Rebirth of Bar Associations

The push toward professionalization and the growing social importance of lawyers and the law explain the rebirth of the bar association movement in the 1870s. During the first half of the nineteenth century the bar had been a "very loose, very open" mass. ⁸ There were a few primitive clubs or associations, but these organizations, except in Massachusetts, had little authority to discipline their members, to set criteria for admission, or to impose ethical standards. The leading members of the bar during these years also harbored a suspicion about the involvement of lawyers in political activity and the unregulated nature of law practice.

The post-Civil War movement to professionalize the bar involved standards of professional conduct. Leaders of the bar formed themselves into associations whose purpose was to encourage a sense of professional distinctiveness among fellow practitioners. Part of the motivation behind the bar association movement was the stigma of political activity that had been attached to lawyers from the beginning of the republic. Isaac F. Redfield, judge of the Vermont Supreme Court, wrote in 1871 that "a lawyer in the legislature is no more in the profession than a merchant, a banker, or a mechanic." ⁹ Partisan involvement with the judiciary was often direct. In Redfield's Vermont in 1874, the Democratic party reorganized the state supreme court and, in the process, threw out all of the incumbent Republican judges. Moreover, concerns about the baneful consequences of political activity paralleled a deepening concern on the local level that the judiciary had become, through elective politics, an often corrupt and incompetent handmaiden of the parties. Big-city politicians often made heavy demands on the judiciary. In New York City, for example, Judges George G. Barnard and Albert Cardozo (the father of U.S. Supreme Court Justice Benjamin Cardozo), were imprisoned for taking bribes.

In February 1870 the bar association movement got under way in New York City, where changes in the bar and allegations of corruption were greatest, with the founding of the Association of the Bar of the City of New York. Attorneys in the city were worried that the threat posed by machine politics to the legal process would soil the business climate on which they increasingly depended. "[I]t is impossible for New York to remain the center of commerce and capital on this continent," roared Samuel J. Tilden, a Democrat and prominent attorney, "unless it has an independent Bar and an honest judiciary." ¹⁰ One of the founders of the new association in New York concluded that "I think I can express the idea of this association, and the purpose for which it is to be formed, by saying that we shall aim to make ourselves . . . a profession." ¹¹

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More than corruption and a fear of political intervention with the bar stirred the association movement. Competition was also important. In the late nineteenth century, trade groups rapidly organized in order to gain some control over the market they served, and occupational groups as diverse as plumbers and funeral directors sought the same goal through licensing laws. Bar associations joined the movement, urging state legislators, who were themselves overwhelmingly lawyers, to establish qualifications for entry into the profession. Between 1870 and 1890, requirements for admission to the bar tightened noticeably, especially the replacement of the traditional oral with a formal written examination. By 1917 some thirty-seven states had centralized boards of bar examiners. In the view of the bar associations, public service and self- interest were mutually reinforcing.

The association movement spread rapidly throughout the country, although small- town lawyers in lightly populated rural states often successfully resisted. In Mississippi, for example, continuing efforts between 1886 and 1892 to form a statewide bar association ended in failure. Although a few of the "brightest and best [ Mississippi] lawyers might have wanted it, Mississippi was not yet ready to join modern industrial America." ¹² In states like Mississippi, the bar as an entity had little impact on the formulation of state constitutions and rules of practice and procedure, although individual lawyers with access to political power rather than professional authority usually did.

The theme of professionalization also figured in the rise of the American Bar Association (ABA). The first national bar group, the American Legal Association, had been formed in 1849 by John Livingston, and its most notable achievement had been the publication of a national directory of lawyers. But it quickly disappeared, the casualty of the parochialism of the bar that viewed itself in local rather than national terms. Twenty-nine years later, in 1878, Simeon E. Baldwin, a judge of the Connecticut Supreme Court, launched a more successful effort with the founding of the ABA. The initial meeting was attended by 100 lawyers at Saratoga Springs, a posh resort in upstate New York. At the time there were more than sixty thousand lawyers in the country. The charter of the new group set forth its purpose clearly: to "advance the science of jurisprudence, promote the administration of justice and uniformity in legislation . . . uphold the honor of the profession . . . and encourage cordial intercourse among the members of the American Bar." ¹³ The new association, which in its first decade was as much a social as a working group, grew slowly. By 1902 it had 1718 members and by 1920 that membership had only doubled. A rival national federation of state and local bar associations, the National Bar Association, was established in 1888, but it failed within a few years.

The size of the ABA's membership should not obscure either its importance or the motives behind its creation. The new organization, like local and state bar associations, was purposefully exclusionary. It literally sought to enlist the best men in a crusade to reform the bench and bar. The ABA has historically been connected with the opponents of late-nineteenth-century reform, but on closer study a somewhat more complex estimate is in order. Rather, the ABA "was itself a manifestation of that spirit to which its founders were highly sympathetic." ¹⁴ These elite lawyers worried about the changes sweeping the practice of the law. The expansion of the bar had allowed "ambulance chasers" and ethnic immigrant lawyers to join the profession. At the same time, the forces of industrialization had made corporate clients important, and

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they placed demands for loyalty to the company over loyalty to the profession. The leaders of the ABA also recognized that the profession of law had to share its prestige with others of the new "scientific" professions, such as economics, political science, and history. Until the organization of the ABA, the American Social Science Association ( 1865-1909) had tended to the scientific interests of lawyers. Thus, the creation of the ABA was an effort on the part of the most prestigious element of the bar to differentiate itself from other professional groups, while fostering a sense of professional consciousness all its own.

The ABA succeeded because it advocated a limited agenda with a moderate theme. The ABA's stress on professional standards was readily translated into a number of standing committees with responsibility to oversee developments in various areas of the law, such as judicial administration, legal procedure, and commercial law. These committees met, wrote reports, and offered recommendations that carried no official weight but did bear the stamp of approval of the nation's leading law association. Moreover, the ABA's concern with a more scientific approach to law and its study, as well as its stress on greater uniformity of laws, fitted nicely with the demands of a consolidating national economy. Beginning in 1892 the ABA met concurrently with the National Conference of Commissioners on Uniform State Laws, which was an offshoot of a group originally organized by the state of New York. Their combined efforts produced recommendations on uniform laws that were offered to the states in the form of model legislation. Finally, the ABA was conscious of the need to take a middle course in reform, because it wanted to upgrade the caliber of the bar, increase the pay of lawyers, and make the practice of law a decent (by its lights) calling.

Date: 2015-01-29; view: 797