Washington Lawyer

Bar Counsel: Learning From Two Lincolns

From Washington Lawyer, April 2009

By Bill Ross

Illustration by Mick Wiggins

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 fall behind.
  • Discourage litigation. Persuade your neighbors to compromise whenever you can.
  • 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.[1] 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[2] frame a crucial social issue in such a way that the Massachusetts Supreme Judicial Court was able to determine that slavery was unconstitutional.[3]

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.

[1] The Massachusetts Constitution was ratified on June 15, 1780, nearly a decade before the U.S. Constitution went into effect.
[2] 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 [1] 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.”
[3] See The Massachusetts Constitution, Judicial Review and Slavery: The Quock Walker Case available at http:// www.mass.gov/courts/sjc/constitution-slavery-e.html.

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
Reciprocal Matters
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 fitness.

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.

Contempt Proceedings
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 1.5(b).

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/attorney-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/