Where Did the Noble Lawyer Go?: Looking for Cicero in the Boardroom or on the Billboard

Marcus Tullius Cicero, born to a little-known family of Rome’s minor nobility, rose to become the Republic’s great defender, chief conciliator, and enduring interpreter of its laws. His murder for opposing the tyranny of Mark Antony and Octavian, or Caesar Augustus, and the clarity of his writings on the law and republican ideals of Rome have rather obscured his weaknesses in memory.[1] Cicero remains the model of the lawyer as hero, not only standing for the ideals of law against its enemies but transcending class and interest to do so.

It is no surprise that the writers of English law who instigated the American legal tradition praised the man they nicknamed Tully. Coke and Blackstone took leaves from his books. Lawyers in the colonies and early Republic not only read him for their studies but studied him for their statesmanship. John Adams often took solace in Cicero’s letters and Jefferson saw in his writings the origins of a public right.[2]

One may say that Tully, or an idealized version of him, inspired the heroic tradition of lawyer-statesmen in early America. Public lawyers like George Wythe, John Marshall, John Adams, Alexander Hamilton, Jefferson, and Charles Carroll of Carollton (whose biographer titles his book The American Cicero) and scores more followed in that path.[3] This regard for Cicero/Tully was one reason members of the bar would come to hold such a unique and likely essential role in the formation of the United States.

Today’s image of the heroic lawyer has been updated with its occasional heroes. Fictional Ciceros like Atticus Finch vie with real champions like Oliver Wendell Holmes, Thurgood Marshall, Sandra Day O’Connor, and Ruth Bader Ginsburg as ideals for the young law student.[4] Still, most observers of the American legal landscape in recent decades see few noble exemplars striding our courthouse steps or legislative halls. An industry of books bemoan the loss not just of the transcendent lawyer, but the lawyer with civility or a sense of professional duty. The American bar looks caught between the seeming barratry of billboard plaintiffs’ firms, and the avarice of triple-billing skyscraper-renting mega-firms.

The literature of complaint—which has risen in recent decades, though it has long been with us[5]—calls for the recapture of a lost age, the discernment of lost ideals, and the recruitment of new Ciceros. The courts and bar associations grow more vigilant, and new organizations and programs have arisen to renew the law and its servants.[6]

Still, there is no great sense that this revival has succeeded. The questions that arise from this include: What does the hunt today for Cicero mean? What led to the decline? What should we expect a modern Cicero to care about? And, if any of this matters for us, what are we to do?

If Ciceros Are Scarce, Why?

To start, we have to admit that the search for our idyllic past incorporates some measure of delusion. Nostalgia for the past and fear of the future can blind us to the overcoming of past weaknesses, and lead us to take present strengths for granted. There is likely a truth in our sense that we have lost our chance to generate a latter-day Cicero, but we must be cautious in reading history too selectively. Previous generations had their share of self-serving, incompetent, unprofessional lawyers, and there are many noble and selfless leaders now in the bar.[7]

Even so, we keep looking for our Ciceros. One reason is that the stakes are great. Lawyers have been the guarantors of liberty. They have written our Declaration of Independence, federal and state constitutions, the 1863 Emancipation Proclamation, civil rights acts, not to mention the great judicial opinions creating a federal republic and the protection of individual rights and equal dignity. The fact that members of the profession can perform such functions makes clear their ability to guard the individual from others and from the state.

To be able to help another is a predicate to helping, but there is more. Lawyers undertaking this task fill the role such that others do not. Like becoming a lifeguard, a lawyer loses the immunity from a duty to save those in peril. Lawyers lose the moral independence not to act in the public good.[8]

Another reason we yearn to admire lawyers, and to find admirable examples thereof, is that something terribly important has been lost. There is a sense that the system of laws now is less reliable, less effective, less trustworthy, and decreasingly likely to protect the lives and fortunes of all. That sense leads to the perception that the law is less a control on the state and more a commodity, bought and sold by the rich and controlled by the powerful. The relative accuracy or inaccuracy of this perception aside for the moment, its pervasiveness is bad for the profession. In times past, the lawyer was a fiduciary, holding the interests of the client in trust but balancing that trust with a superior commitment to the law.

