American Law in the 20th Century

Friedman, Lawrence Meir

Pages: 735

Publisher: Yale University Press

Location: New Haven, CT, USA

Date Published: 02/2002

Language: en

LC Call Number: KF385.A4 -- F7 2002eb

eISBN: 9780300135022

pISBN: 9780300091373

Dewey Decimal Number: 349.73

OCLC Number: 182530281

Subjects: Law -- United States -- History -- 20th century.

The Old Order The Legal Profession in the Early Twentieth Century

At the turn of the century, according to the census, there were 108,000 lawyers and judges (almost all of them men) in the United States. ∞ We have considerable information about who the lawyers were, how they were organized, and the like— much less about what lawyers actually did. We do know that the bar was, then as now, highly stratified. At the top were the ‘‘Wall Street lawyers,’’ the good, gray, competent, conservative men who handled the affairs of big business. A few lawyers, also rich and powerful, worked for and represented the great corporations— especially the railroad giants. In the middle were ordinary lawyers, handling humdrum matters for small merchants, well-to-do citizens, and the like; these lawyers could be found in every city and town, and in every big-city neighborhood. At the bottom were marginal men, who eked out a living from scraps of work given out by courts, or bits of business from friends and neighbors. Socially if not economically at the lowest circle of the profession were the ‘‘ambulance chasers,’’ personal-injury lawyers who raced to the scene of accidents, or to hospital rooms, to sign up victims of crashes, smashes, explosions, and fires. They needed to be fast, to get to the victim before the company’s claims adjuster came with a sheaf of releases to sign. Among their clients, there were, of course, a large number of fakers— con artists who specialized in slipping on banana peels, or falling o√ trains, and the like; Irving Fuhr, who flourished in New York in the 1920s, was a ‘‘flopper,’’ a ‘‘specialist in vault-light, manhole cover, and cellar-door flops.’’ ≤ Sometimes, the lawyers who represented these hungry crooks were themselves hungry and unscrupulous men.

The ‘‘ambulance chaser’’ was, for the most part, a lawyer operating on his own; he stood right on the brink of disreputability, or in fact went over the edge. The Wall Street lawyer, on the other hand, was a member of a bright and shining elite. Unlike the personal-injury lawyer, the Wall Street lawyer tended more to work in a team: to be a member of a firm of lawyers— a partnership. Firm lawyers were still a small minority of the profession. In Philadelphia in 1905, there were about 1,900 lawyers (only three of them were women); and most of these lawyers were solo practitioners. There were fifty-five two-man partnerships, ten firms with three partners, and one with four. A few firms had between six and ten lawyers in their o≈ces, if you include juniors. ≥ Over the years, the firms grew in size. Ropes and Gray in Boston listed fourteen lawyers in 1930. ∂ In Houston, Vinson and Elkins, founded in 1917, had seventeen lawyers in 1929; thirteen of them were partners who shared in the profits. ∑

The biggest firms were in New York City. In 1931 Sullivan & Cromwell listed twenty-six ‘‘Partners and Principal Associates’’ in a firm that claimed to do business in New York, Paris, and Buenos Aires. ∏ As the firms got larger, they faced the problem of how to organize themselves. The method they came up with has often been called the ‘‘Cravath system,’’ after Paul Cravath, a partner in a Wall Street firm, who devised it and put it in place in his firm around the turn of the century. Before Cravath, law firms really had no organization; each partner worked more or less for himself, with the help of assistants or law students, who often got no money for their e√orts. Cravath tightened the system. Firm lawyers were divided into two classes, partners and associates. The associates were hired fresh out of law school and worked on a salary basis. Cravath hired only those he considered the best. A man with less than a B average at Harvard, he felt, ‘‘either had a mind not adapted to the law or lacked purpose and ambition.’’ It took plenty of purpose and ambition to make the grade at Cravath. Firm lawyers, like professors and army o≈cers, operated on an up-or-out system. They either ‘‘made partner’’ after a period of years (five or six, as a rule), or had to go seek their fortune somewhere else. π

This system caught on; it became the norm. It obviously suited the needs of the growing law firms. It spread beyond New York. For example, the partnership of Miller, Mack, and Fairchild, formed in Milwaukee in 1906, almost immediately began to imitate the Cravath system and ‘‘recruit associates from the leaders of law-school classes.’’ One of the first recruits was James B. Blake, a graduate of the University of Chicago Law School; he joined the firm in 1907 as an associate, and made partner in 1915.

∫ In the small towns, of course, lawyers worked on their own, or in little partnerships of two or three. Small-town lawyers were mostly in the general practice of law. In the directory listing for John N. Patterson, of Washington, Pennsylvania (1910), we read: ‘‘Land Titles Examined and Abstracts Furnished.’’ Many lawyers in smaller towns, like Francis C. Wilson of Santa Fe, New Mexico (1919), claimed a ‘‘General Practice in all State and Federal Courts.’’ They sometimes advertised that they had ‘‘notaries and stenographers in the office.’’ A lawyer of Des Moines, Iowa, James C. Hume, was ‘‘engaged in the general practice. This means that my services are at the disposal of any one who wants them.’’ Coffin & Rippey, also of Des Moines, boasted in the same year of an ‘‘efficient and well organized Commercial Department. Prompt, persistent, and personal attention given to collections.’’ In fact, collection work— mopping up debts and claims— was a staple of many practices. J. B. Larimer, of Topeka, promised good service to the ‘‘interests of Non-residents, Mortgage Foreclosures . . . and the Settlement of Estates,’’ all throughout Kansas. He had not only a stenographer and a typewriter but also ‘‘Long Distance Bell Telephone No. 1694.’’ Ω

