The Legal Ethics of Fear: On the 1904 Report of the Committee on Legal Ethics of the Georgia Bar Association
41 Mercer L. Rev. 565 (1989-1990)
It would be possible for me now to round off a courteous comment on the 1904 Report with a disquisition on gentleman's ethics in the legal profession. That would have been a less novel thing to do in 1904 than it is now, but at either time it can be supposed to have been expected and, by and large, understood. But I think we can learn more from the 1904 Report by taking a more contentious and somber look at Branham's words. I suggest that what the report shows is unpleasant, that the legal ethic recommended there to Georgia lawyers is an ethic of fear, an ethic for an exclusive elite—less an ethic, finally, than a way to hold on to undemocratic power.
What stands out in the 1904 Report, if you compare it with American statements of gentleman's ethics for lawyers of, say, 1817, 1836, 1854, and 1880 (those being the years of David Hoffman's first and second whiggish declarations on lawyer "deportment," of Judge Sharswood's influential essay on legal ethics, and of the Alabama Code of Ethics for lawyers), is Branham's emphasis on not giving offense: "To preserve our own respect and retain the good will of others, we must listen and generally agree with them," his 1904 Report says, as it recommends diffidence in exercise of the practical moral virtues—"courtesy, kindness . . . friendship." The more I ponder these words the more they seem to prescribe the practice of servility, an ethic for "one who does not esteem himself so highly as to be unmindful of the opinions of others, or become offensive or dogmatic in giving expression to his own . . . he avoids the vulnerable points of his brother and hides his faults."
Thomas L. Shaffer,
The Legal Ethics of Fear: On the 1904 Report of the Committee on Legal Ethics of the Georgia Bar Association,
41 Mercer L. Rev. 565 (1989-1990).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/554
Reprinted with permission of Mercer Law Review.