david hoffman and 1784-1854 and fifty resolutions and professional deportment and canons of ethics

**David Hoffman's Fifty Resolutions III**

Bill Long 12/12/05

Getting Prolix; Resolutions 15-17

Nineteenth century legal bibliographer John G. Marvin tells us that sometimes Hoffman treats things in a "somewhat discursive" manner. I am afraid that we are moving into that part of the Fifty Resolutions.

15. "When employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavors to arrest or to impede the course of justice, by special resorts to ingenuity, to the artifices of eloquence, to appeals to the morbid and fleeting sympathies of weak juries, or of temporizing courts, to my own personal weight of character--nor finally, to any of the overweening influences I may possess from popular manners, eminent talents, exalted learning, etc. Persons of atrocious character, who have violated the laws of God and man, are entitled to no such special exertions from any member of our pure and honorable profession; and, indeed, to no intervention beyond securing to them a fair and dispassionate investigation of the facts of their cause, and the due application of the law. All that goes beyond this, either in manner or substance, is unprofessional, and proceeds, either from a mistaken view of the relation of client and counsel, or from some unworthy and selfish motive which sets a higher value on professional display and success than on truth and justice, and the substantial interests of the community. Such an inordinate ambition I shall ever regard as a most dangerous perversion of talents, and a shameful abuse of an exalted station. The parricide, the gratuitous murderer, or their perpetrator of like revolting crimes, has surely no such claim on the commanding talents of a profession whose object and pride should be the suppression of all vice by the vindication and enforcement of the laws. Those, therefore, who wrest their proud knowledge from its legitimate purposes to pollute the streams of justice and to screen such foul offenders from merited penalties, should be regarded by all (and certainly shall by me) as ministers at a holy altar full of high pretention and apparent sanctity, but inwardly base, unworthy, and hypocritcial--dangerous in the precise ratio of their commanding talents and exalted learning."

COMMENT: Lots of things could be said. First, this would not fly today, even probably among criminal prosecutors. They want someone who conducts a defense of a criminal in a thorough manner so that a reviewing court won't remand the case because of inadequate representation of counsel. Second, this Resolution more than any other shows us the class-based assumptions of the profession that Hoffman thought to uphold. He certainly thinks that the legal profession itself ought to be above taint and that probably he, and people like him, are also more morally elevated than those who commit heinous crimes. But his approach is that if it can be shown that a person committed the crime, and that there are not obvious extenuating circumstances, the lawyer should not employ "special resorts to ingenuity" for help. Hoffman would have not understood the procedural revolutions in criminal law in the 1960s. In fact, one of the issues in Oregon law today is that the public may finally be waking up to the fact that procedural delays in death penalty cases only benefit the defendant and don't benefit the people of Oregon. Third, the spirit animating the whole here is that one's talents need to be used for good and noble ends. Hoffman seems tone-deaf to the notion that the legal system might be "rigged" in a way to favor the interests of the powerful. To what extent does his blindness in this regard taint his insights? The 1908 Canons take a fully different approach to the issue (Canon 5). Here the criminal defense lawyer is "bound by all fair and honroable means, to present every defense that the law of the land permits..."

16. "Whatever personal influence I may be so fortunate as to possess shall be used by me only as the most valuable of my possessions, and not be cheapened or rendered questionable by a too frequent appeal to its influence. There is nothing more fatal to weight of character than its common use; and especially that unworthy one, often indulged in by eminent counsel, of solemn assurances to eke out a sickly and doubtful cause. If the case be a good one, it needs no such appliance; and if bad, the artifice ought to be too shallow to mislead any one. Whether one or the other, such personal pledges should be very sparingly used and only on occasions which obviously demand them; for if more liberally resorted to, they beget doubts where none may have existed or strengthen those which before were only feebly felt."

COMMENT: This is a solid piece of practical advice. Husband your energy and your "prestige." Power often is greatest when it isn't used but has its greatest influence when someone knows it is there and can be used. But, you have to live long and work hard and be quite talented in order to get to the point where you don't need to flash your influence on people. He speaks in this Resolution as a senior member of the profession, who knows what it is to have accumulated some influence over the years.

17. "Should I attain that eminent standing at the bar which gives authority to my opinions, I shall endeavor, in my intercourse with my junior brethren, to avoid the least display of it to their prejudice. I will strive never to forget the days of my youth, when I too was feeble in the law, and without standing. I will remember my then ambitious aspirations (though timid and modest) nearly blighted by the inconsiderate or rude and arrogant deportment of some of my seniors; and I will further remember that the vital spark of my early ambition might have been wholly extinguished, and my hopes forever ruined, had not my own resolutions, and a few generous acts of some others of my seniors, raised me from my depression. To my juniors, therefore, I shall ever be kind and encouraging; and never too proud to recognize distinctly that, on many occasions, it is quite probable their knowledge may be more accurate than my own, and that they, with their limited reading and experience, have seen the matter more soundly than I, with my much reading and long experience."

COMMENT: Doesn't this just make you want to say, "David, tell us what is was like in 1806 or 1807 or 1808, when you were getting started and when you had to face your obstacles? Tell us about the depression and humiliations you endured." Legal biography is as interesting to me as legal principles. Indeed, one of the reasons I decided to do an oral history for the United States District Court of Oregon Historical Society of a 90 year-old attorney who had spent much of his career arguing rate cases before the public utility commissions of California and Oregon is that I wanted to probe his life beyond law, or his life which shaped his understanding of law. I don't know if law will ever understand the pre-eminent importance of legal biography, but I think a few may be getting there.

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