Learning From Two Lincolns
By Bill Ross
While attending the National Organization of Bar Counsel’s midyear
meeting in February in Boston, we were lucky enough to hear a keynote
address by Chief Justice Margaret H. Marshall of the Supreme Judicial
Court of Massachusetts. Marshall reminded the audience, comprised of
ethics prosecutors from across the country, that for all our constant
wrangling over the wording of our ethics rules and the contours of the
law, there is a lot to learn by simply looking at the past.
In particular, Marshall urged us to heed the words and actions of two
lawyers who were distant relatives: Abraham Lincoln and Levi Lincoln
Sr. While it is unclear if the two Lincolns had ever met, I readily
agree with Marshall that we should all strive to live up to the ideals
of both men.
Long before his rise to prominence as president of the United States,
Abraham Lincoln had an active law practice. Lincoln’s succinct
enunciation of the ethical obligations of a lawyer is just as timely
today as it was more than 150 years ago. Lincoln’s advice to other
lawyers, as Marshall relayed in her speech, includes the following:
- The leading rule for the lawyer…is diligence. Leave nothing
for to-morrow which can be done to-day. Never let your correspondence
- Discourage litigation. Persuade your neighbors to compromise whenever
- An exorbitant fee should never be claimed.
- … resolve to be honest at all events.
If we all followed these four elegantly stated principles in our practice,
our profession would be much closer to reaching the ideals we all strove
to achieve when we first heeded the call and began our legal training.
Yet, as Marshall reminded us, the ethical practice of law, standing alone,
is not enough. Our nation has achieved progress over the past several
centuries largely because of the creativity of skilled lawyers who have
had the vision to make the right arguments at pivotal moments in history.
This is where Levi Lincoln plays a vital role.
Levi Lincoln was a Minuteman in the Revolutionary War, governor of Massachusetts,
a member of the U.S. Congress, and U.S. attorney general, among other
things. He was appointed to the U.S. Supreme Court by President James
Madison, although he declined to serve because of failing health. But
the shining moment of Levi Lincoln’s career, highlighted by Marshall,
was his advocacy on behalf of Quock Walker. That support resulted in a
1783 Massachusetts ruling which declared slavery incompatible with the
Massachusetts Constitution’s guarantee that “all men are born
free and equal.”
Walker, a slave who was purchased as an infant by James Caldwell, had
been promised that he would be freed by age 25. However, Caldwell died
and his widow remarried, resulting in Walker ostensibly becoming the property
of new husband Nathaniel Jennison. In 1781 Walker, then 28, fled from
Jennison and sought refuge with Caldwell’s sons. Jennison recaptured
Walker, injuring him in the process.
Levi Lincoln, representing Walker, asserted a claim of civil assault
against Jennison. (Lincoln later defended Caldwell’s sons against
Jennison’s claim that they had unlawfully enticed Walker away from
Jennison.) In the civil assault case, Jennison declared that Walker was
his property and, therefore, the assault claim must fail. A jury found
for Walker that he had been freed and, therefore, was not Jennison’s
property at the time of the assault.
More creatively, however, on appeal of a verdict for Jennison against
Caldwell’s sons, Lincoln argued that Jennison’s claim must
fail because the institution of slavery was inconsistent with the Massachusetts
Constitution, which guarantees freedom to all.
Lincoln’s argument prevailed, and Jennison, subsequently, was prosecuted
for the criminal assault on Walker. In April 1783 the Supreme Judicial
Court of Massachusetts instructed the jury that slavery was abolished
as it was inconsistent with the Massachusetts Constitution. Although Lincoln’s
advocacy neither occurred in a vacuum nor did it single-handedly lead
to the abolition of slavery in Massachusetts, his creative legal arguments
frame a crucial social issue in such a way that the Massachusetts Supreme
Judicial Court was able to determine that slavery was unconstitutional.
This lesson offers several points to note: If you want to be successful
in your practice and make the world a better place, remember to be diligent,
conciliatory, fair, honest, and, above all, creative.
And it also doesn’t hurt if your last name is Lincoln.
 The Massachusetts Constitution was ratified on June 15, 1780, nearly
a decade before the U.S. Constitution went into effect.
 Readers should be also be mindful of Rule 3.1 of the D.C. Rules of
Professional Conduct (Meritorious Claims and Contentions) states that
a lawyer shall not make assertions “unless there is a basis in law
and fact for doing so that is not frivolous, which includes a good-faith
argument for an extension, modification, or reversal of existing law.”
As Comment  to Rule 3.1 explains, a lawyer “has a duty to use
legal procedure for the fullest benefit of the client’s cause, but
also a duty not to abuse legal procedure.”
 See The Massachusetts Constitution,
Judicial Review and Slavery: The Quock Walker Case available at http://
Bill Ross is an assistant bar counsel.
