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The problem for lawyers lies, I think, within the reflexive response to a request for any advisory opinion: "It depends." The problem Mr. Hoffer raises is the attempt to impose an absolute ethical standard against historical contingency and context. In 1785 in Massachusetts, it was not a conflict of interest to provide a bond securing initial trial and later appeal costs for the opposing party in debt litigation and thus facilitating ongoing legal action against one's client. There probably were entirely justifiable reasons for such actions--the absence of a functioning bondsman industry for one; but I suspect these were not seen by clients with disinterest. Levi Lincoln, Jefferson's attorney general defended challenges to Massachusetts's Confiscation Statute while married to the daughter of one of Worcester's wealthiest Loyalist. Lincoln subsequently owned the confiscated estate through his wife. Theodore Sedgwick, future Speaker of the House and Senator, was Massachusetts's Commissary General during the War but remained in close contact with the Van Schaack family who advised him to sell wheat short when they heard the British were about to leave New York. Rather than being amoral, I submit, lawyers' ethics revolve around the absolutism of their training. Bob Cover wrote about this with regard to Abolition judges who could not find in the law to decide cases that could have tilted the rules of decision towards the freeing of people in bondage. Lawyers compartmentalize so the the zealous advocate in one instance can be the officer of the court in the next. The circumstances for deciding when one set of rules applied should be familiar to every historian: the contingencies of time and circumstance. Jonathan Chu
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