Wall Street lawyers shunned the limelight; their personalities were dim and gray; they moved and worked within sanctuaries of wealth and prominence. They gained clients through networks, in country clubs, and by means of personal contacts. They were almost exclusively white Protestants. In the powerful railroad industry, the many small railroads had consolidated by 1900 into a handful of big interstate nets. The railroad companies had their general counsel— often a major outside law firm— but they also had local counsel as well. In the South, for example, there was a ‘‘three-tiered’’ system. A big road like the Southern Railway had an in-house general counsel, who was in charge of the legal problems of the whole system. Under his command were ‘‘district attorneys’’ in each state, who tried big cases and did some lobbying work in state legislatures. They also hired (and fired) local lawyers who represented the railroad in every dusty town and county seat along the road— defending the railroad, for example, against the dozens and dozens of lawsuits for personal injuries. ∞≠

The ordinary lawyer, the lawyer with ‘‘one-shot’’ clients, could not rely on contacts, or country clubs, or retainers from big business to put money in his pocket. These lawyers needed ways to advertise, to get their name across to potential clients. Hence they tended to be flamboyant, outrageous; these were the lawyers who did want their names in the paper, who did want or need notoriety. Some of them became almost legendary courtroom lawyers: men like Max Steuer of New York, or Samuel Leibowitz. Steuer (1870?–1940), the ‘‘greatest trial lawyer’’ of his time, was said to earn $1 million a year in his prime— an astronomical sum in those days. ∞∞ Leibowitz (1893– 1978) defended the Scottsboro boys— black youths accused of rape in a notorious trial— and later served on the bench.

But probably the most famous trial lawyer was Clarence Darrow (1857– 1938). ∞≤ A radical, a free thinker, often in trouble, a spellbinding orator, Darrow was involved in some of the most notorious trials of the century. Darrow defended the ‘‘Wobblies’’—the International Workers of the World— and other radicals, he took the case of the McNamara brothers, accused of dynamiting the plant of the Los Angeles Times in 1910, he argued against the death penalty for Loeb and Leopold in their sensational murder trial, and he battled with William Jennings Bryan in the famous Scopes ‘‘monkey trial.’’

Women and blacks continued to be rare beasts in the profession. By the end of the nineteenth century, women had been admitted to practice in the majority of the states. But never in any quantity. In Philadelphia, where, as we saw, there were three women lawyers in 1905, there were still only four women listed as practicing law in 1920. In that year Ada Lewis Sawyer became a member of the bar of Rhode Island— the first lawyer admitted to practice in that state. ∞≥ Theron Strong of New York City, writing his reminiscences in 1914, claimed he had ‘‘never yet seen a woman plead a case of any kind in court,’’ had only once even met a woman lawyer, and thought it was safe to say that ‘‘there is no prospect that woman will be seen except as a rara avis in the ranks of the legal fraternity.’’ A few women did get admitted to practice in New York, but (according to Strong), ‘‘having gained this right, little use is made of it.’’ ∞∂ Black lawyers were also uncommon— there were, according to the census, only 798 in the country in 1910; in Philadelphia, in 1910, there were thirteen black lawyers in practice, out of more than two thousand lawyers in the city.

Barriers against women and blacks were extremely high in the practice— the few who were admitted to the bar had virtually no hope of a job in a law firm. There were barriers, too, against Jews, at least in the larger firms. Felix Frankfurter complained in the 1920s that none of the ‘‘so-called desirable firms will take a Jew,’’ even with a Harvard degree. ∞∏ But Jewish lawyers were hardly uncommon. In New York City in the 1920s, there were almost as many Cohens and Cohns practicing law as there were Smiths. ∞π Jews flocked to the legal profession: they made up 26 percent of the freshly admitted lawyers in New York City between 1900 and 1910; and an amazing 80 percent between 1930 and 1934 (the percentage dropped somewhat in later years). ∞∫ In the big cities, there were Jewish law firms— Chicago’s Levinson, Becker, Schwartz, and Frank, for example, in the 1920s— just as there were Jewish clubs and Jewish fraternities; but mixing Jew and Gentile in one firm was fairly uncommon. It was an unusual event when Louis Weiss went into partnership in 1923 with a Protestant, John F. Wharton, to create a firm which was deliberately made up of Jews and nonJews. ∞Ω Jews were overrepresented among solo practitioners and lawyers with ‘‘one-shot’’ clients.

Bad as they were to women and minorities, the professions were a shade more open than the general business world; after all, a lawyer can always practice on her own. A case in point is Sadie Tabbler Massell Alexander (1898– 1989). She earned a Ph.D. from the Wharton School of the University of Pennsylvania, in 1921— apparently the first black woman in the United States to earn this degree. In the big world, she had two great strikes against her; and nobody was willing to give her a decent job. She turned to law as an alternative. In 1927 she became the first black woman to graduate from the University of Pennsylvania Law School, and the first black woman admitted to the Pennsylvania bar. She worked for the city of Philadelphia, as an assistant city solicitor, and then entered private practice with her husband. ≤≠