What the lawyer has become is a free agent pursuing profit at the client’s expense, and so pursuing the client’s interests at the expense of justice and of the law itself.[9] With the decline of the Ciceronian lawyer, the law has come to seem a commodity.

Effects of a Changing Culture

Lawyers tend to think we cause the changes that affect us, rather than our reflecting the larger shifts in culture. That is unlikely.

Many effects on the profession result from changes in society, technology, and the economy. Changes affecting clients often affect their attorneys. Innovations in information technology, and the infrastructure of travel, have affected lawyers just as they have firms in trade and everyone else. In the last century, the movement of people and goods, including the immigration of workers, has grown exponentially. The development of genuinely global networks of commerce and trade has clearly affected how lawyers work, and in some cases has affected what they believe.

Several demographic shifts may have altered the potential for the lawyer-leader. At least one, though, is no hindrance to the rise of Ciceros.

First is the decline of the country lawyer. As society has become less rural, so have the lawyers. One recognizes that the deep integration of a community may sometimes trap the lawyer in a mindset that is tribal and hidebound. Still, those who work in small communities are likely to be more respectful of those around them (including fellow lawyers); more cautious about the effect of law on the citizen; and more likely to be personally accountable for the actions they cause by law. Their deeds will, after all, follow them throughout their careers among the community that knows them.[10]

By comparison, urban lawyers—at least those in large firms or in diffuse practices—run greater moral risks, because they run different professional risks. Lawyers in urban areas with greater anonymity may well feel no consequence from their errors or misdeeds, as long as they do not cross technical rules for liability or avoid harm to the firm. This corporatism changes legal society, with implications for the worse when it comes to restoring the Ciceronian model.

Second is the long overdue entry into the American workplace, and into the bar, of women and persons of varying cultural, national, religious, and racial heritage.

Some might suggest that this assault on the monopoly of white male Protestants of the upper classes accounts for a loss of a shared sense of the profession, of noblesse oblige among lawyers, or of commitment to a purpose higher than the mere interests of clients.[11] There is, however, as great a likelihood that the entry of these individuals, with interests in the protection of previously excluded of groups, can revive Ciceronian traits.

Division on that question suggests that we perceive a tension between a person’s engagement with his or her community and dedication to the professional values and interests of the law. In other words, if professional legal culture is a distinct aspect of a lawyer’s values and interests, then the interests of the lawyer or the lures of class, race, religion, or other subcultures may differ from it. If the lawyer prefers the non-legal subculture, then the legal subculture failed to develop sufficiently comprehensive indoctrination or reinforcement to overcome its competitors.

The loss of law in a cultural conflict is not inherently good or bad. The traditional legal subculture’s diminished influence over lawyers is only bad if that subculture is in fact conducive to Ciceronian conduct. This is not guaranteed.

Certainly, some aspects of legal culture are not encouraging. The growth of the profession from a few thousand lawyers to over a million, challenges the maintenance of a common culture. The dependence on clients for income, and the potential for success by unprofessional means, lurk for all but the wealthiest of lawyers.

Above all, the complexity of the law today draws a veil across much of the conduct of attorneys. This is nowhere more obvious than in the dramatic rise of legislation and, particularly, administration. In each, the means by which rules of law are created are lost to the view of most observers, arising from institutional values and compromises effected by politics and interests but not clearly seen. Though many of these rules do reflect careful efforts to uphold the interests of the public as a whole as much as of those directly affected, many decisions are cloaked in mystery, leaving a great potential for interest and anonymity to overwhelm duty and commitment to the public good.

These legislative and administrative back alleys are the haunts of interests in conflict with the general good. Political competition may require an official’s loyalty to party; a desire to trump an opponent may overwhelm all sense of duty to office. At the least, such conflict between fiduciary duty and political pressure can taint the fair consideration of issues so that what is good for one’s party must, regardless of fact or nuance, be thought good for the people.

Likewise, the allure of administration, the bureaucratic pressures of defending a budget and purpose within an institutional framework, may lead to pressures to defend an agency’s action, or its opportunity, or its leaders, independent of their merits.

Thus, though politics and bureaucracy are integrated into the legal system, and certainly lawyers have proved essential to the operation of both, the political and the bureaucratic cultures may interfere significantly with the subculture of the legal profession itself. Though it is possible that such interference seeks to protect the rights of the individual or better serve the public interest than the lawyers do, this, too, is hardly guaranteed.

