An Essay on Professional Ethics Second Edition — Themes and Context

The Lawyer’s Honor vs. the Fee-Bill

One of the most concrete debates in the essay concerns whether an attorney can sue for a fee beyond the statutory fee-bill. Sharswood recounts that in Pennsylvania, Chief Justice Tilghman had held that no recovery was allowed without an express promise, a policy Tilghman thought adopted with great consideration. Sharswood notes that this rule has since been overruled, and the current of decisions in sister states runs the other way. He presents the arguments against the ancient rule: that it is artificial, unjust, and inconsistent with equality to treat law as more honorable than other businesses. But he counters these as more plausible than sound. The real question, he insists, is what best secures a high-minded, honorable bar. A horde of pettifogging, money-making lawyers, he warns, is one of the greatest curses a community can suffer. He argues that stripping the bar of its character as a learned profession—on the principle that it is now a calling like any mechanical art—invites that curse.

The Client as Patron or Party?

Sharswood examines the shifting relationship between attorney and client. He quotes a court that effectively declared clients are now the patrons of their attorneys, a reversal of the older order. He finds this reasoning less persuasive than the concern that clients need protection from extortionate counsel. His preferred solution is not a legal remedy but an express agreement before retainer, or leaving the amount to the justice of the counsel and the honor and liberality of the client afterward. He observes that every judge who has tried a case between attorney and client has felt the delicacy of measuring just compensation. The value of services, he notes, depends on the nature of the business and the counsel’s standing for learning and skill—a question of fact for the jury in every suit. This, he implies, is an awkward and uncertain standard.

The American Bar Without Distinction

A structural feature of the American legal profession, as Sharswood describes it, is the absence of a formal distinction between attorneys and counsellors. In England, barristers were appointed by patent from the king and could not act as attorneys; serjeants held a monopoly in the Common Pleas. In the United States, the same persons fulfil both roles, and no difference is made in their right to recover compensation. This unification, Sharswood suggests, has implications for professional ethics. Without the English hierarchy, the American lawyer must embody both the advocate’s duty to the court and the attorney’s duty to the client. The essay does not explicitly resolve how these dual roles should be balanced, but the excerpts show Sharswood wrestling with the tension between the profession’s ancient dignity and the democratic pressures of the nineteenth century.

The Roman Jurisconsult as a Cautionary Image

Sharswood invokes the Roman jurisconsult—the patrician who received clients at daybreak and pronounced oracles of the law with mysterious brevity—as a foil to the modern lawyer. He quotes Horace’s phrase dulce diu fuit et solemne, reclusa Mane domo vigilare, clienti promere jura to evoke an idealized past. But he uses this image critically: it would be ridiculous, he says, to perpetuate a monstrous legal fiction by which hard-working lawyers toiling till midnight in their offices are regarded in the eye of the law as those ancient patricians. The passage reveals Sharswood’s method: he draws on classical and English legal history not to prescribe a return to older forms, but to test the arguments of his contemporaries. The Roman example, for him, underscores that the profession’s honor must be earned by conduct, not by fiction.

Readers approaching Sharswood’s essay for the first time will find that its arguments unfold through specific legal controversies—fee suits, the definition of the bar, the role of the client—rather than through abstract moralizing. The excerpts show a writer who engages directly with judicial opinions and legislative changes, and who expects his reader to follow legal reasoning. The essay rewards attention to its footnotes and citations, which anchor its claims in the case law of the mid-nineteenth century. A first reading may be best served by tracking how Sharswood uses each concrete dispute to defend the profession’s ethical core.