Attorney 'mal-practices': an invisible ethical problem in the early American republic*. Issue 2 (2nd July 2016)

• Record Type: Journal Article
• Authors: Winsberg, Sarah
• Is Part Of: Legal ethics. Volume 19:Issue 2(2016)
• Page Start: 187
• Page End: 206
• Publication Date: 2016-07-02
• Subjects: Malpractice -- legal history -- legal ethics -- republicanism; Legal ethics -- Periodicals; 174.305
• DOI: 10.1080/1460728x.2016.1248677
• Languages: English
• ISSNs: 1460-728X

Abstract

ABSTRACT: Lawyers and judges in the early American republic were surprisingly reluctant to penalise colleagues for malpractice and misconduct towards clients. Though they were part of a legal culture obsessed with preserving lawyers' moral rectitude, they nonetheless remained sceptical of attempts to address malpractice. This article explores that apparent contradiction. I analyse allegedly wronged clients' unsuccessful attempts to seek legal satisfaction, whether in civil, criminal, or professional suspension proceedings. I find that the period's public-spirited legal ethics was in fact a major contributor to these former clients' difficulties. Legal reformers worried constantly about the dangers to the republic of too-zealous advocacy, which might undermine the public interest. These concerns helped render the opposite problem – of lazy or even duplicitous client 'advocacy' – invisible and irremediable. Stories from the past, I argue, help illuminate a tendency to overlook malpractice that continues to this day.