The critical factors in all these cultural conflicts are whether the legal culture itself encourages Ciceronian conduct, and if so, whether it can integrate the influences from other subcultures that are salutary while discouraging those that are not.

What Should Today’s Cicero Do?

The historical Cicero, when he was on form, struggled to protect what he believed were the long-lived customs of Rome that were enshrined in its laws, and thus to protect the rights of Roman citizens, the prerogatives of the Senate, and the limitations of power inherent in the various offices of the state. As has been noted, his views fueled the republicanism adopted by 18th century Americans.[12] What of Cicero’s life or work is there for the contemporary lawyer to emulate? The answer is complex.

The structure of law, indeed the profession of lawyering, cannot guarantee that its practitioners will aspire to, let alone attain, the ideal represented by Marcus Tullius Cicero. He had few worthy predecessors, and not only that, his successors hardly desired his particular status as martyr for the law. The law itself, as de Tocqueville noted, is conservative and its practitioners are usually committed to perpetuation of the privileges of the elite.[13]

We would prefer that the law necessarily embrace certain ideas, such as the protection of individual liberty, but tyrannies have laws, too. One of the fundamental understandings of modern law is that law can be law without being just, or right, or moral.[14]

I have argued elsewhere that law is the application of an archive of historical legal materials applied by a contemporary body of legal professionals according to the technique for doing so accepted by their professional culture.[15]

Whether there is justice, or right, or ordered liberty under the rule of law is contingent. Such moral notions, even such useful tools, are made part of law over time, through decisions and actions that are memorialized in the archive of law. Acts of courts, arguments of jurists, decrees of administrators that encourage such results increase the likelihood that later lawyers will accept as their duty the perpetuation of this inheritance. And this duty, in turn, informs their understanding of the later professional culture that applies the archive.

On the other hand, an archive of broad statements of justice that is littered with loopholes reaches a different result. Exceptions—for the powerful here, the grasping excuse there, this little emergency, that little caveat, or perhaps worse, this little act of state that is said not to be defined or controlled by the law at all—these become the basis for later lawyers to believe in a duty to adapt the law to their own purposes, to claim the unearned allowance for a client that corrupts the client, to bend or even break what would otherwise be said to be the law.

Lawyers who see their duty in that way are rejecting a general duty to the law, because the law itself is harmed by such thinking. Its general rules become less likely to be the basis for a general compliance by officials and citizens alike. Yet lawyers take refuge in the allowances suggested in the archive. That is, they take such refuge if, and only if, the professional culture also allows it.

This contest for the meaning of the duties of the profession is essential to understanding the very nature of the law in a given legal system. Many of our current debates can be phrased in arguments concerning what the culture of the law, applying the available archive, will allow:

Does the law allow the involuntary transfer of private lands for corporate use?

Does the law allow officials to torture? Perhaps more meaningfully, does it allow what the United States once prosecuted as the water torture?

Does the law allow the grant of enormous funds to lawmakers by a segment of the populace whom the lawmakers regulate?

Does the law allow the alteration of political borders to favor the interest of the mapmakers?

Does the law allow the seizure of one person’s property because it might have been used by another for a crime?

Does the law allow lawyers to argue for the abolition of separation of powers? For the abolition of the government itself?

Many of these questions can be resolved by determining the limits of the allowable legal culture. In a democratic republic that recognizes the rights of individuals and certain minima of ordered liberty, some actions by the state are inherently forbidden by law, such as the punishment of individuals except by the customarily accepted standards of the law. Legal officials have a duty to be independent of influence and a duty to use their powers to the benefit of all the people affected by their actions, not merely themselves or their cronies. Lures that could distract the official from such duties must be forbidden.

All of that is cultural, and all of it is at stake, all the time. For Cicero to succeed in the Roman Forum or for his successors to succeed now in a county courthouse, the tools for the task must be available. The archive must have records of past arguments, and the culture must privilege those arguments that ensure the law is used for the benefit of the people it binds; that it balances stability and universality with the need for careful change to ensure justice for those directly affected by the law’s orders or demands.

