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William and Mary Law Review



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Professional responsibility, Lon Fuller, ABA Code of Professional Responsibility, Thomas Talfourd, Greenhill v. Greenhill, civics teacher


Fifty years ago, the leading national representatives of the American legal profession, the American Bar Association (ABA), and the Association of American Law Schools (AALS), issued a joint report (the Report) on the nature of lawyers' professional responsibility in the context of the adversary system. Principally authored by legal philosopher Lon Fuller, who co-chaired the joint conference that issued it, the Report's premise was that the legal profession's inherited traditions provided only indirect guidance to lawyers in light of their changing roles, and that a "true sense of professional responsibility" must derive from an understanding of the "special services" that the legal profession "renders to society and the services it might render if its full capacities were realized." A decade later, the Report was quoted throughout the footnotes to the Preamble and Ethical Considerations of the ABA Code of Professional Responsibility, suggesting that the Report captured or influenced understandings that continued at least through the early 1970s. The Report's account of Greenhill v. Greenhill, the 1836 case that Thomas Talfourd argued, is too abbreviated to capture the extent of the injustice he helped achieve. In 1835, six years after her marriage, and while caring for three infant daughters, Mrs. Greenhill learned that her husband, whom she believed to be off yachting, had in fact been living for more than a year with another woman whom he passed off as his wife. When Mrs. Greenhill brought divorce proceedings, Mr. Greenhill retaliated by demanding that she relinquish the children. Custody proceedings followed. Despite Mr. Greenhill's refusal to end his adulterous relationship and despite Mrs. Greenhill's undeniable fitness as a parent, Mr. Greenhill had the superior legal right under precedents that regarded children as the husband's chattel. Mr. Greenhill demanded that the children be delivered to his mother, with whom he had formerly been estranged and who had until then refused to see her grandchildren. Further, he sought to prevent his wife from seeing the children, as was his legal right. When Mrs. Greenhill refused to comply with a court order to deliver up the children, her husband sought her imprisonment for contempt of court. Mrs. Greenhill offered to live anywhere and to make any arrangement for Mr. Greenhill to visit the children, but Mr. Greenhill, spurred on by his mother, refused even at the judge's urging to reach an accommodation. This was the matter in which Talfourd successfully advocated the husband's custody claim. As a contemporary put it: Talfourd "had been compelled to support that as an advocate, which as a man, possessed of the same generous sympathies as his fellow men, he must have felt to be iniquitous and absurd. Talfourd's work to reform the child custody law exemplifies a conception of the "citizen-lawyer" that has prevailed since our country's founding. The conception of the lawyer as civics teacher directly addresses the lawyer's role as client counselor in the daily private practice of law, regardless of whether the matter relates to a transaction or to litigation. This Essay begins in Part I by sketching the concept of the lawyer as civics teacher. Part II offers two reasons why lawyers should make a self-conscious effort to teach civics well and shows how this conception is rooted in Fuller's Report as well as in writings that both predate and postdate it. Finally, Part III places the conception in the context of contemporary professional and academic discussion of four subjects: the lawyer's duty to serve the public, the lawyer's role in a democracy, the lawyer's counseling function, and the lawyer's dealings with professional colleagues.