Disciplinary Actions Taken by the Board on Professional Responsibility
Hearing Committees on Negotiated Discipline
IN RE ALAN S. TOPPELBERG. Bar No. 230185. January 30, 2009. The Board
on Professional Responsibility Hearing Committee Number 11 recommends
that the D.C. Court of Appeals approve Toppelberg’s petition for
negotiated discipline and suspend Toppelberg for one year with fitness.
In a consolidated matter pertaining to five separate matters, Toppelberg
violated Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.3(c), 1.4(a),
1.4(b), 1.15(a), 1.15(b), 1.16(a)(1), 1.16(d), 3.2(b), 3.3(a)(1), 5.1(a),
5.1(b), 5.3(b), 5.5(a), 8.1(a), 8.4(a), 8.4(c), 8.4(d)and D.C. Bar R.
XI, § 2(b)(3) and D.C. Bar R. XI, § 19(f).
Disciplinary Actions Taken by the District of Columbia Court of Appeals
IN RE PETER D. FARRIS. Bar No. 950030. January 22, 2009. In a reciprocal
matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal
discipline and indefinitely suspended Farris from the practice of law,
with the right to apply for reinstatement after being reinstated in Maryland,
or after five years, whichever comes first.
IN RE FRANK J. HANCOCK. Bar No. 961151. January 22, 2009. In a reciprocal
matter from New York, the D.C. Court of Appeals imposed identical reciprocal
discipline and disbarred Hancock.
IN RE KIMBERLY A. NEEB. Bar No. 449075. January 22, 2009. In a reciprocal
matter from Pennsylvania, the D.C. Court of Appeals imposed identical
reciprocal discipline and suspended Neeb for one year and one day with
IN RE DAVID WAYNE PARSONS. Bar No. 323709. January 29, 2009. In a reciprocal
matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal
discipline and disbarred Parsons.
IN RE MATTHEW J. MARSHALL JR. Bar No. 381184. January 23, 2009. The D.C.
Court of Appeals affirmed Marshall’s criminal conviction for contempt
of his disbarment order. Marshall had been convicted in D.C. Superior
Court for criminal contempt of his November 22, 2000, D.C. Court of Appeals
order which disbarred him from the practice of law.
Interim Suspensions Taken by the District of Columbia Court of Appeals
IN RE JOHN F. BEGGIN. Bar No. 421636. January 6, 2009. Beggin was suspended
on an interim basis based upon discipline imposed in Pennsylvania.
IN RE PATRICK J. SMITH. Bar No. 296822. January 5, 2009. Smith was suspended
on an interim basis based upon discipline imposed in Maryland.
IN RE ROBERT R. STONE JR. Bar No. 139725. January 5, 2009. Stone was
suspended on an interim basis based upon discipline imposed in Virginia.
Informal Admonitions Issued by the Office of Bar Counsel
IN RE DALTON J. HOWARD. Bar No. 213587. December 19, 2008. Bar Counsel
issued Howard an informal admonition for failing to provide the client
with a settlement distribution sheet at the conclusion of the representation,
and for failing to maintain and produce complete and accurate records
of the receipt and distribution of the proceeds of the client’s
settlement while representing the client in a personal injury contingent
fee matter. Rules 1.5(c), 1.15(a) and D.C. Bar R. XI, § 19(f).
IN RE LEONARD L. LONG JR. Bar No. 385311. December 30, 2008. Bar Counsel
issued Long an informal admonition for failing to communicate the attorney
fee in writing while representing a client in two criminal matters. Rule
IN RE JANAI C. REED. Bar No. 420259. December 18, 2008. Bar Counsel
issued Reed an informal admonition for failing to maintain complete records
of one client’s files, including some financial records. Reed also
was unable to provide a comprehensive accounting for the period requested
by Bar Counsel. Rule 1.15(a).
IN RE DONALD M. TEMPLE. Bar No. 408749. December 9, 2008. Bar Counsel
issued Temple an informal admonition for failing to promptly comply with
reasonable requests for an accounting of legal fees; failing to promptly
explain the amount and basis of legal fees charged; waiting two years
to communicate in writing the rate or basis of the legal fee; and failing
to state the method by which a contingency fee is to be determined while
representing a client in two employment matters. Rules 1.4(a), 1.4(b),
1.5(b), and 1.5(c).
The Office of Bar Counsel compiled the foregoing summaries of disciplinary
actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations
issued by the Board on Professional Responsibility are posted on the D.C.
Bar Web site at www.dcbar.org/discipline.
Most board recommendations as to discipline are not final until considered
by the court. Court opinions are printed in the Atlantic Reporter and
also are available online for decisions issued since August 1998. To obtain
a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/