation strategy, and to bring "test cases" challenging various regulatory measures.

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