This battle for the culture of the law demonstrates the need for projects like those pursued by the Liberty Fund. Its activities maintain critical assets in the archive of the law, making many of the most valuable sources in that archive accessible to an audience that would otherwise be denied them. It encourages the debate that is essential to the best hopes for a culture of law that will  promote ordered liberty.

[1] Most readers of this essay will need no introduction to Cicero, though they might enjoy the recent novelizations of his life by Robert Harris, Imperium (Pocket Books, 2006) and Conspirata (Simon and Schuster, 2011). For a straight telling of the tale, the monograph by Everett is a good update on Trollope’s two volumes, though neither is as useful as Thomas N. Mitchell’s now quite rare study, which seems to have helped Harris. See Mitchell’s two books, Cicero: The Ascending Years (Yale University Press, 1979), and Cicero: The Senior Statesman (Yale University Press, 1991).

[2] There is not yet a sufficiently thorough consideration of Cicero’s influence on early America, but see Carl J. Richard, The Founders and the Classics: Greece, Rome, and the American Enlightenment (Harvard University Press, 1995), and the work of Tim Sellers, noted below.

[3] Bradley J. Birzer, American Cicero: The Life of Charles Carroll (ISI Press, 2010).

[4] Finch, of course, is the hero of Harper Lee’s quasi-autobiographical novel To Kill a Mockingbird (1960). Moreover, the late Sam Ervin (D-N.C.), who became famous for chairing the Watergate hearings in Congress in the early 1970s, was considered by many an Atticus Finch made flesh, so respected was he for his intellect and his comfortable Southern style. See Karl Campbell, Senator Sam Ervin: Last of the Founding Fathers (University of North Carolina Press, 2007).

[5] Many examples from the literature of complaint warn of the consequences of change in the plaintiffs’ bar and the defense bar. See Peter Huber, Liability: The Legal Revolution and Its Consequences (Perseus, 1990); Michael H. Trotter, Profit and the Practice of Law: What’s Happened to the Legal Profession (CreateSpace, paperback, 2012), and Sol M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (Scribner’s, 1994).

[6] For more general warnings and counters from the law schools, see Deborah Rhode, In the Interests of Justice: Reforming the Legal Profession (Oxford University Press, 2003); David Luban and Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 Georgetown Journal of Legal Ethics 31 (1995); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 Yale Law Journal  1239 (1991). The American Inns of Court was formed in 1980 to foster excellence in professionalism, ethics, civility, and legal skills. See http://home.innsofcourt.org/

[7] See Robert W. Gordon, The Citizen Lawyer–A Brief Informal History of a Myth with Some Basis in Reality, 50 William and Mary Law Review 1169 (2009); Marc Galanter, Lawyers in the Mist: The Golden Age of Legal Nostalgia, 100 Dickinson Law Review 549 (1996). For arguments for, more or less, the Ciceros of today, see W. Bradley Wendel, Our Love-Hate Relationship with Heroic Lawyers, 13 Widener Law Journal 1 (2003); Walter Bennett, The Lawyer’s Myth: Reviving Ideals in the Legal Profession (University of Chicago Press, 2001).

[8] For an interesting argument as to why fundamental values might not be economically advantageous to lawyers, see Robert K. Vischer, Big Law and the Marginalization of Trust, 25 Georgetown Journal of Legal Ethics 165 (2012).

[9] See Stephen M. Sheppard, I Do Solemnly Swear: The Moral Obligation of Legal Officials (Cambridge University Press, 2009). See also David Luban and Carl M. Selinger, The Public’s Interest in Preserving the Dignity and Unity of the Legal Profession, 32 Wake Forest Law Review 861 (1997); David Luban, Legal Ethics and Human Dignity (Cambridge University Press, 2009).

[10] See Justice Robert W. Jackson, Tribute to Country Lawyers: A Review, 7 Texas Bar Journal  146 (1944).

[11] One can certainly read the minutes of the annual meetings of the American Bar Association in the ABA’s early years for many examples of such thinking.

[12] See M.N.S. Sellers, American Republicanism: Roman Ideology in the United States (New York University Press, 1994).

[13] See Alexis de Tocqueville, Democracy in America, Book 1, Chapter 16.

[14] See H.L.A. Hart, The Concept of Law (Oxford University Press, 1961).

[15] See Sheppard, I Do Solemnly Swear.