From Buchanan to Button: Legal Ethics and the Naacp (Part II)

Susan Carle, American University Washington College of Law


This paper continues an inquiry I have undertaken into the relationship between the NAACP's public impact litigation strategies and traditional legal ethics norms. In an earlier paper, I investigated the legal ethics mind set of the members of the NAACP's first national legal committee, who oversaw the organization's legal work in the period between 1910 and 1920. This first article confined its examination to the NAACP's first decade of existence, but the NAACP's influence on the development of the ethical norms applying to public interest law practice by no means ends with this early period. The NAACP's legal wars with hostile southern states in the 1950s and 1960s culminated in the United States Supreme Court's important legal ethics decision in NAACP v. Button. That case essentially legalized the public impact litigation techniques that are at the core of U.S. conceptions of how to use law as an instrument for social change. This Article picks up where my earlier article left off and explores the transition from the early twentieth century legal ethics views of the NAACP's first national legal committee to the understanding of the relationship between legal ethics rules and public interest law reflected in Button. The transition from Buchanan to Button reflects one aspect of an enormously complicated story. One of many chapters of that story involved transformations in lawyers' conceptions of their ethical obligations. That is the aspect of the transition from Buchanan to Button I am interested in here. I undertake this inquiry by setting up two contrasts. First, in Part I, I compare snapshot views of two U.S. Supreme Court cases the NAACP litigated half a century apart, Buchanan v. Warley and NAACP v. Button. Second, in Part II, I contrast the biographies of two leading NAACP lawyers of different generations, Moorfield Storey and Charles Hamilton Houston. I examine the socially and historically situated perspectives of these two lawyers and analyze the complex interactions among a number of variables -- including race, social standing, insider versus outsider status in the profession, political conditions, and changing jurisprudential conceptions of the nature of legal representation -- that help account for their different approaches to the NAACP's legal ethics challenges during their respective generations. Finally, in Part III, I trace the development of the Supreme Court's legal ethics jurisprudence under Button and suggest the beginnings of a critical approach based on this analysis.